Watson v. Tennant Company ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 EDWARD WATSON, an individual, No. 2:18-cv-02462 WBS DB individually and on behalf of 13 all others similarly situated and the general public, 14 MEMORANDUM AND ORDER RE: Plaintiff, MOTION FOR PRELIMINARY 15 APPROVAL OF CLASS ACTION v. SETTLEMENT AND PROVISIONAL 16 CERTIFICATION OF CLASS TENNANT COMPANY, a Minnesota 17 Corporation, and DOES 1 through 50, inclusive, 18 Defendants. 19 20 ----oo0oo---- 21 Plaintiff Edward Watson filed this action against 22 defendants Tennant Company (“Tennant” or “defendant”), and Does 1 23 through 50, alleging various claims related to defendants’ 24 failure to properly pay and reimburse service technician staff. 25 Plaintiff and defendant Tennant reached a settlement in September 26 2019. (Decl. of Alireza Alivandivafa ¶ 7 (Docket No. 25-1).) 27 Before the court is plaintiff’s unopposed motion for preliminary 28 1 approval of the class action settlement and provisional 2 certification of the class. (Docket No. 25.) 3 I. Summary of the Proposed Settlement 4 Under the proposed settlement, defendant will pay a 5 gross amount of $1,100,000, with the entirely of the net 6 settlement amount, after fees and costs, to be paid to the class, 7 without reversion. (Mot. Prelim. Approval of Settlement, Ex. A, 8 “Settlement Agreement,” ¶ 24 (Docket No. 25).) This represents a 9 recovery of approximately 50 percent of the claimed overtime 10 lost, if calculated for the entire class period. (Alivadivafa 11 Decl. ¶ 9(A).) Plaintiff’s counsel seek attorneys’ fees in the 12 amount of $366,666.66, one-third of the gross settlement. 13 (Settlement Agreement at ¶ 26.) The settlement administration 14 costs shall not exceed $20,000. (Id. at ¶ 9(C); Settlement 15 Agreement at ¶30.) Plaintiff seeks a service award of $25,000. 16 (Id. at ¶ 9(D).) The net settlement amount will be, at least, 17 $658,333.33, after all attorneys’ fees, costs, and the service 18 award. (Id. at ¶ 9(E).) The average award would be $8,777.77 19 per class member, although each recovery will depend on the 20 number of qualifying workweeks worked by each class member, 21 determined as those workweeks which each putative class member 22 actively worked as a service technician in California. (Id.; 23 Settlement Agreement at ¶ 12, 30.) 24 The release covers all claims in the complaint as 25 currently constituted. (Alivandivafa Decl. ¶ 8.) The Notice of 26 Class Action Settlement and Workweek Dispute Form will be mailed 27 to all class members via first class mail. Class members shall 28 have 30 days to either opt out or to submit an objection to the 1 proposed settlement. (Id. at ¶ 9.) If 10 percent or more of the 2 class members opt out, defendant can, at its option, withdraw 3 from the settlement. (Settlement Agreement at ¶30(j).) 4 Settlement checks will be valid and negotiable for 180 days, 5 after which time any unclaimed checks will be paid to the State 6 of California Controller’s Office of Unclaimed Property. (Id. at 7 ¶ 30(i).) 8 II. Discussion 9 Where the parties reach a settlement agreement prior to 10 class certification, the court must first assess whether a class 11 exists. Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). 12 “Such attention is of vital importance, for a court asked to 13 certify a settlement class will lack the opportunity, present 14 when a case is litigated, to adjust the class, informed by the 15 proceedings as they unfold.” Id. (quoting Amchem Prods. Inc. v. 16 Windsor, 521 U.S. 591, 620 (1997)). “Second, the district court 17 must carefully consider ‘whether a proposed settlement is 18 fundamentally fair, adequate, and reasonable,’ recognizing that 19 ‘[i]t is the settlement taken as a whole, rather than the 20 individual component parts, that must be examined for overall 21 fairness....’” Id. (quoting Hanlon v. Chrysler Corp., 150 F.3d 22 1011, 1026 (9th Cir. 1998)). 23 A. Class Certification 24 The proposed class is defined as all persons who are or 25 were employed by defendant as non-exempt Service Technicians 26 (including those who performed the same duties as Service 27 Technicians but with a different job title) in the State of 28 California at any time during the Class Period, and who were not 1 covered by a valid collective bargaining agreement. 2 (Alivandivafa Decl. ¶ 8.) To be certified, the putative class 3 must satisfy both the requirements of Federal rule of Civil 4 Procedure 23(a) and (b). Leyva v. Medline Indus. Inc., 716 F.3d 5 510, 512 (9th Cir. 2013). 6 1. Rule 23(a) Requirements 7 Rule 23(a) establishes four prerequisites for class 8 action litigation: (1) numerosity, (2) commonality, (3) 9 typicality, and (4) adequacy of representation. Fed. R. Civ. P. 10 23(a). The court examines each of these requirements in turn. 11 a. Numerosity 12 A proposed class must be “so numerous that joinder of 13 all members is impracticable.” Fed. R. Civ. P. 23(a). The 14 numerosity requirement “requires examination of the specific 15 facts of each case and imposes no absolute limitations.” Gen. 16 Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 330 (1980)). 17 “Courts have routinely found the numerosity requirement satisfied 18 when the class comprises 40 or more members.” Vasquez v. Coast 19 Valley Roofing, Inc., 670 F. Supp. 2d 1114, 1121 (E.D. Cal. 2009) 20 (citing Ansari v. New York Univ., 179 F.R.D. 112, 114 (S.D.N.Y. 21 1998)). Here, the parties satisfy the numerosity requirement 22 because the settlement class is comprised of approximately 75 23 members. (Alivandivafa Decl. ¶ 3.; see Vasquez, 670 F. Supp. at 24 1121.) 25 Under this Rule 23(a) requirement, “[p]laintiffs also 26 must establish impracticability of joinder.” Vasquez, 670 F. 27 Supp. 2d at 1121. “A court should consider ‘not only the class 28 size but other factors as well, including the geographic 1 diversity of class members, the ability of individual members to 2 institute separate suits, and the nature of the underlying action 3 and the relief sought.’” Id. (citing Nat’l Ass’n of Radiation 4 Survivors v. Walters, 111 F.R.D. 595, 599 (N.D. Cal. 1986)). 5 “The limited size of any individual plaintiff's recovery is also 6 relevant.” Id. (citing Edmondson v. Simon, 86 F.R.D. 375, 379 7 (N.D. Ill. 1980)). Here, individual members of the class may be 8 unwilling or unable to bring separate suits “where the potential 9 recovery by any individual plaintiff is relatively small.” See 10 id. Further, filing of individual suits by 75 separate 11 plaintiffs could potentially clog the court’s docket and “create 12 unnecessary burden on judicial resources.” Vasquez, 670 F. Supp. 13 2d at 1121. Accordingly, joinder here would be impracticable. 14 b. Commonality 15 Rule 23(a) demands that “questions of law or fact [be] 16 common to the class.” “It does not require that all questions of 17 law or fact be common to every single member of the class.” 18 Vasquez, 670 F. Supp. 2d at 1121. Commonality is generally 19 satisfied where “the lawsuit challenges a system-wide practice or 20 policy that affects all of the putative class members.” 21 Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001). 22 “Differences in the ways in which these practices affect 23 individual members of the class do not undermine the finding of 24 commonality.” Vasquez, 670 F. Supp. 2d at 1121-1122 (citing 25 Armstrong, 275 F.3d at 868). Here, the parties agree the 26 predominant question for the settlement class is whether the 27 defendant was obligated to pay minimum and/or overtime wages when 28 service technicians worked from home, drove company vehicles to 1 and from work, traveled to calls from their homes after starting 2 work at home, and traveled back home from their last calls. 3 (Mot. at 15.) These common questions suffice to satisfy the 4 commonality requirement. 5 c. Typicality 6 Under Rule 23(a), “the claims or defenses of the 7 representative parties [must be] typical of the claims or 8 defenses of the class.” Vasquez, 670 F. Supp. 2d at 1122 (citing 9 Armstrong, 275 F.3d at 868). The typicality requirement is 10 satisfied where “each class member's claim arises from the same 11 course of events, and each class member makes similar legal 12 arguments to prove the defendant's liability.” Id. (quoting 13 Armstrong, 275 F.3d at 868.) “Under the rule's ‘permissive 14 standards,’ representative claims are typical if they are 15 ‘reasonably co-extensive with those of absent class members; they 16 need to be substantially identical.’” Id. (citing Hanlon,150 17 F.3d at 1020. Here, the conduct that gives rise to the class 18 representative’s injuries -- namely defendant’s travel time pay 19 practices –- is the same conduct that gives rise to the injuries 20 of other class members. Accordingly, the typicality requirement 21 is satisfied. 22 d. Adequacy of Representation 23 The final Rule 23(a) prerequisite is satisfied if “the 24 representative parties will fairly and adequately protect the 25 interests of the class.” Fed. R. Civ. P. 23(a)(4). In resolving 26 this issue, the court must address the following questions: “(a) 27 do the named plaintiffs and their counsel have any conflicts of 28 interest with other class members and (b) will the named 1 plaintiffs and their counsel prosecute the action vigorously on 2 behalf of the class?” In re Mego Fin. Corp. Sec. Litig., 213 3 F.3d 454, 462 (9th Cir. 2000). 4 The court finds that the adequacy requirement is 5 satisfied here. First, no conflict of interest exists here. The 6 named plaintiff has an interest in proving liability against 7 defendant for each of the claims alleged in the complaint, and 8 this interest is identical to the interest of each absent class 9 member. Cf. Vasquez, 670 F. Supp. 2d at 1122 (finding no 10 conflict where all members had an interest in “obtaining payment 11 for wages unlawfully withheld”). Second, class counsel is 12 competent and has experience representing classes of employees in 13 wage and hour litigation. (Alivandivafa Decl. ¶ 21, 24.; see 14 also id.) 15 2. Rule 23(b) Requirement 16 Having satisfied the prerequisites set forth in Rule 17 23(a), plaintiffs must also satisfy one of the three provisions 18 of Rule 23(b). The Rule 23(b)(3) provision is satisfied if “the 19 questions of law or fact common to class members predominate over 20 any questions affecting only individual members.” See Fed. R. 21 Civ. P. 23(b)(3). The predominant question in this litigation is 22 whether defendant was obligated to pay minimum and/or overtime 23 wages when technicians traveled to and from work. Accordingly, 24 the class satisfies the Rule 23(b)(3) provision and the Rule 25 23(b) requirement. The court thus finds that a class exists and 26 will therefore certify the class. 27 3. Rule 23(c)(2) Notice Requirements 28 If the court certifies a class under Rule 23(b)(3), it 1 “must direct to class members the best notice that is practicable 2 under the circumstances, including individual notice to all 3 members who can be identified through reasonable effort.” Fed. 4 R. Civ. P. 23(c)(2)(B). Actual notice is not required, but the 5 notice provided must be “reasonably certain to inform the absent 6 members of the plaintiff class.” Silber v. Mabon, 18 F.3d 1449, 7 1454 (9th Cir. 1994) (citation omitted). 8 The parties have jointly selected Analytics Consulting 9 to serve as the Settlement Administrator. (Settlement Agreement ¶ 10 30.) The defendants will provide Analytics Consulting with the 11 information necessary to contact members of the class within 14 12 business days of the order granting preliminary approval. 13 (Settlement Agreement ¶ 30(a).) All class members will be 14 notified of the suit by first class mail within twenty calendar 15 days following the court’s order of preliminary approval. 16 (Settlement Agreement ¶ 30(b).) The notice summarizes the 17 lawsuit, including the definition of the settlement class; a 18 description of the substantive issues and proceedings to date; a 19 neutral description of the proposed settlement; the amount of 20 attorneys’ fees and costs sought; information regarding the right 21 to opt out of the settlement; information regarding the right to 22 challenge one’s number of work weeks; information regarding the 23 right to file an objection regarding the settlement; the 24 consequences of remaining a member of the settlement class, 25 including the fact that one will be bound by the judgment; the 26 date, time, and place of the final approval hearing; the identity 27 of plaintiff, plaintiff’s counsel, and defendant’s counsel; and 28 contact information for plaintiff’s counsel, defendant’s counsel, 1 and the settlement administrator. (Settlement Agreement ¶ 30(b); 2 (Mot. Preliminary Approval of Settlement, Ex. B, “Proposed Notice 3 of Settlement” (Docket No. 25).) 4 The court finds that the process set forth in the 5 Settlement Agreement is reasonably calculated to provide notice 6 to class members and inform class members of their options under 7 the agreement. Accordingly, the manner of notice and the content 8 of notice satisfies Rule 23(c)(2)(B). Cf. Churchill Vill., LLC 9 v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004) (“Notice is 10 satisfactory if it ‘generally describes the terms of the 11 settlement in sufficient detail to alert those with adverse 12 viewpoints to investigate and to come forward and be heard.’”). 13 B. Preliminary Approval of Settlement 14 “The court must approve any settlement . . . of the 15 claims . . . of a certified class.” Fed. R. Civ. P. 23(e)(1)(A). 16 “The primary concern of [Rule 23(e)] is the protection of th[e] 17 class members, including the named plaintiffs, whose rights may 18 not have been given due regard by the negotiating parties.” 19 Officers for Justice v. Civil Service Comm’n of the City & Cty. 20 of San Francisco, 688 F.2d 615, 624 (9th Cir. 1982). 21 Accordingly, a district court must determine whether a proposed 22 class action settlement is “fundamentally fair, adequate, and 23 reasonable.” Staton, 327 F.3d at 959. In determining whether a 24 settlement agreement is fair, adequate, and reasonable, a 25 district court may consider some or all of the following factors: 26 “(1) the strength of the Plaintiff's case (2) the risk, expense, 27 complexity, and likely duration of further litigation; (3) the 28 risk of maintaining class action status throughout the trial; (4) 1 the amount offered in settlement; (5) the extent of discovery 2 completed; (6) the stage of the proceedings; (7) the views and 3 experience of counsel; (8) any opposition by class members; (9) 4 the presence of a governmental participant.” Linney v. Cellular 5 Alaska P’ship, 151 F.3d 1234, 1242 (9th Cir. 1998). “This list 6 of factors is not exclusive, and the court may balance and weigh 7 different factors depending on the circumstances of each case.” 8 Vasquez, 670 F. Supp. 2d at 1124 (citing Torrisi v. Tucson Elec. 9 Power Co., 8 F.3d 1370, 1376 (9th Cir. 1993)). In addition, 10 where the payment of attorney’s fees is also part of the 11 negotiated settlement, the fee must be evaluated for fairness in 12 the context of the overall settlement. Knisley v. Network 13 Assocs., 312 F.3d 1123, 1126 (9th Cir. 2002). 14 Approval of a class action settlement requires a 15 preliminary approval followed by a final approval. West v. 16 Circle K Stores, Inc., No. CIV. S-04-0438, 2006 WL 1652598, *2 17 (E.D. Cal. June 13, 2006) (“[A]pproval of a class action 18 settlement takes place in two stages.”). At the preliminary 19 approval stage, the court “evaluate[s] the terms of the 20 settlement to determine whether they are within a range of 21 possible judicial approval.” Wright v. Linkus Enters., Inc., 259 22 F.R.D. 468, 472 (E.D. Cal.2009). At this stage, the court may 23 grant preliminary approval of a settlement and direct notice to 24 the class if the settlement: “(1) appears to be the product of 25 serious, informed, non-collusive negotiations; (2) has no obvious 26 deficiencies; (3) does not improperly grant preferential 27 treatment to class representatives or segments of the class; and 28 (4) falls within the range of possible approval.” Alvarado v. 1 Nederend, No. 1:08–cv–01099, 2011 WL 90228, *5 (E.D. Cal. Jan. 2 11, 2011). 3 1. Fairness, Adequacy and Reasonability of Settlement 4 For the following reasons, the court finds that the 5 settlement is fair, adequate, and reasonable. Here, the 6 settlement reflects the strength of the claims and defenses 7 asserted. Class counsel believes that plaintiffs have viable 8 claims that defendant implemented and engaged in unlawful wage 9 and hour policies and practices. (Alivandivafa Decl. at ¶ 9.) 10 Class counsel also believes that the claims asserted in this case 11 are of a type typically subject to class certification, raising 12 common questions as to the legality of defendant’s wage and hour 13 policies and practices. (Id.) In defendant’s view, however, 14 there is no guarantee that class certification would be granted. 15 Defendant further contends that its employment policies and 16 practices did not violate applicable wage and hour laws or the 17 California Labor Code, arguing that its practices were optional 18 and not required, and employees did not miss breaks or earn 19 compensation for which they were not paid. (Id.) Defendant also 20 maintains that the amount of damages and penalties available is 21 far less than plaintiffs claim, such that a more favorable 22 outcome at trial is not guaranteed. (Id.) This settlement 23 therefore reflects the claims and defenses asserted by the 24 parties. 25 Further, the amount offered in settlement is generous 26 compared to similar cases. The net recovery per class member 27 will equate to, at least, $8,777.77. (See Alivandivafa Decl. at 28 ¶ 9.) The average recovery here exceeds that in other cases of 1 this nature. See, e.g., Vasquez, 670 F. Supp. 2d at 1125 2 (average recovery of $1,000.00); Barbosa v. Cargill Meat 3 Solutions Corp., 297 F.R.D. 431, 440 (E.D. Cal. 2013) (average 4 recovery of $601.91). 5 Moreover, the discovery and investigation were 6 extensive. Specifically, defendant produced thousands of pages 7 of documents, in addition to voluminous electronic data, 8 including the time and payroll records for all putative class 9 members. (See Alivandivafa Decl. ¶¶ 14, 15.) Defendant also 10 provided important information about the class and the claims. 11 (Id.) Based on this and other information obtained directly from 12 defendant’s service technicians, class counsel completed an 13 extensive and detailed analysis of the plaintiff’s claims and the 14 defendant’s potential liabilities. (Id.) In addition, 15 plaintiff’s counsel performed a substantial amount of other work 16 in preparation for mediation. (Id. at ¶ 15.) Counsel conducted 17 extensive research, interviews, and engaged in law and motion, 18 prior to obtaining the settlement at issue for plaintiffs. (See 19 Alivandivafa Decl. ¶ 6, 7, 14, 15). 20 Indeed, counsel in this matter is experienced in these 21 kinds of cases. Ms. Alivandivafa has been lead counsel or co- 22 counsel in at least 15 wage-and-hour class actions in California 23 state and federal courts and has been found to be qualified class 24 counsel in all such cases. (Id. at ¶ 20.) The court thus finds 25 that these factors weigh in favor of a finding of a fair, 26 adequate, and reasonable settlement. 27 2. Attorney’s Fees 28 Pursuant to Federal Rule of Civil Procedure 23(h), the 1 Court may award reasonable attorneys’ fees “authorized by law or 2 by agreement of the parties.” A district court must “carefully 3 assess the reasonableness of a fee amount spelled out in a class 4 action settlement agreement.” Staton, 327 F.3d at 963. In 5 diversity actions such as this one, the Ninth Circuit applies 6 state law to evaluating fees and the method for calculating them. 7 See Mangold v. Cal. Public Util. Comm’n, 67 F.3d 1470, 1478 (9th 8 Cir. 1995). 9 In general, courts use the percentage method to 10 calculate attorney’s fees in cases where a common fund is 11 created. Spann v. J.C. Penney Corp., 211 F. Supp. 3d 1244, 1262 12 (C.D. Cal. 2016) (citing Laffitte v. Robert Half Int’l Inc., 1 13 Cal. 5th 480, 489 (2016) (approving 27 percent share in 14 $50,000,000 settlement)). “Given that the percentage method is 15 particularly appropriate in common fund cases where ‘the benefit 16 to the class is easily quantified,’” this court will use the 17 percentage method to evaluate the requested attorneys’ fees. 18 Cooley v. Indian River Transp. Co., No. 1:18-CV-00491, 2019 WL 19 2077029, at *7 (E.D. Cal. May 10, 2019) (citing In re Bluetooth 20 Headset Prod. Liab. Litig., 654 F.3d 935, 942 (9th Cir. 2011)). 21 “In evaluating whether a percentage fee award is reasonable, the 22 court may consider factors such as, inter alia, the results 23 secured for the class, awards in similar cases, and the degree of 24 risk assumed by counsel.” Id. (citing Romero v. Producers Dairy 25 Foods, Inc., No. 1:05-CV00484 DLB, 2007 WL 3492841, at *3 (E.D. 26 Cal. Nov. 14, 2007)). 27 Plaintiff’s counsel requests one-third of the common 28 fund ($366,666.66) in attorneys’ fees. The court preliminarily 1 finds the request to be reasonable. First, plaintiff’s counsel 2 secured a favorable settlement for the class: an average recovery 3 of $8777.77. In addition to the monetary award, class counsel’s 4 efforts resulted in defendant changing its pay and scheduling 5 practices to ensure that minimum and overtime wages be paid. 6 (Alivandivafa Decl. at ¶ 7; cf. Spann, 211 F. Supp. 3d at 1263 7 (considering “non-monetary relief in the form of changed pricing 8 policies, a compliance program, and training for defendant’s 9 employees”).) Second, counsel litigated this matter on a 10 contingency basis and therefore “assumed a significant risk that 11 they would not be compensated for this work.” See Cooley, No. 12 1:18-CV-00491, 2019 WL 2077029, at *8. Third, plaintiff’s 13 counsel’s request is in line with awards in similar cases. In 14 cases where recovery is less than $10,000,000, as here, 15 California district courts tend to award between 30 and 40 16 percent in class actions. See, e.g., Miller v. CEVA Logistics 17 USA, Inc., No. 2:13-CV-01321-TLN, 2015 WL 4730176, at *8 (E.D. 18 Cal. Aug. 10, 2015) (citing Vasquez v. Coast Valley Roofing, 19 Inc., 266 F.R.D. 482, 491–92 (E.D. Cal. 2010) (approving award of 20 33 percent); Singer v. Becton Dickinson & Co., No. 08-CV-821-IEG 21 (BLM), 2010 WL 2196104, at *9 (S.D. Cal. June 1, 2010) (same); 22 Romero v. Producers Dairy Foods, Inc., 2007 WL 3492841, at *1–4 23 (E.D. Cal. 2007) (same)). 24 In light of the result plaintiffs’ counsel obtained, 25 the risks counsel incurred, and the fees usually awarded in these 26 types of cases, the court finds that one third of the common fund 27 is a reasonable award. Accordingly, the court will preliminarily 28 allow the award of attorneys’ fees in the amount of $366,666.66 1 on the understanding that class counsel must demonstrate, on or 2 before the date of the final fairness hearing, that the proposed 3 award is reasonable in light of the circumstances of the case. 4 3. Preliminary Approval a. The settlement is the product of non- 5 collusive, good-faith negotiations. 6 Here, it appears that the proposed settlement is the 7 result of extensive investigation, informal discovery, litigation 8 and negotiations between the parties. The prospect of settlement 9 of these cases was discussed over a period of many months and 10 negotiations were, at all times, adversarial, non-collusive, in 11 good faith, and at arm’s length. (Alivandivafa Decl. at ¶¶ 3, 12 16.) Further, the parties used a mediator highly regarded by 13 both sides in resolving employment cases. (Id. at ¶¶ 3, 7, 16.) 14 Overall, the settlement agreement is the product of extensive and 15 informed negotiations between counsel with substantial litigation 16 experience. (Id. at ¶ 20.) b. The proposed settlement has no obvious 17 deficiencies. 18 The settlement provides for a payment of $1,100,000.00 19 by defendant, a substantial recovery given the relatively small 20 size of the class (75 members). The average settlement share is 21 approximately $8,777.77. All settlement shares to be paid under 22 the settlement agreement are determined by the number of weeks 23 each class member worked in a service technician job. Unclaimed 24 funds are to be sent to the State of California Controller’s 25 Office of Unclaimed Property. (Agreement ¶ 30(i).) 26 The class representative payment of $25,000.00 and the 27 attorneys’ fees payment, as discussed above, are appropriate 28 given the efforts and work by the attorneys. Further, the 1 expected settlement administrator’s fees and costs of no more 2 than $20,000 seem “consistent with wage-and-hour settlements of 3 this type and size.” See Vasquez, 670 F. Supp. 2d at 1125 4 (approving settlement administrator cost of no more than 5 $20,000). All payments will nevertheless be subject to court 6 approval at a later stage. c. The proposed settlement does not give 7 preferential treatment to the class representative. 8 All class members, including the class representative, 9 will be paid based on the number of “Qualifying Workweeks,” which 10 are the workweeks during which each putative class member 11 actively worked as a service technician in California during the 12 relevant time period. The settlement agreement therefore does 13 not treat the class representative, or any other subsection of 14 the class, differently from other class members. 15 d. The settlement agreement falls within the range of possible approval. 16 The “range of possible approval” criterion focuses on 17 “substantive fairness and adequacy.” In re Tableware Antitrust 18 Litig., 484 F. Supp. 2d at 1080. “Courts primarily consider 19 plaintiffs’ expected recovery balanced against the value of the 20 settlement offer.” Id. Here, the settlement adequately 21 represents plaintiff’s expected recovery. The gross settlement 22 amount of $1,100,000 represents approximately 50 percent of the 23 total alleged travel time violations. The settlement amount 24 takes into account the significant risks plaintiffs would 25 undertake if they proceeded with litigation. Specifically, 26 defendant has vigorously contested, and would continue to 27 contest, liability. (See Docket Nos. 6, 7; Mot. at 9.) 28 1 Moreover, even if plaintiff was to prevail, he would be required 2 to expend considerable additional time and resources in further 3 discovery, and to file a motion for class certification, 4 potentially outweighing additional recovery obtained through 5 successful litigation. (Mot. at 8.) Further, if plaintiff is 6 successful, defendant’s potential appeal could delay the outcome 7 of this action for several years. (Id. at 9). Continued 8 litigation will therefore delay payment to the class and does not 9 guarantee a more favorable outcome for plaintiffs. Accordingly, 10 given that the settlement confers a substantial benefit on the 11 class members, and that proceeding with litigation imposes risks, 12 the settlement adequately represents plaintiff’s expected 13 recovery, and is therefore within the range of possible approval. 14 IT IS THEREFORE ORDERED that plaintiff’s motion for 15 provisional certification of the class and for preliminary 16 approval of class action settlement (Docket No. 25) be, and the 17 same hereby is, GRANTED. 18 IT IS FURTHER ORDERED THAT: 19 (1) the following class be conditionally certified for 20 the purpose of settlement: “All persons (or their estate if 21 deceased) who are or were actively working for defendant or any 22 of defendant’s subsidiaries as non-exempt Service Technicians 23 (including those who performed the same duties as Service 24 Technicians but with a different job title) in the State of 25 California, and who were not covered by a collective bargaining 26 agreement located in the State of California during the time 27 period from August 7, 2014 through Preliminary Approval”; 28 (2) the proposed settlement is preliminarily approved 1 as fair, just, reasonable, and adequate to the members of the 2 settlement class, subject to further consideration at the final 3 fairness hearing after distribution of notice to members of the 4 settlement class; 5 (3) for purposes of carrying out the terms of the 6 settlement only: 7 (a) Edward Watson is appointed as Class Representative 8 and is provisionally found to be an adequate representative 9 within the meaning of Federal Rule of Civil Procedure 23; 10 (b) Alireza Alivandivafa, Esq. and Azad M. Marvazy, 11 Esq. are provisionally found to be a fair and adequate 12 representatives of the settlement class and are appointed as 13 class counsel for the purposes of representing the settlement 14 class conditionally certified in this Order; 15 (4) Analytics Consulting, LLC, is appointed as the 16 settlement administrator; 17 (5) the form and content of the proposed Class Notice 18 and the method is approved; 19 (6) no later than fourteen (14) days from the date this 20 order is signed, defendant’s counsel shall provide the names and 21 contact information of all settlement class members to Analytics 22 Consulting; 23 (7) no later than twenty (20) days from the date 24 defendant submits the contact information to Analytics 25 Consulting, Analytics Consulting shall mail a Notice of Class 26 Action Settlement to all members of the settlement class; 27 (8) no later than thirty (30) days from the date this 28 order is signed, any member of the settlement class who intends 1 to object to, comment upon, or opt out of the settlement shall 2 mail written notice of that intent to Analytics Consulting 3 pursuant to the instructions in the Notice of Class Action 4 Settlement; 5 (9) a final fairness hearing shall be held before this 6 court on Monday, September 21, 2020, at 1:30 p.m. in Courtroom 5 7 to determine whether the proposed settlement is fair, reasonable, 8 and adequate and should be approved by this court; to determine 9 whether the settlement class’s claims should be dismissed with 10 prejudice and judgment entered upon final approval of the 11 settlement; to determine whether final class certification is 12 appropriate; and to consider class counsel’s applications for 13 attorney’s fees, costs, and an incentive award to plaintiff. The 14 court may continue the final fairness hearing without further 15 notice to the members of the class; 16 (10) no later than twenty-one (21) days before the 17 final fairness hearing, class counsel shall file with this court 18 a petition for an award of attorney’s fees and costs. Any 19 objections or responses to the petition shall be filed no later 20 than fourteen (14) days before the final fairness hearing; 21 (11) no later than twenty-one (21) days before the 22 final fairness hearing, class counsel shall file and serve upon 23 the court and defendant’s counsel all papers in support of the 24 settlement, the incentive award for the class representative, and 25 any award for attorney’s fees and costs; 26 (12) no later than twenty-one (21) days before the 27 final fairness hearing, Analytics Consulting shall prepare, and 28 class counsel shall file and serve upon the court and defendants’ 1 counsel, a declaration setting forth the services rendered, proof 2 of mailing, a list of all class members who have opted out of the 3 settlement, a list of all class members who have commented upon 4 or objected to the settlement; 5 (13) any person who has standing to object to the terms 6 of the proposed settlement may appear at the final fairness 7 hearing in person or by counsel and be heard to the extent 8 allowed by the court in support of, or in opposition to, (a) the 9 fairness, reasonableness, and adequacy of the proposed 10 settlement, (b) the requested award of attorney’s fees, 11 reimbursement of costs, and incentive award to the class 12 representative, and/or (c) the propriety of class certification. 13 To be heard in opposition at the final fairness hearing, a person 14 must, no later than ninety (90) days from the date this order is 15 signed, (a) serve by hand or through the mails written notice of 16 his or her intention to appear, stating the name and case number 17 of this action and each objection and the basis therefore, 18 together with copies of any papers and briefs, upon class counsel 19 and counsel for defendants, and (b) file said appearance, 20 objections, papers, and briefs with the court, together with 21 proof of service of all such documents upon counsel for the 22 parties. 23 Responses to any such objections shall be served by 24 hand or through the mails on the objectors, or on the objector’s 25 counsel if there is any, and filed with the court no later than 26 fourteen (14) calendar days before the final fairness hearing. 27 Objectors may file optional replies no later than seven (7) 28 calendar days before the final fairness hearing in the same 1 manner described above. Any settlement class member who does not 2 make his or her objection in the manner provided herein shall be 3 deemed to have waived such objection and shall forever be 4 foreclosed from objecting to the fairness or adequacy of the 5 proposed settlement, the judgment entered, and the award of 6 attorneys’ fees, costs, and an incentive award to the class 7 representative unless otherwise ordered by the court; 8 (14) pending final determination of whether the 9 settlement should be ultimately approved, the court preliminarily 10 enjoins all class members (unless and until the class member has 11 submitted a timely and valid request for exclusion) from filing 12 or prosecuting any claims, suits, or administrative proceedings 13 regarding claims to be released by the settlement. 14 | Dated: March 19, 2020 eb □□□ A hd bE 15 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 21