Rodriguez ,et al. v. M. J. Brothers, Inc., et al.

Filing 31

ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT. Signed by Magistrate Judge Stanley A. Boone on 4/24/2019. (Hernandez, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VICTOR RODRIGUEZ, et al.,
Plaintiffs,

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Case No. 1:18-cv-00252-SAB
ORDER GRANTING PRELIMINARY
APPROVAL OF CLASS ACTION
SETTLEMENT

v.
M.J. BROTHERS, INC., et al.,

(ECF No. 18, 29)

Defendants.

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I.

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PROCEDURAL HISTORY

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On February 16, 2018, Victor Rodriguez, Estreberto Valdez, Miguel Esparza and

20 Francisco Banda (collectively “Plaintiffs”) filed this action on behalf of themselves and all others
21 similarly situated against M.J. Brothers, Inc.; Eduardo Martin; Daniel Martin; Fernando Martin;
22 and Ronald Martin (collectively “Defendants”) alleging violation of the Fair Labor Standards
23 Act, 29 U.S.C. § 201 et seq. and California labor law. (ECF No. 1.) On February 21, 2019,
24 Plaintiffs consented to the jurisdiction of the magistrate judge. (ECF No. 5.) On April 27, 2018,
25 Defendants filed an answer to the complaint. (ECF No. 7.) On May 8, 2018, the parties filed a
26 stipulation regarding the production of certain discovery and staying this action so they could
27 participate in mediation. (ECF No. 9.) On May 11, 2018, Defendants filed an amended answer.
28 (ECF No. 11.)
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A scheduling order issued on October 2, 2018. (ECF No. 15.) On December 4, 2018, the

2 parties filed a notice of settlement of the class and collective actions. (ECF No. 16.) On
3 February 4, 2019, a motion for preliminary approval of the class action settlement and a
4 stipulation to file a first amended complaint was filed. (ECF Nos. 18, 19.) The first amended
5 complaint was filed on February 5, 2019. (ECF No. 22.)
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The Court heard oral argument on the motion for preliminary approval of the class action

7 settlement on March 6, 2019. (ECF No. 23.) On March 8, 2019, findings and recommendations
8 were filed recommending granting in part and denying in part Plaintiff’s motion for preliminary
9 approval of the class action settlement. (ECF No. 24.)
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On March 13, 2019, the Defendants consented to the jurisdiction of the magistrate judge,

11 and a stipulation was filed concerning further proceedings on Plaintiff’s motion for preliminary
12 approval of the class action settlement. (ECF Nos. 25, 26.) On March 14, 2019, the parties
13 stipulation was granted, the findings and recommendations were vacated, and the hearing on the
14 motion for preliminary approval of the class action settlement was continued to April 24, 2019.
15 (ECF No. 27.) On March 15, 2019, this matter was reassigned to the undersigned for all
16 purposes as the parties have all consented to the jurisdiction of the magistrate judge. (ECF No.
17 28.) Plaintiff filed a supplement to the motion for preliminary approval on April 17, 2019. (ECF
18 No. 29.) On April 22, 2019, an order issued finding the matter was suitable for decision without
19 oral argument and the April 24, 2019 hearing was vacated.
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II.

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ALLEGATIONS IN FIRST AMENDED COMPLAINT

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Defendant M.J. Brothers, Inc. is a California company doing business in Tulare,

23 California. (First Amended Complaint (“FAC”) ¶ 11, ECF No. 22.) Defendant M.J. Brothers is
24 co-owned and managed by Defendants Eduardo Martin, Daniel Martin, Fernando Martin, and
25 Ronald Martin (hereafter “the Martins”). (FAC ¶¶ 12-15.) Defendant M.J. Brothers provides
26 machinery and personnel to client dairies at their premises to harvest, transport, and weigh wheat
27 and corn that is used as animal feed.

(FAC ¶ 17.)

The Martins oversee the company’s

28 operations and make decisions regarding scheduling, working conditions, and hiring and
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1 terminating employees. They visit and oversee operations at the numerous customer worksites
2 and handle administration of many of the company’s affairs. (FAC ¶ 18.)
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Four groups of workers are employed by Defendants: 1) shop workers who service trucks

4 and service and clean agricultural equipment at Defendant’s shop (“shop workers”); 2) farm
5 equipment operators who work at harvesting (“operators”) and pruners; 3) truck drivers who
6 transport wheat and corn from the field to the dairy (“truck drivers”); and 4) weighers who weigh
7 the wheat and corn for purposes of billing clients (“weighers”). (FAC ¶ 19.)
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The shop workers are paid at an overtime rate only after having worked more than 10

9 hours per day or 60 hours per week. They are not provided with a second meal period after
10 working more than ten hours per day and until recently were not provided with rest periods.
11 (FAC ¶ 20.)
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The operators handle farm machinery to harvest corn or wheat at the client’s fields.

13 Pruners worked briefly as agricultural workers pruning cherries and pistachios.

Operators

14 worked more than twelve hours per day and were not provided with meal and rest periods until
15 recently. Pruners worked more than 8 hours per day and were not provided with all their meal
16 and rest periods. (FAC ¶ 21.)
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Truck drivers transport the wheat and corn from the client’s fields to their dairies. Truck

18 drivers are paid at an overtime rate after having worked more than 10 hours per day or 60 hours
19 per week. Until recently truck drivers were not provided with meal and rest periods. They
20 typically worked more than 10 hours per day and had to eat in their vehicles. Truck drivers were
21 required to report to work on days for which they were not selected to work or worked less than
22 4 hours and were not compensated for all their reporting time. (FAC ¶ 22.)
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Weighers work at the client’s premises weighing and recording the wheat and corn

24 brought by truck drivers. The weighers are paid at an overtime rate after having worked more
25 than 10 hours per day or 60 hours per week. They typically work more than 12 hours per day
26 and until recently were not provided with meal and rest periods. Weighers must report to work
27 on days for which they were not selected to work or worked less than four hours and were not
28 compensated for all their reporting time. (FAC ¶ 23.)
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Plaintiff Rodriguez was employed as truck driver from May 2008 to May 2016. (FAC ¶

2 7.) Plaintiff Valdez was employed as a truck driver from 2010 to May 2016. (FAC ¶ 8.)
3 Plaintiff Esparza was employed as an operator and shop worker from 2008 to December 2016.
4 (FAC ¶ 9.) Plaintiff Banda was employed as a truck driver and shop worker for over 15 years
5 until May 2017. (FAC ¶ 10.)
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Plaintiffs bring this action alleging failure to pay overtime in violation of the FLSA;

7 failure to pay meal and rest periods in violation of California Labor Code section 226.7; failure
8 to provide itemized wage statements in violation of California Labor Code section 226(A);
9 failure to pay for reporting time in violation of Industrial Wage Orders 4, 9, and 14; failure to
10 pay waiting time penalties in violation of California Labor Code section 201, 202, and 203;
11 unfair business practices in violation of California Business and Professions Code section 17200
12 et seq. and are seeking civil penalties under the California Private Attorney’s General Act
13 (“PAGA”), Cal. Lab. Code § 2698 et seq.
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III.

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LEGAL STANDARD

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The Ninth Circuit has declared that a strong judicial policy favors settlement of class

17 actions. Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992). Nevertheless,
18 especially where settlement occurs prior to class certification, courts must peruse the proposed
19 settlement to ensure the propriety of class certification and the fairness of the settlement. Staton
20 v Boeing, 327 F.3d 938, 952 (9th Cir. 2003).
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To certify a class, a plaintiff must demonstrate that all of the prerequisites of Rule 23(a),

22 and at least one of the requirements of Rule 23(b) of the Federal Rules of Civil Procedure have
23 been met. Wang v. Chinese Daily News, Inc., 737 F.3d 538, 542 (9th Cir. 2013). This requires
24 the court to “conduct a ‘rigorous analysis’ to determine whether the party seeking class
25 certification has met the prerequisites of Rule 23.” Wright v. Linkus Enterprises, Inc., 259
26 F.R.D. 468, 471 (E.D. Cal. 2009).
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Federal Rule of Civil Procedure 23(e)(2) requires that any settlement in a class action be

28 approved by the court which must find that the settlement is fair, reasonable, and adequate. The
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1 role of the district court in evaluating the fairness of the settlement is not to assess the individual
2 components, but to assess the settlement as a whole. Lane v. Facebook, Inc., 696 F.3d 811,
3 818-19 (9th Cir. 2012) reh’g denied 709 F.3d 791 (9th Cir. 2013). In reviewing a proposed
4 settlement, the court represents those class members who were not parties to the settlement
5 negotiations and agreement.

In re Toys R Us-Delaware, Inc.--Fair & Accurate Credit

6 Transactions Act (FACTA) Litig., 295 F.R.D. 438, 448 (C.D. Cal. 2014).
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IV.

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TERMS OF SETTLEMENT AGREEMENT

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Under the settlement agreement the Class is defined as:
all persons who are or were employed in California by Defendants as non-exempt
(i) shop workers, (ii) farm equipment operators and pruners, (iii) truck drivers,
and (iv) weighers at any point during the Class Period and who do not properly
and timely opt out of the Settlement Class by having requested exclusion. There
are approximately 185 Settlement Class Members. The Settlement Class does not
include immediate family members of Defendants (i.e. individuals with the last
name of “Martin” that were included in the positions list of shop workers, farm
equipment operators and pruners, truck drivers and weighers provided to
Plaintiffs’ Counsel, with the exception of Diego Martin, Santiago Martin and
Maria R. Martin, who are not immediate family members).

16 (Amended Stipulation and Agreement to Settle Class and Collective Action (“Amended
17 Stipulation”) ¶ 21, ECF No. 29-1.)
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The settlement agreement provides for a settlement fund of five-hundred twenty-five

19 thousand dollars ($525,000.00) to resolve all claims of the settlement class for the alleged
20 failure to provide meal and rest breaks and pay wages, penalties, and attorney fees and costs.
21 (Id. at ¶ 34.) Defendants shall pay the employer’s share of the payroll taxes separately. (Id.)
22 Prior to payment of settlement awards, the common fund shall be reduced by service awards to
23 the named Plaintiffs, an award of attorney fees and costs to class counsel, all costs of settlement
24 administration, and a PAGA payment to the California Labor and Workforce Development
25 Agency (“LWDA”). (Id. at ¶ 35.) The remaining funds constitute the net settlement fund. (Id.)
26 The class period is defined as “any time between February 16, 2014 and May 27, 2018.” (Id. at
27 ¶ 6.)
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The settlement fund will be funded by six separate installments with the first payment of
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1 $87,500.00 to be made within 180 days from the date of final approval of the settlement. (Id. at
2 ¶ 36.) The following payments shall be made six months after the previous payment. (Id.) In
3 the event that a payment is not made the entire amount shall be immediately due and payable.
4 (Id.) Notice of default shall be given by mail and fax and no other action shall occur until after
5 10 days have lapsed during which time Defendants have the right to cure any default. (Id.)
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The settlement fund shall be distributed in three installments. (Id. at ¶ 37.) The first

7 installment shall be distributed within thirty days of receipt of the first payment from
8 Defendants. (Id.) This installment shall be distributed to pay the costs of claims administration,
9 the PAGA payment to the LWDA, and the attorney’s costs in the action. (Id.) The second
10 distribution is to be made within thirty days after the claims administrator receives the third
11 payment from Defendants. (Id.) This payment shall be used to begin paying settlement awards
12 to the class. (Id.) The third distribution shall be made within thirty days after the sixth
13 installment payment is received. (Id.) This distribution shall pay the remaining settlement
14 awards to the class in proportionate shares, the named class member incentive payments, and
15 class counsel’s attorney fees. (Id.) Any undistributed funds from checks that are not cashed
16 will escheat to the California Division of Labor Standards Enforcement of Unpaid Wages Fund
17 to be held in the name of and for the benefit of the class member. (Id.)
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The claims administrator shall pay from the common fund attorney fees in the amount of

19 one-hundred thirty-one thousand two-hundred fifty dollars ($131,250.00); costs of twelve
20 thousand five hundred dollars ($12,500.00), and five thousand dollars ($5,000.00) to each of the
21 named Plaintiffs. (Id. at ¶¶ 38.1, 38.2.) The net settlement fund is to be allocated in the
22 following manner: twenty percent (20 %) to unpaid wage claims; eighty percent (80 %) to
23 statutory penalties and interest; and ten thousand dollars ($10,000.00) to PAGA penalties. (Id.
24 at ¶ 39.1.) The settlement administrator shall pay the LWDA $7,500.00 in PAGA penalties.
25 (Id. at ¶ 39.2.)
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The net settlement fund shall be distributed to the members of the settlement class and

27 FLSA class. (Id. at ¶ 39.3.) The funds shall be distributed based upon the number of payroll
28 periods that the class member worked. (Id.) Each class member shall be paid the amount after
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1 applicable state and federal taxes are withheld. (Id. at ¶ 40.) The settlement administrator shall
2 issue a W-2 for the payment of unpaid wages and a Form 1099 for the portion that is allocated
3 to statutory penalties and interest. (Id. at ¶ 40.)
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Defendants agree not to oppose the application for attorney fees or costs by class

5 counsel. (Id. at ¶ 43.)
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The class members agree to release

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any and all claims, debts liabilities, demands, obligations, penalties, guarantees,
costs, expenses, attorney fees, damages, action or causes of action, whether
known or unknown, during the Relevant Time Period, as defined below, and that
were alleged in the Complaint filed on February 16, 2018, on behalf of the Named
Plaintiffs and the Settlement Class Members, based on the facts stated in the
Complaint, including, but not limited to allegations, that:

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(1) Defendants failed to compensate all straight time worked by Settlement Class
Members; (2) Defendants failed to pay overtime compensation under the Fair
Labor Standards Act (FLSA); (3) Defendants failed to provide meal periods, or
compensation in lieu thereof, in violation of California Labor Code sections 226.7
and 512 and the applicable Industrial Welfare Commission Wage Order; (4)
Defendants failed to authorize and permit rest periods, or compensation in lieu
thereof, in violation of California Labor Code section 226.7 and the applicable
Industrial Welfare Commission Wage Order; (5) Defendants failed to compensate
for reporting time, in violation of the applicable Industrial Welfare Commission
Wage Order; (6) Defendants failed to provide itemized employee wage
statements, in violation of California Labor Code sections 226, 1174, and 1175
and the applicable Industrial Welfare Commission Wage Order; (7) Defendants
failed to timely pay wages due at termination, in violation of California Labor
Code sections 201-203 and 205; (8) Defendants engaged in unlawful business
practices in violation of California Business and Professions Code section 17200,
et seq; (9) Settlement Class Members are entitled to PAGA penalties pursuant to
California Labor Code Sections 2698, et seq.; (10) Settlement Class Members are
entitled to declaratory relief to determine whether the practices alleged in the
Complaint are unlawful; (11) Settlement Class Members are entitled to injunctive
relief to halt any practices alleged in the Complaint that are unlawful; (12)
Settlement Class Members are entitled to restitutionary damages under California
Business & Professions Code sections 17200, et seq.; (13) Defendants are liable
for attorneys’ fees and/or costs incurred to prosecute this action on behalf of
Settlement Class Members, including fees incurred for the services of Class
Counsel; and (14) Defendants are liable for any other remedies, penalties, and
interest under California Labor Code sections 201, 202, 203, 205, 226, 226.7, 510,
512, 1174, 1194, 1194.2, 1197, 1197.1, 2699, and the applicable Industrial
Welfare Conmission Wage Order. If a person opt-outs of the Class after receiving
the Class Notice, his or her California claims will not be released and will not
barred by res judicata in any future legal proceedings. If a person does not submit
a consent to join/opt-in to the FLSA action, that person’s FLSA claim will not be
released, regardless of whether he or she is part of the Class Settlement.

27 (Id. at ¶¶ 17, 31.) The named Plaintiffs agree to release any and all claims they may have
28 against the defendants based on any events occurring up to the effective date of the settlement
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1 agreement, whether known or unknown, except for claims that may not be released as a matter
2 of law. (Id. at ¶ 32.)
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Workers who consent to join or opt into the FLSA class action will be releasing their

4 FLSA claims. (Id. at ¶ 39.4.)
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The claims administrator shall mail by U.S. mail the class notice and FLSA notice and

6 dispute forms in English and Spanish. (Id. at ¶ 49.3(a)(b).) The notices shall be mailed to the
7 most current mailing address available. (Id. at ¶ 49.3(b).) For any notices that are returned as
8 undeliverable, the class administrator shall use appropriate search methods to attempt to obtain
9 a new address and re-mail the notice if a new address is obtained. (Id. at ¶ 49.3(b).) If the
10 claims administrator is unable to obtain a new address within thirty days of the original mailing
11 date or 45 days after a notice is returned as non-deliverable, the claims administrator shall be
12 deemed to have satisfied its obligation to mail class notice. If a class member does not obtain
13 notice through these procedures, the intended recipient shall nevertheless be deemed to be
14 bound by the terms of the settlement agreement. (Id. at ¶ 49.3(b).) The claims administrator
15 shall provide Plaintiff’s counsel all opt-in forms for the FLSA class so they can be filed with the
16 court. (Id.)
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Any objections to the settlement must be submitted in writing. (Id. at 49.3(c).) No

18 member shall be entitled to object at the final hearing unless a written objection is submitted to
19 class counsel stating the intent to appear. (Id.)
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All members of the settlement class and those members who opt into the FLSA class

21 action shall receive a settlement award. (Id. at 49.3(f).) The settlement administrator shall
22 determine the amount of the award to each class or collective action member. (Id.)
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V.

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DISCUSSION

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A.

Certification of the Rule 23 Class

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Even where the certification of the class is unopposed, the court must examine whether

27 the settlement class satisfies the requirements of Rule 23(a) of the Federal Rules of Civil
28 Procedure of numerosity, commonality, typicality, and adequacy of representation. Hanlon v.
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1 Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). The court is required to pay “ ‘undiluted,
2 even heightened attention’ to class certification requirements in a settlement context.” Hanlon,
3 150 F.3d at 1019 (quoting Amchem Products, Inc. v. Windsor (“Amchem”), 521 U.S. 591, 620
4 (1997)). The dominant concern of Rule 23(a) and (b) is whether the proposed class has
5 sufficient unity so that it is fair to bind absent class members to the decisions of the class
6 representatives. Amchem, 521 U.S. at 621.
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1.

Numerosity

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The numerosity requirement is satisfied where “the class is so numerous that joinder of

9 all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Records produced by Defendants show
10 that there are 185 putative class members. (Decl. of Enrique Martinez ¶ 13, ECF No 18-2.) The
11 number of individual class members in this instance exceeds the number that has been found to
12 be so numerous that joinder of all members would be impracticable. See Celano v. Marriott
13 Int’l, Inc., 242 F.R.D. 544, 549 (N.D. Cal. 2007) (“courts generally find that the numerosity
14 factor is satisfied if the class comprises 40 or more members”); Cervantez v. Celestica Corp.,
15 253 F.R.D. 562, 569 (C.D. Cal. 2008) (“Courts have held that numerosity is satisfied when there
16 are as few as 39 potential class members.”) The class of 185 members satisfies the numerosity
17 requirement.
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2.

Commonality

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The commonality requirement is satisfied where “there are questions of law or fact that

20 are common to the class.”

Fed. R. Civ. P. 23(a)(2).

Courts construe Rule 23(a)(2)’s

21 commonality requirement permissively. Cervantez, 253 F.R.D. at 570. The key inquiry is
22 “whether class treatment will ‘generate common answers apt to drive the resolution of the
23 litigation.’ ” Arredondo v. Delano Farms Co., 301 F.R.D. 493, (E.D. Cal. Feb. 21, 2014)
24 (citations omitted). Commonality is not required for all of the claims. It is sufficient if there is
25 one single issue common to the proposed class. True v. American Honda Motor Co., 749
26 F.Supp.2d 1052, 1064 (C.D. Cal. 2010).
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Plaintiffs argue that all class members “were treated identically under Defendants’

28 uniform policies and practices with regard to overtime pay, meal and rest periods, and reporting
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1 time pay.” (ECF No. 18-1 at 16.) Plaintiffs contend that all class members were subject to the
2 same level of control by all the defendants and the questions common to the class include:
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Whether certain class members were entitled to overtime compensation under
FLSA after working forty hours per week and, if so, whether they were paid in
compliance with that requirement;
Whether certain class members were entitled to overtime compensation under the
California Labor Code and, if so, whether they were paid in compliance with
those requirements;
Whether Defendants’ failed to provide class members with meal periods as
required by law;
Whether class members were provided with their rest breaks, as required by law;
Whether class members are entitled to statutory premium pay for every day they
missed a meal or rest break;
Whether certain class members were unlawfully denied reimbursement for workrelated expenses;1
Whether Defendants provided class members with accurate itemized statements
in accordance with state law; and,
Whether Defendants failed to pay waiting time penalties to former employees for
all of their wages due.

12 (ECF No. 18-1 at 17.) Plaintiffs argue that the answer to these questions will resolve the claims
13 of all class members in one stroke.
Plaintiffs contend that Defendants had a company-wide policy of requiring employees to

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15 work more than 10 hours per day or 60 hours per week without paying them overtime or
16 providing them with rest and meal breaks as required under California law. Further, Plaintiffs
17 allege that truck drivers and weighers were required to report for work on days for which they
18 were not selected to work or worked less than four hours without receiving reporting time
19 compensation. Plaintiffs have sufficiently shown that they suffered a common injury which is
20 capable of resolution on a class wide basis. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350,
21 (2011). The facts and legal issues are substantially identical for the class members. The Court
22 finds that class relief based upon commonality is appropriate in this instance.
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3.

Typicality

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Rule 23(a)(3) requires that “the claims or defenses of the representative parties are

25 typical of the claims or defenses of the class[.]” This does not require the claims to be
26 substantially identical, but that the representatives’ claims be “reasonably co-extensive with
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The Court notes that there are no claims in this action that employees were not paid for work related expenses.

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1 those of the absent class members.” Hanlon, 150 F.3d at 1020. Typicality is determined by
2 looking to the nature of the claims of the class representatives and tests “whether other members
3 have the same or similar injury, whether the action is based on conduct which is not unique to
4 the named plaintiffs, and whether other class members have been injured by the same course of
5 conduct.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (quoting Schwartz
6 v. Harp, 108 F.R.D. 279, 282 (C.D.Cal.1985)).
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Plaintiffs allege that they and the unnamed class members worked under the same terms

8 and conditions of employment as the other members of the proposed class. (Decl. of Enrique
9 Martinez ¶ 8.) In each job category, the proposed class members were treated identically under
10 Defendants’ uniform policies and practices with regard to overtime pay and meal and rest
11 breaks. (Id.) The truck drivers and weighers were treated the same with regards to the failure to
12 provide reporting time pay. (Id.)
13

Here, the named plaintiffs’ claims are typical to the claims of the purported class

14 members because they were all subjected to the same failure to pay overtime and receive meal
15 and rest breaks. The Court does note that none of the named Plaintiffs worked as weighers or
16 pruners. However, the weighers and pruners were subjected to the same failure to pay overtime
17 and provide rest and meal periods as the rest of the class. Similarly, the weighers were
18 subjected to the same failure to pay reporting time wages as the truck drivers.
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The Court finds that Plaintiffs have satisfied the typicality requirement.

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4.

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The named plaintiffs must fairly and adequately protect the interests of the class. Fed. R.

Adequacy

22 Civ. P. 23(a)(4). In determining whether the named plaintiffs will adequately represent the
23 class, the courts must resolve two questions: “(1) do the named plaintiffs and their counsel have
24 any conflicts of interest with other class members and (2) will the named plaintiffs and their
25 counsel prosecute the action vigorously on behalf of the class?” Hanlon, 150 F.3d at 1020.
26 “Adequate representation depends on, among other factors, an absence of antagonism between
27 representatives and absentees, and a sharing of interest between representatives and absentees.
28 Ellis v. Costco Wholesale Corp., 657 F.3d 970, 985 (9th Cir. 2011) (citations omitted). This
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1 inquiry is given heightened scrutiny in “cases in which class members may have claims of
2 different strength.” Hanlon, 150 F.3d at 1020.
3

Plaintiffs argue that they share the same interests as the putative class members in

4 seeking unpaid overtime compensation, penalties for missed meal and rest breaks, and other
5 forms of relief that are identical due to Defendants’ alleged misconduct. (ECF No. 18-1 at 18.)
6 Further, Plaintiffs contend that their interests are representative of and consistent with the class
7 and they have actively participated in this litigation which demonstrates they have and will
8 continue to protect the interests of the proposed class. (Id. at 18-19.)
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The threshold to be named as lead plaintiff representing the class is fairly low: “[t]he

10 fact that plaintiffs are familiar with the basis for the suit and their responsibilities as lead
11 plaintiffs is sufficient to establish their adequacy.” Bellinghausen v. Tractor Supply Co., 303
12 F.R.D. 611, 617 (N.D. Cal. 2014) (quoting Hodges v. Akeena Solar, Inc., 274 F.R.D. 259, 267
13 (N.D. Cal. 2011).
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The Court had initially expressed concern because the named class members were to

15 receive an incentive award in the first distribution while the class members would not receive a
16 settlement payment until the second distribution approximately a year and a half later. The
17 parties have revised the settlement agreement so that the class members will receive their
18 settlement payments with the second distribution, but the named class member incentives will
19 not be paid until the third distribution.
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The Court finds that the parties have adequately addressed the concern regarding

21 whether this payment created a conflict with the class by ensuring that the class members will
22 be receiving their payments first. There are no actual, potential or perceived conflicts of interest
23 with any of the class members. (Decl. of Enrique Martinez ¶ 19.) The Court finds that the
24 named class members can adequately represent the unnamed class members in this action.
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In addition, “class counsel must be qualified, experienced, and generally able to conduct

26 the class action litigation.” Bellinghausen, 303 F.R.D. at 617. Plaintiffs’ counsel, Enrique
27 Martinez, and John E. Hill have significant experience in litigating similar class actions. (Decl.
28 of Enrique Martinez ¶¶ 22, 23, 24.) There are no actual, potential or perceived conflicts of
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1 interest with any of the class members. (Decl. of Enrique Martinez ¶ 22.) The Court finds that
2 the class has adequate representation in this matter.
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5.

Rule 23(b)(3)

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To certify a class under Rule 23(b)(3), the Court must find that “the questions of law or

5 fact common to class members predominate over any questions affecting only individual
6 members, and that a class action is superior to other available methods for fairly and efficiently
7 adjudicating the controversy.” Certification under Rule 23(b)(3) is appropriate “whenever the
8 actual interests of the parties can be served best by settling their differences in a single action.”
9 Hanlon, 150 F.3d at 1022 (quoting 7A Charles Alan Wright, Arthur R. Miller & Mary Kay
10 Kane, Federal Practice & Procedure § 1777 (2d ed.1986)).
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a.

Predominance

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“[T]he focus of the Rule 23(b)(3) predominance inquiry is on the balance between

13 individual and common issues.” Alberto v. GMRI, Inc., 252 F.R.D. 652, 663 (E.D. Cal. 2008).
14 “An individual question is one where ‘members of a proposed class will need to present
15 evidence that varies from member to member,’ while a common question is one where ‘the
16 same evidence will suffice for each member to make a prima facie showing [or] the issue is
17 susceptible to generalized, class-wide proof.’ ” Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct.
18 1036, 1045 (2016) (quoting 2 W. Rubenstein, Newberg on Class Actions § 4:50, pp. 196–197
19 (5th ed. 2012)). Where common questions present a significant aspect of the case and are able
20 to be resolved for all class members in a single action, the case can be handled on a
21 representative rather than individual basis. Alberto, 252 F.R.D. at 663.
22

As discussed above, Plaintiffs allege that the class members here have all been subjected

23 to the same employment terms and conditions which caused them harm and the same damages
24 are available. Plaintiff argues that there are few individual factual issues, other than the number
25 of hours each employee worked which is reflected in time records and the calculation of
26 individual damages. The applicable law governing the overtime pay requirements, meal and
27 break periods, and the statutory basis for the remaining claims will be the same for each class
28 member. Therefore, the predominance inquiry is satisfied.
13

1

b.

Superiority

2

Rule 23(b)(3) provides that courts should consider “(A) the class members’ interests in

3 individually controlling the prosecution or defense of separate actions; (B) the extent and nature
4 of any litigation concerning the controversy already begun by or against class members; (C) the
5 desirability or undesirability of concentrating the litigation of the claims in the particular forum;
6 and (D) the likely difficulties in managing a class action.” Where the parties have agreed to
7 pre-certification settlement (D) and perhaps (C) are irrelevant. Amchem, 521 U.S. at 620.
8

The parties are unaware of any concurrent litigation regarding the issues raised in this

9 action. Absent any competing lawsuits, it is unlikely that other employees have an interest in
10 controlling the litigation. Moreover, the class members will be given the opportunity to object
11 at the fairness hearing.
12

The purpose of Rule 23(b)(3) is “to allow integration of numerous small individual

13 claims into a single powerful unit.” Bateman v. American Multi-Cinema, Inc., 623 F.3d 708,
14 722 (9th Cir. 2010) (quoting Blackie v. Barrack, 524 F.2d 891, 899 (9th Cir. 1975). Here, the
15 action consists of approximately 185 individuals who are low-wage workers and many of them
16 no longer work for Defendants. (Decl. of Enrique Martinez ¶¶ 13, 18.) Plaintiffs contend that
17 none of the class members appears to have the means to finance an individual lawsuit; and the
18 individual claims are too small to justify the cost of private counsel to file and prosecute
19 individual actions. (Id. at ¶ 18.) Allowing this action to proceed as a class action appears to be
20 the superior method of adjudicating the controversy given the number of class members and
21 amount of damages at issue for each class member.
22

The Court finds that class certification should be granted for the purposes of settlement

23 of this action.
24

B.

Certification of the FLSA Class

25

Plaintiffs also request that this matter be certified as a collective action under the FLSA.

26 The FLSA provides the right of an employee to represent similarly situated employees in a suit
27 against their employer for the failure to pay minimum wage or overtime compensation. 29
28 U.S.C. § 216(b). Unlike a class action under Rule 23, to participate in the collective action an
14

1 employee is required to give his consent in writing to become a party. 29 U.S.C. § 216(b); see
2 Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989) (rights in a collective action
3 under the FLSA are dependent on the employee receiving accurate and timely notice about the
4 pendency of the collective action, so that the employee can make informed decisions about
5 whether to participate). “If an employee does not file a written consent, then that employee is
6 not bound by the outcome of the collective action.” Edwards v. City of Long Beach, 467
7 F.Supp.2d 986, 989 (C.D. Cal. 2006).
8

Determining whether a collective action is appropriate is within the discretion of the

9 district court. Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004).
10 However, “[n]either the FLSA, nor the Ninth Circuit, has defined the term ‘similarly situated’
11 for purposes of certifying a collective action.” Nen Thio v. Genji, LLC, 14 F.Supp.3d 1324,
12 1340 (N.D. Cal. 2014). While it is unclear what standard should be used to determine if the
13 employees are similarly situated under the FLSA, given that the employee consents to
14 participating in the FLSA actions courts do find that “the requisite showing of similarity of
15 claims under the FLSA is considerably less stringent than the requisite showing under Rule 23
16 of the Federal Rules of Civil Procedure.” Hill v. R+L Carriers, Inc., 690 F.Supp.2d 1001, 1009
17 (N.D. Cal. 2010); accord Millan v. Cascade Water Servs., Inc., 310 F.R.D. 593, 607 (E.D. Cal.
18 2015).
19

Federally courts generally use a two-step approach to determine whether to allow a

20 collective action to proceed. Tijero v. Aaron Bros., Inc., 301 F.R.D. 314, 323 (N.D. Cal. 2013).
21 Initially, the court determines whether the potential class members should receive notice of the
22 action, and plaintiffs can satisfy their burden to show that they are “similarly situated” by
23 making substantial allegations, supported by declarations or discovery, that “the putative class
24 members were together the victims of a single decision, policy, or plan.” Nen Thio., 14
25 F.Supp.3d at 1340 (citations omitted). The determination is based on a fairly lenient standard,
26 and typically results in conditional certification. Id. The second certification decision is usually
27 made at the close of discovery when the defendant brings a motion to decertify the class and the
28 “courts apply a stricter standard for similarly situated employees and review several factors,
15

1 including whether individual plaintiffs’ claims involve disparate factual or employment settings;
2 the various defenses available to the defendant which appear to be individual to each plaintiff;
3 as well as fairness and procedural considerations.” Id. at 1341.
As discussed above, the putative class members appear to be similarly situated because

4

5 their alleged injuries arise from Defendants’ uniform policies and practices with regard to
6 overtime pay, meal and rest periods, and reimbursement of work-related expenses. Under the
7 FLSA’s lenient standard the first step has been met. As Defendants will not seek decertification
8 of the class, the FLSA class is conditionally certified.
C.

9

Fairness, Adequacy, and Reasonableness of Proposed Settlement

Having determined that class treatment and FLSA certification appear to be warranted,

10

11 the Court addresses Federal Rule of Civil Procedure 23(e)(2) which requires that any settlement
12 in a class action be approved by the court which must find that the settlement is fair, reasonable,
13 and adequate. Review of the proposed settlement of the parties proceeds in two phases. True,
14 749 F.Supp.2d at 1062. At the preliminary approval stage, the court determines whether the
15 proposed agreement is within the range of possible approval and whether or not notice should
16 be sent to class members. Id. at 1063. At the final approval stage, the court takes a closer look
17 at the settlement, taking into consideration objections and other further developments in order to
18 make the final fairness determination. Id.
The court considers a number of factors in making the fairness determination including:

19

20 “the strength of the plaintiffs’ case; the risk, expense, complexity, and likely duration of further
21 litigation; the risk of maintaining class action status throughout the trial; the amount offered in
22 settlement; the extent of discovery completed and the stage of the proceedings; the experience
23 and views of counsel; the presence of a governmental participant;2 and the reaction of the class
24 members to the proposed settlement.” Lane, 696 F.3d at 819 (quoting Hanlon, 150 F.3d at
25 1026).
When the settlement takes place before formal class certification, as it has in this

26
27
28

2

Since there is no government participant in this action, this factor does not weigh in the Court’s analysis.

16

1 instance, settlement approval requires a “higher standard of fairness.” Lane, 696 F.3d at 819
2 (quoting Hanlon, 150 F.3d at 1026). This more exacting review of class settlements reached
3 before formal class certification is required to ensure that the class representatives and their
4 counsel do not receive a disproportionate benefit “at the expense of the unnamed plaintiffs who
5 class counsel had a duty to represent.” Lane, 696 F.3d at 819.
6

“[S]ettlements of collective action claims under the FLSA also require court approval.”

7 Nen Thio, 14 F.Supp.3d at 1333. “The FLSA establishes federal minimum-wage, maximum8 hour, and overtime guarantees that cannot be modified by contract.” Genesis Healthcare Corp. v.
9 Symczyk, 569 U.S. 66, 69 (2013). Since an employee cannot waive claims under the FLSA, an
10 FLSA claim “may not be settled without supervision of either the Secretary of Labor or a district
11 court.” Nen Thio, 14 F.Supp.3d at 1333. When confronted with a motion to settle an FLSA
12 claim, the court “must determine whether the settlement is a fair and reasonable resolution of a
13 bona fide dispute.

If a settlement in an employee FLSA suit does reflect a reasonable

14 compromise over issues, such as FLSA coverage or computation of back wages, that are actually
15 in dispute, the district court may approve the settlement in order to promote the policy of
16 encouraging settlement of litigation.” Id. (internal punctuation and citations omitted).
17

1.

Preliminary Determination of Adequacy

18

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

19 must focus on substantive fairness and adequacy, and “consider plaintiffs’ expected recovery
20 balanced against the value of the settlement offer.” Lusby v. Gamestop, Inc., 297 F.R.D. 400,
21 415 (N.D. Cal. 2013) (quoting In re Tableware Antitrust Litig., 484 F.Supp.2d 1078, 1080 (N.D.
22 Cal. 2007)). “If the proposed settlement appears to be the product of serious, informed, non23 collusive negotiations, has no obvious deficiencies, does not improperly grant preferential
24 treatment to class representatives or segments of the class, and falls within the range of possible
25 approval, then the court should direct that the notice be given to the class members of a formal
26 fairness hearing.” In re Tableware Antitrust Litigation, 484 F.Supp.2d at 1079 (quoting Manual
27 for Complex Litigation, Second § 30.44 (1985)).
28

The parties have engaged in extensive communication and correspondence regarding the
17

1 case and Defendants have provided time records and payroll and other records for all 185
2 putative class members. (Decl. of Enrique Martinez at ¶ 13.) These records were used by
3 Plaintiffs’ counsel to calculate class damages.

(Id..)

Plaintiffs’ counsel has performed

4 extensive legal research and factual analysis and met with the putative class members on more
5 than seven occasions. (Id. at ¶ 14.) The parties participated in a full-day mediation with a
6 professional mediator experienced in employment litigation. (Id. at ¶ 12.) Although the parties
7 were not able to reach agreement during the mediation, they did come to an agreement several
8 weeks later through a mediator’s proposal. (Id.) While Defendants deny any liability or
9 wrongdoing, they have concluded that further defense of the action would be protracted and
10 expensive. (ECF No. 29-1 at ¶¶ 25, 29.) The Court finds that the agreement appears to be the
11 result of vigorous arms-length bargaining.
12

The settlement agreement provides a settlement fund of $525,000. The class incentive

13 payments of $20,000; class counsel’s fees of $131,250 and costs of $12,500; payment to the
14 LWDA of $7,500; and the claims administration fee of $20,000 shall be deducted from the
15 gross settlement fund. After the agreed upon deductions, the net settlement fund will be
16 $333,750 to be distributed to the class members. Nineteen percent of the fund is to be allocated
17 to the FLSA claims. (Amended Stipulation at ¶ 39.3.) Plaintiffs contend that the amount
18 agreed to in settlement is approximately sixty-six percent of the primary claims. (Decl. of
19 Enrique Martinez ¶ 16.) As many of the employees were seasonal and employed for only a
20 short period of time, counsel has estimated that this will result in payments from $18 to
21 $14,400, with the average class member recovering $1,804. (Id. at ¶ 17.) Further, Defendants
22 have changed their practices and employees are now receiving their meal and rest periods. (Id.
23 at ¶ 15.)
24

While the Court is aware that the structure of the settlement is unusual here as the

25 defendants are making the payments in installments, class counsel has determined that this
26 payment plan is the preferred outcome under the circumstances as it maximizes the recoverable
27 amount while preventing Defendants from filing bankruptcy. (Decl. of Enrique Martinez ¶ 7.)
28 In making this determination, counsel relied on the opinion of Mr. Michael Murray, a neutral
18

1 and independent CPA, who was retained to review Defendants’ financial status. (Id.) Mr.
2 Murray reviewed the following documents in evaluating Defendants’ financial status.
3

a.

M.J. Brothers’ Financial Statements and Supplementary Information for 2016
and 2017

4
5

b.

M.J. Brothers’ tax returns for 2016 and 2017

6

c.

M.J. Brothers’ Profit & Loss Statements for 2017 and 2018

7

d.

Personal income tax returns for Eduardo Martin for 2016 and 2017

8

e.

Personal income tax returns for Fernando Martin for 2016 and 2017

9

f.

Personal income tax returns for Daniel Martin for 2016 and 2017

10

g.

Personal income tax returns for Ronald Martin for 2016 and 2017

11 (Decl. of Michael P. Murray ¶ 5.) After reviewing the documents, Mr. Murray formed the
12 opinion that Defendants would not be able to pay a higher settlement amount over the schedule
13 set forth and that amount was reasonable and prudent in light of Defendants’ financial status.
14 (Id. at ¶ 7.)
15

The benefit that the class members will receive is not insubstantial and the proposed

16 settlement structure appears to be reasonable in the circumstances to ensure that the class
17 members will be compensated. The Court finds that the settlement falls within the reasonable
18 range.
19

2.

PAGA Penalties

20

The claims brought in this action include claims under California’s Private Attorneys

21 Generals Act (“PAGA”). Pursuant to PAGA, any provision of the California Labor Code that
22 provides for the assessment and collection of a civil penalty by the LWDA for a violation of the
23 Labor Code may be recovered through a civil action brought by an aggrieved employee on
24 behalf of herself and other current or former employees. Cal. Lab. Code § 2699(a). An
25 aggrieved employee is “any person who was employed by the alleged violator and against
26 whom one or more of the alleged violations was committed.” Cal. Lab. Code § 2699(c). In
27 bringing a representative action under PAGA, the aggrieved employee is acting as the proxy or
28 agent of the state’s labor law enforcement agencies. Arias v. Superior Court, 46 Cal. 4th 969,
19

1 986 (2009).
2

Civil penalties recovered under PAGA are distributed between the aggrieved employees

3 (25%) and LWDA (75%). Cal. Labor Code § 2699(i). Any settlement of PAGA claims must
4 be approved by the Court. Cal. Labor Code § 2699(l). The proposed settlement must also be
5 sent to the agency at the same time that it is submitted to the court. Cal. Labor Code §
6 2699(l)(2).
7

The terms of the settlement involves a $525,000 payment from Defendants. Of this

8 $525,000 sum, the parties apportion $10,000 toward the PAGA claims, resulting in a $7,500
9 payment to the LWDA. Plaintiffs filed a copy of the motion for preliminary approval of the
10 class action settlement with the LWDA. (ECF 29-2.) The LWDA has not filed an objection to
11 the terms of the settlement. Based on the LWDA’s lack of objection, the Court preliminarily
12 approves the PAGA penalties.
13

3.

Class Representative Enhancement Payment

14

The class representatives are each seeking an enhancement payment of $5,000. (Decl.

15 of Enrique Martinez ¶ 20.)

In assessing the appropriateness of class representative

16 enhancements or incentive payments, the Court must consider factors such as the actions the
17 plaintiffs took to protect the interests of the class, the degree to which the class has benefitted,
18 the amount of time and effort the plaintiff expended in pursuing litigation, and any notoriety or
19 personal difficulties encountered by the representative plaintiff.

Khanna v. Intercon Sec.

20 Systems, Inc., No. 2:09-cv-2214 KJM EFB, 2014 WL 1379861, at *10 (E.D. Cal. Apr. 8, 2014);
21 Reibstein v. Rite Aid Corp., 761 F.Supp. 2d 241, 257 (E.D. Penn. 2011); see also Staton, 327
22 F.3d at 975-77.
23

Here, the action was filed on February 16, 2018, and settlement was reached

24 approximately 10 months later. (ECF No. 16.) For a large part of this time the matter was
25 stayed for the parties to engage in mediation. (ECF No. 10.)

Plaintiffs allege that they

26 participated in numerous strategy meetings, assisted counsel in investigating the case, spoke
27 with many other workers about the case and took time off work without compensation to attend
28 various meetings. (Decl. of Enrique Martinez ¶ 20) Further, Plaintiffs contend that they took
20

1 personal risks in serving as representatives in this lawsuit. (Id. at ¶ 21.)
2

However, the Court finds that this amount appears to be excessive in relation to the

3 efforts and time the class representatives devoted to this action. In similar cases, this Court has
4 found enhancement payments between $2,500 to $3,000 to be reasonable and fair to the putative
5 class. See Gonzalez v. Harris Ranch Beef Co., No. 1:14-CV-00038-LJO, 2015 WL 4964794, at
6 *5 (E.D. Cal. Aug. 19, 2015), report and recommendation adopted in part, rejected in part, No.
7 1:14-CV-00038-LJO, 2015 WL 5173524 (E.D. Cal. Sept. 3, 2015) (awarding $2,500 to class
8 representative); Valdez v. Neil Jones Food Co., No. 1:13-CV-00519-SAB, 2016 WL 4247911,
9 at *14 (E.D. Cal. Aug. 10, 2016) see also Monterrubio v. Best Buy Stores, L.P., 291 F.R.D. 443,
10 462-63 (E.D. Cal. 2013) (awarding class representative $2,500 where action settled for
11 $400,000.00 and each class member will receive $65.79); Wolph v. Acer America Corporation,
12 No. C 09-01314 JSW, 2013 WL 5718440, at *6 (N.D. Cal. Oct. 21, 2013) (reducing incentive
13 award to $2,000 where named representatives did not demonstrate any great risk to either
14 finances or reputation in bringing the class action); Rigo v. Kason Industries, Inc., No. 11-cv15 64-MMA(DHB), 2013 WL 3761400, at *8 (S.D. Cal. July 16, 2013) (finding $2,500 incentive
16 award for more than two years of service well within the acceptable range); Vinh Nguyen v.
17 Radient Pharmaceuticals Corp., No. SACV 11-00406 DOC (MLGx), 2014 WL 1802293 (C.D.
18 Cal. May 6, 2014) (approving $2,000 for class representatives where settlement was reached
19 after discovery was completed, class representatives participated in depositions, and class
20 settled for $2.5 million).
21

In this instance, the Court finds that $3,500.00 would be reasonable compensation for

22 the time the services provided by the class representatives in this action given the risks that they
23 took in representing the class and the time spent adjudicating this action. However, the named
24 representatives may present additional evidence on final certification in support of a request for
25 addition compensation.
26

4.

Attorney Fees

27

Plaintiffs are seeking attorney fees in the amount of twenty-five percent of the common

28 fund. In the Ninth Circuit, courts typically calculate twenty-five percent of the common fund as
21

1 the “benchmark” for a reasonable fee award providing adequate explanation in the record for
2 any special circumstances that justify departure. In re Bluetooth Headset Products Liability
3 Litigation, 654 F.3d 935, 942 (9th Cir. 2011). The usual range for common fund attorney fees
4 are between twenty to thirty percent. Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th
5 Cir. 2002).
6

Class counsel is seeking $131,250 in attorney fees which is 25% of the gross settlement

7 amount. (Amended Stipulation ¶ 38.1.) Additionally, counsel seeks $12,500 in costs. (Id.)
8 The Court does note that this action was filed just over a year ago and Plaintiff has provided no
9 information for the Court to determine if the fee is actually reasonable in relation to the number
10 of hours that have been devoted to this action. At the final approval hearing, the Court will
11 employ the lodestar method as a cross check on the percentage method to ensure a failure and
12 reasonable result. Alberto, 252 F.R.D. at 668. Therefore, counsel is advised that in submitting
13 the final approval of class action settlement they will be required to provide a thorough fee
14 award petition that details the hours reasonably spent representing Plaintiffs in this action as
15 well as documentation to support the costs which are sought to be reimbursed.
16

5.

Notice

17

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

18 Hanlon, 150 F.3d at 1025. Rule 23 requires that notice for any class certified under Rule
19 23(b)(3) must be “the best notice that is practicable under the circumstances, including
20 individual notice to all members who can be identified through reasonable effort.” Fed. R. Civ.
21 P. 23(b)(2)(B). “Notice by mail is sufficient to provide due process to known affected parties,
22 so long as the notice is ‘reasonably calculated . . . to apprise interested parties of the pendency
23 of the action and afford them an opportunity to present their objections.’ ” Wright, 259 F.R.D.
24 at 475 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 318 (1950)).
25

The settlement agreement provides that Defendants shall provide the claims

26 administrator with a list of all members of the settlement class, their last known address,
27 telephone number, and the last four digits of their Social Security number or individual taxpayer
28 identification number.

(Amended Stipulation ¶ 49.3(a)).
22

The claims administrator shall

1 prepare, print, and mail to members the class notice. (Id.) A Spanish language translations of
2 the materials will be included as part of the same mailing. (Id.) The claims administrator shall
3 mail the class notice using the United States mail to the most current mailing address available.
4 (Id. at ¶ 49.3(b).)
5

a.

Class Action Notice

6

The class action notice informs the class members that this matter alleges state and

7 federal claims and that the individual will receive their proportional share of the $333,750.00 net
8 settlement fund if they do not opt out of the settlement. (ECF No. 29-1 at 33-34.) The notice
9 informs the class member of the specific claims that are at issue in the lawsuit. (Id. at 34.)
10 Further, the notice provides the amount that the class member is expected to receive and how the
11 monies will be treated under the agreement. (Id. at 34-35.) Directions on how to dispute the
12 amount are provided and the class members have sixty days from the date of mailing to opt out
13 of the class. (Id. at 35, ECF No. 18-2 at 49-50.)
14

The notice informs the class members that they will be bound by the terms of the

15 settlement if they do not opt out and provides instructions for how to opt out of the class. (ECF
16 No. 29-1 at 35.) The notice informs the class members that they will receive a first payment
17 approximately one and one-half years after final approval of the settlement and a second
18 payment approximately three years after final approval of the settlement.

(Id. at 35-36.)

19 Instructions and a form for opting out of the settlement are included. (Id. at 36, 44.)
20

The notice also provides the class members with instructions on how to object to the

21 settlement. (Id. at 36-37.) Class members object by sending a written objection and supporting
22 papers to the claims administrator within 60 days of the date of mailing of the notice. (Id. at 36.)
23 Any member may object to the settlement and remain a member of the class. (Id.) Only
24 members who do not opt out may object to the settlement. (Id. at 37.)
25

b.

Collective Action Notice

26

The collective action notice informs the class members that this matter alleges state and

27 federal claims and to receive their share of the FLSA settlement the individual must opt-in to the
28 class within sixty days. (ECF No. 29-1 at 39.) The notice informs the individual who is
23

1 included in the FLSA action and explains the difference in the dates between the FLSA and Rule
2 23 classes. (Id. at 39-40.)
3

The notice provides the amount that has been allocated to the FLSA class and the amount

4 that the individual would be expected to receive should they opt into the FLSA action and how
5 the amount was calculated. (Id. at 40) The class members are informed of how to dispute their
6 estimated award. (Id.) The notice informs the individual that to receive a portion of the FLSA
7 settlement fund they must opt in to the FLSA class and how to do so. (Id. at 40-41.) The
8 collective action members have sixty days from the date of mailing of the notice to opt in to the
9 action. (Id. at 39.)
10

The notice informs the class members that they will receive a first payment

11 approximately one and one-half years after final approval of the settlement and a second
12 payment approximately three years after final approval of the settlement. (Id. at 41.)
13

The Court finds that the notice and the manner of providing notice are the best notice that

14 is practicable under the circumstances and the proposed notice to the Rule 23 class and FLSA
15 class are approved.
16

D.

Class Counsel

17

Plaintiff seeks appointment of John Hill and Enrique Martinez as class counsel. Under

18 Rule 23 a court must appoint class counsel upon certifying the class. Fed. R. Civ. P. 23(g)(1).
19 In appointing class counsel the court must consider: “(i) the work counsel has done in
20 identifying or investigating potential claims in the action; (ii) counsel’s experience in handling
21 class actions, other complex litigation, and the types of claims asserted in the action; (iii)
22 counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to
23 representing the class.” Fed. R. Civ. P. 23(g)(1)(A).
24

Counsel has conducted an investigation which included interviewing the named

25 plaintiffs and numerous other members. (Decl. of Enrique Martinez ¶ 15.) There was extensive
26 communication regarding the case between counsel for the parties. (Id. ¶ 13.) Defendants
27 provided payroll and time records and related documents for all class members prior settlement
28 of the case. (Id. ¶ 13.) Counsel met with other class members and obtained signed declarations
24

1 to support the claims in this action. (Id. at 14) Counsel engaged in a full-day mediation with a
2 professional mediator experienced in employment actions. (Id. ¶ 12.)
3

Mr. Martinez represents that his firm has decades of experience in handling class action,

4 other complex litigation, and claims based on the same substantive law asserted in this action.
5 (Decl. of Enrique Martinez ¶ 22.) The firm has represented thousands of other workers in
6 lawsuits of similar size, scope, and complexity to the present action and has been appointed as
7 class counsel in each action in which appointment has been sought. (Id.)
8

Mr. Martinez graduated from UCLA Law School in 1995 and began his legal career

9 working primarily on civil rights and employment class actions. (Id. at ¶ 23.) He has litigated
10 over 35 wage and hour class action involving claims similar to those at issue in this action. (Id.)
11 His representation has resulted in favorable settlements that have recouped millions of dollars in
12 unpaid wages and penalties. (Id.) Mr. Martinez’ practice has primarily focused on labor and
13 employment law representing low-wage and immigrant workers. (Id.) Mr. Martinez is a
14 member of the California Employment Lawyer’s Association (“CELA”) and a former chair of
15 the CELA Immigrant Employment Rights Committee. (Id.) He has also served on various non16 profit organization boards and is a past president of La Raza Centro Legal in San Francisco.
17 (Id.) Mr. Martinez is a frequent speaker on employment matters at the Mexican Consulate and
18 at statewide and national conferences for CELA and the National Employment Lawyers
19 Association. (Id.)
20

Mr. Hill is experienced in civil litigation with over 49 years of experience. (Decl. of

21 Enrique Martinez ¶ 23; see also Curriculum Vitae of Attorney John Hill, ECF No. 18-2 at 6022 81.) The Law Firm of John E. Hill has the necessary resources to provide representation in this
23 matter. (Decl. of Enrique Martinez ¶ 24.)
24

The Court finds that Mr. Martinez, Mr. Hill, and the Law Firm of John E. Hill have the

25 requisite experience, knowledge, qualifications, and resources to represent the class members in
26 this litigation. The Court shall appoint Mr. Martinez and Mr. Hill of the Law Firm of John E.
27 Hill to serve as class counsel for the purpose of settlement of this action.
28 / / /
25

1

E.

Claims Administrator

2

Plaintiffs also seek appointment of CPT Group Class Action Administrators as claims

3 administrator. Counsel states that he has used CPT Group Class Action Administrators in the
4 past and has found them to be the best choice given the quality of their work and the lower cost
5 compared to other firms. The Court shall appoint CPT Group Class Action Administrators as
6 claims administrator in this action.
7

VI.

8

CONCLUSION AND ORDER

9

Based on the foregoing, IT IS HEREBY ORDERED that:

10

1.

The motion for preliminary approval of the class action settlement; provisional

11

class certification and appointment of class counsel; approval of form and method

12

of class notice; and the scheduling of a final fairness hearing are GRANTED;

13

2.

This action is provisionally certified as a class and collective action, for the

14

purposes of settlement only, pursuant to Federal Rule of Civil Procedure 23 (for

15

the California claims) and 29 U.S.C. § 201 et seq. (for the FLSA claim).

16

3.

The settlement class is defined as “all persons who are or were employed in

17

California by Defendants as non-exempt (i) shop workers, (ii) farm equipment

18

operators and pruners, (iii) truck drivers, (iv) weighers, and (v) pruners at any

19

point during the Class Period and who do not properly and timely opt out of the

20

Settlement Class by having requested exclusion.” The Settlement Class does not

21

include immediate family members of Defendants (i.e. individuals with the last

22

name of “Martin” that were included in the positions list of shop workers, farm

23

equipment operators and pruners, truck drivers and weighers provided to

24

Plaintiffs’ Counsel).

25

4.

Certification of the settlement class shall be solely for the purposes of settlement

26

and without prejudice to the parties in the event the settlement is not finally

27

approved by this Court or otherwise does not take effect.

28

5.

The settlement is preliminarily approved as fair, reasonable, and adequate, entered
26

1

into in good faith, free of collusion, and within the range of possible judicial

2

approval.

3

6.

4

John E. Hill, State Bar No. 45338
Enrique Martinez, State Bar No. 206884
Law Offices of John E. Hill
333 Hegenberger Road, Ste. 500
Oakland, CA 94621
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

5
6
7
8
9

7.

Victor Rodriguez, Estreberto Valdez, Miguel Esparza, and Francisco Banda are
appointed as class representatives.

10
11

The following attorneys are appointed as class counsel:

8.

CPT Group Class Action Administrators is appointed to serve as the settlement

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administrator and to carry out all duties and responsibilities of the claims

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administrator as specified in the settlement.

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9.

The method of disseminating notice to the settlement class and members of the

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FLSA collective action in Spanish and English, as set forth in the settlement, is

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approved.

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10.

Not later than five (5) days from the date of this order, Defendants’ counsel shall

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provide to the claims administrator and class counsel a list of all members of the

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settlement class and the FLSA collective action, their last known addresses,

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telephone numbers, and the last four digits of their social security or individual

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taxpayer identification numbers. Class counsel shall supplement this information

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with any more recent contact information available for members of the settlement

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class and the FLSA collective action.

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11.

No later than fourteen (14) days from the date of this order, the claims

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administrator shall send a copy of the class notice, the FLSA notice and consent

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to join/opt-in form (if applicable), and dispute form to members of the settlement

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class and the FLSA collective action via first class regular U.S. mail, postage

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prepaid, using the most current mailing address information available.
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12.

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A final fairness hearing shall be held on August 21, 2019 at 10:00 a.m. in
Courtroom 9.

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13.

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A motion for final approval of the settlement including a motion for attorney fees
shall be filed on or before July 24, 2019.

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14.

The parties shall file any responses to any objectors on or before July 31, 2019.

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15.

At no time shall any of the parties or their counsel seek, solicit or otherwise

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encourage, directly or indirectly, members of the settlement class or members of

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the FLSA collective action to submit written objections to the settlement, to opt

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out, or to appeal from the order and final judgment.

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IT IS SO ORDERED.

12 Dated:

April 24, 2019
UNITED STATES MAGISTRATE JUDGE

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