Villegas v. J.P. Morgan Chase & Co. et al

Filing 164

ORDER by Judge Saundra Brown Armstrong GRANTING 157 Motion for Preliminary Approval of Class Settlement, GRANTING 162 Stipulation to Amend Notice of Pendency of Class Action Settlement. Final Approval and Fairness Hearing set for 01/15/13 at 1:00 PM. Plaintiff's Motion for Final Approval and Motion for Attorneys' Fees shall be filed (35) thirty-five-days prior to the Fairness Hearing. Signed by Judge Saundra Brown Armstrong, on 08/08/12 (lrc, COURT STAFF) (Filed on 8/14/2012) Modified on 8/15/2012 (jlm, COURT STAFF). Modified on 8/15/2012 (jlm, COURT STAFF).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 OAKLAND DIVISION 11 12 NICOLE VILLEGAS, as an individual and on Case No: C 09-00261 SBA behalf of others similarly situated, 13 Plaintiff, 14 ORDER GRANTING PLAINTIFF’S MOTION FOR PRELIMINARY APPROVAL vs. Dkt. 157 and 162 15 J.P. MORGAN CHASE & CO., a Delaware 16 corporation; J.P. MORGAN CHASE BANK, N.A., a national association; CHASE BANK 17 USA, N.A., a national association; and DOES 1 through 50, inclusive, 18 Defendants. 19 20 21 This is a wage and hour class action brought by Plaintiff Nicole Villegas on behalf 22 of herself and similarly situated individuals who were classified as non-exempt employees 23 by Defendants J.P. Morgan Chase & Co., JPMorgan Chase Bank, N.A., and Chase Bank 24 USA, N.A. (collectively “Defendants”) from December 17, 2004 to the present. The 25 parties are presently before the Court on Plaintiff’s Motion for Preliminary Approval of 26 Class Action Settlement. Dkt. 157. Having read and considered the papers filed in 27 connection with this matter and considered the arguments of counsel, the Court hereby 28 GRANTS the motion and preliminarily approves the proposed class settlement. 1 I. BACKGROUND 2 A. 3 Plaintiff filed the instant action in Alameda County Superior Court on December 18, OVERVIEW 4 2008. Defendants removed the action under the Class Action Fairness Act, 28 U.S.C. 5 § 1332(d), and filed a motion to dismiss. Dkt. 1, 6. On March 9, 2009, the Court granted 6 in part and denied in part the Defendants’ motion. Dkt. 17. Plaintiff thereafter filed a First 7 Amended Complaint on March 18, 2009. Dkt. 18. The Court subsequently granted 8 Plaintiff’s unopposed motion for leave to file a Second Amended Complaint. Dkt. 73. 9 Thereafter, the parties stipulated to the filing of a Third Amended Complaint (“TAC”), 10 which was filed on January 6, 2011. Dkt. 131, 132. The TAC is the operative pleading 11 before the Court. 12 The TAC alleges that in 2008, Plaintiff worked as a non-exempt “Funder” for 13 Defendants for a three month period, during which she allegedly worked more than eight 14 hours per day and/or forty hours per week. TAC ¶ 8. Plaintiff claims that she was not paid 15 overtime, was not paid in a timely manner and received inaccurate wage statements. Id. In 16 addition, upon termination, Plaintiff allegedly was not paid accrued commissions and/or 17 accrued but unused vacation pay. Id. The pleadings allege state law causes of action for: 18 (1) violation of California Labor Code § 227.31 based on an improper forfeiture of vested 19 vacation wages; (2) failure to pay commission wages; (3) failure to pay overtime wages; 20 (4) violation of Labor Code §§ 201-204 for failure to pay wages in a timely manner; 21 (5) violation of Labor Code § 226 for violation of record-keeping requirements; 22 (6) violation Business and Professions Code § 17200 for unfair and unlawful business 23 practices; (7) violation of Labor Code § 2698 (also known as the Private Attorney General 24 Act or “PAGA”) for civil penalties ($100/day per employee per pay period for the initial 25 26 27 28 1 Unless otherwise noted, all references are to the California Code. -2- 1 violation, $200 for each subsequent violation).2 Defendants filed an Answer to the TAC on 2 January 24, 2011. Dkt. 135. 3 B. 4 SETTLEMENT 1. Proposed Settlement Class 5 On February 15, 2011 and March 16, 2011, the parties participated in a mediation 6 session before mediator Michael Dickstein and reached a Joint Stipulation of Settlement 7 and Release (“Settlement”). The Settlement provides for the certification of two settlement 8 classes: (1) the Pay Stub Settlement Class—California employees who worked for 9 Defendants between December 17, 2004 and June 30, 2009 who were classified as non- 10 exempt; and (2) the Vacation Days Settlement Class Members—California employees who 11 worked for Defendants between December 17, 2004 and March 31, 2011 which are 12 designated as non-exempt during that time period. Settlement ¶ 2; Hart Decl. Ex. A at 28, 13 Dkt. 157-1. Plaintiff avers that these classes (collectively “the Settlement Class”) had their 14 vested vacation wages improperly forfeited by Defendants, were not timely paid their 15 wages during their employment and were not provided with accurate wage statements. 16 Mot. at 2, Dkt. 157. There is no settlement for the non-payment of overtime wages. 17 18 2. Settlement Payments and Attorneys’ Fees Pursuant to the terms of the Settlement, Defendants have agreed to make a 19 maximum total payment of $9,225,000 into a gross settlement fund. Settlement ¶ 9(a). The 20 Settlement permits Plaintiff’s counsel to seek an award of up to one-third (1/3) of the gross 21 settlement (estimated to be $3,075,000) in attorney’s fees. Id. ¶ 10.3 Litigation costs, a 22 payment to the LWDA, claims administration costs and the employer’s share of payroll 23 2 Under PAGA, a plaintiff may seek penalties in the sum of one hundred dollars ($100) per aggrieved employee, per pay period, for an initial Labor Code violation, and two hundred dollars ($200) for each subsequent violation per aggrieved employee, per pay 25 period. Cal. Lab. Code § 2699(f)(2). If an employee successfully recovers an award of civil penalties, PAGA mandates that 75 percent of the recovery be paid to the Labor and 26 Workforce Development Agency (“LWDA”), leaving the remaining twenty-five percent as recovery for the employee. 24 27 3 28 The parties have since agreed to reduce Plaintiff’s counsel’s fees to twenty-five percent (25%) of the Settlement. Dkt. 162. -3- 1 costs also will be deducted from the gross fund. Id. The net settlement amount, reflecting 2 the amount available to pay claims made by class members, is projected to be $6,000,000. 3 Id. ¶ 6(b). Eighty percent (80%) of the net fund will be allocated to the Vacation Days 4 Settlement Class and twenty percent (20%) will be allocated to the Pay Stub Settlement 5 Class. Id. ¶ 11. The actual payout to claimants will be based on the number of workweeks 6 each class member worked during the applicable class period. Id. Based on Defendants’ 7 payroll records, Plaintiff anticipates that the aggregate class will not exceed 23,500 8 members, and that the average payout will be approximately $255.00. Mot. at 3. 9 The Settlement contains a reversion feature that allows Defendants to retain a 10 significant amount of the settlement proceeds, depending on the number of claims 11 submitted. This provision states: The NFV [Net Fund Value] is estimated at approximately SIX MILLION DOLLARS ($6,000,000). In consideration for settlement and a release of claims of the Settlement Class against Defendants, Defendants agree to pay to each member of the Settlement Class who returns a valid and timely Claim Form (“Qualified Claimant”), a pro-rata share of the NFV pursuant to the calculations described herein. To the extent that Settlement Class Members do not submit a claim for their pro-rata share of the NFV, any unclaimed funds shall remain the property of Defendants if at least sixty percent (60%) of the NFV is claimed. To the extent that less than sixty percent (60%) of the NFV is claimed, Defendants will pay out sixty percent (60%) of the NFV, and the amount of the fund between the claimed amount and sixty percent (60%) of the NFV will be distributed to the Qualified Claimants on a pro-rata basis. 12 13 14 15 16 17 18 19 20 Settlement ¶ 9(b) (emphasis added). Thus, if the total value of the claims submitted 21 amounts to sixty percent of the net settlement fund, Defendants need not pay the remaining 22 forty percent (i.e., approximately $2,400,000) to the class. 23 C. 24 Plaintiff filed a motion for class certification on March 16, 2011. Dkt. 141. On June CURRENT PROCEEDINGS 25 3, 2011, however, the parties jointly notified the Court that they had reached a settlement 26 and requested that the Court vacate the hearing on the motion for class certification, and 27 vacate the trial date and all other related deadlines. Dkt. 146. The Court approved the 28 -4- 1 stipulation and set a briefing schedule on the motion for preliminary approval of the class 2 settlement. Dkt. 151, 156. 3 Plaintiff filed her motion for preliminary approval on October 18, 2011. Dkt. 157. 4 In her motion, Plaintiff moves to: (1) conditionally certify two settlement classes under 5 Federal Rule of Civil Procedure 23(a) and (b)(3); (2) preliminarily approve the settlement 6 as “fair, reasonable and adequate” under Rule 23(e); (3) appoint Class Counsel; (4) approve 7 dissemination of Notice to the class; and (5) set a date for the final approval hearing. 8 II. 9 DISCUSSION A. CONDITIONAL CERTIFICATION OF THE SETTLEMENT CLASS 10 Plaintiff first moves for conditional certification of the Pay Stub Settlement Class 11 and the Vacation Day Settlement Class, which are defined above. A class action may be 12 certified if it meets the four prerequisites identified in Federal Rule of Civil Procedure 23(a) 13 and additionally fits within one of the three subdivisions of Rule 23(b). Rule 23(a) states: 14 (a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if: 15 16 17 (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the 18 class; 19 (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and 20 21 (4) the representative parties will fairly and adequately protect the interests of the class. 22 Fed. R. Civ. P. 23(a). The grant or denial of class certification is a matter of the district 23 court’s discretion. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011). 24 The Court finds that each of the requirements of Rule 23(a) has been satisfied. First, 25 the class is numerous, as there are potentially 23,500 class members. See Hanlon v. 26 Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998) (“The prerequisite of numerosity is 27 discharged if ‘the class is so large that joinder of all members is impracticable.’”) (quoting 28 in part Rule 23(a)(1)). Second, the issues facing the class arise from common questions -5- 1 involving whether Defendants’ policies contravene various provisions of the California 2 Labor Code. See id. Third, the typicality requirement is met, as there is no dispute that the 3 injuries suffered by Plaintiff is the same as those as the class. See Hanon v. Dataprods. 4 Corp., 976 F.2d 497, 508 (9th Cir. 1992). Finally, Plaintiff appears to be an adequate class 5 representative based on the lack of any apparent conflict between her and the class and the 6 fact that she has actively pursued her claims against Defendants. See Ellis, 657 F.3d at 985. 7 Certification under Rule 23(b)(3) is appropriate where: (1) “the questions of law or 8 fact common to class members predominate over any questions affecting only individual 9 members,” and (2) “a class action is superior to other available methods for fairly and 10 efficiently adjudicating the controversy.” Id. 23(b)(3). Plaintiff’s motion only makes a 11 passing reference to this requirement. Mot. at 14. Nevertheless, given the nature of the 12 claims alleged in this action, it is apparent based on the record presented that both 13 components of Rule 23(b)(3) are satisfied. See, e.g., Gardner v. GC Servs., LP, No. 14 10cv0997-IEG (CAB), 2011 WL 5244378, at *5 (S.D. Cal. Nov. 1, 2011) (finding that 15 Rule 23(b)(3) was satisfied where “the claims stem from GC Services’ alleged uniform 16 policy of requiring account representative to perform certain pre-shift, post-shift, and lunch 17 time tasks without compensation….”); Wright v. Linkus Enters., Inc., 259 F.R.D. 468, 473 18 (E.D. Cal. 2009) (finding predominance, despite minor factual difference between 19 individual class members, where the case involved “alleged policies that required class 20 members to work without compensation, meal and rest periods, and/or reimbursement for 21 expenses”); In re Wells Fargo Home Mortg. Overtime Pay Litig., 527 F. Supp. 2d 1053, 22 1065-68 (N.D. Cal. 2007) (finding predominance where, as a general matter, the 23 defendant’s policy and practice regarding compensation and exemption was uniform for all 24 putative class members). 25 In sum, the Court finds that Plaintiff has carried her burden of demonstrating that 26 conditional certification of the Settlement Class, consisting of the Pay Stub Settlement 27 Class and the Vacation Day Settlement Class, is warranted under Rule 23(a) and (b)(3). 28 -6- 1 B. 2 Rule 23 requires judicial review of any settlement of the “claims, issues, or defenses 3 of a certified class.” Fed. R. Civ. P. 23(e). The decision of whether to approve a proposed 4 class action settlement entails a two-step process. See Manual for Complex Litig. § 21.632 5 (4th ed. 2004). The court first conducts a preliminary fairness evaluation. Id. If the court 6 preliminarily approves the settlement, notice to the class is then disseminated and a 7 “fairness” or final approval hearing is scheduled. Id. The second step of the process 8 culminates in a fairness hearing at which the proponent of the settlement must demonstrate 9 that the settlement is “fair, reasonable, and adequate.” Id.; Fed. R. Civ. P. 23(e)(2). “The 10 purpose of Rule 23(e) is to protect the unnamed members of the class from unjust or unfair 11 settlements affecting their rights.” In re Syncor ERISA Litig., 516 F.3d 1095, 1100 (9th 12 Cir. 2008) (citation omitted). 13 PRELIMINARY APPROVAL OF SETTLEMENT “The initial decision to approve or reject a settlement proposal is committed to the 14 sound discretion of the trial judge.” Officers for Justice v. Civil Serv. Comm’n of the City 15 and County of San Francisco, 688 F.2d 615, 625 (9th Cir. 1982). Where, as here, a 16 settlement has been reached prior to formal class certification, “a higher standard of 17 fairness” applies due to “[t]he dangers of collusion between class counsel and the 18 defendant, as well as the need for additional protections when the settlement is not 19 negotiated by a court designated class representative[.]” Hanlon, 150 F.3d at 1026. In 20 undertaking a fairness inquiry, the settlement must be “taken as a whole, rather than the 21 individual component parts, that must be examined for overall fairness.” Id. The Court has 22 no power to “delete, modify or substitute certain provisions”—and the settlement “must 23 stand or fall in its entirety.” Id. 24 To make a fairness determination, the district court must balance a number of 25 factors, including: (1) the strength of plaintiff’s case; (2) the risk, expense, complexity, and 26 likely duration of further litigation; (3) the risk of maintaining class action status 27 throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery 28 completed, and the stage of the proceedings; (6) the experience and views of counsel; -7- 1 (7) the presence of a governmental participant; and (8) the reaction of the class members to 2 the proposed settlement. See Molski v. Gleich, 318 F.3d 937, 953 (9th Cir. 2003). Given 3 that some of these “fairness” factors cannot be fully assessed until the Court conducts the 4 final approval hearing, “‘a full fairness analysis is unnecessary at this stage.’” See Alberto 5 v. GMRI, Inc., 252 F.R.D. 652, 665 (E.D. Cal. 2008) (citation omitted). Rather, 6 preliminary approval of a settlement and notice to the proposed class is appropriate: if 7 “[1] the proposed settlement appears to be the product of serious, informed, noncollusive 8 negotiations, [2] has no obvious deficiencies, [3] does not improperly grant preferential 9 treatment to class representatives or segments of the class, and [4] falls with the range of 10 possible approval . . . .” In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 1079 (N.D. 11 Cal. 2007) (citing Manual for Complex Litigation, § 30.44 (2d ed. 1985)). As will be 12 discussed below, the Court is persuaded that Plaintiff has made a sufficient showing for 13 preliminary approval. 14 15 1. The Settlement Process The first factor addresses the means by which the parties reached a settlement. In 16 the instant action, the Settlement was reached following two sessions with a private 17 mediator experienced in wage and hour class actions. Hart Decl. ¶ 8. This tends to support 18 the conclusion that the settlement process was not collusive. See Satchell v. Fed. Exp. 19 Corp., No. C 03-2659 SI, 2007 WL 1114010, at *4 (N.D. Cal. Apr.13, 2007) (“The 20 assistance of an experienced mediator in the settlement process confirms that the settlement 21 is non-collusive.”). In addition, those discussions were informed by the discovery obtained 22 by Plaintiff in this action. Plaintiff took two depositions of Defendants, pursuant to Federal 23 Rule of Civil Procedure 30(b)(6), and propounded written discovery, which resulted in 24 production of thousands of pages of documents. These facts further support the conclusion 25 that the Plaintiff was appropriately informed in negotiating a settlement. 26 27 28 2. Obvious Deficiencies The Court next considers whether there are any obvious deficiencies with the Settlement. At the hearing on the instant motion, the Court expressed concern regarding -8- 1 the fact that the settlement represents only a small percentage of the Defendants’ potential 2 exposure. See Protective Comm. for Indep. Stockholders of TMT Trailer Ferry, Inc. v. 3 Anderson, 390 U.S. 414, 424-25 (1968) (noting that in evaluating the fairness of a 4 compromise, the court should “compare the terms of the compromise with the likely 5 rewards of litigation.”). However, “[i]t is well-settled law that a cash settlement amounting 6 to only a fraction of the potential recovery does not per se render the settlement inadequate 7 or unfair.” In re Mego Fin. Corp. Secs. Litig., 213 F.3d 454, 459 (9th Cir. 2000). Rather, 8 the fairness and the adequacy of the settlement should be assessed relative to risks of 9 pursuing the litigation to judgment. Id. (noting that whether the settlement is fair and 10 adequate depends on the “the difficulties in proving the case[.]”); accord Collins v. Cargill 11 Meat Solutions Corp., 274 F.R.D. 294, 303 (E.D. Cal. 2011). 12 Here, the gross settlement is approximately fifteen percent (15%) of the potential 13 recovery against Defendants. At the hearing, however, Plaintiff’s counsel acknowledged 14 that some of Plaintiff’s claims were not as viable as they had originally envisioned—which 15 is reflected in the fact that the Settlement does not include any payment for overtime wages. 16 Thus, the settlement amount, at least preliminarily, appears to be fair and adequate. See id. 17 (“the Settlement amount of almost $2 million was roughly one-sixth of the potential 18 recovery, which, given the difficulties in proving the case, is fair and adequate.”). At any 19 rate, issues concerning the amount of the settlement are better resolved at the final approval 20 hearing. See Harris v. Vector Marketing Corp., No. C 08-5198 EMC, 2011 WL 1627973, 21 at *14 (N.D. Cal. April 29, 2011) (noting that after the claims process is completed, “the 22 parties and the Court will be in a position to accurately calculate the value of the settlement 23 and compare it to the maximum damages recoverable were the Plaintiff class to succeed at 24 trial”).4 25 4 In her motion papers, Plaintiff also asserts that the settlement is fair given Defendants’ “severe financial stress.” See Mot. at 18; Harris Decl. ¶ 10. No facts are presented to support this conclusory statement. To the extent that the parties desire the 27 Court to consider Defendants’ financial condition in evaluating the fairness of the settlement, they should endeavor to provide the Court more details regarding this issue in 28 their motion for final approval. 26 -9- 1 The Court also expressed misgivings regarding the proposed fee award which is 2 based on one-third of the Settlement. “In common fund cases such as this, [the Ninth 3 Circuit has] established twenty-five percent (25%) of the common fund as the ‘benchmark’ 4 award for attorney fees.” Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1376 (9th Cir. 5 1993). On June 19, 2012, the parties submitted a stipulation notifying the Court that the 6 parties have revised their settlement agreement to reflect that Plaintiff’s counsel will 7 receive twenty-five percent (25%) of the Settlement. Dkt. 162. As such, the Court finds 8 that the proposed, revised fee award is presumptively reasonable. 9 10 3. Preferential Treatment Under the third factor, the Court examines whether the Settlement provides 11 preferential treatment to any class member. The settlement directs that eighty percent 12 (80%) of the net settlement fund is to be allocated to the Vacation Days Settlement Class 13 and twenty percent (20%) is to be allocated to the Pay Stub Settlement Class. Settlement 14 ¶ 11. At the hearing, Plaintiff’s counsel explained that this allocation correlates to the 15 number of possible members in each class. The Court is satisfied that the allocation of the 16 settlement fund does not unfairly benefit one class over another. 17 The Court also notes that the Settlement provides for an incentive award to the 18 Plaintiff in the amount of $10,000. In this District, a $5,000 incentive award is 19 presumptively reasonable. In re Wal-Mart Stores, Inc. Wage and Hour Litig., No. 06- 20 02069 SBA, 2011 WL 31266, at *4 (N.D. Cal. Jan. 5, 2011) (Armstrong, J.). Large 21 incentive awards may be a matter of concern because plaintiffs who receive large 22 incentives may be “tempted to accept suboptimal settlements at the expense of the class 23 members whose interests they are appointed to guard,” and become “more concerned with 24 maximizing those incentives than with judging the adequacy of the settlement as it applies 25 to class members at large.” Staton v. Boeing Co., 327 F.3d 928, 977 (9th Cir. 2003). 26 However, since the final amount of the incentive award is a matter of the Court’s 27 discretion, the Court finds that the generous incentive award authorized by the Settlement 28 - 10 - 1 does not necessarily render the settlement unfair or unreasonable. See Harris, 2011 WL 2 1627973, at *9.5 3 4. 4 Range of Possible Approval Lastly, the Court must consider whether the Settlement falls within the range of 5 possible approval. To determine whether a settlement “falls within the range of possible 6 approval.” a court must focus on “substantive fairness and adequacy,” and “consider 7 plaintiffs’ expected recovery balanced against the value of the settlement offer.” In re 8 Tableware Antitrust Litig., 484 F. Supp. 2d at 1080. As discussed above, the settlement 9 amount preliminarily appears to be fair and adequate in light of the risks attendant to 10 further litigating this action. Thus, for purposes of preliminary approval, the Court is 11 satisfied that the settlement is within the range of possible approval. See In re Mego Fin. 12 Corp. Secs. Litig., 213 F.3d at 459. 13 C. 14 Plaintiff seeks her appointment as Class Representative for the Settlement Class. APPOINTMENT OF CLASS REPRESENTATIVE AND CLASS COUNSEL 15 Plaintiff has prosecuted this action since its inception, and by all accounts, appears to be an 16 adequate class representative. See Villegas Decl. ¶¶ 7-12, Dkt. 141-1. Plaintiff is therefore 17 approved as the Class Representative for the Settlement Class. 18 In addition, Plaintiff seeks the appointment of their current counsel, Peter M. Hart of 19 the Law Offices of Peter M. Hart, Eric S. Honig of the Law Office of Eric Honig, Kenneth 20 H. Yoon of the Law Offices of Kenneth H. Yoon, and Larry W. Lee of Diversity Law 21 Group, as Class Counsel. These attorneys have represented Plaintiffs since the inception of 22 the case and have submitted documentation regarding their prior experience as Class 23 Counsel in wage and hour cases. Given their qualifications, the Court appoints these 24 attorneys as Class Counsel. See Fed. R. Civ. P. 23(g). 25 26 27 5 28 The amount of the incentive award will be resolved in connection with the Fairness Hearing and is subject to reduction. - 11 - 1 D. 2 “For any class certified under Rule 23(b)(3), the court must direct to class members NOTICE 3 the best notice that is practicable under the circumstances, including individual notice to all 4 members who can be identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B); 5 23(e)(1). Generally, a class action settlement notice “is satisfactory if it generally describes 6 the terms of the settlement in sufficient detail to alert those with adverse viewpoints to 7 investigate and to come forward and be heard.” Churchill Village v. Gen. Elec., 361 F.3d 8 566, 575 (9th Cir. 2004); see Fed. R. Civ. P 23(c)(2)(B) (notice requirements for classes 9 certified under Rule 23(b)(3)). 10 According to Plaintiff, the identity of class members will be ascertained from 11 Defendants’ payroll records. Hart Decl. ¶ 23. Thereafter, the Claims Administrator, CPT 12 Group, Inc., will mail a Notice of the settlement to class members within thirty days of the 13 date the Court preliminarily approves the settlement by First Class Mail. Settlement 14 ¶¶ 10b; 16. The Claims Administrator will use a single skiptrace, computer or other search 15 using the name, address and/or Social Security Number of the individual involved for 16 undeliverable Class Notices. Settlement ¶ 16. This approach is sufficient to provide notice 17 through the best practicable means available under the circumstances, and is reasonably 18 calculated to provide notice to potential class members. See Fed. R. Civ. P. 23(c)(2)(B); 19 23(e)(1). 20 As for its content, the Notice provides an explanation of the claims and the terms of 21 the Settlement, the exclusion procedure and associated deadlines, the attorneys’ fees to be 22 paid and the individual members’ estimated recovery under the settlement net of expenses. 23 It also states that those who do not opt out will be bound by the Settlement. Notice at 4, 24 VII.B. The Notice is thus sufficient to meet the requirements of Rule 23(c)(2)(B). See 25 Wright, 259 F.R.D. at 475.6 26 6 Pursuant to the Court’s instruction at the hearing, Plaintiff submitted an amended version of the proposed Notice. Dkt. 160. The amended Notice is approved for 28 dissemination to the class. Id. 27 - 12 - 1 III. CONCLUSION 2 For the reasons stated above, 3 IT IS HEREBY ORDERED THAT: 4 1. 5 6 7 8 9 10 Plaintiff’s Motion for Preliminary Approval of Class Action Settlement is GRANTED. 2. All defined terms in this Order shall have the same meaning as set forth in the Settlement executed by the parties. 3. For settlement purposes only, pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(3), the Court conditionally certifies the following Settlement Class as follows: 11 (a) 12 and former employees employed by Defendants in California during any 13 period that they worked for Defendants between December 17, 2004 and June 14 30, 2009 who were designated as non-exempt employees during the same 15 time period. 16 (b) 17 current and former employees employed by Defendants in California during 18 any period that they worked for Defendants between December 17, 2004 and 19 March 31, 2011 who were designated as non-exempt employees during the 20 same time period. 21 22 23 “Pay Stub Settlement Class Members” shall mean any and all current “Vacation Days Settlement Class Members” shall mean any and all Pay Stub Settlement Class Members and Vacation Day Settlement Class Members shall be jointly referred to as “Class Members” or “Settlement Class Members.” 4. Pursuant to Federal Rule of Civil Procedure 23(g), Peter M. Hart, Esq. of the 24 Law Offices of Peter M. Hart, Eric S. Honig, Esq. of the Law Office of Eric Honig, 25 Kenneth H. Yoon, Esq. of the Law Offices of Kenneth H. Yoon, and Larry W. Lee of 26 Diversity Law Group are APPOINTED as Class Counsel for settlement purposes only. 27 28 5. Nicole Villegas is APPOINTED as Class Representative for the Settlement Class for settlement purposes only. - 13 - 1 6. A Final Approval and Fairness Hearing shall take place on January 15, 2013 2 at 1:00 p.m. in Courtroom 1 of the United States District Courthouse, Northern District of 3 California, Oakland Division, 1301 Clay St., Fourth Fl., Oakland, CA 94612. The matter 4 of Class Counsel’s motion for an award of attorneys’ fees and Plaintiff’s request for an 5 incentive award also will be considered at the hearing. 6 7. The form of Class Notice, as amended and lodged with the Court on 7 November 21, 2011, Dkt. 160, is hereby APPROVED. No later than ten (10) calendar days 8 after the entry of this Order, Defendants shall provide the Claims Administrator with each 9 Class Member’s name, last known address, social security number, and time period in the 10 Settlement Class. No later than thirty (30) calendar days after this Order, the Claims 11 Administrator will send via first class mail the documents constituting the Notice Packet 12 appended to the Agreement as Exhibits 1 (as amended) and 2 to each Class Member by 13 first-class mail, postage prepaid. 14 15 16 8. The Court hereby APPROVES the proposed Claim Period Deadline of sixty (60) calendar days from the initial mailing of the Notice Packet. 9. The Court hereby APPROVES the proposed procedure for opting out of the 17 Settlement Class. The Opt-Out Request must (a) be in writing; (b) must identify this 18 settlement and state that the Class Member is requesting exclusion from the Settlement (i.e., 19 “I request exclusion from the Villegas v. JPMorgan Settlement”); (c) contain the Class 20 Member’s full name, address, telephone number and your last four digits of their social 21 security number; (d) must be mailed to the Claims Administrator at the address set forth in 22 the Notice; and (e) must be postmarked no later than the Class Period Deadline, sixty (60) 23 calendar days from the initial mailing of the Notice Packet. The date of the postmark on 24 the return-mailing envelope shall be the exclusive means used to determine whether a 25 request for exclusion has been timely submitted. Any member of the Class who requests 26 exclusion from the Settlement will not be entitled to any share of the settlement and will not 27 be bound by the Agreement or have any right to object, appeal or comment thereon. 28 Members of the Class who fail to submit a valid and timely request for exclusion shall be - 14 - 1 bound by all terms of the Agreement and the Order and Final Judgment, regardless of 2 whether they otherwise have requested exclusion from the Settlement. 3 10. To object, a Settlement Class Member shall inform Class Counsel in writing 4 of his or her objection to the Settlement and/or request to be heard at the Final Approval 5 and Fairness Hearing by following the procedures set forth in the Notice Packet, including 6 the requirement that he or she timely send a notice of intent to object or appear by first- 7 class mail, postage prepaid, to Class Counsel. To be considered timely, the notice must be 8 filed no later than the Class Period Deadline of sixty (60) calendar days from the initial 9 mailing of the Notice Packet and be served on Class Counsel and Defendants’ Counsel. 10 The notice must set forth any and all objections to this Agreement and include any 11 supporting papers and arguments. Any person or entity who fails to submit such a timely 12 written notice shall be barred from making any statement objecting to this Agreement, 13 including at said hearing, and shall forever waive his or her objection, except by special 14 permission of the Court. The Court will not consider any objector’s request to be heard at 15 the Fairness Hearing unless the objector has timely submitted an objection in accordance 16 with the Notice Packet. 17 11. Plaintiff shall file her motion for final approval, which shall include her 18 response to any timely objections, as well as her motion for attorneys’ fees, at least thirty- 19 five days (35) prior to the Fairness Hearing. 20 12. 21 IT IS SO ORDERED. 22 This Order terminates Docket 157 and 162. Dated: August 8, 2012 _______________________________ SAUNDRA BROWN ARMSTRONG United States District Judge 23 24 25 26 27 28 - 15 -

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