Wert v. U.S. Bancorp et al

Filing 94

ORDER granting 86 Joint Motion for Preliminary Approval of Class Action Settlement. Court conditionally certifies a class for settlement purposes only. Court appoints Monica Wert as Class Representative. Court appoints Matthew S. Dente and Diane E. Richard of Dente Richard LLP, George C. Aguilar and Brian Robbins of Robbins Arroyo LLP, and London D. Meservy of Merservy Law P.C., as Class Counsel to represent the Class. Court appoints Rust Consulting, Inc. as the Settlement Administrator. Court preliminarily approves the Settlement Agreement and the terms and conditions of Settlement, subject to further consideration at a Final Approval Hearing. Final Approval Hearing set for 9/25/2017 10:30 AM in Courtroom 4B before Judge Cynthia Bashant. Signed by Judge Cynthia Bashant on 5/5/2017. (jah)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 MONICA R. WERT, individually and on behalf of others similarly situated, 14 Plaintiff, 15 16 17 18 Case No. 13-cv-3130-BAS(AGS) v. U.S. BANCORP, U.S. BANK NATIONAL ASSOCIATION, Defendants. 19 20 ORDER: (1) PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT; (2) OVERRULING OBJECTIONS TO THE SETTLEMENT; (3) CONDITIONALLY APPROVING PROPOSED SETTLEMENT CLASS; AND (4) SETTING HEARING OF FINAL APPROVAL OF SETTLEMENT 21 22 23 24 Plaintiff Monica R. Wert, on behalf of herself and a putative class, filed claims 25 against Defendants U.S. Bancorp and U.S. Bank National Association, claiming they 26 failed to provide compliant itemized wage statements in violation of California Labor 27 Code § 226 and were entitled to the recovery of civil penalties for this violation under 28 the Private Attorneys General’s Act (“PAGA”), Cal. Labor Code § 2698 et seq. (ECF –1– 13cv3130 1 No. 45.) Additionally, Plaintiff requests civil penalties under PAGA alleging that 2 Defendants violated California Labor Code § 512 when they failed to comply with 3 California’s meal-period requirements. (Id.) 4 Now pending before this Court is the parties’ joint motion for preliminary 5 approval of class action settlement (ECF No. 86), which seeks an order conditionally 6 certifying a proposed settlement class, preliminarily approving class action 7 settlement, and setting a hearing for final approval of the settlement. Also pending is 8 Charles Rodriguez’s objections to the preliminary approval of the class action 9 settlement. (ECF No. 87.) 10 11 I. UNDERLYING CLAIMS 12 In the Second Amended Complaint (“SAC”), which is the operative complaint 13 in this case, Plaintiff alleges first that Defendants “violated California Labor Code § 14 226 by failing to provide compliant itemized wage statements to Plaintiff and their 15 other current and former California U.S. Bank employees.” (SAC ¶ 2.) Plaintiff 16 claims that the wage statements failed to: (1) show total hours worked by the 17 employee; (2) adequately show deductions from wages; (3) itemize the dates in prior 18 pay periods in which adjustments were made; and (4) itemize the inclusive dates of 19 the pay period, including the pay period begin date. (SAC ¶ 27.) 20 In the SAC, Plaintiff also alleges that Defendants “in violation of California 21 Labor Code §§ 512 and 226.7, failed to provide Plaintiff and California U.S. Bank 22 employees with required meal periods.” (SAC ¶ 2.) Plaintiff alleges that she, and 23 other non-exempt workers, were forced to work more than five hours without meal 24 breaks. (SAC ¶¶ 29, 32.) 25 // 26 // 27 // 28 // –2– 13cv3130 1 II. PROPOSED SETTLEMENT 2 The proposed settlement agreement is attached as Exhibit A to the Declaration 3 of Matthew S. Dente in Support of Plaintiff’s Unopposed Motion for Preliminary 4 Approval of Class Action Settlement. (Dente Decl. Ex. A (“Settlement” or 5 “Settlement Agreement”), ECF No. 86.) It proposes to certify for settlement only four 6 different subclasses. The subclasses are defined as follows: 7 (1) “Exempt Paystub Class” is defined as “all individuals employed by either 8 Defendant in California as exempt employees who received one or more paper 9 paychecks and/or paper wage statements at any time between November 13, 2012 10 and July 17, 2014 (without regard to the fact that such individuals had access to 11 Employee Self Service).” (Settlement ¶ 16.) 12 (2) “Non-exempt Paystub Class” is defined as “all individuals employed by 13 either Defendant in California as non-exempt, hourly paid employees at any time 14 from November 13, 2012 to December 31, 2014.” (Settlement ¶ 30.) 15 (3) “Meal Period Provision Class” is defined as “all individuals employed 16 by either Defendant in California as non-exempt, hourly paid employees at any time 17 between November 13, 2012 and December 31, 2016 and who, during that time 18 frame, received pay under the Other Pay Code.” (Settlement ¶ 26.) “Other Pay Code” 19 means the pay code Defendants used to make meal period premium payments. 20 (Settlement ¶ 34.) 21 (4) “Meal Period Pay Computation Class” is defined as “all individuals 22 employed by either Defendant in California as non-exempt, hourly paid employees 23 at any time between November 13, 2009 and December 31, 2016 and who during 24 that time frame received pay under the other Pay Code.” (Settlement ¶ 23.) 25 Individuals may be a member of more than one class. 26 The Settlement provides that Defendants will set aside a non-reversionary 27 settlement amount of $7,000,000. (Settlement ¶ 22.) From this Maximum Settlement 28 Fund will be deducted any Class Representative Enhancement Payment (Plaintiff –3– 13cv3130 1 will seek $10,000 (Settlement ¶ 61i)), Class Counsel fees (Counsel will request 30% 2 of the settlement or $2,100,000 (Settlement ¶ 61j)), Costs (not to exceed $25,000 3 (Settlement ¶ 61j)), settlement administration costs (the parties estimate this to be 4 $55,552), and payments to the Labor and Workforce Development Agency 5 (“LWDA”) as 75% of funds attributable to release of PAGA claims (the parties 6 calculate this amount to be $572,500 (Settlement ¶ 61ci-iv.)) Assuming the amounts 7 above are approved by the Court, the net settlement amount distributed to Class 8 Members will be $4,236,948. 9 The parties propose that Rust Consulting be appointed Settlement 10 Administrator. (Settlement ¶ 46.) Fourteen days after granting the preliminary 11 approval, Defendants will provide the Settlement Administrator with information 12 including names and addresses of all Class Members. (Settlement ¶ 60.) The 13 Settlement Administrator will calculate the individual settlement payment for each 14 class member, based which class each individual is a member of and how many pay 15 period the individual was employed by Defendants. (Settlement ¶ 60a.) Within 16 twenty-eight calendar days of receiving the list of Class Members, the Settlement 17 Administrator will mail Notices to the Class Members which will include the 18 estimated payment amounts, number of eligible pay periods applicable to them based 19 on Defendants’ records, and will provide a mechanism for the Class Member to 20 challenge these calculations. (Settlement ¶ 60bii.) 21 After final settlement is approved, checks will be mailed directly to Class 22 Members. The checks will be valid for six months, after which they will revert to the 23 State of California Department of Industrial Relations Unclaimed Wages Fund in the 24 name of the Class Member who did not cash the check. (Settlement ¶ 61.) 25 In addition to the monetary settlement, Defendants have agreed to make 26 changes to their payroll system to resolve any issues raised by this lawsuit. (Dente 27 Decl. ¶ 16.) 28 // –4– 13cv3130 1 2 The Agreement provides for a Release from each participating Class Member, depending on the subclass of which he or she is a member, as follows: 3 (1) “Exempt Paystub Class” and “Non-exempt Paystub Class” agree to 4 release “any and all claims for failure to provide accurate and/or complete itemized 5 wage statements in violation of Labor Code § 226(a) between [November 13, 2012 6 and July 17, 2014 (“Exempt Paystub Class”) or between November 13, 2012 to 7 December 31, 2014 (“Non-exempt Paystub Class”)], including a release for statutory 8 penalties under Labor Code § 226(e) and civil penalties recoverable under PAGA for 9 violations of Labor Code § 226(a), as well as a release for all claims known and 10 unknown (pursuant to Civil Code § 1542), but only as to these released claims.” 11 (Settlement ¶¶ 17, 31.) 12 (2) “Meal Period Provision Class” agrees to release “any and all claims for 13 civil penalties under PAGA for failure to provide meal periods in accordance with 14 Labor Code §§ 512 and 226.7 and Section 11(A) of IWC Wage Order 4-2011 for the 15 pay periods in which and/or for which they received pay under the Other Pay Code, 16 as well as a release from all claims known and unknown (pursuant to Civil Code § 17 1542), but only as to these released claims, from November 13, 2012 through 18 December 31, 2016.” (Settlement ¶ 27.) 19 (3) “Meal Period Pay Computation Class” agrees to release “any and all 20 claims for failure to properly compute compensation for paid meal period premiums 21 under Labor Code § 226.7 and the Section 11(B) of IWC Wage Order 4-2011, 22 including compensation claims under § 226.7 and claims for civil penalties under 23 PAGA for § 226.7 violations for failure to properly calculate the regular rate when 24 paying a meal period premium. For the period from November 13, 2010 to [April 14, 25 2013], there shall be a release of all claims for statutory penalties under Labor Code 26 § 203, without limitation as to the underlying basis for the claim.” For the period 27 between April 15, 2013 and December 31, 2016, there shall be a release of penalties 28 under Labor Code § 203, but only to the extent the claim is premised on Defendants’ –5– 13cv3130 1 alleged failure to properly calculate the regular rate when paying a meal period 2 premium, not claims premised on other underlying alleged violations like unpaid 3 overtime, off-the-clock work, or for any other violation other than Defendants’ 4 failure to properly calculate the regular rate when paying a meal period premium. 5 (Settlement ¶ 24; Amendment to Class Action Settlement (“Settlement Amendment,” 6 ECF No. 90-2.)1 7 8 9 III. ANALYSIS A. Class Certification (for Settlement Purposes Only) 10 Here, the Parties seek to certify a class for settlement purposes only. Federal 11 Rule of Civil Procedure 23(a) provides that a class may be certified “only if (1) the 12 class is so numerous that joinder of members is impracticable; (2) there are questions 13 of law or fact common to the class; (3) the claims or defenses of the representative 14 parties are typical of the claims or defenses of the class; and (4) the representative 15 parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 16 23(a). In addition to meeting the Rule 23(a) requirements, a class action must fall 17 into one of the categories laid out in Rule 23(b). Fed. R. Civ. P. 23(b). The parties 18 seek to certify the class under Rule 23(b)(3). Both Rules 23(a) and 23(b) are satisfied 19 in this case. 20 1. 21 Rule 23(a) a. 22 Numerosity 23 The numerosity requirement is generally satisfied when the class contains 40 24 or more members, a threshold exceeded in this case. Consolidated Rail Corp. v. Town 25 of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995); Cleano v. Marriott Int’l, Inc., 242 26 F.R.D. 544, 549 (N.D. Cal. 2007). The Settlement Agreement represents that the 27 28 The time period for this release was amended by the Parties in response to the Objection filed by Charles Rodriguez discussed below. 1 –6– 13cv3130 1 “Meal Period Pay Computation Class” has 15,092 members, and the “Meal Period 2 Provision Class” has 9,429 members. (Settlement ¶¶ 23, 26.) Presumably the other 3 two subclasses have at least this many members. Thus, the first requirement of 4 numerosity is satisfied. 5 b. 6 Commonality 7 The commonality requirement requires that there be “questions of law or fact 8 common to the class.” Fed. R. Civ. P. 23(a)(2). Here, the class claims raise similar 9 questions including: (1) whether the itemized wage statements issued to Class 10 members omitted or misreported information required by Labor Code § 226(a) and 11 whether that omission or misreporting resulted in injury under § 226(e); (2) whether 12 Defendants had a policy of not providing meal periods to Class Members as required 13 by California law, as evidenced by Defendants’ payment of extra compensation 14 under § 226.7; (3) whether civil penalties are available despite Defendants’ payment 15 of extra compensation under § 226.7; and (4) whether the extra compensation under 16 § 226.7 was correctly calculated. Because Class Members here have the same or 17 similar allegations, there are common questions of law and fact and Rule 23(a)(2) is 18 satisfied. 19 c. Typicality 20 21 In general, the claims of the representative parties “need not be substantially 22 identical” to those of all absent class members and need only be “reasonably co- 23 extensive” in order to qualify as typical. Hanlon v. Chrysler Corp., 150 F.3d 1011, 24 1020 (9th Cir. 1998). Here, Plaintiff worked for Defendants in California as a non- 25 exempt, hourly employee during the time periods at issue, received wage statements 26 with the alleged deficiencies, received extra hours for pay in lieu of missed meal 27 periods and claims these extra hours were incorrectly calculated. Rule 23(a)(3) is 28 therefore satisfied. –7– 13cv3130 1 d. Adequacy of Representation 2 For the class representative to adequately and fairly protect the interests of the 3 class, two criteria must be satisfied. “First, the named representatives must appear 4 able to prosecute the action vigorously through qualified counsel, and second, the 5 representatives must not have antagonistic or conflicting interests with the unnamed 6 members of the class.” Lerwill v. Inflight Motion Picture, Inc., 582 F.2d 507, 512 7 (9th Cir. 1978). Here, the Named Plaintiff has vigorously pursued the action thus far 8 and appears capable of continuing to do so. Although Plaintiff seeks an incentive 9 award in addition to her award as a Class Member, this does not necessarily mean 10 she has a conflicting interest with the remaining members of the class. See In re 11 Online DVD-Rental Antitrust Litig., 779 F.3d 934, 943 (9th Cir. 2015) (“[I]ncentive 12 awards that are intended to compensate class representatives for work undertaken on 13 behalf of a class are fairly typical in class action cases” and “do not, by themselves, 14 create an impermissible conflict between class members and their representatives 15 [].”). Furthermore, Counsel appear qualified, competent, and experienced in class- 16 action lawsuits. (Dente Decl. ¶¶ 2-5; Aguilar Decl. ¶¶ 3-4, ECF No. 86-4; Meservy 17 Decl. ¶¶ 2-6, ECF No. 86-6.) Rule 23(a)(4) thus appears to be satisfied. 18 19 2. Rule 23(b) 20 The parties seek to maintain their class action under Rule 23(b)(3). Under Rule 21 23(b)(3), “[p]laintiffs must also demonstrate that a class action is ‘superior to other 22 available methods for fairly and efficiently adjudicating the controversy.’” Otsuka v, 23 Polo Ralph Lauren Corp., 251 F.R.D. 439, 448 (N.D. Cal. 2008) (citing Fed. R. Civ. 24 P. 23(b)(3)). “Where classwide litigation of common issues will reduce litigation 25 costs and promote greater efficiency, a class action may be superior to other methods 26 of litigation,” and it is superior “if no realistic alternative exists.” Valentino v. Carter- 27 Wallace, Inc., 97 F.3d 1227, 1234-35 (9th Cir. 1996). The following factors are 28 pertinent to this analysis: –8– 13cv3130 1 (A) the class members’ interest in individually controlling the prosecution or 2 defense of separate actions; 3 (B) the extent and nature of any litigation concerning the controversy already 4 begun by or against class members; 5 (C) the desirability or undesirability of concentrating the litigation of the 6 claims in the particular forum; and 7 (D) the likely difficulties in managing a class action. 8 Fed. R. Civ. P. 23(b)(3). 9 In this case, the alternative to a class action would be to have the individual 10 Class Members, which amount to thousands of individuals, file separate lawsuits. 11 That would be both impractical and inefficient. Such individual litigation would 12 consume judicial resources, impose additional burdens and expenses on the litigants, 13 and present a risk of inconsistent rulings. Thus, the Court finds class action is 14 superior to other methods for fairly and efficiently adjudicating this controversy. 15 16 B. Fairness, Reasonableness, and Adequacy of Proposed Settlement 17 The Ninth Circuit maintains a “strong judicial policy” that favors the 18 settlement of class actions. Class Plaintiffs v. City of Seattle, 955 F.3d 1268, 1276 19 (9th Cir. 1992). However, according to Federal Rule of Civil Procedure 23(e)(2), “the 20 court may approve [a settlement that would bind class members] only after a hearing 21 and on finding that [the settlement] is fair, reasonable, and adequate.” Fed. R. Civ. P. 22 23(e)(2). 23 In determining whether the proposed settlement is fair, reasonable, and 24 adequate, “a district court must consider a number of factors, including: the strength 25 of plaintiffs’ case; the risk, expense, complexity, and likely duration of further 26 litigation; the amount offered in settlement; the extent of discovery completed, and 27 the stage of proceedings; the experience and views of counsel; the presence of a 28 governmental participant; and the reaction of the class members to the proposed –9– 13cv3130 1 settlement.” Staton v. Boeing Co., 327 F.3d 938, 959 (9th Cir. 2003). There is no 2 governmental participant. Therefore, the Court considers the first four of these factors 3 below. 4 5 1. Strength of Plaintiff’s Case, and Risk of Further Litigation 6 Although Plaintiff believes the case has merit, she and her counsel recognize 7 that Defendants had legal and factual grounds available to them for defending this 8 action. (Dente Decl. ¶¶ 20-22.) Even if Plaintiff succeeded in proving that Defendants 9 provided non-complaint wage statements, Defendants argued that employees had 10 access to all required information under an electronic system, the omission of any 11 information in the wage statements resulted in no injury and any omission was not 12 knowing or intentional. 13 With respect to the computation of meal period payments, Defendants had a 14 strong legal argument that bonus and other forms of non-base pay were not required 15 to be paid as part of meal and rest break premium payments. The existence of this 16 unresolved legal argument meant the case would almost certainly have been appealed 17 with uncertain and delayed results. 18 Finally, with respect to the provision of meal periods, there were clear factual 19 issues as to whether the provision of payment under the “other pay code” necessarily 20 signified that meal periods were involuntarily not provided to the entire class. 21 22 The risk of future motions for summary judgment, for class certification and eventual appeals weighs in favor of settlement at this stage of the proceedings. 23 24 2. Consideration Offered 25 In this case, the Defendants agree to provide a non-reversionary settlement 26 amount of $7,000,000. Even with reductions for attorneys’ fees, costs, administrative 27 fees, and enhancement award for the named Plaintiff, this is not an insignificant 28 amount. Furthermore, the state will receive $572,500 in PAGA penalties. – 10 – 13cv3130 1 Additionally, the Defendants have agreed to make changes to their payroll system to 2 resolve any issues raised by this lawsuit. (Dente Decl. ¶ 16.) 3 Although, if Plaintiffs’ allegations were proven true, Plaintiff and Class 4 members might be entitled to greater compensation, this does not mean that the 5 settlement is inadequate. See Linney v. Cellular Alaska P’ship, 151 F.3d 1234, 1242 6 (9th Cir. 1998). “[The] very essence of a settlement is a compromise, ‘a yielding of 7 absolutes and an abandoning of highest hopes.’” Officers for Justice v. Civil Serv. 8 Comm’n of the City & Cnty. of San Francisco, 688 F.2d 615, 624 (9th Cir. 1982). 9 Although the Objector argues that this amount is insufficient because it does 10 not provide additional compensation for the additional releases in the Agreement, the 11 Court disagrees, as discussed below. The Court finds the consideration offered, at 12 this stage of the proceedings, appears to be reasonable. 13 3. 14 Extent of Discovery Completed and Stage of Proceedings 15 “[S]ettlement approval that takes place prior to formal class certification 16 requires a higher standard of fairness.” Hanlon, 150 F.3d at 1026. This case, however, 17 has been pending for over three years during which the case has been heavily 18 litigated, including motions to remand and multiple motions to dismiss. (Dente Decl. 19 ¶ 19.) The parties have also engaged in discovery including Requests for Production, 20 Special Interrogatories and extensive document production. (Dente Decl. ¶¶ 12, 18.) 21 Just prior to depositions, the Parties agreed to participate in an all-day mediation with 22 Joel Grossman at JAMS, an experienced mediator in the area of wage-hour actions. 23 (Dente Decl. ¶¶ 13-14.) Although the matter did not resolve at mediation, the Parties 24 continued to discuss the issues post-mediation and eventually came to a resolution 25 several months later. (Id.) 26 // 27 // 28 // – 11 – 13cv3130 1 It appears the parties engaged in significant discovery and significant litigation 2 about the key legal and factual issues. The Court therefore concludes that this factor 3 favors approval. 4 5 4. Experience and Views of Counsel 6 As laid out in their Declarations, Class Counsel are experienced in class action 7 lawsuits, having lead or participated in numerous class-action lawsuits in state and 8 federal courts. (Dente Decl. ¶¶ 2-5; Aguilar Decl. ¶¶ 3-4; Meservy Decl. ¶¶ 2-6.) 9 Class Counsel declare that, considering the risks and the above-detailed extensive 10 arms-length negotiations, they “believe this Settlement is in the best interests of the 11 Class Members based on the negotiations and a detailed knowledge of the issues 12 present in this Action.” (Dente Decl. ¶ 42; Aguilar Decl. ¶ 7; Meservy Decl. ¶11.) 13 Generally, “[t]he recommendations of plaintiffs’ counsel should be given a 14 presumption of reasonableness.” Boyd v. Bechtel Corp., 485 F. Supp. 610, 622 (N.D. 15 Cal. 1979); cf. Stull v. Baker, 410 F. Supp. 1326, 1332 (S.D. N.Y. 1976) (holding that 16 the court should consider the recommendation of counsel, and weight it according to 17 counsel’s caliber and experience). Here, due especially to the experience and 18 knowledge of Class Counsel, their recommendations are presumed to be reasonable, 19 and this factor accordingly favors approval. 20 21 5. Reaction of Class Members / Objection Filed 22 Although it would be premature to completely assess the reaction of class 23 members at this stage of the proceedings before the bulk of the Class Members have 24 received notice, the Court has received one Objection filed by class member Charles 25 Rodriguez. (ECF No. 87.) At the direction of the Court, both Plaintiff and Defendants 26 filed Responses to this Objection. (ECF Nos. 90, 91.) 27 Rodriguez argues that the consideration is inadequate because it fails to take 28 into consideration the overbroad releases in the Agreement. Rodriguez, who is – 12 – 13cv3130 1 concerned that settlement of this case might affect his pending class action filed 2 against Defendants in Los Angeles Superior Court on April 15, 2016, argues that, 3 “Defendants have not paid to settle distinct Labor Code claims not pleaded or 4 considered in this action—specifically claims for: (i) unpaid minimum and overtime 5 wages pursuant to Labor Code §§ 510 and 1194 due to off-the-clock work; (ii) unpaid 6 meal period premiums pursuant to Labor Code §§ 512, 226.7 and (iii) waiting time 7 penalties pursuant to Labor Code § 203[.]” (Rodriguez’s Objection 1, ECF No. 87.) 8 Rodriguez is concerned the § 1542 release will affect his pending claims for (i) 9 unpaid minimum wages and or overtime wages, and (ii) failure to provide meal 10 and/or rest periods pursuant to Labor Code §§ 512, 226.7 and Section A of IWC 11 Wage Order 4-2001. (Id. at 2.) Rodriguez claims he seeks unpaid wages not civil 12 penalties, but that his claim for unpaid wages will be released by the release in this 13 case. Finally, he claims that the Notice fails to comply with due process because it 14 fails to advise the class of its potential effect on the Rodriguez class action. (Id. at 3.) 15 In response, the Parties have amended the Release agreement with respect to 16 the “Meal Period Computation Class” to change the dates of the release under Labor 17 Code § 203. With this amendment, the Parties agree that the Release will have little 18 or no effect on Rodriguez’s outstanding claims. Having considered the arguments 19 and responses, the Court overrules Rodriguez’s objections and finds that the 20 settlement at this point of the proceedings appears fair, reasonable, and adequate. 21 First, from the outset, this case has involved Plaintiff’s allegations that 22 Defendants failed to correctly compute mealtime compensation and failed to give her 23 and other class members the option to take meal time breaks. Therefore, to the extent 24 Rodriguez argues that the Settlement attempts to expand the claims beyond those 25 alleged in the complaint, this is incorrect. The fact that the Court dismissed some of 26 these claims does not prohibit the parties from valuing and resolving the issue that 27 was, in fact, alleged in the complaint. See Class Plaintiffs v. City of Seattle, 955 F.2d 28 1268, 1287 (9th Cir. 1992) (“[A] federal court may release not only those claims – 13 – 13cv3130 1 alleged in the complaint, but also a claim ‘based on the identical factual predicate as 2 that underlying the claims in the settled class action even though the claim was not 3 presented and might not have been presentable in the class action.’”); Officers for 4 Justice v. Civil Serv. Com’n of City & Cnty. of San Francisco, 688 F.2d 615, 634 5 n.18 (9th Cir. 1982) (“[W]here a particular type of relief potentially available to class 6 members is compromised in the settlement process, it is mainly irrelevant whether or 7 not that relief was specifically requested in the complaint. The breadth of negotiations 8 is not necessarily strictly confined by the pleadings.”). 9 Second, these claims were properly valued and considered during the 10 settlement negotiations, so Rodriguez’s arguments that no additional funding was 11 available for the release of these claims is also incorrect. 12 Additionally, Rodriguez’s concerns that his claims will be released are largely 13 unfounded. The releases are carefully narrowed so that the § 1542 waiver is limited 14 “only as to [the] released claims” not to all claims including unpaid minimum wages, 15 unpaid overtime wages or off-the-clock work, as Rodriguez worries. 16 Finally, the amended waiver with respect to § 203 claims as to the “meal period 17 computation class” assures that this waiver will now not affect Rodriguez. Rodriguez 18 left his employment with Defendants in 2015, so the waiver never applied to his 19 claim. The amended time period now assures that it also does not apply to other class 20 members in his claim 21 C. 22 Fairness Hearing and Required Notice to Parties 1. 23 Notice Requirements 24 Under Rule 23(c)(2)(B), “the court must direct to class members the best notice 25 that is practicable under the circumstances, including individual notice to all 26 members who can be identified through reasonable effort.” Fed. R. Civ. P. 27 23(c)(2)(B). The Rule directs: 28 // – 14 – 13cv3130 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 time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(c)(3). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Fed. R. Civ. P. 23(c)(2)(B). “[T]he mechanics of the notice process are left to the discretion of the court subject only to the broad ‘reasonableness’ standards imposed by due process.” Grunin v. Int’l House of Pancakes, 513 F.2d 114, 120 (8th Cir. 1975). The proposed settlement agreement anticipates that the Parties will retain the services of a third party Claims Administrator, Rust Consulting (“Rust”). (Settlement ¶ 46.) Defendants will provide Rust with the last known address of each Class Member, and Rust will mail notice to each Class Member. (Settlement ¶ 60a.) Notice will include Defendants’ calculation of each Class Member’s work weeks of employment as well as Rust’s resulting estimated settlement amount for each Class Member. (Settlement ¶ 60bii.) Rust will provide a mechanism whereby each Class Member may challenge this calculation. (Id.) The Court has reviewed the proposed Notice as well as the notice procedures and finds that it satisfies the requirements of Rule 23(c)(2)(b). 22 23 24 25 26 27 28 2. Fairness Hearing Rule 23(e)(2) requires that “[i]f the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). “The purpose of a fairness hearing is to provide the court with sufficient evidence for it to make an informed decision relating to the fairness of the proposed settlement.” UAW v. General Motors Corp., 235 F.R.D. 383, – 15 – 13cv3130 1 386 (E.D. Mich. 2006). A fairness hearing need not have all the procedures and 2 protections of a full trial; it is a forum for intervenors to voice their objections and 3 for the fairness of the settlement to be determined, and a court is within its discretion 4 to limit the hearing as necessary to meet those objectives. UAW, 235 F.R.D. at 386; 5 Tenn. Ass’n of Health Maint. Org., Inc. v. Grier, 262 F.3d 559, 567 (6th Cir. 2001). 6 Here, in their Settlement Agreement, the parties agree to a framework for Class 7 Members who either wish to opt out or to object to the proposed Settlement. 8 (Settlement ¶¶ 60d, 60e, 64.) 9 10 IV. CONCLUSION & ORDER 11 In light of the foregoing, he Court GRANTS the parties’ joint motion for 12 preliminary approval of the class action settlement (ECF No. 86), and hereby 13 ORDERS the following: 14 1. hereby conditionally certifies a class for settlement purposes only. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court 2. The class shall consist of four subclasses defined as follows: “Exempt Paystub Class”: all individuals employed by either Defendant in California as exempt employees who received one or more paper paychecks and/or paper wage statements at any time between November 13, 2012 and July 17, 2014 (without regard to the fact that such individuals had access to Employee Self Service). “Non-exempt Paystub Class”: all individuals employed by either Defendant in California as non-exempt, hourly paid employees at any time from November 13, 2012 to December 31, 2014. “Meal Period Provision Class”: all individuals employed by either Defendant in California as non-exempt, hourly paid employees at any time between November 13, 2012 and December 31, 2016 and who, during that time frame, received pay under the Other Pay Code. – 16 – 13cv3130 1 “Meal Period Pay Computation Class”: all individuals employed by either Defendant in California as non-exempt, hourly paid employees at any time between November 13, 2009 and December 31, 2016 and who during that time frame received pay under the other Pay Code. 2 3 4 5 3. The Court hereby appoints Monica Wert as Class Representative. 6 4. The Court hereby appoints Matthew S. Dente and Diane E. Richard of 7 Dente Richard LLP, George C. Aguilar and Brian Robbins of Robbins 8 Arroyo LLP, and London D. Meservy of Meservy Law P.C., as Class 9 Counsel to represent the Class. 5. 10 The Court appoints Rust Consulting, Inc. (Rust”) as the Settlement Administrator. 11 6. 12 The Court approves, as to form and content, the Notice Packet attached 13 as Exhibits 1 and 2 to the Settlement Agreement. The Court finds the 14 distribution of the Notice Packet in the manner and form set forth in the 15 Settlement Agreement and this Order satisfies due process requirements 16 and the requirements of Rule 23(c)(2), is the best notice practicable 17 under the circumstances and shall constitute due and sufficient notice to 18 all Class members. 7. 19 The Court hereby preliminarily approves the Settlement Agreement and 20 the terms and conditions of Settlement set forth therein, subject to 21 further consideration at a Final Approval Hearing. 8. 22 The Court will hold a Final Approval Hearing on September 25, 2017 23 at 10:30 a.m., in the Courtroom of the Honorable Cynthia Bashant, 24 United States District Court for the Southern District of California, 25 Courtroom 4B (4th Floor – Schwartz), 221 West Broadway, San Diego, 26 CA 92101, for the following purposes: 27 // 28 // – 17 – 13cv3130 a. 1 Finally determining whether the Class meets all applicable 2 requirements of Rule 23 of the Federal Rules of Civil Procedure 3 and whether the Class should be certified for the purposes of 4 effectuating the Settlement, b. 5 finally determining whether the proposed Settlement of the case 6 on the terms and conditions provided for in the Settlement 7 Agreement is fair, reasonable, and adequate and should be 8 approved and ordered by the Court, and c. 9 ruling upon such other matters as the Court may deem just and appropriate. 10 9. 11 The Court may adjourn the Final Approval Hearing and later reconvene such hearing without further notice to the Class Members. 12 10. 13 Before the Fairness Hearing, Defendants shall file with the Clerk of the 14 Court proof of their compliance with the notice provisions of the Class 15 Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1715. 11. 16 In compliance with Federal Rule of Civil Procedure 23(b)(3), the Class 17 Members will be permitted to exclude themselves from the class. Any 18 request to be excluded must be made in accordance with the Settlement 19 and instructions on the Notice Packet, and must be postmarked no later 20 than forty- five calendar days after the initial date of the mailing of the 21 Class Settlement Notice. 12. 22 Class Members may object to the Settlement by following the 23 instructions set forth in the Class Settlement Notice. Any objection must 24 be filed with the Clerk of this Court and served on the Settlement 25 Administrator no later than forty-five calendar days after the initial date 26 of the mailing of the Class Settlement Notice. 27 // 28 // – 18 – 13cv3130 13. 1 All objections must include the objector’s full name, address, and 2 telephone number, along with a statement of the reasons for his or her 3 objection, whether or not he or she intends to appear at the fairness 4 hearing, and, if the objector intends to appear, whether he or she will 5 appear on his or her own behalf or through counsel. Objections that do 6 not contain all required information or that are received after the 7 Objection Deadline will not be considered at the Final Approval 8 Hearing. 14. 9 Any Class Member who does not file a valid and timely objection to the 10 settlement shall be barred from seeking review of the settlement by 11 appeal or otherwise. 15. 12 Defendants are ordered to provide the Settlement Administrator with the 13 Class information required by the Settlement Agreement within 14 fourteen calendar days of the entry of this Preliminary Approval Order. 16. 15 The Settlement Administrator is ordered to mail the Notice Packets to 16 Class Members within thirty-five calendar days of the Settlement 17 Administrator’s receipt of the Class information. 15. 18 Class Counsel shall file with the Clerk of this Court their application for 19 attorney’s fees, costs, and expenses no later than ten calendar days 20 before the deadline for Class Members to opt out or object. 16. 21 The Settlement Administrator shall provide the parties with a 22 declaration of compliance with its obligation under the Settlement seven 23 calendar days after the deadline for Class Members to opt out or object. 17. 24 twenty-eight calendar days before the Fairness Hearing. 25 18. 26 Counsel are to file any responses to any objections seven calendar days before the Fairness Hearing. 27 28 Class counsel are to file their Motion for Final Approval of Settlement // – 19 – 13cv3130 1 2 3 19. The Parties are ordered to carry out the Settlement Agreement in the manner provided in the Settlement Agreement. IT IS SO ORDERED. 4 5 DATED: May 5, 2017 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 20 – 13cv3130

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