Campbell v. First Investors Corporation et al
Filing
44
ORDER Granting In Part and Denying In Part Plaintiff's 38 Unopposed Motion for Preliminary Approval of Class Action Settlement. Final Approval Hearing set for 5/2/2013 09:30 AM in Courtroom 03 before Judge Roger T. Benitez. Signed by Judge Roger T. Benitez on 10/29/2012. (knb)(jrd)
FILED
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OCT 29 2012
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CLERK, U.S. DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
BY
DEPUTY
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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CASE NO. l1-CV-0548 BEN (WMc)
LAUREN CAMPBELL, Individually, and on
Behalf of Other Members of the Public
Similarly Situated,
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF'S
UNOPPOSED MOTION FOR
PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENT
Plaintiff,
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vs.
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[Docket No. 38]
FIRST INVESTORS CORPORATION,
FIRST INVESTORS LIFE INSURANCE
COMPANY, and DOES 1-10, INCLUSIVE,
Defendants.
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Plaintiff Lauren Campbell was a licensed registered representative and licensed insurance agent
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affiliated with the San Diego office ofDefendants First Investors Corporation and First Investors Life
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Insurance Company (collectively, "First Investors"). In addition to San Diego, First Investors operates
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offices in Pasadena, Walnut Creek, and San Jose, California. Plaintiff alleges that First Investors
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misclassified its California registered representatives as independent contractors, and therefore failed
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to comply with the California Labor Code.
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On February 18, 2011, Plaintiff initiated this putative class action in San Diego County
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Superior Court. The Complaint asserts nine causes of action: (1) failure to pay overtime wages; (2)
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failure to pay minimum wages; (3) failure to pay wages due; (4) failure to provide itemized wage
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statements; (5) failure to provide meal periods; (6) failure to provide rest periods; (7) failure to
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1 reimburse employee expenses; (8) unlawful deductions from wages; and (9) unfair competition. On
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March 18, 2011, Defendants removed the action to this Court.
Presently before the Court is Plaintiffs Unopposed Motion for Preliminary Approval ofClass
Action Settlement.
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DISCUSSION
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Once parties reach a settlement agreement prior to class certification, the court must "peruse
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the proposed compromise to ratify both the propriety of the certification and the fairness of the
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settlement." Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). The court must (1) assess
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whether a class exists, and (2) determine whether the proposed settlement is "fundamentally fair,
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adequate, and reasonable." ld (internal quotation marks omitted). Here, the Court will first examine
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the propriety of class certification, then the fairness of the settlement agreement, followed by the
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questions of class counsel and class notice.
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I.
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A plaintiff seeking a Rule 23(b)(3) class certification must: (1) satisfy the prerequisites ofRule
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23(a); and (2) satisfy the requirements ofRule 23(b)(3). Here, the parties seek provisional certification
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for settlement purposes only ofthe following class: individuals who were affiliated with Defendants
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(or anyone Defendant) as a licensed registered representative or licensed insurance agent at any of
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Defendants' four California offices during the "Covered Period" (from February 18, 2007, through the
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date of this Order preliminary approving the settlement). (Dente Decl., Exh. A [Settl.], 5.)
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CLASS CERTIFICATION
A.
Rule 23(a) Requirements
Rule 23(a) establishes four prerequisites for class action litigation: (1) numerosity; (2)
commonality; (3) typicality; and (4) adequacy ofrepresentation. FED.R. CIV. P. 23 (a); see also Staton,
327 F.3d at 953. The Court will examine each prerequisite in turn.
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1.
Numerosity
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The numerosity prerequisite is met if "the class is so numerous that joinder of all members is
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impracticable." FED. R. CIV. P. 23(a)(I). In the present case, there are approximately 300 class
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members covered by the Settlement. (Dente Decl., Exh. A [Settl.] ,5.) They are too numerous to be
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1 joined as plaintiffs in this action. Accordingly, the numerosity requirement is met.
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2.
Commonality
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The commonality requirement is met if "there are questions of law or fact common to the
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class." FED. R. CIV. P. 23(a)(2). The commonality requirement is construed "permissively." Hanlon
5 v. Chrysler Corp., 150 F.3d 10 11, 1019 (9th Cir. 1998). Not all questions oflaw and fact need to be
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common, but rather "[t]he existence of shared legal issues with divergent factual predicates is
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sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class."
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Id In addition, commonality requires that class members "have suffered the same injury." Wal-Mart
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Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011).
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Here, the class members' claims all share the same issue: whether they were inappropriately
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classified as independent contractors and, as a result, not paid in accordance with the California Labor
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Code. Accordingly, the commonality requirement is met.
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3.
Typicality
Typicality requires that "the claims or defenses ofthe representative parties [be] typical ofthe
claims or defenses of the class." FED. R. CIV. P. 23(a)(3). The Ninth Circuit interprets typicality
permissively. Hanlon, 150 F.3d at 1020.
The representative claims are "typical" if they are
"reasonably co-extensive with those ofabsent class members," though they "need not be substantially
identical." Id; see also Cal. Rural Legal Assistance, Inc. v. Legal Servs. Corp., 917 F.2d 1171, 1175
(9th Cir. 1990). The named plaintiffs must be members of the class they seek to represent and they
must "possess the same interest and suffer the same injury" as putative class members. Gen. Tel. Co.
ofSw. v. Falcon, 457 U.S. 147,156 (1982)(internal quotation marks omitted). It is sufficient for the
plaintiff's claims to "arise from the same remedial and legal theories" as the class claims. Arnold v.
United Artists Theatre Cir., Inc., 158 F.R.D. 439, 449 (N.D. Cal. 1994).
Here, Plaintifrs claims arise from the same factual and legal circumstances as those pertaining
to the claims ofthe class members. Specifically, Plaintiff alleges that she and the class members were
improperly classified as independent contractors, giving rise to multiple failures on First Investors' part
to pay and reimburse class members in accordance with the California Labor Code. Accordingly, the
typicality requirement is met.
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4.
Adequacy of Representation
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Representative parties must be able to "fairly and adequately protect the interests ofthe class."
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FED. R. ClY. P. 23(a)(4). Representation is adequate if the plaintiffs: (1) "do not have conflicts of
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interest with the proposed class" and (2) are "represented by qualified and competent counsel." Dukes
5 v. Wal-Mart, Inc., 509 F.3d 1168, 1185 (9th Cir. 2007). At the heart of this requirement is the
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"concern over settlement allocation decisions." Hanlon, 150 F.3d at 1020.
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Here, Plaintiffhas an interest in proving liability against First Investors, and Plaintiff's interest
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is the same as that of the absent class members. Plaintiff does not have any apparent conflicts of
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interest with the class.
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In addition, class counsel is adequate, as they have significant experience representing classes
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of employees in wage and hour litigation. Matthew Dente, from the Dente Law Firm, has ten years
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of experience practicing employment law and serving as counsel in wage and hour class actions.
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(Dente Decl. ~~ 3-5.) Dente has served as counsel in dozens of wage and hour class actions before
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state and federal courts. (ld) London Meservy, Meservy Law, P.C., has eleven years of experience
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litigating complex multi-plaintiff cases and class actions both as outside defense counsel, plaintiff's
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counsel, and in-house corporate counseL (Meservy Decl. ~~ 3-5.) Meservy's current practice focuses
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almost exclusively on complex class actions on behalf of employees and consumers, and Meservy
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currently serves as counsel in multiple cases. (ld. ~ 4.) Brian Robbins, from Robbins Umeda LLP,
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has over ten years of experience in complex civil litigation, including class actions. (Robbins Decl.
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~ 3.) In addition, Robbins serves as counsel in mUltiple putative wage and hour class actions. (Id.)
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Plaintiff and the proposed class counsel have indicated that they are willing to pursue this action
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vigorously on behalf ofthe class, have thoroughly investigated the class claims, and have served and
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responded to discovery. (Dente Decl. ~ 8, 15-22.) Accordingly, the adequacy requirement has been
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met.
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For the reasons stated above, Plaintiff has satisfied the prerequisites of Rule 23(a).
B.
Rule 23(b)(3) Requirements
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Rule 23(b)(3) requires the court to find that: (1) "the questions of law or fact common to class
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members predominate over any questions affecting only individual members" ("predominance"); and
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(2) "a class action is superior to other available methods for fairly and efficiently adjudicating the
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controversy" ("superiority").
1.
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Predominance
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The predominance inquiry tests ''whether proposed classes are sufficiently cohesive to warrant
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adjudication by representation." Hanlon, 150 F.3d at 1022 (internal quotation marks omitted). This
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analysis requires that common questions oflaw and fact "present a significant aspect ofthe case and
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[that] they can be resolved for all members of the class in a single adjudication." Id. (internal
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quotation marks omitted). The relevant inquiry is whether issues "subject to generalized proof
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predominate over those issues that are subject only to individualized proof." Dilts v. Penske Logistics,
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LLC, 267 F .R.D. 625, 634 (S.D. Cal. 2010) (internal quotation marks and alteration omitted).
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Here, the central issue in this action is whether Defendants violated certain provisions of the
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California Labor Code by misclassifying its registered representatives as independent contractors.
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Judicial economy favors resolving this predominant issue once, in a class action settlement, rather than
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litigating it multiple times in individual lawsuits. Accordingly, the predominance requirement is met.
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2.
Superiority
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The superiority requirement focuses on the determination of "whether the objectives of the
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particular class action procedure will be achieved in the particular case." Hanlon, 150 F.3d at 1023.
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The class-action method is considered to be superior if "classwide litigation of common issues will
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reduce litigation costs and promote greater efficiency." Valentino v. Carter-Wallace, Inc., 97 F.3d
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1227, 1234 (9th Cir. 1996).
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Concentration ofclass members' claims for settlement purposes is desirable in order to avoid
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the possibility of duplicative individual matters and inconsistent judicial determinations. Class
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treatment of the class members' claims would be more manageable than many individual lawsuits
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brought by current or former registered representatives. In addition, because of the relatively small
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individual claims ofclass members, it is unlikely that individual actions to recover these unpaid wages
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will be filed. The average estimated individual settlement award is $4,082.73, and class members
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employed throughout the entire time period will recover approximately $19,744.35. (Aguilar Decl.
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9.) Accordingly, the superiority requirement is met.
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For the foregoing reasons, Plaintiffhas satisfied the requirements ofRule 23(b)(3). The Court
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GRANTS preliminary certification for the purposes ofthe proposed settlement. The Court, however,
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may review this finding at the Final Approval Hearing.
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II.
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Rule 23(e) requires the Court to determine whether a proposed settlement is "fundamentally
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fair, adequate, and reasonable." Staton, 327 F.3d at 959 (internal quotation marks omitted). In making
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this determination, a court may consider: (1) the strength ofthe plaintiff's case; (2) "the risk, expense,
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complexity, and likely duration of further litigation;" (3) "the risk of maintaining class action status
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throughout the trial;" (4) "the amount offered in settlement;" (5) "the extent of discovery completed,
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and the stage of the proceedings;" (6) "the experience and views of counsel;" (7) ''the presence of a
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governmental participant;" and (8) "the reaction of the class members to the proposed settlement."
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See id. (internal quotation marks omitted). Moreover, the settlement may not be the product of
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collusion among the negotiating parties. In re Mega Fin. Corp. Sec. Litig., 213 F.3d 454,458 (9th Cir.
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2000).
THE SETTLEMENT
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Because some of these factors cannot be fully assessed until the Court conducts the Final
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Approval Hearing, "a full fairness analysis is unnecessary at this stage." See Alberto v. GMRI, Inc.,
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252 F .R.D. 652, 665 (E.D. Cal. 2008) (internal quotation marks omitted). At the preliminary approval
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stage, the Court need only review the parties' proposed settlement to determine whether it is within
19 the permissible "range of possible approval" and thus, whether the notice to the class and the
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scheduling of the formal fairness hearing is appropriate. Id. at 666.
A.
The Strength of Plaintiff's Case and the Risk, Expense, Complexity and
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Likely Duration of Further Litigation, and the Risk of Maintaining Class
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Action Status Throughout the Trial
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Plaintiffs counsel believes that the proposed settlement is fair, reasonable, and adequate, and
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is in the best interest of the parties in light of all known facts and circumstances, including the risk of
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delay, the uncertainty of recovery, and the defenses asserted by Defendants. (Dente Decl.
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Specifically, Plaintiff recognizes that there is a possibility that the Class may not obtain certification
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or, even with certification, will not be able to recover damages, considering Defendants' defenses, as
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1 well as the uncertainty in the law regarding Plaintiffs and the putative class's employment status, the
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previously unsettled law regarding meal and rest periods, the requisite showing on an injury to recover
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damages under California Labor Code § 226, and the willfulness requirement under California Labor
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Code § 203. (Id. '1[17.) In addition, class counsel recognizes the possibility of an adverse ruling on
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Defendants' motion to compel arbitration, summary judgment and/or class certification, the difficulties
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of complex litigation, the process of establishing entitlement to the damages at issue, and various
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possible delays and appeals. (Id. 'I[ 26.) Taken together, these considerations weigh in favor of
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preliminary approval of the proposed settlement.
B.
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The Extent of Discovery and the Stage of the Proceedings
l O I n regards to class action settlements, "formal discovery is not a necessary ticket to the
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bargaining table where the parties have sufficient information to make an informed decision about
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settlement." Linneyv. Cellular Alaska P 'ship, 151 F.3d 1234,1239 (9th Cir. 1998) (internal quotation
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marks omitted).
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Here, the parties appear to have engaged in substantial discovery. Defendants have produced
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Plaintiff's personnel file, payroll documents, and arbitration agreements. (Dente Decl. 'I[ 8.) In
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addition, class counsel requested, and Defendants produced a class list with start and end dates, work
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locations, and total workweeks for every putative class member; copies ofall applicable policies; data
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showing the class members' earnings (including commissions, bonuses, deductions, reimbursements,
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etc.); a sampling ofpayroll records, commissionlbonus statements, pay stubs, Form 1099' s, and CAP
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statements for approximately 20% of the putative class; all First Investors presentations shown to
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putative class members and prospective registered representatives; training documents; compensation
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plans; commissions and bonus plans; a representative sampling of weekly schedules; documents
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related to First Investors' mentoring program; and documents regarding support service fees and other
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expenses incurred by putative class members. (Id.) The parties appear to have thoroughly investigated
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and evaluated the factual strengths and weaknesses ofthis case and engaged in sufficient investigation
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and discovery to support the settlement. Accordingly, the extent of discovery and stage of the
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proceedings weigh in favor of preliminary approval.
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III
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C.
Experience of Class Counsel
Class counsel has experience in complex civil litigation. (See Dente Decl.
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3-5; Robbins Decl.
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3-5; Meservy
3.) Dente and Meservy have extensive experience representing both
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Dec!.
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defendants and plaintiffs in wage and hour class action cases. (See Dente Decl. ~~ 3-5; Meservy Decl.
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~~
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class actions in both state and federal court. (See Dente Decl.
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addition, Robbins Umeda LLP has handled complex class and derivative actions, including wage and
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hour class actions. (See Robbins Decl.
3-5.) Both Dente and Meservy have been appointed as class counsel in numerous wage and hour
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3-5; Meservy Decl.
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3-5.) In
3.)
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Moreover, Defendants' counsel, Paul Hastings LLP, has a worldwide employment litigation
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practice, and has handled over 200 class actions within the last two years. (Mot. at 9.) Nancy Abell
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has over 30 years of experience, and is the Global Chair of Paul Hastings' Employment Law
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Department. (Id.) Abell has litigated numerous wage and hour class actions. (Id.) Raymond Bertrand
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has approximately 17 years of experience, and has litigated many statewide and nationwide class
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actions, including wage and hour matters. (ld.) In addition, Bertrand is the Co-Editor-in-Chief of
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Matthew Bender's California Employers' Guide to Employee Handbooks and Personnel Policy
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Manuals and authors the wage-and-hour section of Matthew Bender's California Labor &
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Employment Bulletin.
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Counsel on both sides believe that this is a fair and reasonable settlement. Accordingly, this
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factor weighs in favor of preliminary approval. See Ellis v. Naval Air Rework Facility, 87 F.R.D. 15,
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18 (N.D. Cal. 1980); In re Omnivision Techs., Inc., 559 F. Supp. 2d 1036, 1043 (N.D. Cal. 2008)
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("The recommendations of plaintiffs' counsel should be given a presumption of reasonableness."
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(internal quotation marks omitted)).
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D.
The Amount Offered in Settlement
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A settlement is not judged against only the amount that might have been recovered had the
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plaintiff prevailed at trial, nor must the settlement provide 100% ofthe damages sought to be fair and
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reasonable. Linney, 151 F.3d at 1242. There is a "range of reasonableness" in determining whether
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to approve settlement "which recognizes the uncertainties of law and fact in any particular case and
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the concomitant risks and costs necessarily inherent in taking any litigation to completion." Frank v.
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1 Eastman Kodak Co. , 228 F.R.D. 174, 186 (W.D.N.Y. 2005) (quoting Newman v. Stein, 464 F.2d 689,
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693 (2d Cir. 1972)). The adequacy ofthe amount recovered must be judged as "a yielding ofabsolutes
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... Naturally, the agreement reached normally embodies a compromise; in exchange for the saving
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of cost and elimination of risk, the parties each give up something they might have won had they
5 proceeded with litigation." Officers for Justice v. Civil Servo Comm 'n, 688 F.2d 615, 624 (9th Cir.
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1982) (internal quotation marks omitted). "It is well-settled law that a cash settlement amounting to
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only a fraction of the potential recovery will not per se render the settlement inadequate or unfair."
8 ld. at 628.
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Here, Plaintiff brings claims for damages and statutory penalties against First Investors on
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behalfofherself and other California registered representatives for: (1) failure to pay overtime wages;
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(2) failure to pay minimum wages due; (3) failure to timely pay wages due; (4) failure to provide
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itemized wage statements; (5) failure to provide meal periods; (6) failure to provide rest periods; (7)
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failure to reimburse employee expenses; (8) unlawful deductions; and (9) unfair competition. The
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approximate and reasonable value ofPlaintiff s claims are: (1) $3,500,000 for the minimum wage and
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overtime claims; (2) $1,037,120 for the meal and rest period claims; and (3) $2,300,000 for the
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reimbursement of business expense claims. (Aguilar Decl.
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reasonable value ofthe total claims in this action is $6,837,120. (See id.
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claims carry the potential for related statutory penalties for inaccurate wage statements and waiting
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time penalties, as well as related civil penalties potentially recoverable under the California Private
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Attorneys General Act of2004, Labor Code § 2698 et seq. Many ofthese penalties, however, arguably
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require heightened proof, such as proof of intent and/or willfulness. Moreover, many of these
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penalties, if recovered, would not be awarded to class members.
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5-7.) Thus, an approximate and
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8.) In addition, Plaintiffs
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The parties have agreed to a Gross Settlement Amount of$l,750,000, which includes, subject
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to the Court's approval: (1) payment to the California Labor Workforce Development Agency for its
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share of the settlement of claims for civil penalties pursuant to the Private Attorneys' General Act in
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the amount of $17,500; (2) all employer taxes applicable to the settlement payments, including the
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Federal Unemployment Tax Act and the Federal Insurance Contributions Act; (3) Plaintiffs Class
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Representative Payment in the amount of$25,000; (4) Class Counsel's attorney's fees in the amount
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of $437,500 and expenses not to exceed $20,000; and (5) the Settlement Administrator's fees and
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expenses. (Dente Decl. ~ 13.) All settlement payments to the eligible class members will be made
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from the amount remaining in the settlement fund after all other applicable deductions ("Settlement
4
Proceeds"). (Id) The average estimated individual settlement award is $4,082.73, and class members
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employed throughout the entire time period will recover approximately $19,744.35. (Aguilar Decl.
6
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9.)
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In addition, if fewer than all participating class members timely and properly submit claims,
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any unclaimed sum will be distributed by the Settlement Administrator to the Children's Miracle
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Network. (Dente Decl., Exh. A [Settl.]
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39.) In Dennis v. Kellogg Co., _ F.3d _, 2012 WL
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3800230, at *5 (9th Cir. 2012), the Ninth Circuit held that "[t]o avoid the many nascent dangers to the
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fairness ofthe distribution process, we require that there be a driving nexus between the plaintiff class
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and the cy pres beneficiaries." Id. at *5 (internal quotation marks omitted). This '''driving nexus'
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between the class and the cy pres beneficiaries . . . is more than a simple alignment of interest.
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'Nexus' implies that there be an actual connection, not just between the class and the cy pres
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beneficiary, but between the claims alleged in the case and the cy pres beneficiary." In re Groupon,
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Inc. Mktg. & Sales Practices Litig., Case No. 11-MD-2238 DMS (RBB), Docket No. 97, at 15 (S.D.
17
CaL Sept. 28, 2012); see also Nachshin v. AOL, LLC, 663 F.3d 1034, 1036 (9th Cir. 2011). Here, the
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parties do not assert that there is a driving nexus between the class and the cy pres beneficiary, nor is
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a driving nexus apparent to the Court. Accordingly, preliminary approval of the settlement is
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DENIED to the extent that the parties intend to distribute any unclaimed sum of the settlement to the
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Children's Miracle Network. The parties may address this issue at the Final Approval Hearing.
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The value of the settlement takes into account the risks related to certification, liability, and
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damages, including the possibility that the Class would have not been able to make the necessary
24
showings to obtain recovery. (Dente Decl. ~ 25.) In light of the uncertainties involved with respect
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to litigating this action, the Court finds the amounts offered in settlement to be adequate, at least at this
26
stage of the proceedings. See, e.g., Glass v. UBS Fin. Servs., Inc., No. C-06-4068 MMC, 2007 WL
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221862, at *4 (N.D. Cal. Jan. 26, 2007) (finding settlement of a wage and hour class action for 25 to
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35% of the claimed damages to be reasonable in light of the uncertainties involved in the litigation).
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E.
Collusion Between the Parties
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The collusion inquiry regards the possibility that the agreement is the result of either the
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negotiators' overt misconduct or improper incentives for certain class members at the expense ofother
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members of the class. Staton, 327 F.3d at 960. Here, there is no evidence of overt misconduct. The
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Court will focus only on the aspects of the settlement that lend themselves to self-interested action.
6
First, the Individual Settlement Payments will be distributed to the class members
7 proportionately, based on their tenure. (See Dente Decl., Exh. A [Settl.]
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43.) Each class member
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who timely submits a Claim Form will receive a share of the Settlement Proceeds, calculated as
9
follows: (1) the Settlement Proceeds will be divided by the total number ofCompensable Work Weeks
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ofall class members, and (2) that number (the "Work Week Value") will be multiplied by the number
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of Compensable Work Weeks during which the individual class member was affiliated with First
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Investors, to determine the Individual Settlement Payment. (Id
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43.)
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Second, the proposed class representative enhancement of $25,000 likewise does not appear
14
to be the result of collusion. The Court evaluates incentive awards using "relevant factors including
15
the actions the plaintiff has taken to protect the interests ofthe class, the degree to which the class has
16
benefitted from those actions, the amount of time and effort the plaintiff expended in pursuing the
17
litigation and reasonable fears of workplace retaliation." Staton, 327 F.3d at 977 (internal quotation
18
marks and alterations omitted). Here, Plaintiff requests $25,000 for Campbell, for her time, effort,
19
risks undertaken for the payment of costs in the event this action had been unsuccessful, and stigma
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upon future employment opportunities for having initiated an action against a former employer. (See
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Dente Decl., Exh. A [Settl.] ~ 41.)
22
Third, the attorneys' fees do not appear to be the result of collusion. It is permissible for
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plaintiffs to simultaneously negotiate the merits of the action and attorneys' fees. Staton, 327 F.3d at
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971. Twenty-five percent is the "benchmark" ofrecovery. Powers v. Eichen, 229 F.3d 1249, 1256-57
25
(9th Cir. 2000). In addition, "the choice of whether to base an attorneys' fee award on either net or
26
gross recovery should not make a difference so long as the end result is reasonable." Id at 1258.
27
Here, the Settlement Agreement provides that Plaintiff's counsel will recover an award of attorneys'
28
fees up to 25% ofthe Gross Settlement Amount, or $437,500. (Dente Decl., Exh. A [Settl.] ~ 40.) In
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1 addition, Plaintiffs counsel will request reimbursement of their expenses not to exceed $20,000, to
2
be paid out of the Gross Settlement Amount. (Id.) Accordingly, the attorneys' fees do not appear to
3 be the result of collusion.
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For the above reasons, the Court GRANTS IN PART preliminary approval of the proposed
5
settlement. Preliminary approval ofthe settlement is DENIED to the extent that the parties intend to
6 distribute any unclaimed sum of the settlement to the Children's Miracle Network.
7
III.
8
The choice of counsel has traditionally been left to the parties, "whether they sue in their
9
individual capacities or as class representatives." In re Cavanaugh, 306 F.3d 726, 734 (9th Cir. 2002)
10
(internal quotation marks omitted). Here, Plaintiffs counsel has extensive experience in employment
11
class actions, as discussed above. Accordingly, because Plaintiffs counsel appears to be competent
ApPOINTING CLASS COUNSEL
12 to represent the class, the Court GRANTS Plaintiffs motion to appoint Matthew S. Dente from the
13
Dente Law Firm; London D. Meservy from Meservy Law, PC.; and Brian J. Robbins and Conrad B.
14 Stephens from Robbins Umeda LLP.
15
IV.
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Class notice must be "reasonably calculated, under all the circumstances, to apprise interested
ApPROVING CLASS NOTICE
17 parties ofthe pendency ofthe action and afford them an opportunity to present their objections." See
18
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Moreover, the class notice
19 must satisfy the content requirements ofRule 23(c)(2)(B), which provides that the notice must clearly
20
and concisely state in plain, easily understood language:
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(i) the nature ofthe action; (ii) the definition ofthe 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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Here, the content of the proposed notice is adequate. The proposed notice provides: (1)
26
information on the meaning and nature of the class; (2) the terms and provisions of the proposed
27
settlement; (3) the relief that settlement group members will be entitled to, including a specific
28
estimate ofthe amount to be paid to each eligible member; (4) the costs and fees to be paid out ofthe
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Gross Settlement Amount; (5) the procedures and deadlines for submitting claim fonns, objections,
2
andlor requests for exclusion; and (6) the date, time, and place of the Final Approval Hearing. (See
3
Dente Decl., Exh. A [Settl., Exh. A [Proposed Class Notice]].) In addition, the method ofnotice, more
4
fully set forth below, is reasonable.
5
CONCLUSION
6
For the reasons stated above, IT IS HEREBY ORDERED:
7
1.
Based upon the Court's review ofthe Settlement, the supporting briefs and declarations,
8
and the entire record, the Plaintiff's Unopposed Motion for Preliminary Approval of Settlement is
9
GRANTED IN PART AND DENIED IN PART, as specified herein.
2.
10
This Order incorporates by reference the definitions in the Settlement, and all tenns
11
defined therein shall have the same meaning in this Order as set forth in the Settlement.
3.
12
The Court hereby conditionally certifies the following Class for settlement purposes
13
only:
14
All individuals affiliated with Defendants (or anyone Defendant) as a licensed
registered representative or licensed insurance agent at any of Defendants' four
California offices during the Covered Period.
15
16
The Covered Period means the period from February 18,2007 through the date of this Order.
17
18
4.
Based upon the Court's review ofthe Settlement, the supporting briefs and declarations,
and the entire record, this action presents common issues oflaw and fact, Plaintiff Lauren Campbell
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20
21
22
23
24
25
26
27
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is found to be an adequate representative of the Class, and her claims are found to be typical of the
other Class Members. The following attorneys are hereby appointed and designated as counsel for the
Plaintiff and the Class ("Class Counsel"):
THE DENTE LAW FIRM
MATTHEW S. DENTE (SB# 241547)
600 B Street, Suite 1900
San Diego, CA 92101
Telephone: 619-550-3475
Facsimile: 619-342-9668
LONDON D. MESERVY (SB# 216654)
MESERVY LAW, PC.
120 C Ave., Suite 120
Coronado, CA 92118
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1
Telephone: (858) 779-1276
Facsimile: (866) 231-8132
2
ROBBINS UMEDA LLP
BRIAN J. ROBBINS, (SB# 190264)
CONRAD B. STEPHENS, (SB# 266790)
600 B Street, Suite 1900
San Diego, CA 92101
Telephone: (619) 525-3900
Facsimile: (619) 525-3991
3
4
5
6
7
8
5.
Class Counsel is authorized to act on behalf of Class Members with respect to all acts
or consents required by, or which may be given under the Settlement, and such other acts reasonably
necessary to consummate the Settlement. Any Class Member may enter an appearance through
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
counsel of such Class Member's own choosing and at such Class Member's own expense. Any Class
Member who does not enter an appearance or appear on his or her own will be represented by Class
CounseL
6.
Preliminarily, the Court approves in part the Settlement. The Court approves the
definition and disposition of the Gross Settlement Amount, with the exception of the provision
providing distribution of any unclaimed sum ofthe Settlement to the Children's Miracle Network. In
addition, the Court approves the proposed payments to Class Members, Class Counsel Attorneys' Fees
and Costs Payment, and the Class Representative Payment. The Court finds that, on a preliminary
basis, the Gross Settlement Amount, as defined in the Settlement, appears to be within the range of
reasonableness of a settlement that could ultimately be given final approval by this Court, with the
exception of the proposed distribution of any unclaimed sum of the Settlement to the Children's
Miracle Network.
7.
The Final Approval Hearing shall be held before this Court on May 2, 2013, at 9:30
a.m. at the United States District Court for the Southern District of California, 940 Front Street, San
Diego, CA 92101, in Courtroom 3, to determine all necessary matters concerning the Settlement,
24
25
including: whether the proposed Settlement ofthe Action on the terms and conditions provided for in
26
the Settlement is fair, adequate, and reasonable and should be finally approved by the Court; whether
27
a Judgment should be entered herein; whether the proposed allocation and distribution of the Gross
28
Settlement Amount contained in the Settlement should be approved as fair, adequate, and reasonable
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1 to the Class Members; and to finally approve the Class Counsel Fees and Cost Payment and the Class
2
3
4
Representative Payment.
8.
The Court approves, as to form and content, the Notice and Claim Form attached as
Exhibits A and B to the Settlement. The Court finds that the distribution of the Notice and Claim
5 Form substantially in the manner and form set forth in the Settlement and this Order satisfies due
6
process requirements, is the best notice practicable under the circumstances, and shall constitute due
7 and sufficient notice to all Class Members.
8
9.
The Court appoints CPT Group as Settlement Administrator and directs the Settlement
9
Administrator to mail to Class Members the Notice and Claim Form by first class mail by December
10
21.2012, under the procedures set forth in the Settlement. If no response is received, another Notice
11
and Claim Form will be sent by February 21, 2013 by certified mail to those class members who have
12
not yet responded. Class Members who wish to participate in the settlement provided for by the
13
Settlement ("Participating Class Members") must complete and return the Claim Form under the
14
Settlement's instructions by first class mail or equivalent, postage paid, by March 11,2013.
15
10.
Any Class Member may choose to opt out of and be excluded from the Settlement as
16
provided in the Notice by following the instructions for requesting exclusion from the Settlement that
17
are set forth in the Notice and Settlement. All written requests for exclusion must be submitted as
18
provided in the Notice and Settlement. Any such person who chooses to opt-out of and be excluded
19
from the Settlement will not be entitled to any recovery under the Settlement and will not be bound
20
by the Settlement or have any right to object, appeal, or comment thereon. Any written request to be
21
excluded from the Settlement must be express and signed by each such person. Individuals in the
22
Class who have not requested exclusion shall be bound by all determinations of the Court, the
23
Settlement, and any Judgment that may be entered thereon.
24
11.
Any Participating Class Member may appear at the Final Approval Hearing and object
25
to the Settlement ("Objectors"). Objectors may present evidence and file briefs or other papers that
26
may be proper and relevant to the issues to be heard and determined by the Court as provided in the
27
Notice. On or before March 11.2013, Objectors shall serve by hand or by first class mail written
28
objections and copies of any papers and briefs in support of their position and verification of their
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1 membership in the Class upon Class Counsel and Counsel for Defendants, and file the objections,
2 papers, and briefs with the Clerk of this Court.
3
4
5
12.
All papers in support of the Settlement shall be filed with the Court and served on the
parties' counsel no later than April 1. 2013.
13.
To the extent permitted by law, pending final determination as to whether the
6
Settlement should be approved, any individuals within the Class, whether directly, representatively,
7
or in any other capacity, whether or not such persons have appeared in the Action, shall not institute
8 or prosecute against Defendants any claims to be resolved through this Settlement. The Court
9
incorporates by reference and preliminarily approves the release of claims set forth in Paragraph 61
10 of the Settlement.
11
12
13
14.
As of the date this Order is signed, all dates and deadlines associated with the Action
shall be stayed, other than those related to the administration of the Settlement ofthe Action.
15.
If the Settlement does not become effective in accordance with the terms of and as
14
defined in the Settlement, or if the Settlement is not finally approved by the Court, or is terminated,
15
canceled or fails to become effective for any reason, this Order shall be rendered null and void and
16
shall be vacated, and the parties shall revert to their respective positions as of before entering into the
17
Settlement.
18
16.
The Court reserves the right to adjourn or continue the date of the Final Approval
19
Hearing and all dates provided for in the Settlement without further notice to Class Members, and
20
retains jurisdiction to consider all further applications arising out of or connected with the proposed
21
Settlement.
22
17.
23
24
25
The Court retains exclusive jurisdiction over the Action to consider all further matters
arising out of or connected with the Settlement until Judgment has been entered.
18.
In accordance with the terms ofthe Settlement, the Court hereby adopts the
following dates for performance of the specified activities:
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27
28
December 7. 2012
Deadline for Defendants to provide
Settlement Administrator with class data;
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1
December 21, 2012
Deadline for Settlement Administrator to
mail the Class Notice and Claim Forms to all Class
Members;
February 21, 2013
Deadline for Settlement Administrator to
mail a second Class Notice and Claim Form by
certified mail to all Class Members who have not
responded;
2
3
4
5
6
7
March 11, 2013
Last day for Class Members to submit
claims;
8
9
March 11, 2013
Last day for Class Members to submit
written objections to the Settlement and any notices
of intent to appear at the final approval hearing;
March 11, 2013
Last day for eligible Class Members to
submit requests to be excluded from the Settlement;
March 20, 2013
Last day for Settlement Administrator to
provide declaration of compliance with its
obligations under the Settlement;
March 25, 2013
Last day for Plaintiff to file and serve a
motion for final approval of Settlement, and for
Plaintiff to file request for attorneys' fees, costs, and
Class Representative payment;
April 1, 2013
Last day for filing of any written opposition
to motion for final approval of Settlement and/or
Plaintiffs request for attorneys' fees, costs, and
Class Representative Payment; and
10
11
12
13
14
15
16
17
18
19
20
21
22
May 2, 2013, at 9:30 a.m.
Final approval hearing.
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25
RED.
r
DATED: -+---h~-' 2012
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