Ching v. Siemens Industry, Inc.
Filing
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ORDER by Judge Maria-Elena James granting 31 Motion for Settlement; setting hearing for final approval on March 27, 2014. (mejlc2, COURT STAFF) (Filed on 11/27/2013)
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UNITED STATES DISTRICT COURT
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Northern District of California
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ALBERT CHING,
No. C 11-4838 MEJ
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Plaintiff,
v.
SIEMENS INDUSTRY, INC.,
ORDER GRANTING PLAINTIFF’S
MOTION FOR PRELIMINARY
APPROVAL OF CLASS ACTION
SETTLEMENT
[Dkt. No. 31]
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Defendant.
_____________________________________/
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For the Northern District of California
UNITED STATES DISTRICT COURT
I. INTRODUCTION
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Pending before the Court is Plaintiff Albert Ching’s Motion for Preliminary Approval of
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Class Action Settlement. Dkt. Nos. 31 (Notice), 32 (Motion). Defendant Siemens Industry, Inc. does
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not oppose Plaintiff’s Motion. Mot. at 1. For the following reasons, the Court GRANTS Plaintiff’s
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Motion for Preliminary Approval of the Settlement.
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II. BACKGROUND
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A.
Litigation History
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Plaintiff brought this class action on behalf of a class of persons consisting of Service
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Technicians who were employed to install, inspect, repair, and/or maintain fire systems (“Fire Service
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Technicians”) by Defendant in California at any time from August 19, 2007 through December 31,
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2012 (“Class Members”).1 Mot. at 1.
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In his First Amended Complaint, Plaintiff asserts claims for: (1) failure to pay prevailing
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wages and overtime under California Labor Code sections 1770 et seq. and 510; (2) failure to pay
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wages and overtime under Labor Code section 510; (3) meal-period liability under Labor Code
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section 226.7; (4) rest-break liability under Labor Code section 226.7; (5) violation of Labor Code
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An employee must have held one of the following job titles and performed the typical duties of a
listed job classification to participate: Fire Service Technician Trainee, Fire Service Technician I,
Fire Service Technician II, or Fire Senior Service Technician. Mot. at 1.
1 section 2802(a); (6) violation of Labor Code section 226(a); (7) penalties pursuant to violation of
2 Labor Code section 203; (8) violation of California Business & Professions Code section 17200 et
3 seq.; (9) penalties pursuant to violation of Labor Code section 2699. Dkt. No. 10.
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The parties attended a mediation session presided over by Michael Dickstein, Esq., a mediator
5 with significant experience in wage and hour class actions. Mot. at 7. While the parties were unable
6 to reach agreement at the mediation, they continued to negotiate following the mediation, and
7 thereafter reached an agreement outlining the key elements of the agreed upon settlement. Id. On
8 October 3, 2013, Defendant filed the Joint Stipulation of Class Settlement and Class Settlement
9 Agreement and Release (“Agreement”). Dkt. No. 31.
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III. DISCUSSION
Settlement Agreement
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For the Northern District of California
UNITED STATES DISTRICT COURT
11 A.
Pursuant to the Agreement, Defendant has agreed to pay up to $425,000.00 (the “Maximum
13 Gross Settlement Amount”) to settle and release all claims asserted by Plaintiff on behalf of the
14 proposed class, defined as “all current or former Service Technicians employed to install,
15 inspect, repair and/or maintain fire systems by Siemens in the State of California between August
16 19, 2007 and December 31, 2012.” Mot. at 3.
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1.
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Under the terms of the Agreement, Defendant agrees to pay up to $425,000 as the Maximum
Settlement Amount
19 Gross Settlement Amount. The Agreement provides for the following payments: (1) up to $5,000 to
20 Plaintiff for his services and participation as class representative; (2) up to 30% of the Maximum
21 Gross Settlement Amount, which amounts to $127,500, to Class Counsel for attorneys’ fees and up to
22 $9,000 for litigation costs; (3) $5,000 to the California Labor and Workforce Development Agency
23 (“LWDA”) for penalties pursuant to Labor Code section 2699, et seq.; (4) $13,500 for the costs of
24 claims administration; (5) Defendant’s share of payroll taxes on the settlement awards; and (6) the
25 employee share of payroll taxes on the settlement awards. Id. at 9. The amount remaining in the
26 Maximum Gross Settlement Amount after the above deductions have been made shall be distributed
27 to Class Members who submit timely and valid claim forms (“Participating Class Members”). Id.
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Defendant shall not pay less than 50% of the Maximum Settlement Distribution Amount to
2 Participating Class Members. Id. If less than 50% of the Maximum Settlement Distribution Amount
3 is claimed by Participating Class Members, then the difference between the percentage claimed and
4 50% shall also be distributed proportionally to Participating Class Members based on the number of
5 workweeks they worked during the relevant time period. Id. at 9-10.
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The Maximum Settlement Distribution Amount available to pay the claims of Participating
7 Class Members and the employee’s share of the payroll taxes due on such payments, is estimated at
8 $249,100.00. Dkt. No. 30 at 5-6.
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Defendant will provide data to Gilardi & Co., LLC, the proposed Claims Administrator, from
10 which they will calculate each Participating Class Member’s Gross Individual Settlement Payment
12 Employed” means the number of days of continuous service (including any unpaid leave) as a Fire
For the Northern District of California
UNITED STATES DISTRICT COURT
11 based on the total number of Compensable Weeks Employed. Id. at 15. “Compensable Weeks
13 Service Technician during the appropriate Covered Period divided by seven. Id. at 3. The Covered
14 period runs from August 19, 2007 to December 31, 2012. Id. Specifically, each Claimant’s Gross
15 Individual Settlement Payment will be calculated as follows:
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1. The total number of Compensable Weeks Employed by all of the Class Members shall
17 constitute the “Total Compensable Weeks.”
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2. The “Dollars Per Week” will be calculated by dividing the Total Compensable Weeks into
19 the Maximum Settlement Distribution Amount.
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3. The portion of the Maximum Settlement Distribution Amount allocated to each
21 Participating Class Member who timely submits a valid Claim Form and who is eligible to receive a
22 payment under this Settlement will be calculated by multiplying the Dollars Per Week by the total
23 Compensable Weeks Employed by that Participating Class Member. The result shall be the Gross
24 Individual Settlement Payment. If less than 50% of the Maximum Settlement Distribution Amount is
25 claimed, the Gross Individual Settlement Payment allocated to each Participating Class Member will
26 be increased in proportion to the share of each other Participating Class Member until 50% of the
27 Maximum Distribution Amount is paid out. The Gross Individual Settlement Payment shall be
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1 allocated between taxable and non-taxable claims as provided in § 4.f. The Gross Individual
2 Settlement Payment shall be subject to all applicable deductions or withholding required by law or
3 expressly authorized by the Participating Class Member. Id. at 14.
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2.
Class Notice and Claims Procedure
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Within 15 calendar days after the Court enters its Preliminary Approval Order, Defendant will
6 provide to the Claims Administrator a database that lists for each Class Member, the individual's
7 name, Social Security Number, last known address and telephone number; and dates of employment
8 as a Fire Service Technician. Id. at 16. This database will be drawn from Defendant’s payroll and
9 other business records. Id. at 9-10. Defendant will also provide Class Counsel with a list of each
10 Class Member's name; and the dates of employment as a Fire Service Technician. Id. at 11-12. The
12 disclosed to anyone, except as required to applicable tax authorities, pursuant to Defendant’s express
For the Northern District of California
UNITED STATES DISTRICT COURT
11 data provided to the Claims Administrator and Class Counsel will remain confidential and will not be
13 written consent or by order of the Court. Id. at 12-15.
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Within 20 calendar days after Defendant provides the Claims Administrator with the database
15 specified: (1) the Claims Administrator will calculate the preliminary Gross Individual Settlement
16 Payment for each individual on the list, based on the assumption that: (a) the Court finally approves
17 the Settlement in accordance with this Agreement; and (b) 50% or more of the Maximum Settlement
18 Distribution Amount is claimed by Participating Class Members, and will mail, by first-class mail,
19 the Class Notice, Claim Form and Exclusion Form to all Class Members at their last known address,
20 unless modified by any updated address information that the Claims Administrator obtains in the
21 course of administration of the Settlement. Id. at 16-24.
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In order for a Class Member to be eligible to participate in this Settlement and to receive any
23 settlement payments, the Class Member must submit a valid, fully-executed Claim Form (along with all
24 required documentation) to the Claims Administrator that is postmarked for delivery to the Claims
25 Administrator, no later than 60 calendar days after the initial date of mailing of the Class Notices and
26 Claim Forms. No Claim Forms will be accepted if postmarked for delivery to the Claims Administrator
27 after the deadline indicated, absent good cause shown. All original Claim Forms shall be sent directly to
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1 the Claims Administrator at the address indicated on the Claim Form. The Class Members will have 45
2 calendar days after the date on which the Claims Administrator mails the Notice Materials to object to the
3 Settlement by serving on the Claims Administrator, by the 45 day deadline, a written objection to the
4 Settlement.
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3.
Settlement Administration Costs
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Plaintiff has proposed that Gilardi & Co., LLC be appointed as the Claims Administrator in
7 this action. Dkt. No. 34 at 4. The parties estimate the settlement administration cost will be $13,500,
8 which will be paid from the Gross Settlement Amount. Dkt. No. 30 at 5. If the Class Administrator’s
9 fees and costs exceed $15,000, any shortfall will reduce the amount of wages and penalties payable to
10 Participating Class Members. Id. at 12. Any amount by which the costs are less than Thirteen
12 Amount for distribution to Participating Class Members. Id.
For the Northern District of California
UNITED STATES DISTRICT COURT
11 Thousand Five Hundred Dollars ($13,500), will be added to the Maximum Settlement Distribution
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4.
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In addition to the relief awarded to all participating class members, the Agreement authorizes
Class Representative Incentive Awards
15 Plaintiff, as class representative, to seek and incentive award of up to $5,000, to be paid from the
16 Gross Settlement Amount. Id. at 13.
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5.
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The Agreement authorizes Class Counsel to apply to the court for an award of attorneys’ fees
Attorneys’ Fees and Costs
19 in an amount up to, but not to exceed, 30 percent of the Maximum Gross Settlement Amount,
20 equaling $127,500, and costs not to exceed $9,000, which Defendant does not oppose. Id. at 11.
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6.
Released Claims
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The Agreement states that all Class Members who do not timely and validly exclude themselves from
23 the Class and who do not timely and validly file a Claim Form will be deemed to have forever released and
24 discharged the Released Claims with the exception of their claims under the Fair Labor Standards Act. Dkt.
25 No. 30, Exhibit D at 4.
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1 B.
Conditional Class Certification
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Plaintiffs seek conditional certification of a settlement class under Federal Rules of Civil
3 Procedure 23(a) and 23(b)(3). A court may only certify a class action if it satisfies the four
4 prerequisites identified in Rule 23(a), and fits within one of the three subdivisions of Rule 23(b).
5 Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997). Class certification requires the following:
6 (1) the class must be so numerous that joinder of all members individually is “impracticable;” (2)
7 there are questions of law or fact common to the class; (3) the claims or defenses of the class
8 representatives must be typical of the claims or defenses of the class; and (4) the person representing
9 the class must be able to fairly and adequately protect the interests of all class members. Fed. R. Civ.
10 P. 23(a); Staton v. Boeing, 327 F.3d 938, 953 (9th Cir. 2003). “The four requirements of Rule 23(a)
12 representation’ (or just ‘adequacy’), respectively.” United Steel, Paper & Forestry, Rubber, Mfg.
For the Northern District of California
UNITED STATES DISTRICT COURT
11 are commonly referred to as ‘numerosity,’ ‘commonality,’ ‘typicality,’ and ‘adequacy of
13 Energy, Allied Indus. & Serv. Workers Int'l Union, AFL–CIO v. Conoco Phillips Co., 593 F.3d 802,
14 806 (9th Cir. 2010). Certification under Rule 23(b)(3) is appropriate where there are common
15 questions of law or fact which predominate and class resolution is superior to other available methods.
16 Fed. R. Civ. P. 23(b)(3). In the settlement context, the court must pay “undiluted, even heightened,
17 attention” to class certification requirements because the court will not have the opportunity to adjust
18 the class based on information revealed at trial. Staton, 327 F.3d at 952–53 (quoting Amchem, 521
19 U.S. at 620); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998) (same).
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Here, the requirements under 23(a) are satisfied. First, there are approximately 115 class
21 members identifiable from Defendant’s records. Mot. at 1. This number is sufficient to satisfy Rule
22 23’s numerosity and ascertainablilty requirements because the putative class members can be
23 identified, and it would be impracticable for the Court to allow all potential plaintiffs to pursue their
24 claims separately. See Hanlon, 150 F.3d at 1019 (“The prerequisite of numerosity is discharged if ‘the
25 class is so large that joinder of all members is impracticable.’ ” (quoting Rule 23(a) (1)); see also
26 O’Connor v. Boeing N. Am., Inc., 184 F.R.D. 311, 319 (C.D. Cal. 1998) (“A class definition should be
27 precise, objective, and presently ascertainable,” though “the class need not be so ascertainable that
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1 every potential member can be identified at the commencement of the action.” (internal quotations
2 omitted)).
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Second, with respect to commonality, Rule 23(a)(2) requires that there be “questions of law or
4 fact common to the class.” Fed. R. Civ. P. 23(a)(2). “All questions of fact and law need not be
5 common to satisfy the rule. The existence of shared legal issues with divergent factual predicates is
6 sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class.”
7 Hanlon, 150 F.3d at 1019; see also Ellis v. Costco Wholesale Corp., 285 F.R.D. 492, 506 (N.D. Cal.
8 2012). Here, the issues facing the class arise from common questions involving Defendant’s
9 calculation and payment of wages and overtime. This is sufficient to satisfy the commonality
10 requirement. See Dilts v. Penske Logistics, LLC, 267 F.R.D. 625, 633 (S.D. Cal. 2010) (finding
12 whether Defendants’ policies deprived the putative class members of meal periods, rest periods,
For the Northern District of California
UNITED STATES DISTRICT COURT
11 commonality requirement satisfied where Plaintiffs identified “common factual questions, such as
13 overtime pay, and reimbursement ..., and common legal questions, such as Defendants’ obligations
14 under [sections of the] California Labor Code”).
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Third, Plaintiffs have satisfied the typicality requirement under 23(a)(3). Typicality requires
16 that “the claims or defenses of the representative parties are typical of the claims or defenses of the
17 class.” Fed. R. Civ. P. 23(a)(3). The purpose of the requirement “is to assure that the interest of the
18 named representative aligns with the interests of the class.” Hanon v. Dataproducts Corp., 976 F.2d
19 497, 508 (9th Cir. 1992). Typicality is “satisfied when each class member's claim arises from the
20 same course of events, and each class member makes similar legal arguments to prove the defendant’s
21 liability.” Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001) (quotation marks omitted). Here, the
22 named Plaintiff’s personal claims are similar to those of the absent class members, and each class
23 member’s claims arise from the same course of events, and each class member would be making
24 similar legal arguments as Plaintiff to prove Defendant’s liability.
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Finally, Rule 23(a)(4) requires that “the representative parties will fairly and adequately
26 protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “To satisfy constitutional due process
27 concerns, absent class members must be afforded adequate representation before entry of a judgment
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1 which binds them.” Hanlon, 150 F.3d at 1020. To determine whether the adequacy prong is satisfied,
2 courts consider the following two questions: “(1) [d]o the representative plaintiffs and their counsel
3 have any conflicts of interest with other class members, and (2) will the representative plaintiffs and
4 their counsel prosecute the action vigorously on behalf of the class?” Staton, 327 F.3d at 957 (citation
5 omitted); see also Fendler v. Westgate–California Corp., 527 F.2d 1168, 1170 (9th Cir. 1975) (noting
6 that representative plaintiffs and counsel also must have sufficient “zeal and competence” to protect
7 class interests). Here, there is no indication that there is any conflict between the class and Plaintiff or
8 his counsel. In addition, the court is satisfied that Plaintiff and his counsel have and will continue to
9 pursue this action vigorously on behalf of Plaintiff and the proposed class members.
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In addition to meeting the prerequisites of Rule 23(a), a proposed class must be appropriate for
12 1022. The Court finds that certification is appropriate under Rule 23(b)(3), which states that a class
For the Northern District of California
UNITED STATES DISTRICT COURT
11 certification under one of the categories in Rule 23(b). Fed. R. Civ. P. 23(b); Hanlon, 150 F.3d at
13 action can be maintained if, “the court finds that the questions of law or fact common to class members
14 predominate over any questions affecting only individual members, and that a class action is superior
15 to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P.
16 23(b)(3). When making a 23(b)(3) determination, courts consider several factors. First, the courts will
17 look at whether or not the class members have interests in individually controlling the prosecution or
18 defense of separate actions; second, the courts consider the extent and nature of any litigation
19 concerning the controversy already begun by or against class members; third, the courts assess the
20 desirability or undesirability of concentrating the litigation of the claims in the particular forum;
21 finally, the courts consider the likely difficulties in managing a class action. Fed. R. Civ. P. 23(b)(3).
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Here, the first and third factors are satisfied because the case involves multiple claims for
23 relatively small sums and it would not be economically viable for class members to seek compensation
24 individually. See Amchem, 521 U.S. at 625; Local Joint Exec. Bd. of Culinary/Bartender Trust Fund
25 v. Las Vegas Sands, Inc., 244 F.3d 1152, 1163 (9th Cir. 2001) (class action appropriate because “if
26 plaintiffs cannot proceed as a class, some perhaps most will be unable to proceed as individuals
27 because of the disparity between their litigation costs and what they hope to recover.”). Additionally,
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1 the second factor is satisfied given the extensive litigation, discovery and mediation that has taken
2 place and the Agreement reached between the parties. The final consideration is whether there will be
3 likely difficulties in managing the proposed class action. See Fed. R. Civ. P. 23(b)(3). Here, there are
4 no obvious difficulties in managing the class action, given that the parties have submitted a proposed
5 Agreement and are ready to proceed to final approval.
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Because the Court finds that Rule 23(a) and 23(b)(3)’s requirements are satisfied, conditional
7 certification of the class is appropriate.
8 C. Preliminary Fairness Determination
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A proposed settlement under Federal Rules of Civil Procedure 23(e) must be “
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