Bui v. Sprint Corporation, et al

Filing 60

ORDER signed by District Judge Troy L. Nunley on 2/23/2016 GRANTING 39 Motion for Preliminary Approval of Class Action Settlement. (Zignago, K.)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11
12

VIET BUI and CHRISTINA AVALOSREYES, individually and on behalf of all
other similarly situated employees, and on
behalf of the general public,

13
14
15
16
17
18

Plaintiffs,
v.
SPRINT CORPORATION, a SPRINT
COMMUNICATIONS COMPANY, L.P.,
a Delaware Corporation;
SPRINT/UNITED MANAGEMENT CO.,
a Delaware Corporation; and DOES 1
through 20, inclusive,

No. 2:14-cv-02461-TLN-AC

ORDER GRANTING PRELIMINARY
APPROVAL OF CLASS ACTION
SETTLEMENT, CERTIFYING THE
SETTLEMENT CLASS, AND PROVIDING
FOR NOTICE TO THE SETTLEMENT
CLASS

Defendants.

19
20
21
22
23
24
25
26
27

This matter is before the Court on Plaintiffs Viet Bui and Christina Avalos-Reyes’
(“Plaintiffs”) Motion for Preliminary Approval of Class Action Settlement. (ECF No. 39.)
Defendants Sprint Corporation, Sprint Communications Company, L.P., and Sprint/United
Management Co. (“Defendants” or “Sprint”) do not oppose Plaintiffs’ Motion. (ECF No. 47.)
The Court has carefully considered the arguments raised in Plaintiffs’ Motion. For the reasons set
forth below, the Court GRANTS Plaintiffs’ Motion for Preliminary Approval of Class Action
Settlement.

28
1

I.
1
2
3
4
5

Plaintiffs bring this class action lawsuit on behalf of eleven subclasses of
telecommunications workers who were or are employed by Sprint.1 (Second Am. Class Action
Compl., ECF No. 46 at ¶1.) Sprint is a United States telecommunications holding company that
provides wireless service, operates retail stores in California, and is also a major global Internet
carrier. (Mem. P. & A. Mot. Prelim. Approval of Class Action Settlement, ECF No. 40 at 8.)

6
7
8
9
10
11
12
13

On July 10, 2014, Plaintiff Viet Bui filed his Complaint in Sacramento County Superior
Court against Defendants for alleged violations of the California Labor Code. (ECF No. 40 at 8.)
On September 4, 2014, Plaintiff Viet Bui filed a First Amended Complaint. (ECF No. 40 at 8.)
On October 17, 2014, Sprint removed the case to this Court. (ECF No. 1.) Pursuant to a
Stipulation filed with the Court on May 18, 2015 (ECF No. 44), Plaintiff Viet Bui’s request to file
a second amended complaint was approved by the Court on May 26, 2015. (ECF No. 45.)
Plaintiffs filed their Second Amended Complaint, adding Plaintiff Christina Avalos-Reyes, on
May 28, 2015. (ECF No. 46.)

14
15
16
17
18
19

FACTUAL AND PROCEDURAL BACKGROUND

In the Second Amended Complaint, Plaintiffs allege that Defendants: (1) failed to provide
meal periods in violation of California Labor Code §§ 226.7 and 512, and the California Code of
Regulations; (2) failed to provide rest periods in violation of Labor Code §§ 226.7 and 512, et.
seq., and the California Code of Regulations; (3) failed to pay wages and related overtime
compensation in violation of California Labor Code §§ 1194 and 1198; (4) underpaid overtime
wages in violation of Labor Code §§ 510, 1194 and 1198, and Industrial Welfare Commission

20
21
22
23
24
25
26
27
28

1

On January 29, 2015, the Court received a Motion from Proposed Intervenors Olivia Guilbaud, Marques Lilly,
Michael Wong, and Michael Smith (“Guilbaud Plaintiffs and Proposed Intervenors”) regarding two cases against
Sprint witch they argue have “substantially similar claims” proceeding before the Honorable Vince Chhabria of the
United States District Court, Northern District of California (Guilbaud, et al. v. Sprint Nextel Corporation, et al.,
Case No. 3:13-CV-04357-VC and Smith, et al. v. Sprint/United Management Company, Case No. 3:14-CV-02642VC). (ECF No. 15.) On June 4, 2015, Guilbaud Plaintiffs and Proposed Intervenors filed a renewed motion to
Intervene. (ECF No. 48.) On June 19, 2015, the Court denied Guilbaud Plaintiffs and Proposed Intervenors Motions
to Intervene. (ECF No. 54.) Nevertheless, on December 16, 2015, the Guilbaud Plaintiffs and Proposed Intervenors
withdrew their Renewed Motion to Intervene. (ECF No. 58.) The Guilbaud Plaintiffs and Proposed Intervenors
withdrew their opposition in light of a settlement agreement executed and filed in the consolidated matters of lead
case Guilbaud, et al. v. Sprint Nextel Corporation, et al., Case No. 3:13-CV-04357-VC. (ECF No. 58 at 3.) Given
this Court’s denial of the Guilbaud Plaintiffs and Proposed Intervenors Motions, the approved settlement of the
Guilbaud Plaintiffs and Proposed Intervenors action in the Northern District of California, and the Joint Stipulation
of Settlement in this action which excludes the “plaintiff or [anyone] who has filed a consent to join in the collective
action conditionally certified in the Guilbaud Matter” (ECF No. 40-1 at 9), this Court sees no conflict and approves
this Class Action and Proposed Settlement for the group of Plaintiffs named in the Second Amended Complaint.

2

1

(IWC) Wage Order § 3; (5) failed to provide reimbursement for business expenses in violation of

2

California Labor Code §§ 2802 and 406-407; (6) violated Labor Code §2698 et. seq.; (7) failed to

3

pay wages due and payable twice monthly in violation of California Labor Code § 204; (8) failed

4

to pay all wages due upon ending employment in violation of Labor Code §§ 201-203; and (9)

5

engaged in unlawful competition and unlawful business practices in violation of California

6

Business and Professions Code §§ 17200 et. seq. (See ECF No. 46.) Plaintiffs request penalties

7

pursuant to the Private Attorney General Act of 2004 (PAGA) under Labor Code §§ 2699 et. seq.

8

(See ECF No. 46.) Defendants deny all of Plaintiffs’ allegations. (ECF No. 40 at 29–30.)
On December 17, 2014, the Court stayed the case to allow the Parties to participate in an

9
10

early mediation. (ECF No. 12.) In preparation for that mediation, the Parties thoroughly

11

investigated Plaintiffs’ wage and hour claims and debated the merits and strength of each Party’s

12

case. (ECF No. 40 at 9.) The Parties exchanged discovery, reviewed and analyzed documents

13

and records of class members, and retained experts to calculate damages. (ECF No. 40 at 9.) On

14

March 9, 2014, the Parties attended mediation with an experienced and well-respected mediator,

15

the Honorable Edward A. Infante (Ret.). (ECF No. 40 at 10.) With Judge Infante’s assistance the

16

Parties were able to reach an agreement on the terms of a settlement. (ECF No. 40 at 10.)

17

The Parties have agreed to settle the above-entitled action on a class-wide basis. (Notice

18

of Settlement, ECF No. 33.) Plaintiffs filed a Motion for Preliminary Approval of Class Action

19

Settlement on May 18, 2015. (ECF No. 39.) The specific terms of the Settlement Agreement are

20

set forth in a duly executed Joint Stipulation of Settlement. (ECF No. 40-1.) Defendants filed a

21

Statement of Non-Opposition to Plaintiffs’ Motion for Preliminary Approval of Class Action

22

Settlement. (ECF No. 47.) Plaintiffs’ Motion requests that this Court order the following: (1)

23

grant preliminary approval of the Proposed Class Action Settlement; (2) grant leave to file a

24

Second Amended Complaint2; (3) approve Rust Consulting, Inc. as Claims Administrator; (4)

25

approve the Notice to the Settlement Class and authorize sending of the Notice to Class Members;

26

(5) grant provisional certification of the Settlement Class for settlement purposes only; (6)

27

2

28

Pursuant to a Stipulation filed with the Court on May 18, 2015, (ECF No. 44), Plaintiffs’ request to file a second
amended complaint was approved by the Court on May 26, 2015. (ECF No. 45.) Plaintiffs filed their Second
Amended Complaint, adding Plaintiff Christina Avalos-Reyes, on May 28, 2015. (ECF No. 46.)

3

1

confirm Plaintiffs’ counsel as Class Counsel and preliminarily approve of their fees and costs; (7)

2

approve Plaintiffs Viet Bui and Christina Avalos-Reyes as the Class Representatives; and (8)

3

schedule a Final Fairness Hearing for final approval of the settlement. (ECF No. 40 at 7.) For the

4

reasons set forth below, the motion is GRANTED.
II.

5

SUMMARY OF THE SETTLEMENT
In Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement, Plaintiffs

6
7

explain that Defendants shall pay a sum equal to $4,850,000.00 (the “Gross Settlement Amount”)

8

into a non-reversionary settlement fund for settlement payments to the Class Members,

9

administration of the settlement, Enhancement Awards to the Class Representatives, Court-

10

approved attorney’s fees and costs, and the PAGA penalty. (ECF No. 40 at 10–11.) The

11

expected “Net Settlement Amount” is estimated to be $3,159,745.00.3 (ECF No. 40 at 10.)

12

All Settlement Class Members4 who do not timely opt-out of the Settlement

13

(“Participating Class Members”) will automatically receive their share of the settlement proceeds

14

without the need to return a Claim Form. (ECF No. 40 at 10.) Each Participating Class Member

15

who does not opt-out will receive a share based on the number of weeks he or she worked in a

16

Covered Position during the liability period. (ECF No. 40 at 10.) After the Date of Finality,

17

actual Individual Settlement Payments to Participating Class Members will be calculated by

18

multiplying each Participating Class Member’s number of Compensable Workweeks by the

19

quotient of the Net Settlement Amount divided by the Total Compensable Workweeks. (ECF No.

20

40-1 at 20.) Each Individual Settlement Payment made to a Participating Class Member shall be

21

deemed to be comprised of wages, penalties, and interest payments in equal, one-third (⅓) parts

22

3

23
24
25
26
27
28

The Net Settlement Amount of $3,159,745.00 is calculated as the Maximum Settlement Amount ($4,850,000.00) Cost of administration of the settlement (estimated not to exceed $30,000.00) – Enhancement Awards of $15,000.00
for Class Representative Viet Bui and $5,000.00 for Class Representative Christina Avalos-Reyes ($20,000.00) –
Attorneys’ fees ($1,616,505.00) – Attorney’s Costs ($20,000.00) – PAGA penalties ($5,000.00) (but $1,250 (25%) of
the PAGA payment will remain in the Net Settlement Amount for distribution to Participating Class Members. (ECF
No. 40 at 10–11.)
4
The “Settlement Class” means all persons who are or who have been employed by Sprint as a non-exempt
employee in one of Sprint’s California retail stores during the Class Period as a Store Host, Retail Consultant,
Bilingual Retail Consultant, Lead Retail Consultant, Bilingual Lead Retail Consultant, Assistant Store Manager,
Bilingual Assistant Store Manager, and/or Manager Retail Store (C), except for any person who is a named plaintiff
or who has filed a consent to join in the collective action conditionally certified in the Guilbaud Matter. (ECF No.
40-1 at 9.) All other undefined capitalized terms used herein have the same meaning ascribed to them in the Parties’
Joint Stipulation and Settlement Agreement (ECF No. 40-1).

4

1

(i.e., ⅓ wages, ⅓ penalties and ⅓ interest payments). (ECF No. 40-1 at 20.)
The Class Period will close on the date of Preliminary Approval. (ECF No. 40 at 11.) If

2
3

15% or more of all Eligible Class Members submit a timely and valid request to “opt out” of (i.e.,

4

request exclusion from) the Settlement, Sprint has the right to terminate the Proposed Settlement.

5

(ECF No. 40 at 11.) If the total number of Compensable Workweeks is more than 15% greater

6

than the amount disclosed by Sprint at the Parties’ March 9, 2015 mediation, the Gross Settlement

7

Amount shall increase in proportion to the difference between the number of Disclosed

8

Workweeks and the actual total of Compensable Workweeks. (ECF No. 40 at 12.)

9

At the time of final approval, Class Representative Plaintiff Viet Bui will request that the

10

Court approve an enhancement of $15,000.00 and Class Representative Christina Avalos-Reyes

11

will request that the Court approve an enhancement of $5,000.00. (ECF No. 40 at 11.)

12

Furthermore, at the time of final approval, the law firms Quintilone & Associates, The Carter

13

Law Firm, and The Phelps Law Group, including the attorneys Richard E. Quintilone II, Roger

14

Carter, and Marc H. Phelps (“Class Counsel”) will request attorneys’ fees in the amount of

15

$1,616,505.00 and costs incurred, not to exceed $20,000.00. (ECF No. 40 at 11; ECF No 40-1 at

16

5.) An estimated payment not to exceed $30,000 will be made from the Gross Settlement

17

Amount for reasonable administrative costs. (ECF No. 40 at 11.) Payment of $5,000 will be

18

made from the Gross Settlement Amount for settlement of PAGA claims.5
III.

19

A settlement of class litigation must be reviewed and approved by the court. Fed. R. Civ.

20
21

P. 23(e). This approval process is done in three stages:
First, the parties present a proposed settlement to the court for so-called “preliminary
approval.” If a class has not yet been certified, typically the parties will
simultaneously ask the court to “conditionally” certify a settlement class.

22
23
24

Second, if the court does preliminarily approve the settlement (and conditionally
certify the class), notice is sent to the class describing the terms of the proposed
settlement, class members are given an opportunity to object or, in Rule 23(b)(3)
class actions, to opt out of the settlement, and the court holds a fairness hearing at

25
26
27
28

APPROVAL PROCESS

5

Pursuant to California Labor Code Section 2699(i), the PAGA Penalty shall be allocated as follows: $3,750 (75%)
to the LWDA and $1,250 (25%) will remain in the Net Settlement Amount for distribution to Participating Class
Members. (ECF No. 40 at 11.)

5

which class members may appear and support or object to the settlement.

1
2
3

Third, taking account of all of the information learned during that process, the court
decides whether or not to give “final approval” to the settlement. As the parties may
also have moved for class certification at this point in the litigation, final approval
can also encompass a decision certifying the class.

4

Newberg on Class Actions, § 13:10 (5th ed. 2014). During the preliminary evaluation the court is

5

to examine the submitted materials and determine whether the proposed settlement terms seem

6

fair. In re Corrugated Container Antitrust Litig., 643 F.2d 195, 212 (5th Cir. 1981). Some courts

7

will hold a preliminary approval hearing, while others do not. Custom Led, LLC v. eBay, Inc.,

8

2013 WL 4552789, *1 (N.D. Cal. 2013). Given the parties’ briefings and the absence of

9

objection, the Court finds the motion is suitable for determination without a preliminary hearing.

10
11

IV.

PROVISIONAL CLASS CERTIFICATION

In their motion, Plaintiffs request that the Court certify the class for settlement purposes.

12

(ECF No. 40 at 7.) Federal Rule of Civil Procedure (“FRCP”) 23(c)(1) permits a court to “make

13

a conditional determination of whether an action should be maintained as a class action, subject

14

to final approval at a later date.” Fry v. Hayt, Hayt & Landau, 198 F.R.D. 461, 466 (E.D. Pa.

15

2000) (citing Collier v. Montgomery County Housing Authority, 192 F.R.D. 176, 181 (E.D. Pa.

16

2000)). In order to make such a determination, the prerequisites of FRCP 23(a) and (b) must

17

first be satisfied.

18

A. FRCP 23(a) Requirements

19

The four requirements of FRCP Rule 23(a) are:

20
21
22
23
24
25
26
27

(a) Prerequisites. One or more members of a class may sue or be sued as
representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the
claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests
of the class.
The Court will address each prerequisite individually.
i.

FRCP 23(a)(1) Numerosity

The numerosity requirement is satisfied if the class is so large that joinder of all members

28
6

1

would be impracticable. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998).

2

Although the numerosity requirement does not focus exclusively on the number of members in

3

the potential class, case law does suggest that very large numbers may be considered

4

impracticable.6

5

Here, the Settlement Class is defined as: “all persons who are or who have been

6

employed by Sprint as a non-exempt employee in one of Sprint’s California retail stores during

7

the Class Period as a Store Host, Retail Consultant, Bilingual Retail Consultant, Lead Retail

8

Consultant, Bilingual Lead Retail Consultant, Assistant Store Manager, Bilingual Assistant Store

9

Manager, and/or Manager Retail Store (C), except for any person who is a named plaintiff or

10

who has filed a consent to join in the collective action conditionally certified in the Guilbaud

11

Matter.” (ECF No. 40-1 at 9.) There are approximately 5,021 Eligible Class Members. (ECF

12

No. 40 at 14.) The joinder of approximately 5,021 individuals would overburden the Court’s

13

docket and be impracticable. Therefore, the numerosity requirement is satisfied.
ii.

14

FRCP 23(a)(2) Commonality

The second prerequisite for class certification is that there must be a common question of

15
16

law or fact to the class. Fed. R. Civ. P. 23(a)(2). The class members must share a “common

17

contention of such a nature that it is capable of class wide resolution – which means that

18

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

19

of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2545 (2011). The

20

commonality requirement is generally satisfied where “the lawsuit challenges a system-wide

21

practice or policy that affects all of the putative class members.” LaDuke v. Nelson, 762 F.2d

22

1318, 1332 (9th Cir. 1985) (citing Armstrong v. Davis, 275 F.3d 849, 884 (9th Cir. 2001)).

23

Furthermore, commonality is met where class members “have suffered the same injury.” See

24

Wal-Mart Stores, Inc., 131 S.Ct. at 2551.
In the Complaint, Plaintiffs contend that Defendants violated various Labor Code

25
26
6

27
28

The courts provide no strict number, but when a class is very large joinder is typically impracticable. See Gen. Tel.
Co. of the N.W. v. EEOC, 446 U.S. 318, 330 (1980) (suggesting 15 is too few); Hayes v. Wal-Mart Stores, Inc., 725
F.3d 349, 357 (3d Cir. 2013) (presuming numerosity at 40); Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473,
483 (2d Cir. 1995) (same).

7

1

sections and Business and Professions Code sections by failing to provide meal and rest periods,

2

failing to pay wages and overtime, failing to timely pay wages, failing to reimburse for business

3

expenses, and failing to pay all wages due upon ending employment. (ECF No. 46.) These

4

alleged practices and policies apply class-wide. Furthermore, the Plaintiffs allege that the

5

conduct at issue here injured all class members in the exact same way. Thus, the commonality

6

requirement is met.

7
8

iii.

FRCP 23(a)(3) Typicality

The typicality prerequisite of FRCP 23(a) is fulfilled if “the claims or defenses of the

9

representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3).

10

Representative claims “are ‘typical’ if they are reasonably co-extensive with those of absent class

11

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

12

Here the Class Representatives, as fellow Sprint telecommunications workers, allegedly

13

endured the same exposure to Defendants’ conduct and experienced the same consequences. The

14

Representative Plaintiffs share the same claims and the “same interest” as the Class Members, as

15

well as suffered the “same injury.” Gen. Tel. Co. of the S.W. v. Falcon, 457 U.S. 147, 156 (1982).

16

Therefore, the typicality requirement is met.

17
18

iv.

FRCP 23(a)(4) Adequacy

The final prerequisite under FRCP 23(a) is that the representative parties must be able to

19

fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a)(4). To make this

20

determination, the Ninth Circuit proposed two questions for a court to ask: “(1) Do the

21

representative plaintiffs and their counsel have any conflicts of interest with other class

22

members, and (2) will the representative plaintiffs and their counsel prosecute the action

23

vigorously on behalf of the class?” Staton v. Boeing Co., 327 F.3d 938, 957 (9th Cir. 2003).

24

Here, Plaintiffs maintain that there is no conflict of interest, and furthermore, the Court is

25

unaware of any evidence that would suggest otherwise. Plaintiffs essentially have the same

26

claim as the Class Members they represent. Additionally, there is no evidence that the

27

Representative Plaintiffs and their counsel will not prosecute the action vigorously. There is

28

evidence that Plaintiffs’ counsel is competent given their substantial experience in prosecuting
8

1

complex litigation and class action lawsuits. (Quintilone Decl., ECF No. 41; Carter Decl., ECF

2

No. 21; Phelps Decl., ECF No. 42.) Therefore, the final prerequisite of FRCP 23(a) is met.

3

B. FRCP 23(b) Requirements

4

In addition to meeting all the four prerequisites of 23(a), a class action must also meet

5

one of the three requirements of FRCP 23(b). Blake v. Arnett, 663 F.2d 906, 912 (1981).

6

Plaintiffs seek class certification pursuant to FRCP 23(b)(3) which states:

7

(3) the court finds that the questions of law or fact common to
class members predominate over any questions affecting only
individual members, and that a class action is superior to other
available methods for fairly and efficiently adjudicating the
controversy.

8
9
10
11

i.

Predominance of Common Questions

The Rule 23(b)(3) predominance test assesses whether proposed classes are “sufficiently

12

cohesive to warrant adjudication by representation.” Amchem Products, Inc. v. Windsor, 521

13

U.S. 591, 623 (1997). A court should look to the common questions because “when common

14
15
16
17
18
19
20
21
22
23
24
25
26
27

questions present a significant aspect of the case and they can be resolved for all members of the
class in a single adjudication, there is clear justification for handling the dispute on a
representative rather than on an individual basis.” Hanlon, 150 F.3d at 1022.
Here, each Class Member was allegedly subjected to the same failure to pay wages,
failure to provide meal and rest periods, and other such conduct by Defendants. Plaintiffs are
claiming a common practice and conduct by Defendant. Therefore, the common question here is
whether Defendants did in fact violate the various Labor Code sections and Business and
Professions Code sections, as Plaintiffs allege. Accordingly, the common questions that the class
members share here are a significant aspect of the case and can be resolved in a single
adjudication. As such, the first requirement of Rule 23(b)(3) is met.
ii.

Superiority of Class Action

Resolution of the claims of approximately 5,021 Class Members in one action is far
superior to individual lawsuits, because it promotes consistency and efficiency of adjudication.
Therefore, this requirement of FRCP 23(b)(3) is satisfied.

28
9

1

V.

PRELIMINARY APPROVAL OF SETTLEMENT

2

FRCP 23(e) provides that “[a] class action shall not be dismissed or compromised

3

without the approval of the court . . . ” Fed. R. Civ. P. 23(e)(2003). The purpose of preliminary

4

evaluation of proposed class action settlements is to determine whether the settlement is within

5

the “range of reasonableness.” 4 Newberg § 11.26. In reviewing a settlement, it is not a court's

6

province to “reach any ultimate conclusions on the contested issues of fact and law which

7

underlie the merits of the dispute. . . .” Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1291

8

(9th Cir. 1992). Instead a court should weigh the following factors: the strength of plaintiff’s

9

case; the risk, expense, complexity, and likely duration of further litigation; the stage of the

10

proceedings, and the value of the settlement offer. Collins v. Cargill Meat Solutions Corp., 274

11

F.R.D. 294, 301 (E.D. Cal. 2011). Given that some of these factors cannot be fully assessed until

12

the court conducts the final approval hearing, “a full fairness analysis is unnecessary at this

13

stage.” See Tijero v. Aaron Bros., Inc., 301 F.R.D. 314, 324 (N.D. Cal. 2013) (citing Alberto v.

14

GMRI, Inc., 252 F.R.D. 652, 665 (E.D. Cal. 2008)).

15

Preliminary approval of a settlement and notice to the proposed class is appropriate: “[i]f

16

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

17

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

18

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

19

approval. . . .” Collins, 274 F.R.D. at 301–02 (citing In re Tableware Antitrust Litig., 484

20

F.Supp. 2d 1078, 1079 (N.D. Cal. 2007)).

21

A. The Settlement was the Product of Informed, Arm’s Length Negotiations

22

The settlement here was reached after the Parties engaged in extensive and probing

23

discovery, negotiations on substantive issues, reviewed and analyzed documents and records of

24

class members, and obtained additional data and information to calculate damages. (ECF No. 40

25

at 19.) In addition, the Parties consulted with experts and participated in full-day mediation with

26

a retired judge. (ECF No. 40 at 9.) As a result, the Parties likely had sufficient information to

27

make an informed decision about the terms of the Settlement. Therefore, for purposes of

28

preliminary approval, the Court is satisfied that the Settlement was the product of informed and
10

1

arm’s length negotiations.

2

B. The Proposed Settlement Has No “Obvious Deficiencies”

3

The Settlement provides for a Gross Settlement Amount of $4,850,000.00 which consists

4

of payments to the Class Members, administration of the Settlement, payment of Enhancement

5

Awards to the two Class Representatives, attorney’s fees and costs, and PAGA penalties. The

6

amount remaining after deducting the attorney fees and costs, claims administration costs, Class

7

Representative Enhancement Awards, and PAGA penalties will be the Net Settlement Amount

8

(estimated to be $3,159,745.00). (ECF No. 40 at 10.) The Claims Administrator will then divide

9

this amount between the Participating Class Members by multiplying each Participating Class

10

Member’s number of Compensable Workweeks by the quotient of the Net Settlement Amount

11

divided by the Total Compensable Workweeks. (ECF No. 40-1 at 20.) All Settlement Class

12

Members who do not timely opt-out of the settlement will automatically receive their shares of

13

the settlement proceeds without the need to return a Claim Form. (ECF No. 40 at 10.) The

14

Court finds no obvious deficiencies in the proposed method of apportioning the award to the

15

Class Members.

16

Furthermore, the Court finds no obvious deficiencies with the Class Representative

17

Enhancement Awards of $15,000 for Plaintiff Viet Bui and $5,000 for Plaintiff Christina Avalos-

18

Reyes for acting as the Class Representatives. Federal courts have awarded enhancement

19

payments to lead plaintiffs for their efforts in prosecuting the case. See, e.g., Miller v. CEVA

20

Logistics USA, Inc., 2015 WL 729638, at *6 (E.D. Cal. Feb. 18, 2015) (approving $15,000

21

enhancement award for $2.6 million settlement). The enhancement awards in this case seem fair

22

and not the result of improper self-interest.

23

The Court also finds no obvious deficiencies with the Class Counsel attorney’s fees. The

24

Ninth Circuit has deemed “20% to 33.33 % of the total settlement value [to be reasonable], with

25

25% considered the benchmark.” Morgret v. Applus Technologies, Inc., No. 1:13-cv-01801-JLT,

26

2015 WL 1012576, at *9 (E.D. Cal. Mar. 5, 2015) (citing Powers v. Eichen, 229 F.3d 1249, 1256

27

(9th Cir. 2000)). While the Class Counsel attorney’s fees of 33.33% of the Gross Settlement

28

Amount ($1,616,505.00) are on the high side, given the number of potential Class Members
11

1

involved in this case, the expertise of Class Counsel and the number of firms involved, the fees

2

seem appropriate. Furthermore, the fees are subject to court approval, and at the final approval

3

hearing the party seeking fees bears the burden of establishing that the fees and costs were

4

reasonably necessary to achieve the results obtained. Fischer v. SJB–P.D., Inc., 214 F.3d 1115,

5

1119 (9th Cir. 2000).

6
7

C. The Settlement does not improperly grant preferential treatment to class
representatives or segments of the class
There is nothing to suggest that the Settlement improperly grants preferential treatment to

8
Class Representatives or segments of the Class. As explained above, the amount remaining,
9

after attorney’s fees, costs, enhancement awards, and PAGA penalties are deducted, will be

10
divided among the Class Members automatically based on the number of Compensable
11
Workweeks they worked. If there are 5,000 Participating Class Members, then the average
12
individual payment each will receive is approximately $632.00. (ECF No. 40 at 25.) The Court
13

agrees with Plaintiffs that “[t]hese are real and substantial payments as opposed to the largely

14
speculative awards that may or may not be otherwise obtained based on the various hazards of
15

litigation should the Proposed Settlement not be approved.” (ECF No. 40 at 25.)

16
As for the Enhancement Awards, they also appear to be appropriate. Enhancement
17
Awards are common in class actions and are intended to compensate class representatives for
18
their time and efforts. See, e.g., Miller, 2015 WL 729638 at *6. Therefore, this is not
19
preferential treatment of the Class Representatives, but rather providing them an award for
20
performing a civic duty.
21
D. The Settlement Falls Well Within the Range of Possible Approval
22
In order to determine whether a settlement falls well within the range of possible approval,
23
24

a court must focus on “substantive fairness and adequacy” and “consider plaintiffs’ expected
recovery balanced against the value of the settlement offer.” Collins, 274 F.R.D. at 302 (citing In

25
re Tableware, 484 F. Supp. 2d at 1080.
26
Plaintiffs have informed the Court that Defendants provided Plaintiffs with records to
27

assess Defendants’ exposure, including:

28
12

more than 280 pages of Sprint’s policies relating to Plaintiff’s
claims in the Action; a list of all of Sprint’s California retail stores
(including the hours of operation of each store and the date on
which each California retail store opened and closed); employment
data for a representative sample of the Settlement Class (including
current and former job titles, hire dates, termination dates, and job
location); and thousands of pages of payroll and timekeeping data
(including timekeeping audit data) for a representative sample of
the Settlement Class.

1
2
3
4
5
6

(ECF No. 40-1 at 11.) Upon receipt and review of these records, Plaintiffs “believe that the

7

claims alleged by Plaintiff[s] in the Action have merit.” (ECF No. 40-1 at 12.) Defendants

8

believe the claims asserted in the Action are without merit.” (ECF No. 40-1 at 12.) The Parties

9

“understand and agree that this Settlement represents a compromise of highly disputed claims,

10

and have entered into this Agreement to avoid the risks, costs, and delays associated with further

11

proceedings.” (ECF No. 40-1 at 12–13.) “Plaintiff and Class Counsel believe that the

12

Settlement reached confers substantial benefits upon Plaintiff[s] and the Eligible Class Members

13

and that the settlement embodied in this Agreement is fair, reasonable, adequate, in accordance

14

with the law, and in the best interests of Plaintiff[s] and the Eligible Class Members.” (ECF No.

15

40-1 at 12.)

16

If further litigation were to occur here, both Parties would face significant risks. The

17

Parties would be required to expend considerable time and resources which would potentially

18

outweigh any additional recovery Plaintiffs may receive or any potential minimized costs for

19

Defendants that could result from successful litigation. In light of this uncertainty, the Proposed

20

Settlement is fair, reasonable and adequate, and is in the best interest of the Class Members in

21

light of the facts and circumstances provided.

22
23

VI.

APPROVAL OF NOTICE PROGRAM

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

24

Hanlon, 150 F.3d at 1025. “When the parties reach a settlement agreement before a class

25

determination and seek to stipulate that the settlement will have class-wide scope, a class notice

26

must be sent to provide absent class members with certain basic information so that they have an

27

opportunity to consider the terms of the settlement.” See Newberg on Class Actions (4th Ed.

28
13

1
2

2002) §11.30.
For classes certified under FRCP 23(b)(3), the court must direct to class members “the

3

best notice practicable under the circumstances, including individual notice to all members who

4

can be identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). The notice must clearly

5

and concisely state in plain, easily understood language:

6
7
8
9
10
11
12

(i) the nature of the action;
(ii) the definition of the class certified;
(iii) the class claims, issues, or defenses;
(iv) that a class member may enter an appearance through an attorney if the member so
desires;
(v) that the court will exclude from the class any member who requests exclusion;
(vi) the time and manner for requesting exclusion; and
(vii) the binding effect of a class judgment on members under Rule 23(c)(3).
FRCP 23(c)(2)(B).
Here, the Notice of Class Action Settlement clearly lays out for the reader what the case is

13

about, the class definition and what the Proposed Settlement is (including the Maximum

14

Settlement Amount, the proposed Enhancement Awards for the Class Representatives, as well as

15

the attorney fees and costs). (ECF No. 40-1 at 37–43.) Furthermore, the Notice states what

16

options an individual has, including automatically receiving the Settlement, requesting exclusion

17

from the Settlement, or objecting to the Settlement. (ECF No. 40-1 at 41–42.) The Notice also

18

provides the addresses and phone numbers of Class Counsel. (ECF No. 40-1 at 42–43.) The

19

Court is satisfied that the requirements of FRCP 23(c)(2)(B) are met.

20

As for the method of notice, the Parties have agreed to use a Third Party Administrator to

21

handle the administration procedures. (ECF No. 40-1 at 9.) California authority generally

22

requires service of class notice by mail or similar reliable means. See Chance v. Superior Court,

23

58 Cal. 2d 275, 290 (1962). The procedure must be reasonably certain to reach class members.

24

Mullane v. Central Hanover Bank & Trust, 339 U.S. 306, 319 (1950). Here, the Third Party

25

Administrator will send a completed Court-approved Notice Packet to each Eligible Class

26

Member via first class U.S. mail or its equivalent. (ECF No. 40-1 at 20.) Prior to mailing the

27

Notice Packet, the Third Party Administrator shall check the last known address of each Eligible

28
14

1

Class Member by checking the last known address against the National Change of Address

2

database. (ECF No. 40-1 at 20.) If a Notice Packet is returned because of an undeliverable

3

address, the Third Party Administrator shall conduct a skip trace to locate a correct address.

4

(ECF No. 40-1 at 20.) Sprint shall provide all information regarding Eligible Class Members

5

necessary to conduct these mailings and searches that is reasonably-available from Sprint’s

6

records, including Eligible Class Members’ last known addresses. One supplemental Notice

7

Packet will be mailed to each Eligible Class Member whose notice is returned to the Third Party

8

Administrator within twenty (20) days of the initial mailing of the Notice Packets by the Third

9

Party Administrator. (ECF No. 40-1 at 21.) The Court finds this method of notice to be

10
11

reasonable and therefore approves the notice program.
VII.

CONCLUSION

12

For all the reasons set forth above, the Court orders as follows:

13

1. The action is preliminarily certified as a class action, for purposes of Settlement only,

14

on behalf of all persons who are or who have been employed by Sprint as a non-

15

exempt employee in one of Sprint’s California retail stores during the Class Period as

16

a Store Host, Retail Consultant, Bilingual Retail Consultant, Lead Retail Consultant,

17

Bilingual Lead Retail Consultant, Assistant Store Manager, Bilingual Assistant Store

18

Manager, and/or Manager Retail Store (C) (the “Settlement Class”), except for any

19

person who is a named plaintiff or who has filed a consent to join in the collective

20

action conditionally certified in the action entitled Guilbaud, et al. v. Sprint Nextel

21

Corp and Sprint/United Management Co., Inc., No. 3:13-cv-04357-VC (N.D. Cal.).

22

2. With respect to the Settlement Class, the Court finds, solely for purposes of the

23

Settlement, and with no other effect on this litigation or any other proceeding,

24

including if the Settlement Agreement ultimately is not approved or final judgment is

25

not entered, that the proposed class meets the requirements for certification under

26

FRCP Rule 23.

27
28

3. The Class Action Settlement set forth in the Settlement Agreement is preliminarily
approved as it appears to be fundamentally fair, adequate and within the “range of
15

1

reasonableness,” subject to any objections that may be raised at the Final Fairness and

2

Approval Hearing.

3

4. For purposes of the Proposed Settlement only, the Court hereby preliminarily

4

approves Quintilone & Associates, The Carter Law Firm, and the Phelps Law Group

5

as Class Counsel for the Settlement Class.

6

5. For purposes of the Proposed Settlement only, Plaintiffs Viet Bui and Christina

7

Avalos-Reyes are hereby preliminarily approved as Class Representatives for the

8

Settlement Class.

9
10
11
12

6. For purposes of the Proposed Settlement only, the Court hereby preliminarily
approves Rust Consulting, Inc. as Claims Administrator.
7. The Court approves, as to form and content, the proposed Notice of Class Action
Settlement.

13

8. The Court directs the mailing, by first class mail, of the Notice to the Class Members

14

in accordance with the schedule set forth in the Settlement Agreement. The Court

15

finds that the method and dates selected for the mailing of these documents meet the

16

requirements of due process, provide the best notice practicable under the

17

circumstances and constitute due and sufficient notice to all persons entitled to notice.

18
19

9. Pending the Court’s final approval of the Settlement Agreement, all proceedings in
this Action, except those related to approval of the Settlement Agreement, are stayed.

20

10. Members of the Settlement Class who object to the Settlement Agreement are not

21

required to appear at the Fairness Hearing. However, persons wishing to be heard

22

orally in opposition to the approval of the Settlement Agreement are required to state

23

in their written objection whether they intend to appear at the hearing. Persons who

24

intend to object to the Settlement Agreement and desire to present evidence at the

25

Fairness Hearing must include in their written objections the identity of any person

26

from whom they may obtain a declaration and exhibits they intend to introduce into

27

evidence at the Fairness Hearing.

28
16

1

11. Plaintiffs shall file their Motion for Attorney’s Fees and Litigation Expenses no later

2

than fourteen (14) days before the date established pursuant to Section 5.10.4 of the

3

Settlement Agreement for Class Members to file and deliver written objections to the

4

Settlement.

5

12. Under no circumstances shall this Order be construed, deemed or used as an

6

admission, concession or declaration by or against Defendants of any fault,

7

wrongdoing, breach or liability in this Action or in any other proceeding. Nor shall

8

the Order be construed, deemed or used as an admission, concession or declaration by

9

or against Class Representatives or members of the Settlement Class that their claims

10

lack merit or that the relief requested in the instant action is inappropriate, improper or

11

unavailable, or as a waiver by any party of any defenses or claims he, she, or it may

12

have in this Action or in any other proceeding.

13

13. Neither Defendants nor their counsel shall have any responsibility whatsoever for any

14

application for the Attorney’s Fees and Expense Award or Representative Plaintiffs

15

Enhancement Awards submitted by Class Counsel, except that Defendants agree not

16

to oppose the requested fees and costs and Representative Enhancement Awards.

17

14. Pursuant to the Parties’ agreement, no discovery regarding the Settlement or

18

Settlement Agreement shall be permitted as to any party to the Settlement Agreement

19

other than as may be directed by the Court upon a proper showing by the person

20

seeking such discovery pursuant to a motion properly noticed and served.

21

15. Should the Settlement Agreement not be finally approved, or should the Effective

22

Date, as that term is defined in the Settlement Agreement, not occur, this Order shall

23

be null and void and of no further force and effect, and the Parties shall be restored to

24

their respective positions prior to the execution of the Settlement Agreement. Upon

25

such nullification, neither this Order nor the Settlement Agreement shall be used or

26

referred to for any purpose in this Action or in any other proceeding, and the

27

Settlement Agreement and all negotiations thereto shall be inadmissible.

28
17

1

16. Parties are hereby ordered to meet and confer as to possible dates for the final fairness

2

hearing and file with the Court a proposed date within 30 days of the entry of this

3

Order. Upon the Court’s approval of such date, the Parties will submit an updated

4

Notice of Class Action Settlement to the Court for final approval. With submission of

5

the Notice of Class Action Settlement the Parties will file an updated Implementation

6

Schedule for all other applicable further proceedings, including Motions for

7

Attorney’s Fees.

8

17. Plaintiffs shall file a Motion for Final Approval, and the Parties may file supplemental

9

briefs regarding proof of mailing, objections, and any related or outstanding issues, no

10
11
12

later fourteen (14) days prior to the Final Fairness and Approval Hearing.
18. The Court orders the Parties to file briefings on whether the Parties provided notice to
the Attorney General pursuant to 28 U.S.C.A. §1715.

13
14

IT IS SO ORDERED.

15
16

Dated: February 23, 2016

17
18

Troy L. Nunley
United States District Judge

19
20
21
22
23
24
25
26
27
28
18