Van Lith v. IHeartmedia + Entertainment, Inc., et al.
ORDER GRANTING Motion for Preliminary Approval of Class Action Settlement and Provisional Certification 34 . A hearing regarding final certification of the class and final approval of the settlement is set for 9/20/2017, at 09:30 AM in Courtroom 7 (SKO) before Magistrate Judge Sheila K. Oberto. Order signed by Magistrate Judge Sheila K. Oberto on 3/20/2017. (Timken, A)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
Case No. 1:16-cv-00066-SKO
KARL VAN LITH,
ORDER GRANTING MOTION FOR
PRELIMINARY APPROVAL OF CLASS
ACTION SETTLEMENT AND
iHEARTMEDIA + ENTERTAINMENT,
INC., et al.,
Before the Court is Plaintiff’s Motion for Preliminary Approval of Class Action Settlement
19 and Provisional Certification of the Class (the “Motion”). (Doc. 34.) For the reasons provided
20 herein, the Court GRANTS this Motion. (Id.)
The class-related claims in this matter arise out of wage statements Defendants provided to
23 Plaintiff and the proposed class members―who are employees of Defendants―which Plaintiff
24 alleges contained inaccurate information.
Plaintiff filed the currently operative Second Amended Class Action and Individual
27 Complaint (the “Complaint”) on August 19, 2016.
(Doc. 28 at 1–22.)
The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 40–42.)
In addition to the
1 allegations relating solely to Plaintiff, the Complaint also includes California Private Attorney
2 General Act (“PAGA”) allegations and class action allegations. (See id. ¶¶ 40–58.)
The Complaint includes the following two claims against all Defendants on behalf of the
4 proposed class: (1) First Cause of Action―failure to furnish accurate wage statements in violation
5 of California Labor Code Section 226(a); and (2) Second Cause of Action―failure to maintain
6 accurate wage statements in violation of California Labor Code Section 226(a). (Id. ¶¶ 59–68.)
7 The Complaint also includes the following six claims against all Defendants on behalf of only
8 Plaintiff: (1) Third Cause of Action―failure to pay overtime in violation of California Labor Code
9 Sections 510 and 1198, as well as “the applicable IWC Wage Order(s);” (2) Fourth Cause of
10 Action―failure to pay minimum wage in violation of California Labor Code Section 1197; (3)
11 Fifth Cause of Action―failure to provide rest breaks in violation of California Labor Code
12 Section 226.7 and “[t]he applicable Wage Order(s);” (4) Sixth Cause of Action―failure to provide
13 meal breaks in violation of California Labor Code Sections 226.7 and 512(a), as well as “the
14 applicable Wage Order(s);” (5) Seventh Cause of Action―failure to timely pay wages in violation
15 of California Labor Code Section 204; and (6) Eighth Cause of Action―failure to pay wages upon
16 cessation of employment in violation of California Labor Code Section 203. (Id. ¶¶ 69–100.)
The Complaint includes the following requests for relief as to the class action claims: (1)
18 certification of the class; (2) certification of Plaintiff as the class representative; (3) injunctive
19 relief pursuant to California Labor Code Section 226(h); (4) civil and statutory penalties,
20 “including those available under [California] Labor Code [S]ections 226 and 2699(f);” (5)
21 prejudgment and post-judgment interest; and (6) statutory attorneys’ fees and costs. (Id. at 21.)
22 As to Plaintiff’s individual claims, the Complaint includes the following requests for relief: (1)
23 “compensatory, special, and general damages, including lost wages and related benefits;” (2)
24 “statutory penalties, including those available under [California] Labor Code [S]ections 203,
25 226.7.1194, and 1194.2;” (3) prejudgment and post-judgment interest; and (4) statutory attorneys’
26 fees and costs. (Id. at 21–22.)
Plaintiff filed the Motion on December 22, 2016. (Doc. 34.) In his briefing pertaining to
2 the Motion, Plaintiff represents that Defendants do not oppose the Motion. (Id., Ex. 1 at 8.)
3 Defendants have not filed an opposition to the Motion to date.
Plaintiff requests the following extensive relief in the Motion: (1) preliminary and
5 conditional certification of the proposed class; (2) preliminary approval of Plaintiff as the class
6 representative; (3) preliminary approval of Plaintiff’s counsel as class counsel; (4) preliminary
7 approval of the proposed settlement agreement as “fair, reasonable and adequate;” (5) approval of
8 the proposed notice to the class members; (6) approval of “the method of notice;” (7) authorization
9 to “disseminat[e]” the proposed notice; (8) appointment and approval of Rust Consulting as the
10 claims administrator; (9) preliminary approval of the payment pertaining to the PAGA claims to
11 the California Labor Workforce Development Agency (the “CLWDA”); (10) preliminary approval
12 of the requested service fee for Plaintiff; (11) preliminary approval of the requested attorneys’ fees
13 and costs for the proposed class counsel; (12) “a schedule for the implementation of the terms of
14 the [proposed settlement agreement], including deadlines for the mailing [of] the [notice to class
15 members], the filing of objections and [o]pt-[o]outs, and the filing of papers in connection with the
16 [f]inal [a]pproval [h]earing;” and (13) a date for the final approval hearing. (Id. at 27.)
The Proposed Settlement Agreement
Plaintiff filed the relevant Joint Stipulation re: Class Action Settlement and Release (the
19 “Proposed Settlement Agreement”) on February 22, 2017.2 (Doc. 49.) The Proposed Settlement
20 Agreement provides the following pertinent definitions:
On January 25, 2017, the Court held a telephonic hearing regarding the Motion, in which it directed Plaintiff to file
23 additional briefing regarding the Motion and a revised proposed settlement agreement and proposed notice to class
members. (Docs. 38 & 39.) Plaintiff filed the additional briefing and documents on January 31, 2017. (Doc. 44; id.,
24 Ex. A.)
By its order entered on February 7, 2017, the Court ordered Plaintiff to (1) either file briefing addressing why
25 a certain release provision in the proposed settlement agreement was “not overbroad,” or an amended proposed
settlement agreement and notice to class members; and (2) file “an amended notice to the proposed class describing
the class claims in plain, easily understood language.” (Doc. 45 at 3.) In response, Plaintiff filed an amended
proposed settlement agreement and proposed notice to class members. (Doc. 46, id., Ex. A.)
On February 17, 2017, the Court held a telephonic conference with the parties regarding the Court’s
remaining concerns as to some release provisions in the proposed settlement agreement, as well as the description of
the class claims in the proposed notice to class members. (Doc. 48.) Plaintiff then filed the Proposed Settlement
Agreement on February 22, 2017. (Doc. 49.)
“Class Counsel Costs Payment” means the expenses and costs incurred by
Class Counsel for Class Counsel’s litigation and resolution of this Action, as
approved by the Court, which may not exceed Five Thousand Dollars ($5,000).
“Class Counsel Fees Payment” means the attorneys’ fees for Class
Counsel’s litigation and resolution of this Action, as approved by the Court, which
may not exceed Eighty-Five Thousand and Five Hundred Dollars ($85,500).
“Class Members” mean all persons employed by Defendants in the State of
California during the Class Period who have not signed an individual settlement
agreement as of the date of entry of the Court’s Preliminary Approval Order. These
individuals are members of the class to be conditionally certified by the Court
pursuant to this Settlement and will remain members of the Class if they do not
properly elect to exclude themselves from this Settlement, pursuant to the terms of
this Settlement Agreement.
“Class Period” means the period from December 7, 2014 through and
including the Preliminary Approval Date.
1.10 “Defendants” means iHeartMedia + Entertainment, Inc. and Capstar Radio
Operating Company and iHeartMedia, Inc.
1.15 “Individual Settlement Payment” means the amount payable from the Net
Distribution Fund to each Class Member who does not submit a timely and valid
[r]equest for [e]xclusion. The Individual Settlement Payment shall be calculated
pursuant to Paragraph 3.5.4 herein and each Class Member will receive at least $25,
which is the minimum payment.
1.16 “Net Distribution Fund” means the Total Settlement Amount, less the
amount that the Court approves for the PAGA Payment, Plaintiff’s Service
Payment, Plaintiff’s Settlement Payment, the Class Counsel Fees Payment, the
Class Counsel Costs Payment, and Settlement Administrator Costs. This amount is
estimated at One Hundred Seventy-One Thousand, Five Hundred Dollars
Finally, on March 15, 2017, the Court noted in a communication with the parties that there was a conflict
between the proposed settlement agreement and proposed notice to class members as to the description of the class.
In response, Plaintiff filed the current proposed notice to the class members on March 16, 2017. (See Doc. 50.)
1.19 “PAGA Payment” means the portion of the Total Settlement Amount that is
allocated to the PAGA Claims as civil penalties, pursuant to California Labor Code
section 2698 et seq, and as approved by the Court. The PAGA Payment is Ten
Thousand Dollars ($10,000), seventy-five percent (75%) of which (i.e. $7,500) will
be remitted to the [CLWDA] and twenty-five percent (25%) of which (i.e. $2,500)
will be distributed to Class Members as part of the Net Distribution Fund.
1.20 “Settled PAGA Claims” means the claims for civil penalties that Plaintiff
has settled on behalf of himself and all of Defendants’ other current and former
employees in the state of California under the Labor Code Private Attorneys
General Act of 2004 in exchange for the consideration provided by this Settlement
Agreement. The Settled PAGA Claims include: the right to pursue and/or ability to
collect civil money penalties under the PAGA for alleged violations of Labor Code
sections 201, 202, 203, 204, 226, 226.7, 510, 512, 558 and 1198.5, including any
claim for attorney’s fees and costs. The Settled PAGA Claims do not include other
potential claims that may arise under Labor Code sections 201, 202, 203, 204,
226.7, 510, 512, 558 and 1198.5.
1.25 “Preliminary Approval Order” means the Court’s entry of a Preliminary
Approval Order preliminarily approving this Settlement . . . .
1.26 “Released Class Claims” means the claims that Plaintiff and Class Members
are fully releasing in exchange for the consideration provided by this Settlement
Agreement. The Released Claims include all liabilities and causes of action of
every nature and description, whether known or unknown, actually alleged in the
Action, or that could have been alleged in the Action based on the allegations in the
Second Amended Complaint, related in any way to the wage statements that
allegedly failed to comply with Labor Code section 226(a), including claims for
statutory penalties and civil penalties, as well as damages, interest and attorney’s
fees and costs.
1.27 “Released Parties” means Defendants and their past, present and/or future,
direct and/or indirect parent companies, subsidiaries, affiliates, related entities,
divisions and each of their respective officers, directors, managers, members, heirs,
employees, agents, representatives, attorneys, insurers, partners, investors,
shareholders, predecessors, successors, and/or assigns.
1.30 “Service Payment” means the amount that the Court approves to be paid to
[Plaintiff], for his efforts in assisting with the prosecution of the Action and as
consideration for executing this Settlement Agreement and releasing his claims
against Defendants in an amount not to exceed Three Thousand Dollars ($3,000).
1.31 “Settlement” or “Settlement Agreement” means the disposition of the
Action pursuant to this [Proposed Settlement Agreement].
1.32 “Settlement Administration Costs” means the costs incurred by the
Settlement Administrator and approved by the Court from the Total Settlement
Amount. Such Settlement Administration Costs may not exceed Fifteen Thousand
1.35 “Total Settlement Amount” means Three Hundred Thousand Dollars
($300,000), which is the maximum amount that Defendants are obligated to pay
under this Settlement Agreement in order to resolve and settle this Action, subject
to the Court’s approval.
(Doc. 49 at 3–7.)
Under the terms of the Proposed Settlement Agreement, the Total Settlement Amount of
$300,000 is “the maximum amount payable by Defendants.” (Id. ¶ 3.1.) This is the total amount
payable by Defendants under the Proposed Settlement Agreement to resolve all claims, payments,
fees, and costs. (See id.)
As to the payments for each individual class member, the Proposed Settlement Agreement
provides that Individual Settlement Payments “will be paid from the Net Distribution Fund and
shall be calculated pursuant to Paragraph 3.5.4 herein.” (Id. ¶ 3.5.3.) Paragraph 3.5.4, in turn,
provides the following as to the calculation of the Individual Settlement Payments:
All Class Members who do not submit a valid and timely [r]equest for [e]xclusion
will receive an Individual Settlement Payment which will be at least $25. The
amount of the Individual Settlement Payment will be calculated by assigning a
dollar value to each pay period worked by all Class Members during the Class
Period (who do not submit a timely and valid [r]equest for [e]xclusion from the
Settlement), as determined from Class Members’ hire, transfer, and termination
dates, and payroll/time data found in Defendants’ records. More specifically, the
dollar value of each pay period will be calculated by dividing the Net Distribution
Fund by the total number of pay periods worked by Class Members during the
Class Period (rounded up). If a Class Member’s Individual Payment is less than
$25 than that individual will be paid at least $25. Each Class Member’s Individual
Settlement Payment will then be determined by multiplying the total number of pay
periods the Class Member worked during the Class Period (rounded up) by the
dollar value of each pay period (which will be adjusted depending on the number of
(Id. ¶ 3.5.4.)
The Proposed Settlement Agreement also provides the following as to attorneys’ fees and
costs for the class counsel:
Defendants agree to take no position regarding any application or motion by Class
Counsel for attorneys’ fees not to exceed Eighty-Five Thousand Five-Hundred
Dollars ($85,500). Defendants further agree not to take a position regarding any
application or motion by Class Counsel for Attorneys’ costs not to exceed Five
Thousand Hundred [sic] Dollars ($5,000). . . . This Settlement is not contingent
upon the Court approving Class Counsel any particular amount in attorneys’ fees
and costs. In the event that the Court approves less than the full amount requested
for the Class Counsel Fees Payment and Class Counsel Costs Payment, the unapproved amount will be made available for distribution to Class Members as part
of the Net Distribution Fund.
7 (Id. ¶ 3.5.9.)
Finally, the Proposed Settlement Agreement provides that the parties “stipulate and agree
9 to the certification of this [class action] for purposes of [s]ettlement only.” (Id. ¶ 2.2) The
10 Proposed Settlement Agreement further states that, “[s]hould the [s]ettlement not become final and
11 effective as herein provided, class certification shall immediately be set aside (subject to further
12 proceedings on motion of any [p]arty to certify or deny certification thereafter).” (Id.)
Federal Rule of Civil Procedure 23(e) provides that “[t]he claims, issues, or defenses of a
15 certified class may be settled, voluntarily dismissed, or compromised only with the court’s
16 approval.” “The Ninth Circuit has declared that a strong judicial policy favors settlement of class
17 actions.” Alberto v. GMRI, Inc., 252 F.R.D. 652, 658 (E.D. Cal. 2008) (citing Class Plaintiffs v.
18 City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992)).
“Procedurally, the approval of a class action settlement takes place in two stages.” Id. “In
20 the first stage of the approval process, ‘the court preliminarily approve[s] the [s]ettlement pending
21 a fairness hearing, temporarily certifie[s] the [c]lass . . . , and authorize[s] notice to be given to the
22 [c]lass.’” Id. at 658–59 (quoting West v. Circle K Stores, Inc., No. 040438, 2006 WL 1652598, at
23 *2 (E.D. Cal. June 13, 2006)); see, e.g., Vu v. Fashion Inst. of Design & Merch., CASE NO.: CV
24 14-08822 SJO (Ex), 2016 WL 6211308, at *2 (C.D. Cal. Mar. 22, 2016) (“Approval under [Rule]
25 23(e) involves a two-step process in which the Court first determines whether a proposed class
26 action settlement deserves preliminary approval and then, after notice is given to class members,
27 whether final approval is warranted.” (alteration in original) (quoting Nat’l Rural Telecomms.
28 Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 525 (C.D. Cal. 2004))). At this first stage, the court
1 “‘determine[s] whether a proposed class action settlement deserves preliminary approval’ and
2 lay[s] the ground work for a future fairness hearing.” Alberto, 252 F.R.D. at 659 (quoting Nat’l
3 Rural Telecomms. Coop., 221 F.R.D. at 525).
The second stage―the fairness hearing―occurs “after notice is given to putative class
5 members.” Id. At this hearing, “the court . . . entertain[s] any . . . objections” from the putative
6 class members as to “(1) the treatment of th[e] litigation as a class action and/or (2) the terms of
7 the settlement.” Id. (citing Diaz v. Tr. Territory of Pac. Islands, 876 F.2d 1401, 1408 (9th Cir.
8 1989)). “Following the fairness hearing, the court . . . make[s] a final determination as to whether
9 the parties should be allowed to settle the class action pursuant to the terms agreed upon.” Id.
10 (citing Nat’l Rural Telecomms. Coop., 221 F.R.D. at 525).
The present preliminary approval stage requires two separate inquiries “where, as here,
12 ‘parties reach a settlement agreement prior to class certification.’” Id. at 658 (quoting Staton v.
13 Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003)). Specifically, “courts must peruse the proposed
14 compromise to ratify both  the propriety of the certification and  the fairness of the
15 settlement.” Id. (alterations in original) (quoting Staton, 327 F.3d at 952). The Court shall
16 address both inquiries, in turn.
In the Motion, Plaintiff first requests preliminary and conditional certification of the
19 proposed class. (See Doc. 34, Ex. 1 at 14–17.) For the reasons that follow, the Court finds that
20 preliminary certification of the class is appropriate.
Overview of Analysis
“The class action is ‘an exception to the usual rule that litigation is conducted by and on
23 behalf of the individual named parties only.’” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348
24 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979)).
“To be eligible for
25 certification, the proposed class must be ‘precise, objective, and presently ascertainable.’” Pointer
26 v. Bank of Am. Nat’l Assoc., No. 2:14-cv-00525-KJM-CKD, 2016 WL 696582, at *3 (E.D. Cal.
27 Feb. 22, 2016) (quoting Williams v. Oberon Media, Inc., No. 09-8764, 2010 WL 8453723, at *2
28 (C.D. Cal. Apr. 19, 2010)).
Further, “[i]n order to justify” use of the class action device, “‘a class representative must
2 be part of the class and possess the same interest and suffer the same injury as the class
3 members.’” Wal-Mart Stores, Inc., 564 U.S. at 348–49 (quoting E. Tex. Motor Freight Sys., Inc.
4 v. Rodriguez, 431 U.S. 395, 403 (1977)). Federal Rule of Civil Procedure 23(a) “ensures that the
5 named plaintiffs are appropriate representatives of the class whose claims they wish to litigate.”
6 Id. at 349. “Although the parties in this case have stipulated a settlement class exists” solely for
7 purposes of settlement, “the court must nevertheless undertake the Rule 23 inquiry independently,
8 both at this stage and at the later fairness hearing.” Pointer, 2016 WL 696582, at *3 (citing West
9 v. Circle K Stores, Inc., No. 04-0438, 2006 WL 1652598, at *1–2 (E.D. Cal. June 13, 2006)).
Rule 23(a) provides “four threshold requirements applicable to all class actions”: (1)
11 “numerosity (a ‘class [so large] that joinder of all members is impracticable’);” (2) “commonality
12 (‘questions of law or fact common to the class’);” (3) “typicality (named parties’ claims or
13 defenses ‘are typical . . . of the class’);” and (4) “adequacy of representation (representatives ‘will
14 fairly and adequately protect the interests of the class’).” Amchem Prods., Inc. v. Windsor, 521
15 U.S. 591, 613 (1997) (quoting Fed. R. Civ. P. 23(a)). “In addition to satisfying Rule 23(a)’s
16 prerequisites, parties seeking class certification must show that the action is maintainable under
17 Rule 23(b)(1), (2), or (3).” Id. at 614. “The parties cannot ‘agree to certify a class that leaves any
18 one requirement unfulfilled,’ and consequently the court cannot blindly rely on the fact that the
19 parties have stipulated that a class exists for purposes of settlement.” Alberto, 252 F.R.D. at 658
20 (quoting Berry v. Baca, No. 01–02069, 2005 WL 1030248, at *7 (C.D. Cal. May 2, 2005)).
As to the appropriate level of scrutiny at this preliminary stage, “[f]ederal courts have not
22 provided consistent guidance on the specific Rule 23 standard a plaintiff must satisfy.” Dearaujo
23 v. Regis Corp., Nos. 2:14-cv-01408-KJM-AC, 2:14-cv-01411-KJM-AC, 2016 WL 3549473, at *6
24 (E.D. Cal. June 30, 2016). On the one hand, the Supreme Court noted that “[s]ettlement, though a
25 relevant factor, does not inevitably signal that class-action certification should be granted more
26 readily than it would be were the case to be litigated.” Amchem Prods., Inc., 521 U.S. at 620 n.16.
27 Indeed, “proposed settlement classes sometimes warrant more, not less, caution on the question of
As such, a court “[c]onfronted with a request for settlement-only class
1 certification” should pay “undiluted, even heightened, attention” to the class action requirements,
2 as “a court asked to certify a settlement class will lack the opportunity, present when a case is
3 litigated, to adjust the class, informed by the proceedings as they unfold.” Id. at 620.
Nonetheless, “despite the Supreme Court’s cautions in Amchem . . . , a cursory approach
5 appears the norm” when courts address “motion[s] for preliminary approval.” Dearaujo, 2016
6 WL 3549473, at *6; see, e.g., Newberg on Class Actions § 11:28 (4th ed.) (“Since Amchem,
7 approval of settlement classes is generally routine and courts are fairly forgiving of problems that
8 might hinder class certification were the case not to be settled.” (collecting cases)). Given this
9 apparent discrepancy, another court in this District recently provided the following excellent
10 discussion regarding a practical approach at the preliminary approval stage:
To look at the question of an appropriate standard from a practical point of view, if
a district court concludes a class may be certified, even conditionally or
preliminarily, and if the parties' proposed agreement is fair upon preliminary
review, notice will be sent to potential class members. The danger of an incorrect
decision on a motion for preliminary approval and certification is therefore the risk
of unnecessary or erroneous class notice: confusion and waste. If the class is
eventually not certified, the previously sent notice will have been a waste, or if the
class is later redefined, a revised notice must be sent, which may confuse potential
class members. . . . For these reasons, [the plaintiffs should] bear the burden of
persuasion that class notice will not lead to confusion or waste.
18 Dearaujo, 2016 WL 3549473, at *6 (citations omitted).
The Court finds that this practical approach is persuasive, as it avoids the needless
20 expenditure of resources by the parties and respects the parties’ desire to settle this litigation at an
21 early stage.
Of course, at the final certification stage, Plaintiff must comply with the full
22 requirements of Rule 23. See, e.g., Taylor v. Fedex Freight, Inc., No. 13–cv–1137–LJO–BAM,
23 2015 WL 2358248, at *5 (E.D. Cal. May 15, 2015) (“[A]ctual, not presumed, conformance with
24 Rule 23(a) remains . . . indispensable.” (alterations in original) (quoting Gen. Tel. Co. of Sw. v.
25 Falcon, 457 U.S. 147, 160 (1982))).
Specifically, he “must affirmatively demonstrate his
26 compliance with the Rule” and “be prepared to prove that there are in fact sufficiently numerous
27 parties, common questions of law or fact, etc.” Wal-Mart Stores, Inc., 564 U.S. at 350. However,
1 at that juncture, Plaintiff will have the added insight gained by locating potential class members
2 and providing those members an opportunity to opt-out of the litigation or object to the settlement.
For these reasons, the Court finds that Plaintiff carries the burden at this early stage to
4 show that preliminary approval of the class―and the ensuing notice to the proposed class―will
5 not lead to confusion or waste. See Dearaujo, 2016 WL 3549473, at *6; cf. Just Film, Inc. v.
6 Buono, 847 F.3d 1108, 1115 (9th Cir. 2017) (“The party seeking class certification bears the
7 burden of demonstrating that the class meets the requirements of Federal Rule of Civil Procedure
8 23.” (citing Mazza v. Am. Honda Motor Co., 666 F.3d 581, 588 (9th Cir. 2012))); Mitchinson v.
9 Love’s Travel Stops & Country Stores, Inc., No. 1:15-cv-01474-DAD-BAM, 2016 WL 7426115,
10 at *4 (E.D. Cal. Dec. 22, 2016) (“On a motion for preliminary approval, plaintiff bears the burden
11 of persuasion that the proposed class satisfies [the] Rule 23 requirements.”). The Court now turns
12 to each of the requirements for class certification.
Existence of a Class
“To be eligible for certification,” Plaintiff must first show that “the proposed class . . .
15 exist[s]: it must be ‘precise, objective, and presently ascertainable.’” Pena v. Taylor Farms Pac.,
16 Inc., 305 F.R.D. 197, 206 (E.D. Cal. 2015) (quoting Williams v. Oberon Media, Inc., No. 09-8764,
17 2010 WL 8453723, at *2 (C.D. Cal. Apr. 19, 2010)). “The proposed class definition need not
18 identify every potential class member from the very start.” Id. (citations omitted). Instead, “[a]n
19 adequate class definition specifies ‘a distinct group of plaintiffs whose members [can] be
20 identified with particularity.’” Campbell v. PricewaterhouseCoopers, LLP, 253 F.R.D. 586, 593
21 (E.D. Cal. 2008) (quoting Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir.
22 1978)). “The requirement is a practical one” and “is meant to ensure the proposed class definition
23 will allow the court to efficiently and objectively ascertain whether a particular person is a class
24 member, for example, so that each putative class member can receive notice.” Pena, 305 F.R.D.
25 at 206 (citations omitted).
Here, the Proposed Settlement Agreement provides the following definition of the
27 proposed class:
“Class Members” mean all persons employed by Defendants in the State of
California during the Class Period who have not signed an individual settlement
agreement as of the date of entry of the Court’s Preliminary Approval Order. These
individuals are members of the class to be conditionally certified by the Court
pursuant to this [Proposed Settlement Agreement] and will remain members of the
[c]lass if they do not properly elect to exclude themselves from this [s]ettlement,
pursuant to the terms of this [Proposed Settlement Agreement].
5 (Doc. 49 ¶ 1.6; see also id. ¶ 1.7 (stating that the term “‘Class Period’ means the period from
6 December 7, 2014 through and including the” date of this Order); id. ¶ 1.10 (defining the term
7 “Defendants” as including all three Defendants in this action).)3
This definition adequately
8 identifies a distinct and presently ascertainable group of people. The Court therefore finds that
9 Plaintiff has satisfied the requirement pertaining to the existence of a class. Cf., Campbell, 253
10 F.R.D. at 593 (“The class definition should . . . provide the court with objective criteria to discern
11 the class’s members.” (citation omitted)).
“To meet the numerosity requirement of Rule 23(a), a class must be ‘so numerous that
14 joinder of all members is impracticable.’” Scott-George v. PVH Corp., No. 2:13-cv-00441-TLN15 DAD, 2015 WL 7353928, at *3 (E.D. Cal. Nov. 20, 2015) (quoting Fed. R. Civ. P. 23(a)(1)). This
16 impracticability requirement “does not equate to impossible.” Campbell, 253 F.R.D. at 594
17 (citations omitted). Instead, this requirement “means only that the court must find that the
18 difficulty or inconvenience of joining all members of the class makes class litigation desirable.”
19 McKeen-Chaplin v. Provident Sav. Bank, FSB, No. 2:12–cv–03035–GEB–JFM, 2013 WL
20 4056285, at *4 (E.D. Cal. Aug. 12, 2013) (quoting In re Itel Sec. Litig., 89 F.R.D. 104, 112 (N.D.
21 Cal. 1981)).
The Court notes that the parties have provided differing definitions regarding the scope of the class during this case.
23 Specifically, the definition of the proposed class in the Complaint cuts off the class as those employed up to “the date
of final judgment,” (Doc. 28 ¶ 48), whereas the definitions in the Motion and the Proposed Settlement Agreement
24 provide a cut-off at the preliminary approval date, (Doc. 34, Ex. 1 at 11; Doc. 49 ¶¶ 1.6 & 1.7). Additionally, the
definitions in the Complaint and the Motion include employees of all three Defendants, (Doc. 28 ¶ 48; Doc. 34, Ex. 1
25 at 11), whereas the definition in the parties’ previously submitted proposed settlement agreement included the
employees of only two Defendants―Defendants iHeartMedia + Entertainment, Inc. and Capstar Radio Operating
Co.―and not the employees of Defendant iHeartMedia, Inc., (see Doc. 34, Ex. 2 at 7–8).
Following several inquiries from the Court, the parties have now clarified that (1) the proposed class includes
the employees of all three Defendants, and (2) the cut-off for the proposed class is the date of this Order, rather than
the date of final judgment. (See, e.g., Doc. 49 ¶ 1.6; Doc. 50 at 1–2.) The Court therefore finds that these
discrepancies have been resolved and shall proceed with this analysis based on the definition of the proposed class
provided in the Proposed Settlement Agreement.
“The numerosity requirement includes no specific numerical threshold” and “[t]he [c]ourt
2 must examine the specific facts of each case.” Andrews Farms v. Calcot, Ltd., 258 F.R.D. 640,
3 651 (E.D. Cal. 2009) (citing Gen. Tel. Co. v. E.E.O.C., 446 U.S. 318, 330 (1980)). “Although
4 impracticability does not hinge only on the number of members in the putative class, joinder is
5 usually impracticable if a class is ‘large in numbers.’” Campbell, 253 F.R.D. at 594 (quoting
6 Jordan v. L.A. Cty., 669 F.2d 1311, 1319 (9th Cir. 1982)). Indeed, “[c]ourts have routinely found
7 the numerosity requirement satisfied when the class comprises 40 or more members.” McKeen8 Chaplin, 2013 WL 4056285, at *4 (quoting Collins v. Cargill Meat Sols. Corp., 274 F.R.D. 294,
9 300 (E.D. Cal. 2011)); see, e.g., Andrews Farms, 258 F.R.D. at 651 (“Generally, 40 or more
10 members will satisfy the numerosity requirement.” (citing Consol. Rail Corp. v. Town of Hyde
11 Park, 47 F.3d 473, 483 (2d Cir. 1995))); cf. Campbell, 253 F.R.D. at 594 (“While there is no set
12 number of members required, courts have generally found classes numbering in the hundreds to be
13 sufficient to satisfy the numerosity requirement.” (citations omitted)).
In the present case, the proposed class would include all employees of Defendants in the
15 State of California from December 7, 2014 through and including the date of this Order “who have
16 not signed” a separate “individual settlement agreement.” (Doc. 49 ¶ 1.6.) Plaintiff estimates that
17 the class will consist of 477 members. (Doc. 34, Ex. 1 at 16.) The Court finds that this potential
18 class size satisfies the numerosity requirement. See, e.g., Mitchinson v. Love’s Travel Stops &
19 Country Stores, Inc., No. 1:15-cv-01474, 2016 WL 7426115, at *4 (E.D. Cal. Dec. 22, 2016)
20 (finding “that [a] potential class consist[ing] of 430 members” was “sufficient to satisfy the
21 numerosity requirement of Rule 23(a)(1)”).
“To meet the commonality requirement, there must be ‘questions of law or fact common to
24 the class.’”
Scott-George, No. 2015 WL 7353928, at *4 (citing Fed. R. Civ. P. 23(a)).
25 “Commonality requires the plaintiff to demonstrate that the class members have suffered the same
26 injury,” and “not . . . merely that they have all suffered a violation of the same provision of law.”
27 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349–50 (2011) (citation omitted).
28 obviously, the mere claim by employees of the same company that they have suffered” an injury
1 that falls under a particular statute “gives no cause to believe that all their claims can productively
2 be litigated at once.” Id. at 350. Instead, “[t]heir claims must depend upon a common contention”
3 that is “of such a nature that it is capable of classwide resolution―which means that determination
4 of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in
5 one stroke.” Id. Thus, “[w]hat matters to class certification . . . is not the raising of common
6 questions―even in droves―but, rather the capacity of a classwide proceeding to generate
7 common answers apt to drive the resolution of the litigation.” Id. (second and third alterations in
8 original) (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84
9 N.Y.U. L. Rev. 97, 132 (2009)).
Nonetheless, “Plaintiffs need not show that every question in the case, or even a
11 preponderance of questions, is capable of classwide resolution.” Wang v. Chinese Daily News,
12 Inc., 737 F.3d 538, 544 (9th Cir. 2013). “So long as there is ‘even a single common question,’ a
13 would-be class can satisfy the commonality requirement of Rule 23(a)(2).” Id. (quoting Wal-Mart
14 Stores, Inc., 564 U.S. at 359).
Here, Plaintiff’s claims include a central nucleus of fact and law to those of the potential
16 class members. Namely, the resolution of Plaintiff’s claims will include determinations as to (1)
17 “[w]hether Defendants furnished wage statements containing the name of the legal entity that is
18 the employer as required by Labor Code section 226(a)(8);” and (2) “[w]hether Defendants
19 maintained wage statements containing all of the information required by Labor Code section
20 226(a).” (Doc. 28 ¶ 52.) Like Plaintiff, the proposed class members are employees of Defendants
21 who received wage statements from these entities. (See, e.g., id. ¶ 63 & 67.) As such, they would
22 similarly be impacted by these purported practices or failures by Defendants. Thus, there is at
23 least a single common question between Plaintiff and the proposed class members that will be
24 resolved by this litigation. The Court therefore finds that, at this preliminary stage, these common
25 questions and answers satisfy the commonality requirement. See, e.g., Taylor v. Fedex Freight,
26 Inc., No. 13–cv–1137–LJO–BAM, 2015 WL 2358248, at *7 (E.D. Cal. May 15, 2015) (finding
27 “that the commonality requirement [was] satisfied . . . because [the plaintiff] challenge[d] uniform
28 policies and systemic practices that apply uniformly to this class of employees”).
“Typicality requires that ‘the claims or defenses of the representative parties are typical of
3 the claims or defenses of the class.’” Campbell v. PricewaterhouseCoopers, LLP, 253 F.R.D. 586,
4 595 (E.D. Cal. 2008) (quoting Fed. R. Civ. P. 23(a)(3)).
“The purpose of the typicality
5 requirement is to assure that the interest of the named representative aligns with the interests of the
6 class.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (citation omitted).
7 “Typicality refers to the nature of the claim or defense of the class representative, and not to the
8 specific facts from which it arose or the relief sought.” Id. (citation omitted).
“For typicality to be met, plaintiffs need not possess identical claims to those of the
10 putative class members.” Campbell, 253 F.R.D. at 595 (citing Hanlon v. Chrysler Corp., 150 F.3d
11 1011, 1019 (9th Cir. 1998)).
Instead, “[u]nder [Rule 23(a)(3)’s] permissive standards,
12 representative claims are ‘typical’ if they are reasonably co-extensive with those of absent class
13 members.” Hanlon, 150 F.3d at 1020. “The test of typicality is whether other members have the
14 same or similar injury, whether the action is based on conduct which is not unique to the named
15 plaintiffs, and whether other class members have been injured by the same course of conduct.”
16 Hanon, 976 F.2d at 508 (citation omitted); see, e.g., Scott-George v. PVH Corp., No. 2:13-cv17 00441-TLN-DAD, 2015 WL 7353928, at *7 (E.D. Cal. Nov. 20, 2015) (“It is sufficient that the
18 class representative is ‘part of the class and possess[es] the same interest and suffer[s] the same
19 injury as the class members.’” (alterations in original) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457
20 U.S. 147, 156 (1982))). “A court should not certify a class if ‘there is a danger that absent class
21 members will suffer if their representative is preoccupied with defenses unique to it.’” Just Film,
22 Inc. v. Buono, 847 F.3d 1108, 1116 (9th Cir. 2017) (quoting Hanon, 976 F.2d at 508).
As the Supreme Court has noted, “[t]he commonality and typicality requirements of Rule
24 23(a) tend to merge.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 n.5 (2011) (alteration in
25 original) (quoting Falcon, 457 U.S. at 157 n.13). Specifically, “[b]oth serve as guideposts for
26 determining whether under the particular circumstances maintenance of a class action is
27 economical and whether the named plaintiff’s claim and the class claims are so interrelated that
1 the interests of the class members will be fairly and adequately protected in their absence.” Id.
2 (quoting Falcon, 457 U.S. at 157 n.13).
In this case, Plaintiff asserts that some of his claims and injury are identical to those of the
4 proposed class members. In particular, Plaintiff contends “that Defendants failed to furnish and
5 maintain accurate itemized wage statements” as to all of the class members, including Plaintiff,
6 and each class member suffered the same type of injuries arising out of these claims. (See Doc. 44
7 at 5–6.) At this preliminary stage, the Court finds that these assertions are sufficient to satisfy the
8 typicality requirement. See, e.g., Ward v. United Airlines, Inc., No. C 15-02309 WHA, 2016 WL
9 1161504, at *6 (N.D. Cal. Mar. 23, 2016) (finding that the typicality requirement was satisfied
10 where the named plaintiff’s “claims arise from the format of the wage statements . . . , which . . .
11 was common across all members of the putative class”); McKenzie v. Fed. Express Corp., 275
12 F.R.D. 290, 297 (C.D. Cal. 2011) (finding that the typicality requirement was met where the
13 named plaintiff’s claims relating to wage statements were “identical to the claims of the other
14 class members” and were “based on the same conduct by [the defendant]―issuing defective wage
Adequacy of Representation
“Adequacy of representation requires that ‘representative parties will fairly and adequately
18 protect the interests of the class.’” Campbell, 253 F.R.D. at 596 (quoting Fed. R. Civ. P. 23(a)(4)).
19 “The proper resolution of this issue requires that two questions be addressed . . . .” In re Mego
20 Fin. Corp. Sec. Litig., 213 F.3d 454, 462 (9th Cir. 2000). First, “do the named plaintiffs and their
21 counsel have any conflicts of interest with other class members?” Id. Second, “will the named
22 plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” Id. “These
23 questions involve consideration of a number of factors, including ‘the qualifications of counsel for
24 the representatives, an absence of antagonism, a sharing of interests between representatives and
25 absentees, and the unlikelihood that the suit is collusive.’” Morales v. Conopco, Inc., CIV. NO.
26 2:13-2213 WBS EFB, 2016 WL 3688407, at *3 (E.D. Cal. July 12, 2016) (quoting Brown v. Ticor
27 Title Ins., 982 F.2d 386, 390 (9th Cir. 1992)).
Conflicts of Interest
As to the first question―conflicts of the named plaintiff and counsel―Plaintiff states that
2 his “interests in prosecuting this . . . [a]ction and obtaining the most beneficial recovery possible
3 fully comport with the interests of the [c]lass [m]embers.” (Doc. 34, Ex. 1 at 16.) Additionally,
4 there is no indication in the record that Plaintiff’s interests are not generally aligned with those of
5 the potential class, with one potential exception. In particular, there is a slight potential for a
6 conflict in the form of an incentive payment to Plaintiff for prosecuting this action that is “not to
7 exceed [t]hree [t]housand [d]ollars.” (Doc. 49 ¶ 3.5.7.)
“Generally, when a person ‘join[s] in bringing [an] action as a class action . . . he has
9 disclaimed any right to a preferred position in the settlement.’” Staton v. Boeing Co., 327 F.3d
10 938, 976 (9th Cir. 2003) (quoting Officers for Justice v. Civil Serv. Comm’n of City & Cty. of S.F.,
11 688 F.2d 615, (9th Cir. 1982)). “Were that not the case, there would be considerable danger of
12 individuals bringing cases as class actions principally to increase their own leverage to attain a
13 remunerative settlement for themselves and then trading on that leverage in the course of
14 negotiations.” Id.
“Nevertheless, named plaintiffs, as opposed to designated class members who are not
16 named plaintiffs, are eligible for reasonable incentive payments.” Id. at 977. However, “district
17 courts must be vigilant in scrutinizing all incentive awards to determine whether they destroy the
18 adequacy of the class representatives.” Radcliffe v. Experian Info. Sols. Inc., 715 F.3d 1157, 1164
19 (9th Cir. 2013).
In the present case, the potential $3,000 incentive award is within the range that courts
21 have found reasonable. See, e.g., Morales, 2016 WL 3688407, at *4 (“Courts have generally
22 found that $5,000 incentive payments are reasonable.” (citations omitted)). Furthermore, this
23 incentive award is not unnecessarily disproportionate to the average payment for each potential
24 class member, which Plaintiff estimates will be $354. (Doc. 34, Ex. 1 at 12.) As such, this
25 incentive award does not appear on its face to present a conflict that would cause Plaintiff’s
26 interests to impermissibly deviate from those of the prospective class members.
Regarding Plaintiff’s counsel, Plaintiff states that his counsel does not hold any interests
28 that are adverse to those of the potential class members. (Doc. 44 at 4.) Further, there is no
1 present indication in the record that Plaintiff’s counsel holds any conflict of interest with the
2 proposed class members. As such, the Court finds that the requirement pertaining to conflicts of
3 counsel is satisfied for purposes of the instant preliminary analysis. See, e.g., Mitchinson v. Love’s
4 Travel Stops & Country Stores, Inc., No. 1:15-cv-01474-DAD-BAM, 2016 WL 7426115, at *5
5 (E.D. Cal. Dec. 22, 2016) (finding that the plaintiff “satisfie[d] the adequacy of representation
6 requirement” where, in pertinent part, “[t]here [was] nothing in the record suggesting that plaintiff
7 or counsel ha[d] any conflicts of interest with other absent class members”).
For these reasons, the Court finds that the first requirement pertaining to adequacy of
9 representation is satisfied here. The Court now turns to the second inquiry.
The “second adequacy inquiry is directed to the vigor with which the named
12 representatives and their counsel will pursue the common claims.” Hanlon v. Chrysler Corp., 150
13 F.3d 1011, 1021 (9th Cir. 1998). “Although there are no fixed standards by which ‘vigor’ can be
14 assayed, considerations include competency of counsel and, in the context of a settlement-only
15 class, an assessment of the rationale for not pursuing further litigation.” Id. On the latter point,
16 “[d]istrict courts must be skeptical of some settlement agreements put before them because they
17 are presented with a ‘bargain proffered for . . . approval without benefit of an adversarial
18 investigation.’” Id. (second alteration in original) (quoting Amchem Prods., Inc. v. Windsor, 521
19 U.S. 591, 593 (1997)). “These concerns warrant special attention when the record suggests that
20 settlement is driven by fees; that is, when counsel receive a disproportionate distribution of the
21 settlement, or when the class receives no monetary distribution but class counsel are amply
22 rewarded.” Id.
The record in this case indicates that class counsel is competent. Specifically, Plaintiff’s
24 counsel currently “represent[s] plaintiffs in at least nine employment class action cases and
25 approximately 30” cases similarly alleging violations under PAGA. (Doc. 34, Ex. 2 at 3.) Absent
26 any indication to the contrary, the Court finds that the competence requirement is satisfied.
As to the vigor of representation, Plaintiff represents that his counsel “conducted a
28 thorough investigation into the facts and claims alleged in this case,” analyzed and reviewed
1 “nearly 700 pages” of documents produced by Defendants, and engaged in at least one deposition.
2 (Doc. 44 at 2–3.) Further, Plaintiff states that the parties engaged in “adversarial, non-collusive,
3 and . . . arms’ length” negotiations over a period of four months. (Id. at 3.) Finally, Plaintiff’s
4 counsel states that he “strongly believe[s] that the proposed settlement . . . is preferable to
5 continued litigation,” as continuing with the litigation “is guaranteed to be costly, time consuming
6 and uncertain” because counsel “anticipate[s] a vigorous and lengthy challenge to . . . class
7 certification,” “the merits of the [c]lass [a]ction,” and appeals of “adverse rulings.” (Doc. 34, Ex.
8 2 at 3.)
The Court finds that the parties’ efforts in discovery, the protracted settlement discussions,
10 the opinion of Plaintiff’s counsel regarding the merits of settlement, and Plaintiff’s counsel’s
11 assertion regarding the costs and risks of continuing the litigation cumulatively satisfy the
12 requirement pertaining to vigorous representation.
See, e.g., Robinson v. Paramount Equity
13 Mortg., LLC, No. 2:14-cv-02359-TLN-CKD, 2017 WL 117941, at *5 (E.D. Cal. Jan. 10, 2017)
14 (finding that the requirement relating to vigorous representation was satisfied where, in pertinent
15 part, the plaintiff’s counsel had “extensive experience in . . . class action litigation,” they “devoted
16 significant resources to investigating and prosecuting the case,” and they provided a declaration in
17 which they state “that settlement was the right course” given the costs and risks associated with
18 continuing the litigation).
In summary, the Court finds that each of the Requirements under Rule 23(a) are satisfied
20 for purposes of the present preliminary determination. The Court now turns to the remaining
21 requirements of Rule 23.
The Requirements of Rule 23(b)(3)
“In addition to satisfying Rule 23(a)’s prerequisites, parties seeking class certification must
24 show that the action is maintainable under Rule 23(b)(1), (2), or (3).” Amchem Prods., Inc. v.
25 Windsor, 521 U.S. 591, 614 (1997); see, e.g., McKeen-Chaplin v. Provident Sav. Bank, FSB, No.
26 2:12–cv–03035–GEB–JFM, 2013 WL 4056285, at *2 (E.D. Cal. Aug. 12, 2013) (“A party seeking
27 class certification must satisfy the requirements of Federal Rule of Civil Procedure 23(a) and the
28 requirements of at least one of the categories under Rule 23(b).” (citation omitted)). In the present
1 case, Plaintiff asserts that the class action format is appropriate under Rule 23(b)(3). (Doc. 34, Ex.
2 1 at 17.)
“Framed for situations in which class-action treatment is not as clearly called for as it is in
4 Rule 23(b)(1) and (b)(2) situations, Rule 23(b)(3) permits certification where class suit may
5 nevertheless be convenient and desirable.”
Amchem Prods., Inc., 521 U.S. at 615 (citation
6 omitted). “[A] class must meet two requirements beyond the Rule 23(a) prerequisites” to “qualify
7 for certification under Rule 23(b)(3)”: (1) “[c]ommon questions must ‘predominate over any
8 questions affecting only individual members;’” and (2) “class resolution must be ‘superior to the
9 other available methods for the fair and efficient adjudication of the controversy.’” Id. (quoting
10 Fed. R. Civ. P. 23(b)(3)). “Rule 23(b)(3) includes” the following “nonexhaustive list of factors
11 pertinent to a court’s ‘close look’ at the predominance and superiority criteria”: (1) “the interest of
12 members of the class in individually controlling the prosecution or defense of separate actions;”
13 (2) “the extent and nature of any litigation concerning the controversy already commenced by or
14 against members of the class;” (3) “the desirability or undesirability of concentrating the litigation
15 of the claims in the particular forum;” and (4) “the difficulties likely to be encountered in the
16 management of a class action.” Id. at 615–16 (citation omitted). However, when “[c]onfronted
17 with a request for settlement-only class certification, a district court need not inquire whether the
18 case, if tried, would present intractable management problems, for the proposal is that there be no
19 trial.” Id. at 620 (citing Fed. R. Civ. P. 23(b)(3)(D)).
“The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently
22 cohesive to warrant adjudication by representation.” Hanlon v. Chrysler Corp., 150 F.3d 1011,
23 1021 (9th Cir. 1998) (quoting Amchem Prods., Inc., 521 U.S. at 623). “Implicit in the satisfaction
24 of the predominance test is the notion that the adjudication of common issues will help achieve
25 judicial economy.” Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1189 (9th Cir. 2001)
26 (quoting Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1233 (9th Cir. 1996)). “While this
27 requirement is similar to the Rule 23(a)(2) commonality requirement, the standard is much higher
28 at this stage of the analysis.” Mitchinson v. Love’s Travel Stops & Country Stores, Inc., No. 1:1520
1 cv-01474-DAD-BAM, 2016 WL 7426115, at *6 (E.D. Cal. Dec. 22, 2016) (citations omitted); see,
2 e.g., Just Film, Inc. v. Buono, 847 F.3d 1108, 1120 (9th Cir. 2017) (“If anything, Rule 23(b)(3)’s
3 predominance criterion is even more demanding than Rule 23(a).” (quoting Comcast Corp. v.
4 Behrend, 133 S. Ct. 1426, 1432 (2013))). “This analysis presumes that the existence of common
5 issues of fact or law have been established pursuant to Rule 23(a)(2); thus, the presence of
6 commonality alone is not sufficient to fulfill Rule 23(b)(3).” Hanlon, 150 F.3d at 1022. “In
7 contrast to Rule 23(a)(2), Rule 23(b)(3) focuses on the relationship between the common and
8 individual issues.” Id.
Ultimately, “[w]hen common questions present a significant aspect of the case and they
10 can be resolved for all members of the class in a single adjudication, there is clear justification for
11 handling the dispute on a representative rather than on an individual basis.” Id. (citation omitted).
12 “Settlement benefits cannot form part of a Rule 23(b)(3) analysis; rather the examination must rest
13 on ‘legal or factual questions that qualify each class member’s case as a genuine controversy,
14 questions that preexist any settlement.’” Id. (quoting Amchem, 521 U.S. at 623).
Plaintiff asserts that common questions predominate in this action, as each member of the
16 proposed class “received the same type of wage statements from Defendants that Plaintiff
17 contends were inaccurate” and all class members “could seek the same penalties” for Defendants’
18 alleged conduct. (Doc. 34, Ex. 1 at 17.) These assertions support a finding of predominance. See,
19 e.g., Perez v. Safety-Kleen Sys., Inc., 253 F.R.D. 508, 520 (N.D. Cal. 2008) (finding that the
20 predominance inquiry was satisfied where the plaintiffs “established” that the defendant “failed to
21 record meal breaks” or provide members of the class “with accurate itemized wage statements”
22 and the defendant did not otherwise “dispute [the] plaintiffs’ allegation that these are class-wide
The Court notes that the settlement payment may present individualized issues insofar as
25 each member of the proposed class will receive individualized settlement payments. However,
26 “individual issues regarding damages will not, by themselves, defeat certification under Rule
27 23(b)(3).” Alberto v. GMRI, Inc., 252 F.R.D. 652, 664 (E.D. Cal. 2008) (citation omitted).
28 Further, to the extent there are “idiosyncratic differences” between the facts applicable to each
1 proposed class member, those differences “are not sufficiently substantive to predominate over the
2 shared claims.” Id. (citation omitted).
Based on the foregoing, the Court finds that the predominance requirement is satisfied for
4 purposes of this preliminary determination. Nonetheless, of course, “[t]hese claims must . . . be
5 substantiated by evidence before the class is certified.” Dearaujo v. Regis Corp., Nos. 2:14-cv6 01408-KJM-AC, 2:14-cv-01411-KJM-AC, 2016 WL 3549473, at *8 (E.D. Cal. June 30, 2016).
“Rule 23(b)(3) also requires that class resolution must be ‘superior to other available
9 methods for the fair and efficient adjudication of the controversy.’” Hanlon v. Chrysler Corp.,
10 150 F.3d 1011, 1023 (9th Cir. 1998). “The superiority inquiry under Rule 23(b)(3) requires
11 determination of whether the objectives of the particular class action procedure will be achieved in
12 the particular case.”
Id. (citation omitted).
“This determination necessarily involves a
13 comparative evaluation of alternative mechanisms of dispute resolution.” Id. “If a class action is
14 not superior, then individual actions must carry the day.” Just Film, Inc., 847 F.3d at 1123.
Here, each member of the potential class would potentially receive a relatively modest sum
16 of money―an average of $354. (Doc. 34, Ex. 1 at 12.) “Given the small size of each class
17 member’s claims in this situation, class treatment is not merely the superior, but the only manner
18 in which to ensure fair and efficient adjudication of the present action.” Scott-George v. PVH
19 Corp., No. 2:13-cv-00441-TLN-DAD, 2015 WL 7353928, at *11 (E.D. Cal. Nov. 20, 2015); see,
20 e.g., Deposit Guar. Nat’l Bank, Jackson, Miss. v. Roper, 445 U.S. 326, 339 (1980) (“Where it is
21 not economically feasible to obtain relief within the traditional framework of a multiplicity of
22 small individual suits for damages, aggrieved persons may be without any effective redress unless
23 they may employ the class-action device.”). Additionally, the Court is not aware of any additional
24 actions involving the proposed class members that may indicate that a class action in the present
25 case would harm these members’ interests. As such, the interests of the class members favor use
26 of the class action device. See, e.g., Scott-George, 2015 WL 7353928, at *11.
Furthermore, “each member of the class pursuing a claim individually would burden the
28 judiciary, which is contrary to the goals of efficiency and judicial economy advanced by Rule 23.”
1 Id. (citation omitted). It is therefore desirable to concentrate all of the proposed class members’
2 claims in a single forum and action. For these reasons, the Court finds that the superiority inquiry
3 is satisfied in this case.
In summary, the Court finds that each pertinent requirement of Rule 23 is satisfied at this
5 preliminary stage. The Court therefore finds that “publication of class notice is unlikely to lead to
6 confusion or waste,” Dearaujo, 2016 WL 3549473, at *9, and preliminary certification of the
7 proposed class is appropriate.
Preliminary Approval of Settlement
The Court shall now address the fairness of the proposed settlement. See, e.g., Alberto v.
10 GMRI, Inc., 252 F.R.D. 652, 658 (E.D. Cal. 2008) (“[W]here . . . ‘parties reach a settlement
11 agreement prior to class certification, courts must peruse the proposed compromise to ratify both
12  the propriety of the certification and  the fairness of the settlement.’” (third and fourth
13 alterations in original) (quoting Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003))). For the
14 following reasons, the Court preliminarily approves the settlement.
Overview of Analysis
Federal Rule of Civil Procedure 23(e) provides that “[t]he claims, issues, or defenses of a
17 certified class may be settled, voluntarily dismissed, or compromised only with the court’s
18 approval.” “The purpose of Rule 23(e) is to protect the unnamed members of the class from unjust
19 or unfair settlements affecting their rights.” In re Syncor ERISA Litig., 516 F.3d 1095, 1100 (9th
20 Cir. 2008) (citation omitted).
“It is the settlement taken as a whole, rather than the individual component parts, that must
22 be examined for overall fairness.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998)
23 (citation omitted). The district court does not “have the ability to delete, modify or substitute
24 certain provisions.” Id. (citation omitted). Instead, “[t]he settlement must stand or fall in its
25 entirety.” Id. (citation omitted).
In determining whether a settlement is “fundamentally fair, adequate, and reasonable,” the
27 district court must “balance[e] . . . several factors which may include, among others, some or all
28 of” the following: (1) “the strength of plaintiffs’ case;” (2) “the risk, expense, complexity, and
1 likely duration of further litigation;” (3) “the risk of maintaining class action status throughout the
2 trial;” (4) “the amount offered in settlement;” (5) “the extent of discovery completed;” (6) “the
3 stage of the proceedings;” (7) “the experience and views of counsel;” (8) “the presence of a
4 governmental participant;” and (9) “the reaction of the class members to the proposed settlement.”
5 Linney v. Cellular Alaska P’ship, 151 F.3d 1234, 1242 (9th Cir. 1998) (citation omitted).
6 However, as “some of the aforementioned ‘fairness’ factors cannot be fully assessed until the
7 Court conducts the final approval hearing, ‘a full fairness analysis is unnecessary at this stage.’”
8 Pierce v. Rosetta Stone, Ltd., No. C 11–01283 SBA, 2013 WL 1878918, at *4 (N.D. Cal. May 3,
9 2013) (quoting Alberto, 252 F.R.D. at 665); cf. Molski v. Gleich, 318 F.3d 937, 953 (9th Cir. 2003)
10 (“[W]here the court is ‘[c]onfronted with a request for settlement-only class certification,’ the
11 court must look to the factors ‘designed to protect absentees.’” (quoting Amchem Prods., Inc. v.
12 Windsor, 521 U.S. 591, 620 (1997)), overruled on other grounds by Dukes v. Wal-Mart Stores,
13 Inc., 603 F.3d 571 (9th Cir. 2010))).
Instead of an analysis regarding some or all of the fairness factors, “preliminary approval
15 of a settlement” requires analyzing both “procedural and substantive component[s].” Mitchinson
16 v. Love’s Travel Stops & Country Stores, Inc., No. 1:15-cv-01474-DAD-BAM, 2016 WL
17 7426115, at *6 (E.D. Cal. Dec. 22, 2016) (alteration in original) (quoting In re Tableware
18 Antitrust Litig., 484 F. Supp. 2d 1078, 1079 (N.D. Cal. 2007)). “In particular, preliminary
19 approval of a settlement and notice to the proposed class is appropriate if”: (1) “the proposed
20 settlement appears to be the product of serious, informed, non-collusive negotiations;” and (2) “the
21 settlement falls within the range of possible approval, has no obvious deficiencies, and does not
22 improperly grant preferential treatment to class representatives or segments of the class.” Id.
23 (citing In re Tableware, 484 F. Supp. 2d at 1079).
In engaging in this analysis, “[t]he court need not ‘reach any ultimate conclusions on the
25 contested issues of fact and law which underlie the merits of the dispute, for it is the very
26 uncertainty of outcome in litigation and avoidance of wasteful and expensive litigation that induce
27 consensual settlements.’” Chem. Bank v. City of Seattle, 955 F.2d 1268, 1291 (9th Cir. 1992)
28 (quoting Officers for Justice v. Civil Serv. Comm’n of City & Cty. of S.F., 688 F.2d 615, 625 (9th
1 Cir. 1982)). “At the preliminary approval stage, the initial evaluation can be made on the basis of
2 information [contained in] briefs, motions, or informal presentations by parties, and the [c]ourt
3 need not review the settlement in detail.” Dearaujo v. Regis Corp., Nos. 2:14-cv-01408-KJM-AC,
4 2:14-cv-01411-KJM-AC, 2016 WL 3549473, at *10 (E.D. Cal. June 30, 2016) (citations omitted).
5 Finally, “[t]he initial decision to approve or reject a settlement proposal is committed to the sound
6 discretion of the trial judge.” Officers for Justice, 688 F.2d at 625 (citations omitted).
“The first factor relevant to the court’s preliminary approval of settlement addresses the
9 means by which the parties reached the proposed settlement.” Mitchinson, 2016 WL 7426115, at
10 *7 (citation omitted). Plaintiff states that the parties engaged in “adversarial, non-collusive, and . .
11 . arms’ length” negotiations over a period of four months following substantial initial and
12 document discovery. (Doc. 44 at 3; see also Doc. 34, Ex. 1 at 21 (providing Plaintiff’s statement
13 that the proposed settlement “is the result of protracted arms-length negotiations by experienced
14 counsel, after extensive discovery and . . . at times contentious settlement negotiations”).) The
15 adversarial nature of these negotiations and the discovery performed by the parties indicate that
16 the settlement process is procedurally adequate. See, e.g., Rodriguez v. W. Publ’g Corp., 563 F.3d
17 948, 965 (9th Cir. 2009) (noting that the Ninth Circuit “put[s] a good deal of stock in the product
18 of an arms-length, non-collusive, negotiated resolution”); West v. Circle K Stores, Inc., No CIV.
19 S-04-0438 WBS GGH, 2006 WL 1652598, at *11 (E.D. Cal. June 13, 2006) (finding that a
20 proposed settlement agreement was adequate at the preliminary approval stage where, in pertinent
21 part, “the stipulation and settlement appear to be, for the most part, the result of vigorous, arms22 length bargaining” following “over two years” of “active litigation,” which included counsel
23 “diligently pursu[ing] the necessary discovery”).
The Court therefore finds that, at this
24 preliminary stage, the proposed settlement appears to be the product of serious, informed, and
25 arms-length negotiations.
Range of Possible Approval
The next pertinent consideration is whether the settlement falls within the range of possible
28 approval. “To evaluate adequacy, courts primarily consider plaintiffs’ expected recovery balanced
1 against the value of the settlement offer.” Pierce v. Rosetta Stone, Ltd., No. C 11–01283 SBA,
2 2013 WL 1878918, at *5 (N.D. Cal. May 3, 2013) (quoting In re Tableware Antitrust Litig., 484
3 F. Supp. 2d 1078, 1080 (N.D. Cal. 2007)); see, e.g., Mitchinson v. Love’s Travel Stops & Country
4 Stores, Inc., No. 1:15-cv-01474-DAD-BAM, 2016 WL 7426115, at *7 (E.D. Cal. Dec. 22, 2016)
5 (“To evaluate the fairness of the settlement award, the court should compare the terms of the
6 compromise with the likely rewards of litigation.” (citation omitted)). However, “[i]t is well7 settled law that a cash settlement amounting to only a fraction of the potential recovery does not
8 per se render the settlement inadequate or unfair.” In re Mego Fin. Corp. Sec. Litig., 213 F.3d
9 454, 459 (9th Cir. 2000) (citation omitted).
“Rather, the fairness and the adequacy of the
10 settlement should be assessed relative to the risks of pursuing the litigation to judgment.” Pierce,
11 2013 WL 1878918, at *5 (citing In re Mego, 213 F.3d at 459).
In this case, Plaintiff notes that the proposed class could receive a larger award, including
13 “penalties . . . of approximately $100 per wage statement.” (Doc. 34, Ex. 1 at 21.) However,
14 Plaintiff acknowledges that “recovery is far from guaranteed and could only occur after years of
15 costly litigation that is rife with risk.” (Id.) Ultimately, Plaintiff states that his counsel “strongly
16 believe[s] that the proposed [s]ettlement [a]greement is a fair, adequate, and reasonable resolution
17 of the [case] and is preferable to continued litigation.” (Id. at 22.)
At this juncture, the Court has little information regarding the potential recovery, or the
19 potential merits of the proposed class’s claims. Nonetheless, for the present preliminary purposes,
20 Plaintiff’s counsel’s representations that continued litigation presents serious risk and their support
21 of the settlement sufficiently indicate that the proposed settlement lies within the range of possible
22 approval. See, e.g., In re Tableware, 484 F. Supp. 2d at 1080 (“Based on th[e] risk and the
23 anticipated expense and complexity of further litigation, the court cannot say that the proposed
24 settlement is obviously deficient or is not within the range of possible approval.” (citation
25 omitted)); Vanwagoner v. Siemens Indus., Inc., No. 2:13–cv–01303–KJM–EFB, 2014 WL
26 1922731, at *7 (E.D. Cal. May 14, 2014) (addressing the preliminary approval of a class-action
27 settlement and stating that “[g]reat weight is accorded the recommendation of counsel, who are
28 most closely acquainted with the facts of the underlying litigation” (quoting Gribble v. Cool
1 Transps., Inc., No. CV–06–04863, 2008 WL 5281665, at *9 (C.D. Cal. 2008))). The Court
2 therefore finds that the Proposed Settlement Agreement is within the range of possible approval
3 for present purposes.
No Obvious Deficiencies
The next “factor considers whether there are any obvious deficiencies with the proposed
6 settlement.” Pierce, 2013 WL 1878918, at *5. There are no obvious deficiencies with the
7 Proposed Settlement Agreement, with one possible exception―attorneys’ fees.4 The Proposed
8 Settlement Agreement provides, in relevant part, that “[D]efendants agree to take no position
9 regarding any application or motion by [c]lass [c]ounsel for attorneys’ fees not to exceed . . .
10 $85,500.” (Doc. 49 ¶ 3.5.9.) These attorneys’ fees are part of the “Total Settlement Amount” of
11 $300,000. (Id. ¶ 3.1.) In other words, attorneys’ fees are part of the overall pool of money
12 Defendants will pay. (See id.) As such, “[i]n the event that the Court approves less than the full
13 amount requested for the Class Counsel Fees Payment and Class Counsel Costs Payment the un14 approved amount will be made available for distribution to [c]lass [m]embers as part of the Net
15 Distribution Fund.” (Id. ¶ 3.5.9.)
The cited attorneys’ fees amount of $85,500 constitutes 28.50% of the total settlement
17 amount of $300,000. This percentage is greater than the benchmark rate of 25% in the Ninth
18 Circuit. See, e.g., Powers v. Eichen, 229 F.3d 1249, 1256 (9th Cir. 2000) (noting that the Ninth
19 Circuit “established twenty-five percent of the recovery as a ‘benchmark’ for attorneys’ fees
20 calculations under the percentage-of-recovery approach” (citations omitted)). Nonetheless, the
21 proposed percentage of fees is within “[t]he typical range of acceptable attorneys’ fees in the
22 Ninth Circuit [of] 20% to 33 1/3% of the total settlement value.” Morales v. Stevco, Inc., No.
The Court notes that the parties’ initial proposed settlement agreement included a “Released Claims” provision that
24 provided for class members releasing claims that extended far beyond the class-related allegations and claims in the
instant matter. (See Doc. 34, Ex. 2 at 11.) By its order entered on February 7, 2017, the Court noted that “[t]his
25 release provision . . . appear[ed] to be impermissibly overbroad.” (Doc. 45 at 2.) The Court also held a telephonic
conference with the parties on February 17, 2017 to discuss this release provision, as well as a release provision
related to the PAGA allegations. (See Doc. 48.) The parties subsequently filed a revised settlement agreement, (see
Doc. 49), and proposed notice to class members, (see Doc. 50).
The Court finds that these revised and currently operative submissions, (see Doc. 49; Doc. 50), resolve the
Court’s previous concerns regarding the breadth of the “Released Claims” provision, as well as the release pertaining
to the PAGA allegations. As such, these release provisions no longer present obvious deficiencies for purposes of the
1 1:09–cv–00704 AWI JLT, 2011 WL 5511767, at *12 (E.D. Cal. Nov. 10, 2011) (citing Powers,
2 229 F.3d at 1256). Further, the proposed arrangement that any difference between the proposed
3 fees and the awarded fees will revert to the class settlement amount “signals the opposite” of
Dearaujo v. Regis Corp., Nos. 2:14-cv-01408-KJM-AC, 2:14-cv-01411-KJM-AC,
5 2016 WL 3549473, at *12 (E.D. Cal. June 30, 2016); see, e.g., In re Bluetooth Headset Prods.
6 Liab. Litig., 654 F.3d 935, 947 (9th Cir. 2011) (noting that one “sign” of collusion is “when the
7 parties arrange for fees not awarded to revert to defendants rather than be added to the class fund”
8 (citing Mirfasihi v. Fleet Mortg. Corp., 356 F.3d 781, 785 (7th Cir. 2004))). As such, the
9 proportion of the attorneys’ fees relative to the total settlement amount and the reversion provision
10 both indicate that the proposed attorneys’ fees are permissible.
The Court also notes that the Proposed Settlement Agreement includes a clear sailing
12 provision whereby Defendants will not object to attorneys’ fees up to a certain amount. (See Doc.
13 49 ¶ 3.5.9.) See generally In re Toys R Us-Del., Inc.--Fair & Accurate Credit Transactions Act
14 (FACTA) Litig., 295 F.R.D. 438, 458 (C.D. Cal. 2014) (“In general, a clear sailing agreement is
15 one where the party paying the fee agrees not to contest the amount to be awarded by the fee16 setting court so long as the award falls beneath a negotiated ceiling.” (quoting Weinberger v.
17 Great N. Nekoosa Corp., 925 F.2d 518, 520 n.1 (1st Cir. 1991))). Clear sailing provisions may
18 implicate collusion insofar as their “very existence . . . increases the likelihood that class counsel
19 will have bargained away something of value to the class.” In re Bluetooth, 654 F.3d at 948
20 (citation omitted). “Therefore, when confronted with a clear sailing provision, the district court
21 has a heightened duty to peer into the provision and scrutinize closely the relationship between
22 attorneys’ fees and benefit to the class, being careful to avoid awarding unreasonably high fees
23 simply because they are uncontested.” Id. (citation omitted).
Nonetheless, the risk of collusion presented by the clear sailing provision is mitigated in
25 this case. The Proposed Settlement Agreement provides that any “un-approved” attorneys’ fees
26 will be distributed to the class members “as part of the [n]et [d]istribution [f]und.” (Doc. 49 ¶
27 3.5.9.) As such, the clear sailing provision in the Proposed Settlement Agreement “does not signal
28 the possibility of collusion” because “both payments [are] to be made from the settlement fund,”
1 thereby demonstrating that Defendants are “acting consistently with their own interests in
2 minimizing liability.” Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 961 n.5 (9th Cir. 2009)
3 (citation omitted); see, e.g., In re Toys R Us, 295 F.R.D. at 458 (“As the Ninth Circuit has noted . .
4 . the inference of collusion drawn from a clear sailing provision is reduced when the agreement
5 lacks a reversionary or ‘kicker provision.’” (quoting In re Bluetooth, 654 F.3d at 949)); cf. In re
6 Bluetooth, 654 F.3d at 949 (“[A] kicker arrangement reverting unpaid attorneys’ fees to the
7 defendant rather than to the class amplifies the danger of collusion already suggested by a clear
8 sailing provision.”).
Finally, the Court notes that there is no present indication in the record that class counsel
10 does not have the best interests of the class in mind. As such, the Court finds that the proposed
11 attorneys’ fees do not present an impediment to preliminary approval of the settlement. See, e.g.,
12 Dearaujo, 2016 WL 3549473, at *11. The Court therefore finds that the Proposed Settlement
13 Agreement does not present any obvious deficiencies.
Of course, “[b]ecause in common fund cases the relationship between plaintiffs and their
15 attorneys turns adversarial at the fee-setting stage, courts have stressed that when awarding
16 attorneys’ fees from a common fund, the district court must assume the role of fiduciary for the
17 class plaintiffs.” Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1048 (9th Cir. 2002) (quoting In re
18 Wash. Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1302 (9th Cir. 1994)). “Accordingly, fee
19 applications must be closely scrutinized” and “[r]ubber-stamp approval, even in the absence of
20 objections, is improper.” Id.
“At the final approval stage, the court will determine the exact amount of the fee award by
22 considering the circumstances of the case,” Dearaujo, 2016 WL 3549473, at *11, including the
23 following non-exhaustive factors: “(1) the results achieved; (2) the risks of litigation; (3) the skill
24 required and the quality of work; (4) the contingent nature of the fee; (5) the burdens carried by
25 class counsel; and (6) the awards made in similar cases,” Monterrubio v. Best Buy Stores, L.P.,
26 291 F.R.D. 443, 456 (E.D. Cal. 2013) (citing Vizcaino, 290 F.3d at 1048). “Calculation of the
27 lodestar may also serve as a cross-check of the reasonableness of the requested percentage award.”
28 Dearaujo, 2016 WL 3549473, at *11 (citing Vizcaino, 290 F.3d at 1052); see, e.g., Mitchinson v.
1 Love’s Travel Stops & Country Stores, Inc., No. 1:15-cv-01474-DAD-BAM, 2016 WL 7426115,
2 at *9 (E.D. Cal. Dec. 22, 2016) (noting that the “Ninth Circuit has recommended that district
3 courts apply” either the “percentage of the fund” method or the “lodestar” method, “but cross4 check the appropriateness of the amount by employing the other as well” (citing In re Bluetooth,
5 654 F.3d at 944)).
“Under the [final] factor, the Court examines whether the settlement agreement provides
8 preferential treatment to any class member.” Pierce v. Rosetta Stone, Ltd., No. C 11–01283 SBA,
9 2013 WL 1878918, at *6 (N.D. Cal. May 3, 2013). In this case, each member of the proposed
10 class will receive a proportion of the Net Distribution Fund―not below $25―based on the
11 number of pay periods they worked for Defendants between December 7, 2014 and the date of this
12 Order. (See Doc. 49 ¶ 3.5.4.) This is an appropriate method for determining payments. See, e.g.,
13 Dearaujo v. Regis Corp., Nos. 2:14-cv-01408-KJM-AC, 2:14-cv-01411-KJM-AC, 2016 WL
14 3549473, at *12 (E.D. Cal. June 30, 2016) (finding at the preliminary approval stage that a
15 “mechanism for distributing the settlement funds proportionally based on the total number of
16 weeks worked” was “reasonable”).
As noted previously, the Proposed Settlement Agreement provides for a service fee “not to
18 exceed [t]hree [t]housand [d]ollars” for Plaintiff in his role as class representative. (Doc. 49 ¶
19 3.5.7.) Of course, “named plaintiffs, as opposed to designated class members who are not named
20 plaintiffs, are eligible for reasonable incentive payments.” Staton v. Boeing Co., 327 F.3d 938,
21 977 (9th Cir. 2003). “At the final approval stage, the court will assess whether the requested
22 incentive payment is excessive by balancing,” Dearaujo, 2016 WL 3549473, at *11, the following
23 non-exhaustive list of considerations: (1) “the actions the plaintiff has taken to protect the interests
24 of the class;” (2) “the degree to which the class has benefitted from those actions;” (3) “the
25 amount of time and effort the plaintiff expended in pursuing the litigation;” and (4) “and
26 reasonabl[e] fear[s of] workplace retaliation,’” Staton, 327 F.3d at 977 (quoting Cook v. Niedert,
27 142 F.3d 1004, 1016 (7th Cir. 1998)). Nonetheless, based on the foregoing, the Court finds that
1 the inquiry pertaining to preferential treatment does not preclude preliminary approval of the
2 Proposed Settlement Agreement.
In summary, the Court finds that the Proposed Settlement Agreement is both procedurally
4 and substantively fair for purposes of the present preliminary approval stage. As such, the Court
5 finds that preliminary approval of the Proposed Settlement Agreement is appropriate.
Notice to Class Members
Under Federal Rule of Civil Procedure 23(e)(1), “[t]he court must direct notice in a
8 reasonable manner to all class members who would be bound by the proposal.” “Adequate notice
9 is critical to court approval of a class settlement under Rule 23(e).” Hanlon v. Chrysler Corp., 150
10 F.3d 1011, 1025 (9th Cir. 1998).
Where, as here, parties propose to certify a class under Rule 23(b)(3), “the court must
12 direct to class members the best notice that is practicable under the circumstances, including
13 individual notice to all members who can be identified through reasonable effort.” Fed. R. Civ. P.
“The notice must clearly and concisely state” the following “in plain, easily
15 understood language”: (1) “the nature of the action;” (2) “the definition of the class certified;” (3)
16 “the class claims, issues, or defenses;” (4) “that a class member may enter an appearance through
17 an attorney if the member so desires;” (5) “that the court will exclude from the class any member
18 who requests exclusion;” (6) “the time and manner for requesting exclusion;” and (7) “the binding
19 effect of a class judgment on members under Rule 23(c)(3).” Id. “Notice is satisfactory if it
20 ‘generally describes the terms of the settlement in sufficient detail to alert those with adverse
21 viewpoints to investigate and to come forward and be heard.’” Churchill Vill., L.L.C. v. Gen.
22 Elec., 361 F.3d 566, 575 (9th Cir. 2004) (quoting Mendoza v. Tucson Sch. Dist. No. 1, 623 F.2d
23 1338, 1352 (9th Cir. 1980)).
The proposed notice in this case satisfies each of these requirements. (See Doc. 50.) As
25 such, the Court finds that the proposed notice is appropriate. (Id.)
The Court also finds that the procedures in the Proposed Settlement Agreement regarding
27 notifying the class members are largely adequate. (See Doc. 49 ¶ 3.4.) However, the Court will
28 require Plaintiff to file a motion for final certification of the class and final approval of the
1 settlement. The Court cautions Plaintiff that he must satisfy the requirements relating to final
2 certification of the class and final approval of the settlement in order for the Court to approve the
3 final settlement in this matter. See, e.g., Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)
4 (“A party seeking class certification must affirmatively demonstrate his compliance with [Federal
5 Rule of Civil Procedure 23]―that is, he must be prepared to prove that there are in fact
6 sufficiently numerous parties, common questions of law or fact, etc.”); Linney v. Cellular Alaska
7 P’ship, 151 F.3d 1234, 1242 (9th Cir. 1998) (providing a non-exhaustive list of factors the court
8 must balance to determine whether a settlement is “fundamentally fair, adequate, and
For the reasons provided herein, the Court ORDERS the following:
Plaintiff’s Motion, (Doc. 34), is GRANTED;
Preliminary class certification is APPROVED;
Plaintiff’s counsel, (see Doc. 49 ¶ 1.2), are APPOINTED as class counsel;
Plaintiff is APPOINTED as the class representative;
The Proposed Settlement Agreement, (Doc. 49), is APPROVED on a preliminary
basis as fair and adequate;
The Proposed notice to class members, (Doc. 50), is APPROVED;5
The proposed form and method of notice to the class members, (see, e.g., Doc. 49 ¶
3.4), is APPROVED, with the exception that the Court shall require Plaintiff to file
a motion for final certification of the class and final approval of the settlement; and
The Court further ORDERS the following as the schedule for this matter:
Rust Consulting is APPROVED as the settlement administrator.
The Court notes that the proposed notice to class members includes certain blank fields pending the Court’s
determinations in this Order. (See Doc. 50.) The Court DIRECTS Plaintiff to include the appropriate language in
these blank fields to reflect the Court’s findings and rulings in this Order prior to the settlement administrator sending
this notice to the class members.
Defendants shall provide the “Class Information,” as that term is defined in the
Proposed Settlement Agreement, (see id. ¶ 1.5), to the settlement administrator by
no more than twenty-one days following the entry of this Order;
Within fifteen days of its receipt of the “Class Information,” the settlement
administrator shall mail the notice of settlement, (Doc. 50), to the class members by
regular first class U.S. mail;
The last day for the class members to submit timely requests for exclusion from the
class or objections to the Proposed Settlement Agreement shall be 45 days
following the settlement administrator’s mailing of the notices (the “Response
Plaintiff shall file a motion for final certification of the class and final approval of
the settlement by no later than 60 days following the Response Deadline; and
The Court shall hold a hearing regarding final certification of the class and final
approval of the settlement on September 20, 2017, at 9:30 a.m.
IT IS SO ORDERED.
March 20, 2017
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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