Fronda v. Staffmark Holdings, Inc. et al

Filing 92

ORDER by Judge Maria-Elena James granting 86 Motion for Settlement; granting 86 Motion to Certify Class. Final Approval Motion and Motion for Attorneys' Fees, Costs, and Service Award due by 3/22/2018. Final Fairness Hearing set for 5/31/2018 10:00 AM. (mejlc2S, COURT STAFF) (Filed on 11/27/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EARL FRONDA,
Plaintiff,

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Case No. 15-cv-02315-MEJ
ORDER RE: MOTION FOR
PRELIMINARY APPROVAL OF
SETTLEMENT

v.
STAFFMARK HOLDINGS, INC., et al.,

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United States District Court
Northern District of California

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Defendants.

Re: Dkt. No. 86

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INTRODUCTION

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Plaintiff Earl Fronda and Defendants CBS Personnel Services, LLC and Staffmark

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Holdings (together, the ―CBS Defendants‖) have reached a tentative settlement in this wage and

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hour putative class action. Pending before the Court is Plaintiff‘s Motion for Preliminary

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Approval. Mot., Dkt. No. 86. Plaintiff asks the Court to (1) preliminarily approve the proposed

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settlement, (2) certify for settlement purposes a settlement class, (3) appoint Plaintiff as class

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representative, (4) appoint class counsel and settlement administrator, (5) direct the dissemination

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of the notice of settlement to the class, and (6) schedule a final approval hearing and hearing on

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class counsel‘s motion for attorneys‘ fees and incentive award. The CBS Defendants do not

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oppose theses requests. See Statement of Non-Opposition, Dkt. No. 87. The Court held a hearing

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on the matter on November 16, 2017.

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Having considered the parties‘ arguments, the relevant legal authority, and the record in
this case, the Court GRANTS Plaintiff‘s Motion for the following reasons.
BACKGROUND
Plaintiff was jointly employed by Staffmark, CBS Personnel, and CEVA Logistics U.S.,
Inc. Third Am. Compl. (―TAC‖) ¶ 3, Dkt. No. 57; see id. ¶ 13. On April 17, 2015, Plaintiff

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initiated this litigation in Alameda County Superior Court, naming as Defendants Staffmark,

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CEVA, and Amazon.com LLC. See Notice of Removal, Ex. A (Compl.), Dkt. No. 1; see also id.,

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Ex. B (First Am. Compl.). CEVA removed the action to this Court on May 22, 2015. See Notice

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of Removal. Amazon.com was dismissed on June 12, 2015. Dkt. No. 28. Plaintiff filed his

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Second Amended Complaint on July 13, 2015. Second Am. Compl., Dkt. No. 34. On October 9,

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2015, CBS Personnel was added as a Defendant. Dkt. No. 52.
Plaintiff filed the operative TAC on December 27, 2015. See TAC. Plaintiff asserts eight

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claims based on California state law: (1) Failure to Provide Meal Periods, (2) Failure to Provide

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Rest Periods, (3) Failure to Pay Hourly Wages, (4) Failure to Provide Accurate Written Wage
Statements, (5) Failure to Timely Pay All Final Wages, (6) Failure to Pay Wages without

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United States District Court
Northern District of California

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Discount, (7) Unfair Competition, and (8) Civil Penalties under the Private Attorneys General Act

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(―PAGA‖). Id. ¶¶ 23-124. The Court has jurisdiction over the matter pursuant to the Class Action

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Fairness Act of 2005, 28 U.S.C. § 1332(d). Id. ¶ 2.
Plaintiff and the CBS Defendants participated in private mediation on January 4, 2017 and

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April 26, 2017. Leviant Decl. ¶ 8, Dkt. No. 86-1. This proposed Settlement is the result;

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however, it

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does not resolve the matter as to Defendant CEVA LOGISTICS,
U.S., INC., though it does resolve claims by the settlement Class
against any joint employers of the CBS Defendants, including
CEVA Freight, LLC and CEVA Logistics U.S., Inc., to the extent
that any of the claims settled as to the CBS Defendants would apply
to any CEVA defendant.

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Mot. at 3.1
SETTLEMENT TERMS

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The Court summarizes the key terms of the Settlement below.

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In advance of the hearing, the Court asked Plaintiff how he intended to proceed against CEVA
Logistics in light of this exclusion. Dkt. No. 89 ¶ 6. During the hearing, Counsel for Plaintiff
explained he may seek to substitute another plaintiff to pursue claims against CEVA, and
represented that CEVA nonetheless was obtaining significant benefits under the proposed
Settlement; Counsel for CEVA represented that CEVA does not object to the proposed Settlement.
Nov. 16, 2017 Oral Argument at 10:06-10:12.
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A.

Settlement Class and Class Period
The Settlement Class is defined as ―any and all individuals employed by the CBS

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Defendants at CEVA Freight, LLC, CEVA Logistics U.S., Inc. and/or any other location of

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CEVA, CEVA‘s parents or any CEVA-related entity operating in California during the Class

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Period.‖ Leviant Decl., Ex. 1 § 1.1(b)(4) (Settlement). The Class Period is defined as April 17,

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2011 through the date the Court preliminarily approves the Settlement. Id. § 1.1(b)(12).

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B.

The Settling Defendants agree to pay a maximum Settlement Sum of $5,600,000. Id. §§

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Distribution of Settlement Payments

1.1(b)(25), 3.6(a). This figure includes (1) payments to Class Members, (2) Class Counsel‘s
attorneys‘ fees and costs, (3) administration costs, (4) any enhancement award to Plaintiff, and (5)

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United States District Court
Northern District of California

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payment to the California Labor and Workforce Development Agency (―LWDA‖). Id. §

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1.1(b)(25).
The Net Settlement Sum represents the Settlement Sum less attorneys‘ fees and costs,

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administration costs, an enhancement award, and the LWDA payment. Id. §§ 1.1(b)(27),

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3.6(b)(1)(A)-(E). Participating Class Members shall be paid a proportionate share of the Net

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Settlement Sum. Id. § 3.6(b)(2)(A). The Settlement Administrator shall calculate the Individual

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Class Member Settlement Amount – the amount of the Net Settlement Sum allocated to each

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participating Class Member – in the following manner: the Net Settlement Sum shall be divided

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by the total number of weeks worked for the CBS Defendants by all participating Class Members

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at any CEVA location in California. Id. §§ 1.1(b)(29), 3.6(b)(2)(B). This number will be

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multiplied by the number of weeks worked by each Class Member. Id. The Settlement

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Administrator shall determine the number of weeks worked by each Class Member by (1) first

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multiplying the number of weeks worked at the Carson Location and the Torrance Location by

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two, then (2) adding this number to the number of weeks worked by the Class Member during the

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Class Period at all CEVA locations in California other than the Carson and Torrance Locations.2

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The Carson Location refers to the CEVA location on Bishop Avenue in Carson, California; the
Torrance Location refers to the CEVA location on Western Avenue in Torrance, California.
Settlement Agreement §§ 1.1(b)(15)-(16).
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Id. § 3.6(b)(2)(B).
Class Members may dispute the Settlement Administrator‘s determination of the number

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of weeks he or she worked for the CBS Defendants by sending a letter to the Settlement

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Administrator within 30 days of the initial mailing of class notice. Id. § 3.4(c). The Class

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Member must state the number of weeks he or she believes are correct and include documentation

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in support thereof. Id. The Settlement Administrator shall review the relevant records and

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documentation and make a recommendation to the Court on all disputed claims. Id. The

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Settlement Administrator shall also send written notice of its decision on the disputed claim to the

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Class Member, Class Counsel, and the CBS Defendants‘ counsel no later than 10 days before the
final fairness hearing. Id. The Court shall decide any disputed claims at that hearing, and the

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United States District Court
Northern District of California

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Court‘s decision will be final. Id.
No later than 45 days following the Effective Date of the Settlement, the Settlement

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Administrator will issue checks made payable to each participating Class Member for each Class

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Member‘s Individual Class Member Settlement Amount. Id. §§ 3.6(c)(2)(E), (c)(3). Class

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Members will receive two checks. Id. § 3.6(c)(2)(E)(i). The first check will be for two-thirds of

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the Individual Class Member Settlement Amount and will represent payment of penalties and

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interest. Id. § 3.6(c)(2)(E)(i)(I). The second check will be for the remaining one-third of the

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Individual Class Member Settlement Amount, representing payment for the alleged unpaid wages.

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Id. § 3.6(c)(2)(E)(i)(II).3

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If checks remain uncashed after 90 days, the Settlement Administrator shall send a

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reminder postcard to those Class Members with unpaid checks, advising them to cash the check or

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to request a replacement. Id. § 3.6(c)(4). A similar postcard will be sent to Class Members who

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have not cashed their checks after 150 days. Id. Uncashed checks will be voided after 180 days.

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Id. Funds from uncashed checks will be redistributed as follows: 25% will be paid to the

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California State Equal Access Fund, 25% will be paid to the California State Treasury for deposit

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At the hearing, Plaintiff‘s Counsel explained that issuing two checks better enables the
Settlement Administrator to process the payroll deductions and make the accounting clear to Class
Members.
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in the Trial Court Improvement and Modernization Fund, and 50% will be paid to Legal Aid at

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Work as a cy pres recipient. Id.

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C.

Objections and Opt Outs
Class Members may request exclusion from or object to the Settlement. Id. §§ 3.4(a)-(b).

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To be excluded from the Settlement, Class Members must send a request for exclusion to the

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Settlement Administrator within 30 days of the initial mailing of the Class Notice. Id. § 3.4(a)(1).

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The request must include the Class Member‘s name, address, and statement electing to be

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excluded from the Settlement. Id. § 1.1(b)(21).
In addition, the Settlement gives the CBS Defendants the right to rescind the Settlement in

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the event that more than 10% of Class Members request exclusion from the Settlement. Id. § 6.3.

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United States District Court
Northern District of California

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Class Members may also object to the Settlement by sending a written notice of objection

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that states the basis therefor. Id. § 3.6(b)(2). Class Members must send any objections to the

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Court and the parties within 30 days of the date of the initial mailing of the Class Notice. Id.

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D.

Attorneys’ Fees and Costs
The Settlement provides for all Class Counsel‘s attorneys‘ fees and costs to be paid from

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the Settlement Sum. Id. § 3.6(e). Class Counsel will seek up to one-third of the Settlement Fund,

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that is, $1,866,666.67. Id. The CBS Defendants agree not to object to this request. Id. However,

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the Settlement also provides that ―if the attorneys‘ fees and costs incurred by Class Counsel are

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more than [$1,866,666.67], the difference shall come from the Settlement Sum.‖ Id. At the

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hearing, Plaintiff‘s Counsel, H. Scott Leviant, confirmed that Counsel would ask for no more than

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one-third of the Settlement Sum in fees and costs. Nov. 16, 2017 Oral Argument at 9:56-57 (―The

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intention of all the parties is that Plaintiff‘s Counsel would ask than no more than one-third of the

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total settlement in fees and costs. There is no intention and there will be no request for more than

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one-third.‖); see Proposed Order at 3 (―Class Counsel will not seek an amount greater than

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$1,866,666.67 for Attorney‘s Fees and Costs.‖ (citing Settlement § 3.6(e)), Dkt. No. 91; id., Ex.

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1(Am. Notice) at ECF p.17.

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E.

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Enhancement Award
Enhancement awards shall be deducted from the Settlement Sum. Settlement § 3.6(f).
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Plaintiff shall seek an enhancement award of no more than $10,000. Id.

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F.

LWDA Payment
The Settlement provides for $100,000 as payment for the PAGA claims. Id. § 3.6(g).

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Pursuant to California Labor Code section 2699(i), $75,000 shall be paid to the LWDA. Id.

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G.

Settlement Administrator and Administration Costs
The Settlement Administrator shall (1) mail class notices to Class Members; (2) calculate

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the amounts due to each Class Member; (3) notify the parties and make recommendations to the

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Court regarding any disputes brought by Class Members; (4) make all payments required by the

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Settlement; and (5) issue all tax-related documents associated with payments under the Settlement.

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Id. § 1.1(b)(17). The parties agree KCC, LLC shall be the Settlement Administrator. Id.; Leviant

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United States District Court
Northern District of California

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Decl. ¶ 33.

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The Settlement allocates up to $25,000 in administration costs, to be paid from the

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Settlement Sum; however, ―the Parties agree to work together to reduce this amount.‖ Settlement

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§ 3.6(d). Administration costs mean all costs incurred by the Settlement Administrator in

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administering the Settlement, including address verification measures; mailing of class notice;

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calculation, preparation, and issuance of Individual Settlement Payments; administration of any

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uncashed checks; and preparation and issuance of checks for other payments. Id. § 1.1(b)(20). In

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the event administration costs exceed $25,000, the amount in excess shall also be paid from the

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Settlement Sum, subject to Court approval. Id. § 3.6(d).

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H.

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Released Claims and Parties
In exchange for benefits under the Settlement, Class Members release
any and all claims, rights, demands, liabilities, and causes of action
of every nature and description, known or unknown, in law or in
equity, as alleged in the Complaint and any Amended Complaint in
this Litigation or at the mediations conducted in this matter on
January 4, 2017 and April 26, 2017, arising from or related to the
following claims against any and all of the CBS Defendants: (1)
Failure to Provide Meal Periods; (2) Failure to Provide Rest Breaks;
(3) Failure to Pay Hourly Wages; (4) Failure to Provide Accurate
Itemized Wage Statements; (5) Failure to Pay Waiting Time
Penalties and Wages; (6) Failure to Pay Wages Without Discount;
(7) Unfair Business Practices that relate to any of those claims; and
(8) Civil Penalties under the Private Attorney[s] General[] Act
(―PAGA‖).
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Id. § 1.1(b)(32); see id., Art. V. Class Members further release
any other claims, whether known or known, suspected or
unsuspected, that were or could have alleged or asserted based upon
the legal and factual allegations in this matter and related to a Class
Member‘s employment as a temporary employee of CBS
Defendants at a CEVA location during the Class Period, including
all claims that were or could have been brought under the California
Labor Code, the applicable Industrial Wage Commission Wage
Orders, the Fair Labor Standards Act, Business and Professions
Code section 17200 as it relates to the underlying Labor Code
claims . . . and the Private Attorneys General Act as it relates to the
underlying Labor Code violations . . . , including any damages,
restitution, interest waiting time penalties, penalties, punitive
damages, attorneys‘ fees, costs, or any other form of relief
whatsoever, during the Class Period.
Id. § 1.1(b)(32). Class Member Released Claims ―also include any claims against CEVA

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United States District Court
Northern District of California

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Logistics U.S. Inc., CEVA Freight LLC and/or any other CEVA entity to the extent that any of the

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released claims as to CBS Defendants would apply to‖ those CEVA entities. Id.

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Released parties are defined as
CBS Defendants, their past and present divisions, affiliated entities,
related entities, parents, subsidiaries, predecessors, successors, joint
ventures, assigns, and their respective shareholders, owners,
officers, directors, employees, agents, trustees, attorneys, managers,
operators, insurers, representatives, administrators, fiduciaries,
beneficiaries,
subrogees,
executors,
partners,
privies,
representatives, consultants, and attorneys.

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Id. § 1.1(b)(31). In addition, ―[t]o the extent Class Member Released Claims also include any

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claims against CEVA Logistics U.S. Inc., CEVA Freight LLC and/or any other CEVA entity,‖

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those entities shall also be Released Parties. Id.

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The back of each check issued to Class Members shall state
My signature hereon constitutes a full and complete release by me of
Staffmark Holdings, Inc. and CBS Personnel Services LLC and all
―Released Parties‖ as described in the Stipulation and Agreement to
Settle Class Action and Limited Release for all claims alleged in or
arising out of the Litigation known as Fronda v. Staffmark Holdings,
Inc. et al., Case No. 3:15-cv-02315-MEJ, including, but not limited
to, all ―Class Member Released Claims‖ as described more fully in
the Stipulation and Notice to the Class.
Id. § 3.6(c)(E)(ii).

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I.

Future Disputes
Disputes regarding the implementation or interpretation of the Settlement shall be

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submitted to the mediator. Id. § 6.12. Any disputes concerning the Settlement Administrator‘s

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ability and need to perform its duties shall be first referred to the mediator, then to the Court, if

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necessary. Id. The Court shall retain jurisdiction over the terms and conditions of the Settlement.

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LEGAL STANDARD
The Ninth Circuit maintains ―a strong judicial policy that favors settlements, particularly

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where complex class action litigation is concerned.‖ Allen v. Bedolla, 787 F.3d 1218, 1223 (9th

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Cir. 2015) (internal quotation marks omitted). Federal Rule of Civil Procedure 23(e) nonetheless

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requires courts to approve any class action settlement. ―[S]ettlement class actions present unique

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United States District Court
Northern District of California

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due process concerns for absent class members[.]‖ Hanlon v. Chrysler Corp., 150 F.3d 1011,

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1026 (9th Cir. 1998); see Allen, 787 F.3d at 1223 (―[T]he district court has a fiduciary duty to look

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after the interests of those absent class members.‖). Where parties reach a settlement prior to class

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certification, ―courts must peruse the proposed compromise to ratify both the propriety of the

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certification and the fairness of the settlement.‖ Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir.

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2003).

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Preliminary approval of a class action settlement requires a two-step inquiry. In re

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Volkswagen “Clean Diesel” Mktg., Sales Practices, & Prods. Liab. Litig., 2017 WL 672727, at

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*12 (N.D. Cal. Feb. 16, 2017). First, courts must determine if a class exists. Staton, 327 F.3d at

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952. ―Such attention is of vital importance, for a court asked to certify a settlement class will lack

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the opportunity, present when a case is litigated, to adjust the class, informed by the proceedings

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as they unfold.‖ Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997). Second, courts

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consider ―whether a proposed settlement is fundamentally fair, adequate, and reasonable.‖

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Hanlon, 150 F.3d at 1026. Where the parties settle prior to class certification, the Ninth Circuit

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requires ―a more probing inquiry than may normally be required under Rule 23(e).‖ Id. At the

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preliminary approval stage, courts must ―determine whether the settlement falls ‗within the range

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of possible approval.‘‖ Booth v. Strategic Realty Tr., Inc., 2015 WL 3957746, at *6 (N.D. Cal.

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June 28, 2015) (quoting In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 1080 (N.D. Cal.
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2007)).
Finally, courts examine ―the settlement taken as a whole, rather than the individual

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component parts . . . for overall fairness.‖ Hanlon, 150 F.3d at 1026. Courts cannot ―delete,

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modify or substitute certain provisions. [ ] The settlement must stand or fall in its entirety.‖ Id.

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(internal quotation marks and citation omitted).
CLASS CERTIFICATION

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Class certification is a two-step process. See Amchem Prods., 521 U.S. at 613. Plaintiff

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must first satisfy Rule 23(a)‘s four requirements: (1) numerosity, (2) commonality, (3) typicality,

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and (4) adequacy of representation. Fed. R. Civ. P. 23(a)(1)-(4). ―[C]ertification is proper only if

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the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been

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United States District Court
Northern District of California

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satisfied[.]‖ Wal-Mart Stores, 564 U.S. at 350-51 (internal quotation marks omitted).
If Plaintiff satisfies Rule 23(a)‘s requirements, he must then demonstrate a class action

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may be maintained under Rule 23(b)(1), (2), or (3). See Amchem Prods., 521 U.S. at 613.

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Plaintiff moves for certification under Rule 23(b)(3), which is appropriate where ―questions of law

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or fact common to class members predominate over any questions affecting only individual

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members.‖ Fed. R. Civ. P. 23(b)(3).

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A.

Rule 23(a)

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1.

Numerosity

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Rule 23(a)(1) requires the class to be ―so numerous that joinder of all members is

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impracticable[.]‖ Fed. R. Civ. P. 23(a)(1). Plaintiff estimates there are approximately 4,407 Class

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Members. Leviant Decl. ¶ 35.

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Given the size of the class, joinder is impracticable. See Betorina v. Randstad US, L.P.,

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2017 WL 1278758, at *3 (N.D. Cal. Apr. 6, 2017) (―Generally, 40 or more members will satisfy

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the numerosity requirement.‖ (citing Collins v. Cargill Mean Sols. Corp., 274 F.R.D. 294, 300

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(E.D. Cal. 2011)); Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.

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1995)); Edwards v. Nat’l Milk Producers Fed’n, 2014 WL 4643639, at *4 (N.D. Cal. Sept. 16,

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2014) (―Although there is no absolute minimum number of plaintiffs necessary to demonstrate that

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the putative class is so numerous so as to render joinder impracticable, joinder has been deemed
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impracticable in cases involving as few as 25 class members[.]‖ (internal quotation marks and

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edits omitted)).

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2.

Commonality

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Rule 23(a)(2) requires the existence of ―questions of law or fact common to the class[.]‖
Fed. R. Civ. P. 23(a)(2). This Rule is ―construed permissively. All questions of fact and law need

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not be common to satisfy the rule.‖ Hanlon, 150 F.3d at 1019. ―[F]or purposes of Rule 23(a)(2)

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even a single common question will do.‖ Wal-Mart Stores, 564 U.S. at 359 (internal quotation

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marks and brackets omitted); see Parsons v. Ryan, 754 F.3d 657, 675 (9th Cir. 2014) (it is not

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necessary ―that every question in the case, or even a preponderance of questions, is capable of

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class wide resolution. So long as there is even a single common question, a would-be class can

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United States District Court
Northern District of California

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satisfy the commonality requirement of Rule 23(a)(2).‖ (internal quotation marks omitted)).

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―Commonality requires the plaintiff to demonstrate that the class members have suffered the same

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injury‖ but ―[t]his does not mean merely that they have all suffered a violation of the same

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provision of law.‖ Wal-Mart Stores, 564 U.S. at 349-50 (internal quotation marks omitted).

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Rather, ―[t]hat common contention . . . must be of such a nature that it is capable of classwide

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resolution—which means that determination of its truth or falsity will resolve an issue that is

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central to the validity of each one of the claims in one stroke.‖ Id. ―Whether a question will drive

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the resolution of the litigation necessarily depends on the nature of the underlying legal claims that

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the class members have raised.‖ Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1165 (9th Cir. 2014);

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see Parsons, 754 F.3d at 676 (―[C]ommonality cannot be determined without a precise

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understanding of the nature of the underlying claims.‖).

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Plaintiff identifies the following interests that are common to Class Members:
whether facility security policies and procedures resulted in legally
deficient meal periods and rest breaks for Class Members; whether
security policies and procedures resulted in uncompensated time
under the employer‘s control; whether, as a result of these issues, the
CBS Defendants violated the itemized wage statement provisions of
Labor Code § 226 by not providing accurate information as to
wages; and whether the CBS Defendant‘s policies and practices
violated California Business & Professions Code sections 17200 et
seq.
Mot. at 9. These questions of law and fact pertain to the CBS Defendants‘ employment practices
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and policies. If these practices and policies are unlawful, each Class Member will have been

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injured by the CBS Defendants‘ conduct. Moreover, if the Court were to find the practices and

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policies unlawful, such a determination would resolve claims on a class-wide basis. Accordingly,

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the Court finds Rule 23(a)(2) is satisfied.

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3.

Typicality

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Rule 23(a)(3) requires the representative partie‘s claims or defenses be ―typical of the

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claims or defenses of the class[.]‖ Fed. R. Civ. P. 23(a)(3). This ―serves to ensure that ‗the

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interest of the named representative aligns with the interests of the class.‘‖ Torres v. Mercer

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Canyons Inc., 835 F.3d 1125, 1141 (9th Cir. 2016) (quoting Hanon v. Dataproducts Corp., 976
F.2d 497, 508 (9th Cir. 1992)). ―[R]epresentative claims are typical if they are reasonably

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United States District Court
Northern District of California

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coextensive with those of absent class members; they need not be substantially identical.‖

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Parsons, 754 F.3d at 685 (internal quotation marks omitted). ―‗Measures of typicality include

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whether other members have the same or similar injury, whether the action is based on conduct

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which is not unique to the named plaintiffs, and whether other class members have been injured by

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the same course of conduct.‘‖ Just Film, Inc. v. Buono, 847 F.3d 1108, 1116 (9th Cir. 2017)

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(quoting Torres, 835 F.3d at 1141) (internal quotation marks omitted).

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Like other Class Members, Plaintiff worked for the CBS Defendants during the Class

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Period and in a warehouse position that is at issue in this litigation and included in the Class. See

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Fronda Decl. ¶ 2, Dkt. No. 86-3. As such, Plaintiff was subject to the same allegedly unlawful

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employment practices and policies as other Class Members. Plaintiff raises the same claims as

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other Class Members; he does not assert any individual claims or defenses. The Court therefore

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finds Plaintiff satisfies Rule 23(a)(3).

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4.

Adequacy of Representation

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Rule 23(a)(4) requires that the representative parties ―fairly and adequately protect the

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interests of the class.‖ Fed. R. Civ. P. 23(a)(4). ―In making this determination, courts must

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consider two questions: ‗(1) do the named plaintiffs and their counsel have any conflicts of interest

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with other class members and (2) will the named plaintiffs and their counsel prosecute the action

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vigorously on behalf of the class?‘‖ Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1031
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(9th Cir. 2012) (internal quotation marks omitted). ―This requirement is rooted in due-process

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concerns—‗absent class members must be afforded adequate representation before entry of a

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judgment which binds them.‘‖ Radcliffe v. Experian Info. Sols. Inc., 715 F.3d 1157, 1165 (9th

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Cir. 2013) (quoting Hanlon, 150 F.3d at 1020).
Nothing in the record indicates Plaintiff has a conflict of interest or antagonism with Class

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Members. On the contrary, Plaintiff has actively worked to prosecute this action on behalf of the
Class. He has engaged in ongoing communications with his Counsel, including providing Counsel
with background information, assisting with responses to written discovery, participating in two
days of mediation, and reviewing the Settlement Agreement. Fronda Decl. ¶¶ 5-10. Accordingly,
the Court finds Plaintiff adequately represents the Class‘ interests. Rule 23(a)(4) is satisfied.
5.

United States District Court
Northern District of California

11

Summary

The Court finds Plaintiff satisfies Rule 23(a)‘s requirements.

12
B.

Rule 23(b)(3)

13
Plaintiff seek to certify the Settlement Class under Rule 23(b)(3), which requires the Court
14
15
16

to find that: (1) ―the questions of law or fact common to class members predominate over any
questions affecting only individual members,‖ and (2) ―a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.‖ Fed. R. Civ. P. 23(b)(3). The

17
Court finds Plaintiff shows certification under Rule 23(b)(3) is appropriate.
18
19

―Rule 23(b)(3)‘s predominance criterion is even more demanding than Rule 23(a).‖
Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013). The Rule 23(b)(3) ―analysis presumes

20
that the existence of common issues of fact or law have been established pursuant to Rule
21

22
23
24

23(a)(2); thus, the presence of commonality alone is not sufficient to fulfill Rule 23(b)(3).‖
Hanlon, 150 F.3d at 1022. Rather, ―[t]he ‗predominance inquiry tests whether proposed classes
are sufficiently cohesive to warrant adjudication by representation.‘‖ Tyson Foods, Inc. v.
Bouaphakeo, 136 S. Ct. 1036, 1045 (2016) (quoting Amchem Prods., 521 U.S. at 623). ―Common

25
issues predominate over individual issues when the common issues represent a significant aspect
26

of the case and they can be resolved for all members of the class in a single adjudication.‖

27
Edwards v. First Am. Corp., 798 F.3d 1172, 1182 (9th Cir. 2015), cert. dismissed sub nom. First
28
12

1

Am. Fin. Corp. v. Edwards, 136 S. Ct. 1533 (2016) (internal quotation marks omitted). ―[T]he

2

factors relevant to assessing superiority include ‗(A) the class members‘ interests in individually

3

controlling the prosecution or defense of separate actions; (B) the extent and nature of any

4

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.‘‖ Wolin v. Jaguar Land Rover N. Am.,

7

LLC, 617 F.3d 1168, 1175 (9th Cir. 2010) (quoting Fed. R. Civ. P. 23(b)(3)(A)-(D)).
Plaintiff argues the following issues predominate over individual differences between

8
9

Class Members: (1) whether CEVA facility security policies and procedures resulted in legally
deficient meal periods and rest breaks, as well as uncompensated time under the employer‘s

11
United States District Court
Northern District of California

10

control; (2) whether the CBS Defendants violated the itemized wage statement provisions of

12

California Labor Code section 226 by not providing accurate information about wages; and (3)

13

whether the CBS Defendants‘ practices and policies violate California‘s Unfair Competition Law,

14

Cal. Bus. & Prof. Code § 17200. Mot. at 10. These common questions regarding meal and rest

15

periods and wage statements predominate over any individual differences, for instance, how the

16

CBS Defendants implemented the security screenings at each of its facilities. In addition, given

17

the size of the Class, the Court can more efficiently resolve whether such practices and policies

18

violate the applicable laws through a class action than on a case-by-case basis. See Fed. R. Civ. P.

19

23(b)(3) (requiring a finding ―that a class action is superior to other available methods for fairly

20

and efficiently adjudicating the controversy‖).

21

C.

22

Summary
Based on the above analysis, the Court finds Plaintiff satisfies Rule 23(a) and (b)(3).

23

Accordingly, the Court certifies for settlement purposes the Class as defined in section 1.1(b)(12)

24

of the Settlement.

25

PRELIMINARY FAIRNESS DETERMINATION

26

The Court next considers the Settlement to determine whether it is ―fair, reasonable, and

27

adequate.‖ Fed. R. Civ. P. 23(e)(2). The Ninth Circuit has identified eight factors courts should

28

consider in evaluating whether a class action settlement is fair, adequate, and reasonable:
13

1
2
3
4

(1) the strength of the plaintiff‘s case; (2) the risk, expense,
complexity, and likely duration of further litigation; (3) the risk of
maintaining class action status throughout the trial; (4) the amount
offered in settlement; (5) the extent of discovery completed and the
stage of the proceedings; (6) the experience and views of counsel;
(7) the presence of a governmental participant; and (8) the reaction
of the class members of the proposed settlement.

5

In re Bluetooth Headset Prod. Liab. Litig., 654 F.3d 935, 946 (9th Cir. 2011) (citation omitted).

6

But where, as here, ―the parties reach a settlement agreement prior to class certification, courts

7

must peruse the proposed compromise to ratify both the propriety of the certification and the

8

fairness of the settlement.‖ Staton, 327 F.3d at 952. As noted, settlements negotiated prior to

9

class certification ―must withstand an even higher level of scrutiny for evidence of collusion or
other conflicts of interest than is ordinarily required under Rule 23(e) before securing the court‘s

11
United States District Court
Northern District of California

10

approval as fair.‖ In re Bluetooth, 654 F.3d at 946. This ―more exacting review . . . ensure[s] that

12

class representatives and their counsel do not secure a disproportionate benefit ‗at the expense of

13

the unnamed plaintiffs who class counsel had a duty to represent.‘‖ Lane v. Facebook, Inc., 696

14

F.3d 811, 819 (9th Cir. 2012) (quoting Hanlon, 150 F.3d at 1027).

15

―Collusion may not always be evident on the face of a settlement, and courts therefore

16

must be particularly vigilant not only for explicit collusion, but also for more subtle signs that

17

class counsel have allowed pursuit of their own self-interests and that of certain class members to

18

infect the negotiations.‖ In re Bluetooth, 654 F.3d at 947. Subtle signs of collusion include

19
20
21

22
23
24
25
26

(1) when counsel receive a disproportionate distribution of the
settlement, or when the class receives no monetary distribution but
class counsel are amply rewarded;
(2) when the parties negotiate a ―clear sailing‖ arrangement
providing for the payment of attorneys‘ fees separate and apart from
class funds, which carries ―the potential of enabling a defendant to
pay class counsel excessive fees and costs in exchange for counsel
accepting an unfair settlement on behalf of the class; and
(3) when the parties arrange for fees not awarded to revert to
defendants rather than be added to the class fund.
Id. (internal quotation marks and citations omitted).
―[T]he preliminary approval stage [i]s an ‗initial evaluation‘ of the fairness of the proposed

27

settlement made by the court on the basis of written submissions and informal presentation from

28

the settling parties.‖ In re High-Tech Emp. Antitrust Litig., 2013 WL 6328811, at *1 (N.D. Cal.
14

Oct. 30, 2013). A full analysis of the fairness factors is therefore unnecessary at this time; indeed,

2

―some of these ‗fairness‘ factors cannot be fully assessed until the Court conducts the final

3

approval hearing[.]‖ Lusby v. Gamestop Inc., 297 F.R.D. 400, 412 (N.D. Cal. 2013). At this

4

stage, ―[p]reliminary approval of a settlement and notice to the class is appropriate if ‗[1] the

5

proposed settlement appears to be the product of serious, informed, non-collusive negotiations, [2]

6

has no obvious deficiencies, [3] does not improperly grant preferential treatment to class

7

representatives or segments of the class, and [4] falls within the range of possible approval.‘‖

8

Johnson v. Quantum Learning Network, Inc., 2016 WL 4529607, at *1 (N.D. Cal. Aug. 30, 2016)

9

(quoting In re Tableware, 484 F. Supp. 2d at 1079) (first brackets added). Ultimately, the

10

―decision to approve or reject a settlement is committed to the sound discretion of the trial

11
United States District Court
Northern District of California

1

judge[.]‖ In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 458 (9th Cir. 2000), as amended (June

12

19, 2000) (internal quotation marks omitted).

13

A.

14

Settlement Process
The Court first considers ―the means by which the parties arrived at settlement.‖ Harris v.

15

Vector Mktg. Corp., 2011 WL 1627973, at *8 (N.D. Cal. Apr. 29, 2011). A settlement is entitled

16

to ―[a]n initial presumption of fairness . . . if the settlement is recommended by class counsel after

17

arm‘s-length bargaining.‖ Id. (internal quotation marks omitted).

18

The Court is satisfied the Settlement is the product of serious, informed, non-collusive

19

negotiations. The parties negotiated the Settlement under the guidance of a mediator. Settlement

20

§ 2.1(j); Mot. at 4; Leviant Decl. ¶ 8. The use of a mediator, though not dispositive, supports a

21

finding that the Settlement is not the product of collusion. In re Bluetooth, 654 F.3d at 948;

22

Villegas v. J.P. Morgan Chase & Co., 2012 WL 5878390, at *6 (N.D. Cal. Nov. 21, 2012).

23

―For the parties ‗to have brokered a fair settlement, they must have been armed with

24

sufficient information about the case to have been able to reasonably assess its strengths and

25

value.‘‖ In re Zynga Inc. Sec. Litig., 2015 WL 6471171, at *8 (N.D. Cal. Oct. 27, 2015) (quoting

26

Acosta v. Trans Union, LLC, 243 F.R.D. 377, 396 (C.D. Cal. 2007)). The parties conducted

27

discovery before engaging in settlement negotiations. Mot. at 14. That discovery included

28

interrogatories and requests for production propounded on all Defendants. Id. Defendants – the
15

1

CBS Defendants as well as CEVA – produced thousands of pages of discovery, including video

2

footage. Id. Plaintiff was therefore able to consider the information obtained during discovery, as

3

well as data about class composition, to fully evaluate the Settlement. Mot. at 14; see Leviant

4

Decl. ¶ 9. The Court accordingly finds this factor favors preliminary approval.

5

B.

6
7

Presence of Obvious Deficiencies
The Court next considers whether the Settlement contains obvious deficiencies. The Court

finds none at this point.
The first Bluetooth red flag is whether Class Counsel receive a disproportionate

9

distribution of the settlement, or whether the class receives no monetary distribution but class

10

counsel are amply rewarded. 654 F.3d at 947. The Ninth Circuit has ―established twenty-five

11
United States District Court
Northern District of California

8

percent of the recovery as a ‗benchmark‘ for attorneys‘ fees calculations under the percentage-of-

12

recovery approach.‖ Powers v. Eichen, 229 F.3d 1249, 1256 (9th Cir. 2000).

13

The Settlement designates up to $1,866,666.67 for Class Counsel‘s attorneys‘ fees and

14

costs, which represents one-third of the Net Settlement Sum. Settlement § 3.6(e). While this

15

figure is higher than the benchmark amount, such a percentage is not uncommon in wage and hour

16

class action settlements such as this. See Ruch v. AM Retail Grp., Inc., 2016 WL 1161453, at *12

17

(N.D. Cal. Mar. 24, 2016) (finding as reasonable fee award totaling no more than 30% of the

18

settlement amount in wage and hour class action settlement); Wren v. RGIS Inventory Specialists,

19

2011 WL 1230826, at *28 (N.D. Cal. Apr. 1, 2011), supplemented, 2011 WL 1838562 (N.D. Cal.

20

May 13, 2011) (approving attorneys‘ fees of 42% of common fund in wage and hour class action);

21

Hightower v. JPMorgan Chase Bank, N.A., 2015 WL 9664959, at *11 (C.D. Cal. Aug. 4, 2015)

22

(―[A]n award of 30% is consistent with awards granted in similar complex [wage and hour]

23

litigation.‖). At this point, the Court finds the proposed attorneys‘ fees do not suggest the

24

presence of collusion.

25

The second Bluetooth factor asks whether the parties negotiated a ‗clear sailing‘ agreement

26

for the payment of attorneys‘ fees separate and apart from class funds. 654 F.3d at 947. A clear

27

sailing agreement ―is one where the party paying the fee agrees not to contest the amount to be

28

awarded by the fee-setting court so long as the award falls beneath a negotiated ceiling.‖
16

1

Schuchardt v. Law Office of Rory W. Clark, 2016 WL 232435, at *9 (N.D. Cal. Jan. 20, 2016)

2

(internal quotation marks omitted). Concerns about collusion due to the existence of a clear

3

sailing provision are reduced where the agreement lacks a reversionary or ―kicker provision.‖ In

4

re Bluetooth, 654 F.3d at 947 (―indicia of possible implicit collusion‖ includes ―a ‗kicker‘: all

5

[attorneys‘] fees not awarded would revert to defendants rather than be added to the cy pres fund

6

or otherwise benefit the class‖). The CBS Defendants agree not to object to Class Counsel‘s

7

request for attorneys‘ fees and costs up to $1,866,666.67. Settlement § 3.6(e).
Although the Settlement contains a clear sailing agreement, any concerns about collusion

8
9

are ameliorated by the fact that any unawarded attorneys‘ fees and costs shall not revert to the
CBS Defendants. See id. § 1.1(b)(27) (defining Net Settlement Sum as Settlement Sum less

11
United States District Court
Northern District of California

10

attorneys‘ fees and other costs); Nov. 16, 2017 Oral Argument at 9:58 (―[T]his is a

12

nonreversionary settlement. . . . The Net Settlement Sum is everything the Court doesn‘t award in

13

the other category.‖).

14

The final Bluetooth factor considers whether the Settlement provides for un-awarded

15

settlement funds to revert to the CBS Defendants instead of Class Members. 654 F.3d at 947. The

16

Settlement requires the Settlement Administrator to send two reminder postcards to Class

17

Members who do not cash their settlement checks. Settlement § 3.6(c)(2)(E)(4). Funds from

18

uncashed settlement checks will not revert to the CBS Defendants. Rather, the Settlement

19

provides that funds from checks voided after 180 days shall be distributed to the California State

20

Equal Access Fund, the California State Treasury for deposit in the Trial Court Improvement and

21

Modernization Fund, and Legal Aid at Work. Id. Because unclaimed funds will not revert to the

22

CBS Defendants, this factor does not suggest collusion.

23

C.

24
25
26

Preferential Treatment
The third factor asks whether the Settlement affords preferential treatment to any Class

Member.
The Settlement calculates each Class Member‘s recovery based on the number of weeks

27

worked. However, the Settlement values weeks worked at the Carson Location and the Torrance

28

Location differently from other California CEVA locations. See Settlement § 3.6(b)(2)(B).
17

Specifically, the Settlement multiplies the number of weeks worked at the Carson and Torrance

2

Locations by two; the number of weeks worked at other California CEVA locations is not

3

doubled. Plaintiff‘s Counsel explained this reflects the more extensive security screenings at the

4

Carson and Torrance facilities. Nov. 16, 2017 Oral Argument at 9:58 (―Carson and Torrance have

5

the most extensive security access point facilities.‖). As a result, ―the Torrance and Carson

6

facilities had the most extensive delays, whereas at other facilities, the security was much more

7

streamlined.‖ Id. at 9:59. By allocating extra workweeks to the Carson and Torrance Locations,

8

the Settlement approximates the impact of the tighter security on uncompensated time. Id. at

9

10:00. The Settlement does not afford preferential treatment to Class Members who worked at

10

these two locations; rather, it adjusts for the additional time Class Members spent going through

11
United States District Court
Northern District of California

1

security procedures at the Carson and Torrance Locations.
The Settlement also provides an enhancement award of $10,000 to Plaintiff. Settlement

12
13

§ 3.6(f). Service or incentive ―awards are discretionary . . . and are intended to compensate class

14

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

15

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

16

attorney general.‖ Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 958–59 (9th Cir. 2009). ―Many

17

courts in the Ninth Circuit have . . . held that a $5,000 incentive award is ‗presumptively

18

reasonable.‘‖ Gaudin v. Saxon Mortg. Servs., Inc., 2015 WL 7454183, at *10 (N.D. Cal. Nov. 23,

19

2015) (collecting cases). ―[D]istrict courts must be vigilant in scrutinizing all incentive awards to

20

determine whether they destroy the adequacy of the class representatives.‖ Radcliffe, 715 F.3d at

21

1164.

22

―To determine the reasonableness of a requested incentive payment, courts consider the

23

proportionality between the incentive payment and the range of class members‘ settlement

24

awards.‖ Willner v. Manpower Inc., 2015 WL 3863625, at *9 (N.D. Cal. June 22, 2015). Where

25

there is a ―very large differential in the amount of damage awards between the named and

26

unnamed class members[,]‖ such differential record must be supported by the record. Staton, 327

27

F.3d at 978.

28

The requested $10,000 enhancement falls within the range of service awards granted in this
18

district, albeit on the high side. See Bellinghausen v. Tractor Supply Co., 306 F.R.D. 245, 267

2

(N.D. Cal. 2015) (―Incentive awards typically range from $2,000 to $10,000.‖ (collecting cases)).

3

Indeed, ―[c]ourts in this Circuit routinely grant requests for an award over $5,000 where the

4

particular circumstances warrant such an award.‖ Nelson v. Avon Prods., Inc., 2017 WL 733145,

5

at *7 (N.D. Cal. Feb. 24, 2017); Alvarez v. Farmers Ins. Exch., 2017 WL 2214585, at *1 (N.D.

6

Cal. Jan. 18, 2017) (awarding $10,000 service awards to named plaintiffs in wage and hour class

7

action and finding such amount proportional to average recovery ranging from $956.18 to

8

$4,253.45). The Court notes that $10,000 is significantly greater than Class Members‘ expected

9

average recovery of $1,270. See Leviant Decl. ¶ 16. Nevertheless, it amounts to less than 1% of

10

the Settlement Sum. See Moore v. PetSmart, Inc., 2015 WL 5439000, at *14 (N.D. Cal. Aug. 4,

11
United States District Court
Northern District of California

1

2015), appeal dismissed (July 27, 2016) (awarding service awards totaling $35,000 among five

12

named plaintiffs, which amounted to less than 1% of total settlement fund).

13

Plaintiff declares he has ―devoted a substantial amount of [] time, both before this lawsuit

14

was filed and also during its litigation to ensure a fair result for the employee class.‖ Fronda Decl.

15

¶ 4; see id. ¶ 11 (―I believe I have provided dozens of hours of my time during the course of this

16

litigation to ensure a good outcome for the best interests of the class.‖). As explained above, this

17

includes communicating and providing and reviewing information with counsel, assisting in

18

providing written discovery, participating in mediation, and reviewing the Settlement. Id. ¶¶ 5-10.

19

Plaintiff does not indicate whether he has suffered or risked harm to his employment prospects and

20

does not otherwise provide justification for deviating from the presumptively reasonable $5,000

21

service award. See Fronda Decl.; see, e.g., Nelson, 2017 WL 733145, at *6-7 (finding $10,000

22

service award appropriate where plaintiff sat for an all-day deposition, searched for relevant

23

documentation, reviewed documents and settlement papers, attended the mediation and subsequent

24

negotiations, and aided counsel with negotiation efforts, and where plaintiff ―suffered some risk to

25

her professional reputation by participating in this action as lead plaintiff‖); Moore, 2015 WL

26

5439000, at *13 (awarding $10,000 service awards to named plaintiffs who actively participated

27

in litigation and ―incurred the additional risk of fearing retaliation by‖ the defendant). Courts have

28

awarded less than $10,000 in service awards to named plaintiffs who have performed more work
19

1

on the litigation than Plaintiff‘s ―dozens of hours.‖ See, e.g., Willner, 2015 WL 3863625, at *9

2

(reducing service award from $11,000 to $7,500 where class members‘ recovery ranged from

3

$605.02 to $4,105.33 and where plaintiff spent 54 hours prosecuting action over four years,

4

including sitting for a day-long deposition, responding to written discovery requests, assisting with

5

initial disclosures, completing declarations, assisting with preparation for mediation, and

6

evaluating proposed settlement); Lopez v. Bank of Am., N.A., 2015 WL 5064085, at *8-9 (N.D.

7

Cal. Aug. 27, 2015), appeal dismissed (Feb. 17, 2016), appeal dismissed (Feb. 22, 2016)

8

(decreasing incentive award from requested $10,000 to $5,000 where (1) two named plaintiffs

9

spent 80 and 100 hours working on litigation, but did not testify, sit for deposition, or participate
in any of the four mediations; (2) $10,000 was 48 times greater than average payout to class

11
United States District Court
Northern District of California

10

members; and (3) incentive award would be paid from settlement fund); Burden v. SelectQuote

12

Ins. Servs., 2013 WL 3988771, at *6 (N.D. Cal. Aug. 2, 2013) (finding $5,000, rather than

13

requested $10,000, an appropriate service award where named plaintiff ―was deposed twice,

14

attended three settlement conferences, and spent a total of 80 hours on this case‖ and where

15

$10,000 was ―nearly three times the largest amount paid to any class member‖).
Given Plaintiff‘s participation in this litigation and as the proposed award is not outside the

16
17

range of service awards, the Court at this point finds the $10,000 enhancement award does not

18

preclude preliminary approval.

19

D.

20
21

22
23
24
25
26

Range of Possible Approval
Finally, the Court must consider whether the proposed Settlement falls within the range of

possible approval. In making this determination, courts preview the following factors:
(1) the strength of the plaintiffs‘ case; (2) the risk, expense,
complexity, and likely duration of further litigation; (3) the risk of
maintaining class action status throughout the trial; (4) the amount
offered in settlement; (5) the extent of discovery completed and the
stage of the proceedings; (6) the experience and views of counsel;
(7) the presence of a governmental participant; and (8) the reaction
of the class members to the proposed settlement.
In re Bluetooth, 654 F.3d at 946.

27
28
20

1

1.

Further Litigation; and Risk of Maintaining Class Action Status

2
3

Strength of Plaintiff‘s Case; Risk, Expense, Complexity, and Likely Duration of

Plaintiff believes his case is viable through trial; however, Plaintiff acknowledges that

4

litigating this case is not without risks. Leviant Decl. ¶ 15. Plaintiff recognizes that (1) he may

5

not be able to establish liability for the allegedly unpaid straight time or overtime wages; (2) the

6

employment practices and policies he challenges may not support class certification, a class-wide

7

liability finding, or class-wide awards under California Labor Code sections 203 and 206(e); (3)

8

the individual differences between Class Members could be ―construed as pertaining to liability,

9

and not solely to damages‖; (4) class treatment could be deemed improper as to one or more
claims except for settlement purposes; (5) there could be an appeal; and (6) some claims may be

11
United States District Court
Northern District of California

10

deemed de minimis under California law. Id. ¶¶ 14-15; Mot. at 14-15. Plaintiff‘s Counsel

12

represents the ―CBS Defendants intended to aggressively challenge Plaintiff‘s case at the

13

certification stage.‖ Leviant Decl. ¶ 15. In light of the potential risks of continued litigation, the

14

Court finds these factors favor preliminary approval.

15

2.

16

―To evaluate the range of possible approval criterion, which focuses on substantive

17

fairness and adequacy, courts primarily consider plaintiffs‘ expected recovery balanced against the

18

value of the settlement offer.‖ Harris, 2011 WL 1627973, at *9 (internal quotation marks

19

omitted).

20

Amount Offered in Settlement

Plaintiff estimates that each Class Member will receive an average of $1,270 before

21

deducting taxes, fees, and other costs. Leviant Decl. ¶ 16. Plaintiff also estimates that exposure

22

for off-the-clock work spent in security check stations during the Class Period is approximately

23

$1.2 million. Id. ¶ 18. ―With risk factor discounts for certification and liability proof, the value of

24

that claim is estimated by Plaintiff‘s counsel to be approximately $400,000.‖ Id. Exposure for

25

meal period violations over the Class Period is an estimated $3.2 million. Id. ―With risk factor

26

discounts for certification and liability proof, the value of that claim is estimated by Plaintiff‘s

27

counsel to be approximately $1,000,000.‖ Id. Mr. Leviant further declares that ―[a] similar

28

valuation applies to the rest period claim.‖ Id. Risk-adjusted valuations for all claims results in a
21

1

total value between $5 million and $7 million. Id. Thus, a $5.6 million settlement falls within

2

Plaintiff‘s ―carefully constructed estimate of the current fair value of the case.‖ Id. ¶ 17. This

3

factor therefore favors preliminary approval.

4
5
6

3.

Extent of Discovery Completed and Stage of the Proceedings; Experience and
Views of Counsel

As noted, Plaintiff propounded interrogatories and requests for production on all

7

Defendants prior to settlement negotiations. Plaintiff received thousands of pages of formal

8

discovery, data about class composition, and video footage. Leviant Decl. ¶ 14. This allowed

9

Counsel to adequately evaluate the Settlement. Id. (―We have engaged in the necessary
investigation in this case that made it possible for us to exercise informed judgment in those

11
United States District Court
Northern District of California

10

aspects of the settlement process in which we were involved. Settlement occurred only after

12

discovery commenced.‖).

13

In addition, Plaintiff‘s Counsel are experienced class action attorneys. Mr. Leviant has

14

litigated class actions since 1997, experience which includes prosecuting approximately 20

15

appeals. Id. ¶¶ 25(a), (c). Mr. Leviant has been the lead appellate author of several wage and hour

16

cases before the Ninth Circuit and California Supreme Court and has written several articles and

17

columns on issues related to class actions. Id. ¶¶ 25(d)-(f). Shaun Setareh has been lead or co-

18

lead counsel in numerous wage and hour, consumer, and antitrust class action cases. Setareh Decl.

19

¶ 6, Dkt. No. 86-2. Many of Mr. Setareh‘s cases concerned alleged failures to provide meals

20

and/or rest periods, failures to pay wages, failure to provide accurate wage statements, and failures

21

to provide timely final wage payments. Id. ¶ 7.

22

Mr. Leviant declares ―[t]his Settlement provides a benefit to the Class Members that is

23

very reasonable in light of the[] particular risks‖ described above. Leviant Decl. ¶ 15; see id. ¶ 16

24

(―In light of the uncertainties of protracted litigation and the state of the law regarding the legal

25

positions of the Parties, the settlement amount reflects the best feasible recovery for the Settlement

26

Class Members.‖).

27

Accordingly, the Court finds these factors favor preliminary approval.

28
22

1

4.

Presence of a Governmental Participant; Reaction of Class Members

2

No government entity participated in negotiating the Settlement. In addition, Class

3

Members have not been notified of the Settlement and therefore have not had an opportunity to

4

react to it. These factors are therefore neutral.

5

5.

6

On balance, the Court finds the Settlement falls within the range of possible approval.

7
8
9

E.

Summary

Preliminary Fairness Summary
Based on the foregoing, the Court preliminarily finds the proposed Settlement is fair,

adequate, and reasonable and in the best interests of Class Members.
CLASS COUNSEL

10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18

―[A] court that certifies a class must appoint class counsel.‖ Fed. R. Civ. P. 23(g)(1). In
making the appointment, the Court must consider
(i) the work counsel has done in identifying or investigating
potential claims in the action;
(ii) counsel‘s experience in handling class actions, other complex
litigation, and the types of claims asserted in the action;
(iii) counsel‘s knowledge of the applicable law; and
(iv) the resources that counsel will commit to representing the
class[.]
Fed. R. Civ. P. 23(g)(1)(A).
As discussed above, Plaintiff‘s Counsel has litigated numerous class action cases,

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including several wage and hour class actions. See Leviant Decl. ¶¶ 22-23, 25; Setareh Decl. ¶¶ 6-

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7. Plaintiff‘s Counsel litigated many of those cases through class certification, final approval, and

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appeals. See id. (both). In addition, Counsel‘s firm, Seterah Law Group LLP, has been engaged

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in the practice of employment and labor law for approximately a decade. Leviant Decl. ¶ 21. The

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firm has settled approximately 100 cases and has been appointed lead or co-lead counsel by state

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and federal courts. Id.; see Setareh Decl. ¶¶ 4, 8. The Court finds Mr. Leviant and Mr. Setareh

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have the requisite experience, knowledge, and resources to represent Class Members. Nothing in

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the record indicates counsel have not and will not continue to vigorously litigate this action. The

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Court therefore appoints Mr. Leviant and Mr. Setareh of The Seterah Law Group as Class Counsel

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for settlement purposes.
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NOTICE

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A.

Method of Providing Notice
Rule 23(e) provides that ―the court may direct appropriate notice to the class‖ certified

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under Rule 23(b)(2). Fed. R. Civ. P. 23(e)(2)(A). Notice is mandatory for any class certified

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under Rule 23(b)(3): ―the court must direct to class members the best notice that is practicable

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under the circumstances, including individual notice to all members who can be identified through

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reasonable effort.‖ Fed. R. Civ. P. 23(e)(2)(B). ―[T]he express language and intent of Rule

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23(c)(2) leave no doubt that individual notice must be provided to those class members who are

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identifiable through reasonable effort.‖ Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 175 (1974).

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No later than 30 days after the Court preliminarily approves the Settlement, the CBS

United States District Court
Northern District of California

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Defendants shall provide the Settlement Administrator with a Class List that identifies (1) the last

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known home address and social security of each Class Member, (2) the number of weeks each

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Class Member worked during the Class Period at the Carson Location and the Torrance Location,

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and (3) the number of weeks each Class Member worked at any CEVA location in California

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during the Class Period other than the Carson Location and/or the Torrance Location. Settlement

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§ 3.3(a). The CBS Defendants shall file a declaration attesting they have provided an accurate

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Class List to the Settlement Administrator within five days of doing so. Id. § 3.3(b).

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The Settlement Administrator shall mail the Notice of Class Settlement and Summary

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Sheet (together, ―Notice‖) to Class Members within 60 days after the Court preliminarily approves

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the Settlement. Id. § 3.3(c). In the event any notices are returned as undeliverable, the Settlement

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Administrator shall perform a National Change of Address (―NCOA‖) search for the relevant

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Class Member. Id. § 3.3(d). The Settlement Administrator shall re-mail the Notice via U.S. Mail

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to the Class Member to any additional address discovered through the NCOA search. Id.

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No later than 20 days after mailing the Notice, the Settlement Administrator shall provide

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Class Counsel and the CBS Defendants‘ counsel with a declaration attesting to the completion of

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the notice process. Id. § 3.3(f). Class Counsel shall file this declaration with the Court with 7

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days of its receipt. Id.

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The Court finds this method of mailed notice to be the best notice practicable in this case,
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as it provides actual notice to all Class Members. As such, the Court approves the method of

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notice as set forth in the Settlement.

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B.

Rule 23(c)(2)(B) requires that

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the notice must clearly and concisely state in plain, easily
understood language:
(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).

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United States District Court
Northern District of California

Contents of Notice

The proposed Notice satisfies these requirements. The 12-page Notice of Class Action

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Settlement explains, in question and answer format, who is a Class Member, the nature of the

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litigation and the parties thereto, the benefits under the Settlement, how to obtain such benefits,

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how to object to or be excluded from the Settlement, and how to seek more information. See Am.

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Notice. The additional two-page Summary Sheet informs the recipient that he or she has been

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identified as a Class Member; lists the number of weeks the Class Member worked at the Carson

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Location, the Torrance Location, and any other CEVA location in California; and provides an

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estimate gross Class Member Payment. See id., Ex. B (Summary Sheet). The Summary Sheet

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also sets forth instructions on how to dispute the calculation of workweeks and provides a

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disclaimer that the estimated payment may change without further notice. Id.

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C.

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Costs of Notice and Settlement Administration
The Settlement provides that the Settlement Administrator will be paid from the Settlement

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Sum and allocates $25,000 in Administrative Costs, though the parties will attempt to reduce this

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amount. Settlement § 3.6(d). The $25,000 takes into account the costs of administering the

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Settlement, including address verification measures; mailing of class notice; calculation,

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preparation, and issuance of Individual Settlement Payments; administration of any uncashed

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checks; and preparation and issuance of checks for other payments. Id. § 1.1(b)(2). Unawarded
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Administrative Costs shall be distributed to the Net Settlement Sum. See id. § 1.1(b)(27). If the

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Court approves Administrative Costs in excess of $25,000, any such excess costs shall be paid

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from the Settlement Sum. At this point, the Court finds the costs of notice are reasonable.
CONCLUSION

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Based on the foregoing the Court GRANTS the Motion for Preliminarily Approval and
ORDERS the following:
1.

The proposed Settlement Class is conditionally certified pursuant to Federal Rules

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of Civil Procedure 23(a) and (b)(3) for settlement purposes. The Settlement Class is defined as

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―any and all individuals employed by the CBS Defendants at CEVA Freight, LLC, CEVA
Logistics U.S., Inc. and/or any other location of CEVA, CEVA‘s parents or any CEVA-related

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United States District Court
Northern District of California

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entity operating in California during the Class Period.‖ The Class Period is defined as April 17,

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2011 through the date of this Order.

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2.

The Settlement is preliminarily approved as fair, adequate, and reasonable pursuant

to Federal Rule of Civil Procedure 23(e).
3.

The Settlement does not resolve claims against CEVA Logistics, U.S., Inc., though

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it does resolve claims by the Settlement Class against any joint employers of the CBS Defendants,

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including CEVA Freight, LLC and CEVA Logistics U.S., Inc., to the extent that any of the claims

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settled as to the CBS Defendants would apply to any CEVA defendant.

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4.

For purposes of the Settlement, the Court appoints and designates Plaintiff Earl

Fronda as class representative.
5.

For purposes of the Settlement, the Court appoints Shaun Setareh and H. Scott

Leviant of the Setareh Law Group as Class Counsel for the Settlement Class.
6.

For purposes of the Settlement, the Court approves the proposed Class Notice plan

as set forth in the Settlement.
7.

For purposes of the Settlement, the Court appoints KCC, LLC as the Settlement

Administrator to perform the duties described in the Settlement.
8.

The CBS Defendants shall provide the Settlement Administrator with the Class List

as defined by Settlement within 30 days of this Order, that is, by December 27, 2017. The CBS
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1

Defendants shall file with the Court a declaration attesting to the forwarding of an accurate Class

2

List to the Settlement Administrator no later than January 2, 2018.

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9.

The Settlement Administrator shall mail to each Class Member the approved Class

Notice and Summary Sheet within 60 days of this Order, that is, by January 26, 2018.
10.

The Settlement Administrator shall provide Class Counsel and Defense Counsel

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with a declaration attesting to the completion of the notice process no later than 20 days after the

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date of mailing the Notice and Summary Sheet, that is, by February 15, 2018. Class Counsel

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shall file this declaration with the Court within 7 days of its receipt, that is, by February 22, 2018.

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11.

Class Members who wish to object shall submit their objections in the manner set

forth in the Settlement within 30 days after the initial mailing of the Class Notice, or by February

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United States District Court
Northern District of California

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26, 2018.

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12.

Class Members shall be bound to the Settlement unless they submit a timely and

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valid written request to be excluded in the manner proscribed by the Settlement within 30 days

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after the initial mailing of the Class Notice, that is, by February 26, 2018.

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13.

No later than March 22, 2018, Plaintiff shall file a motion for final approval and

Class Counsel shall file a motion for attorneys‘ fees, costs, and service award.
14.

Class Members who wish to object to the motion for attorneys‘ fees, costs, and

service award may submit their objections no later than April 26, 2018.
15.

The Court shall hold a final fairness hearing on May 31, 2018 at 10:00 a.m. in

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Courtroom B, 450 Golden Gate Avenue, San Francisco, California. The Court will also hear the

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motion for attorneys‘ fees, costs, and service award at that time.

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IT IS SO ORDERED.

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Dated: November 27, 2017
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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