Garcia v. Schlumberger Lift Solutions, LLC ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CRISTOBAL GARCIA, an individual, on ) Case No.: 1:18-cv-01261-DAD JLT behalf of himself and all others similarly ) 12 situated, ) ORDER GRANTING PLAINTIFF’S MOTION ) FOR PRELIMINARY APPROVAL OF CLASS 13 Plaintiff, ) SETTLEMENT 14 v. ) (Doc. 41) ) 15 SCHLUMBERGER LIFT SOLUTIONS, et al. ) ) 16 Defendants. ) ) 17 18 Cristobal Garcia asserts that he and others employed by Defendants Schlumberger suffered 19 wage and hour violations, including lost wages. Plaintiff now seeks preliminary approval of a class 20 settlement related only the claim for “payment of safety bonuses by the Defendants which were not 21 used in calculating overtime.” (Doc. 41-1 at 6) Specifically, Plaintiff seeks: (1) conditional 22 certification of the settlement class; (2) preliminary approval of the settlement; (3) appointment of 23 Plaintiff as the class representative; (4) appointment of Peter Dion-Kindem and Lonnie Blanchard as 24 class counsel; (5) approval of the class notice; (6) appointment of Simplurius, Inc. as the settlement 25 administrator; and (7) scheduling for final approval of this partial settlement. 26 The Court has reviewed the proposed settlement between the parties and proposed class notice, 27 as well as the moving papers. The Court finds the matter suitable for decision without oral arguments, 28 and the motion is taken under submission pursuant to Local Rule 230(g) and General Order 618. 1 Therefore, the hearing date of July 21, 2020 is VACATED. For the following reasons, Plaintiff’s 2 motion for preliminary approval of the class settlement is GRANTED. 3 FACTUAL AND PROCEDURAL HISTORY 4 Plaintiff asserts that he was “employed in Kern County by Defendants as a non-exempt 5 employee.” (Doc. 1-3 at 5, ¶ 1) According to Plaintiff, “Defendants failed to pay [employees] for all 6 hours worked.” (Id. at 12, ¶ 32) For example, he reports the employees were “instructed … to arrive at 7 their base office to perform work and to then board company vehicles that would transport them to a 8 second job location away from their base office,” and if employees failed to arrive early enough, they 9 generally would not be permitted to work that day. (Id. at 9, ¶ 20) He alleges employees were not 10 permitted to clock in “until they reached their assigned field locations,” approximately 45 minutes to 1 11 hour after they arrived at the base camp, although there was a clock at the base office, and were not 12 paid for that time. (Id. at 9-10, ¶¶ 21, 23) In addition, Plaintiff contends the employees were not paid 13 for time at the base office waiting for training courses. (Id. at 11, ¶ 30) 14 He alleges Defendants also failed to provide “duty-free meal periods in a timely manner.” 15 (Doc. 1-3 at 15, ¶ 46) He contends Defendants “failed to provide… meal periods within the first five 16 hours of their work” and “frequently failed to provide Plaintiff and other[s] …with required meal 17 periods of not less than 30 minutes in duration.” (Id., ¶¶ 47-48) Plaintiff reports the employers were 18 not permitted “to leave the workplace during purported meal breaks and did not count their time 19 worked through breaks for regular and overtime wage purposes.” (Id., ¶ 50) He also reports that when 20 employees worked in excess of ten-hour shifts to attend classes after the shift, Defendants provided 21 food during the class but failed to provide a second meal break. (Id., ¶¶ 51-52) Similarly, Plaintiff 22 asserts employees were not provided “with the required duty-free rest periods… to which they were 23 entitled.” (Id. at 17, ¶¶ 58, 60) 24 According to Plaintiff, Defendants “failed to maintain and furnish Plaintiff and Class members 25 with accurate and complete wage statements regarding their gross wages earned, total hours worked, 26 total net wages earned, the name and address of the entity that is the legal employer, and all applicable 27 hourly rates in effect…” (Doc. 1-3 at 20, ¶ 67) He contends this failure to provide accurate wage 28 statements resulted in “the non-payment of all their regular and overtime wages and deprived them of 1 the information necessary to identify the discrepancies in Defendants’ reported data.” (Id., ¶ 68) 2 Furthermore, Plaintiff asserts that Defendants had unlawful policies related to their uniforms, 3 and “failed to indemnify Plaintiff and other Class members for necessary expenditures and bosses 4 incurred by the employees in the direct discharge of their duties.” (Doc. 1-3 at 23, ¶ 83) He alleges 5 employees were “required to wear uniforms and were required to pay for costs associated with the 6 laundering and upkeep of those uniforms.” (Id. at 22, ¶ 81) He asserts employees were also “liable for 7 costs associated with damage of the uniforms,” and the “damage liability was broadly described to 8 include normal wear and tear or other accidental, incidental or inadvertent damage that may have 9 occurred during the execution of… duties.” (Id.) Plaintiff reports he and other employees were 10 required to sign a document that acknowledged he was “just using the jacket” but was “responsible for 11 the maintenance of the jacket, including laundering,” and “agree[d] to follow the laundry instructions 12 included with the garment.” (Id. at 23, ¶ 81) 13 On June 5, 2018, Plaintiff initiated this action by filing a complaint in Kern County Superior 14 Court, Case No. BCV-18-101388. (Doc. 1 at 2, ¶ 1) He filed a First Amended Complaint on August 7, 15 2018, in which Plaintiff asserted the following claims: (1) failure to pay compensation due, (2) meal 16 period violations, (3) rest break violations, (4) failure to furnish itemized wage statements, (5) failure to 17 pay wages timely upon termination, (6) failure to indemnify business expenses, (7) violation of 18 California Business and Professions Code § 17203, and (8) civil penalties pursuant to the California 19 Private Attorney General Act. (See generally Doc. 1-3 at 4-5, 8-25) He asserted the first seven cause of 20 action were brought “for himself and on behalf of a class and sub-class initially defined as follows: 21 Class: All non-exempt employees of any of the Defendants who, at any time within the period beginning four years prior to the filing of this action through the date of class 22 certification, worked in California. 23 Termination Pay Sub-Class: All members of the Class whose employment terminated at any time within the period three years prior to the filing of this action through the 24 date of certification. 25 (Id. at 6-7, ¶ 8) After Defendants were served with the First Amended Complaint, they filed a Notice of 26 Removal on September 13, 2018, thereby initiating the action in this Court. (Doc. 1) 27 The Court issued its Scheduling Order governing the action on November 29, 2018. (Doc. 12) 28 The parties engaged in discovery, including the production of “extensive payroll and time-keeping 1 data.” (Doc. 41-1 at 16) Plaintiff was deposed and took the deposition of Defendants’ Rule 30(b)(6) 2 designee. (Id. at 17) 3 On March 25, 2020, the parties engaged in mediation with Jeffrey Krivis. (Doc. 41-1 at 7) 4 Plaintiff reports that “[a]s a result of a mediator’s proposal, the Parties were able to partially resolve the 5 action with respect to the claim for unpaid overtime on safety bonuses and related derivative claims.” 6 (Id.) Specifically, the parties agree: 7 Plaintiff’s first and seventh causes of action survive as to Settlement Class Members insofar as they rely upon any theory of recovery other than miscalculation of regular 8 rate/unpaid overtime on safety bonuses. The fifth cause of action shall be resolved, settled and released in full, for the Settlement Class Members only. The fourth cause of 9 action shall be resolved, settled and released in full, for the Settlement Class Members only, as to any claims arising prior to January 19, 2019. 10 11 (Doc. 41-2 at 38-39, Settlement § 10, ¶ 51) They agree the PAGA penalties of $30,000 “satisfies in full 12 all PAGA penalties … attributable to the first and fourth causes of action or claims alleged therein 13 limited to the time period prior to January 19, 2019, and all penalties attributable to the fifth cause of 14 action or claims alleged therein through the date of Final Approval.” (Id.) Thereafter, Plaintiffs filed 15 the motion now pending for “preliminary approval of a settlement that only partially resolves certain 16 class action claims.” (Doc. 41-1 at 6, emphasis omitted) 17 THE PROPOSED SETTLEMENT 18 Pursuant to the proposed settlement (“the Settlement”), the parties agree to a gross settlement 19 amount of $525,000.00 for the class defined as follows: 20 All non-exempt employees of Schlumberger Lift Solutions LLC or Schlumberger Rod Lift, Inc. who do not opt out of the settlement and who, at any time within the 21 period beginning June 5, 2014 and ending on January 19, 2019 (“Class Period”), worked in California and received a safety bonus by Schlumberger Lift Solutions LLC or 22 Schlumberger Rod Lift, Inc. pursuant to a safety bonus program of Schlumberger Lift Solutions LLC or Schlumberger Rod Lift, Inc. at any time within the Class Period. 23 24 (Doc. 41-1 at 6; Doc. 41-2 at 20, Settlement ¶ 6) Defendants agree to deposit the funds necessary “to 25 make all payments approved by the Court” following the final approval and fairness hearing. (See id. 26 at 21-22, 29, Settlement ¶¶ 15, 40) 27 I. Payment Terms 28 The settlement fund will cover payments to class members with additional compensation to the 1 Class Representative. (Doc. 41-2, Settlement ¶ 18) In addition, the Settlement provides for payments to 2 Class Counsel for attorneys’ fees and costs, to the Settlement Administrator, and the California Labor 3 & Workforce Development Agency. (Id.) Specifically, the settlement provides for the following 4 payments from the gross settlement amount: 5 • The Class Representative will receive an incentive award up to $7,500; 6 • Class counsel will receive $175,000 for attorneys’ fees, which equals 33.33% of the gross settlement amount, and $20,000 for costs; 7 • The California Labor and Workforce Development Agency shall receive $22,500 8 from the total PAGA payment of $30,000; and • The Settlement Administrator will receive up to $6,000 for fees and expenses. 9 10 (Id. at 7, Settlement ¶¶ 21-26) After these payments are issued, the remaining money (“Net Settlement 11 Amount”) will be distributed as settlement shares to Class Members. (Id. at 22, ¶ 18) 12 Payments from the settlement fund “will be divided among three gross Sub-funds: the 13 Overtime Sub-fund, the Wage Statement Sub-fund, and the 203 Sub-fund,” and calculated as follows: 14 Overtime Sub-fund: The gross Overtime Sub-fund amount will be calculated by multiplying the total number of safety bonuses received by the Class Members during 15 the Class Period by $4.00. Defendants’ records show that between June 5, 2014 and January 19, 2019, approximately 1,337 safety bonus payments were issued to Class 16 Members. Based on pay records produced by Defendants in this action, Plaintiff’s counsel estimates that the average amount of unpaid overtime on the average bonus 17 payment is approximately $10.59. The gross Overtime Sub-fund will be calculated by multiplying the total number of safety bonus payments made during the Class Period by 18 $4.00, which totals approximately $5,348. The net Overtime Sub-fund will be calculated by reducing the gross Overtime Sub-fund by the same percentage that the 19 Net Settlement Amount bears to the Total Settlement Amount. The net Overtime Sub- fund will be distributed to the Settlement Class Members on a pro rata basis based on 20 the number of safety bonuses they received during the Class Period, as reflected in Defendants’ records. 21 Wage Statement Sub-fund: The gross Wage Statement Sub-fund will be calculated by 22 multiplying the total number of safety bonuses received by the Class Members during the period from June 5, 2015 to January 19, 2019 by $50.00, which calculation is based 23 on the assumption that there was one wage statement for each safety bonus paid. Defendants’ records show that between June 5, 2015 and January 19, 2019, 24 approximately 1,240 safety bonus payments were issued to Class Members. The gross Wage Statement Sub-fund will be calculated by multiplying the total number of safety 25 bonus payments made between June 5, 2015 and January 19, 2019 by $50.00, which totals $62,000. The net Wage Statement Sub-fund will be calculated by reducing the 26 gross Wage Statement Sub-fund by the same percentage that the Net Settlement Amount bears to the Total Settlement Amount. The Wage Statement Sub-fund will be 27 distributed to Settlement Class Members based on the number of safety bonuses they received during the period from June 5, 2015 to January 19, 2019. 28 1 203 Sub-fund: The gross 203 Sub-fund will be calculated by subtracting the gross Overtime Sub-fund and the gross Wage Statement Sub-fund from $525,000. The net 2 203 Sub-fund will be calculated by reducing the gross 203 Sub-fund by the same percentage that the Net Settlement Amount bears to the Total Settlement Amount. The 3 net 203 Sub-fund will be distributed on a pro rata basis to Settlement Class Members terminated between June 5, 2014 and June 25, 2020. According to counsel for 4 Defendants, there are approximately 174 class members in Overtime Sub-fund class who have been terminated between June 5, 2014 and May 22, 2020. 5 6 (Doc. 41-1 at 9-10; see also Doc. 41-2 at 32-34, Settlement § 6, ¶ 46) Thus, the exact each settlement 7 class member will receive depends on which, and how many, sub-funds they are entitled to, and the 8 number of class members receiving the funds. 9 II. Releases 10 The Settlement provides that Plaintiffs and Class Members, other than those who elect not to 11 participate in the Settlement, at the time final judgment is entered, shall release Defendants from 12 several claims in the First Amended Complaint. Specifically, the release for class members provides: 13 “Class Released Claims” are the claims of the Class Members only for unpaid overtime on safety bonuses (related to first cause of action and seventh cause of action), 14 all claims for waiting time penalties under 203 (fifth cause of action) in full as to Class Members who are terminated on or prior to June 25, 2020 and all claims for wage 15 statement penalties under Section 226 (fourth cause of action) between June 5, 2015 and January 19, 2019. 16 17 (Doc. 41-2 at 38, Settlement ¶ 51) With these releases, the parties also agree: 18 Plaintiff’s first and seventh causes of action survive as to Settlement Class Members insofar as they rely upon any theory of recovery other than miscalculation of regular 19 rate/unpaid overtime on safety bonuses. The fifth cause of action shall be resolved, settled and released in full, for the Settlement Class Members only. The fourth cause of 20 action shall be resolved, settled and released in full, for the Settlement Class Members only, as to any claims arising prior to January 19, 2019. 21 22 (Id.) 23 III. Objections and Opt-Out Procedure 24 Any class member who wishes may file objections or elect not to participate in the Settlement. 25 (Doc. 41-2 at 50, Settlement § 12, ¶ 53) The Notice of Proposed Settlement (“the Notice”) explains the 26 procedures object to the settlement, request exclusion from the settlement, or dispute the employment 27 information. (Doc. 41-2 at 52, 57-59) The Notice also explains the claims that are released as part of 28 the Settlement. (Id. at 57) 1 PRELIMINARY APPROVAL OF A CLASS SETTLEMENT 2 When parties settle the action prior to class certification, the Court has an obligation to “peruse 3 the proposed compromise to ratify both the propriety of the certification and the fairness of the 4 settlement.” Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). Preliminary approval of a class 5 settlement is generally a two-step process. First, the Court must assess whether a class exists. Id. 6 (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997)). Second, the Court must “determine 7 whether the proposed settlement is fundamentally fair, adequate, and reasonable.” Id. (citing Hanlon v. 8 Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 2998)). The decision to approve or reject a settlement is 9 within the Court’s discretion. Hanlon, 150 F.3d at 1026. 10 I. Conditional Certification of a Settlement Class 11 Class certification is governed by Rule 23 of the Federal Rules of Civil Procedure, which 12 provides that “[o]ne or more members of a class may sue or be sued as representative parties on behalf 13 of all.” Fed. R. Civ. P. 23(a). Under the terms of the Settlement, the proposed class is comprised of: 14 All non-exempt employees of Schlumberger Lift Solutions LLC or Schlumberger Rod Lift, Inc. who do not opt out of the settlement and who, at any time within the period 15 beginning June 5, 2014 and ending on January 19, 2019 (“Class Period”), worked in California and received a safety bonus by Schlumberger Lift Solutions LLC or 16 Schlumberger Rod Lift, Inc. pursuant to a safety bonus program of Schlumberger Lift Solutions LLC or Schlumberger Rod Lift, Inc. at any time within the Class Period. 17 18 (Doc. 41-2 at 20, Settlement § 1, ¶ 6) The “Class Period” is defined as the period from June 5, 2014 to 19 January 19, 2019. (Id. at 31, ¶ 9) The parties agree no other non-exempt employees of Defendants shall 20 be considered class members. (Id. at 20-21, ¶ 6) Plaintiff seeks conditional certification of this 21 settlement class pursuant to Fed. R. Civ. P. 23(c)(1), under which the Court may “make a conditional 22 determination of whether an action should be maintained as a class action, subject to final approval at a 23 later date.” See Fry v. Hayt, Hayt & Landau, 198 F.R.D. 461, 466 (E.D. Pa. 2000)). 24 Parties seeking class certification bear the burden of demonstrating the elements of Rule 23(a) 25 are satisfied, and “must affirmatively demonstrate … compliance with the Rule.” Wal-Mart Stores, 26 Inc. v. Dukes, 564 U.S. 338, 350 (2011); Doninger v. Pacific Northwest Bell, Inc., 563 F.2d 1304, 1308 27 (9th Cir. 1977). If an action meets the prerequisites of Rule 23(a), the Court must consider whether the 28 class is maintainable under one or more of the three alternatives set forth in Rule 23(b). Narouz v. 1 Charter Communs., LLC, 591 F.3d 1261, 1266 (9th Cir. 2010). 2 A. Rule 23(a) Requirements 3 The prerequisites of Rule 23(a) “effectively limit the class claims to those fairly encompassed 4 by the named plaintiff’s claims.” General Telephone Co. of the Southwest. v. Falcon, 457 U.S. 147, 5 155-56 (1982). Certification of a class is proper if: 6 (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the 7 representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. 8 9 Fed. R. Civ. P. 23(a). These prerequisites are generally referred to as numerosity, commonality, 10 typicality, and adequacy of representation. Falcon, 457 U.S. at 156. 11 1. Numerosity 12 A class must be “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 13 23(a)(1). This requires the Court to consider “specific facts of each case and imposes no absolute 14 limitations.” General Telephone Co. v. EEOC, 446 U.S. 318, 330 (1980). Although there is not a 15 specific numerical threshold, joining more than one hundred plaintiffs is impracticable. See Immigrant 16 Assistance Project of Los Angeles Cnt. Fed’n of Labor v. INS, 306 F.3d 842, 869 (9th Cir. 2002) 17 (“find[ing] the numerosity requirement . . . satisfied solely on the basis of the number of ascertained 18 class members . . . and listing thirteen cases in which courts certified classes with fewer than 100 19 members”). Here, Plaintiff reports “there are approximately 262 class members.” (Doc. 41-1 at 11, 20 citing Doc. 41-2 at 9, Dion-Kindem Decl. ¶ 33) Therefore, the Court finds the numerosity requirement 21 is satisfied. 22 2. Commonality 23 Rule 23(a) requires “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). 24 Commonality “does not mean merely that [class members] have all suffered a violation of the same 25 pro-vision of law,” but “claims must depend upon a common contention.” Wal-Mart Stores, 564 U.S. 26 at 350. Plaintiff asserts there are common questions of law and facts in this case, because the class 27 members were subjected to the same payment policies as employees of Defendants. (See Doc. 41-1 at 28 12) Specifically, Plaintiff contends common questions of law and fact to the class include: 1 • Whether Defendants’ failure to include safety bonuses in the calculation of overtime due employees resulted in an underpayment of compensation due such employees. 2 • Whether Defendants failure to include safety bonuses in the calculation of overtime 3 due employees resulted in the provision of inaccurate wage statements. 4 • Whether Defendants’ failure to pay overtime due was willful for purposes of Section 203. 5 6 (Id.) Accordingly, the Court finds the commonality requirement is satisfied for purposes of settlement. 7 3. Typicality 8 This requirement demands that the “claims or defenses of the representative parties are typical 9 of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The standards under this rule are 10 permissive, and a claim or defense is not required to be identical, but rather “reasonably coextensive” 11 with those of the absent class members. Hanlon, 150 F.3d at 1020. “The test of typicality is whether 12 other members have the same or similar injury, whether the action is based on conduct which is not 13 unique to the named plaintiffs, and whether other class members have been injured by the same course 14 of conduct.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (internal quotation 15 marks and citation omitted); see also Kayes v. Pac. Lumber Co., 51 F.3d 1449, 1463 (9th Cir. 1995) 16 (the typicality requirement is satisfied when the named plaintiffs have the same claims as other 17 members of the class and are not subject to unique defenses). 18 Plaintiff reports the was “employed in Kern County by Defendants as a non-exempt 19 employee.” (Doc. 1-3 at 5, ¶ 1) Plaintiff reports that he “received non-discretionary bonus payments 20 for periods during which [he] worked overtime but was not paid overtime on such payments.” (Doc. 21 41-4 at 2, Garcia Decl. ¶ 4) Because Plaintiff was subjected to the same polices and payment 22 procedure as the Settlement Class Members, the typicality requirement is satisfied. 23 4. Fair and Adequate Representation 24 Absentee class members must be adequately represented for judgment to be binding upon 25 them. Hansberry v. Lee, 311 U.S. 32, 42-43 (1940). Accordingly, this prerequisite is satisfied if the 26 representative party “will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 27 23(a)(4). “[R]esolution of this issue requires that two questions be addressed: (a) do the named 28 plaintiffs and their counsel have any conflicts of interest with other class members and (b) will the 1 named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” In re Mego 2 Fin. Corp. Sec. Litig., 213 F.3d 454, 462 (9th Cir. 2000) (citing Hanlon, 150 F.3d at 1020). 3 a. Proposed class representative 4 Plaintiff seeks appointment as the Class Representative of the Settlement Class. (See Doc. 41-1 5 at 13-14) Plaintiff asserts that he does not have any conflicts of interest with other class members. (Id. 6 at 13, citing Doc. 41-4 at 2, Garcia Decl. ¶ 6) In addition, Plaintiff asserts: “I have and will consider 7 the interests of the other Class Members just as I would my own interests and understand that I may 8 need to put the interests of the other Class Members before my own.” (Doc. 41-4 at 2, Garcia Decl. ¶ 5) 9 Thus, it appears Plaintiff will fairly and adequately represent the interests of the class. 10 b. Proposed class counsel 11 Lonnie C. Blanchard, III and Peter R. Dion-Kindem seek appointment as counsel for the 12 settlement class. (Doc. 41-2 at 20, Settlement § 1, ¶ 5) Counsel report they do not have any conflicts 13 of interest with the class members and “are experienced in handling class action lawsuits.” (Doc. 41-1 14 at 13-14, citing Doc. 41-2 at 2-5, Dion-Kindem Decl., ¶ 5-10; Doc. 41-3 at 2-5, Blanchard Decl., ¶¶ 4- 15 6) In addition, Mr. Blanchard reports “[t]he focus of [his] practice is almost exclusively civil 16 litigation,” including “extensive experience in wage and hour litigation, including class actions.” 17 (Doc. 41-3 at 2, ¶ 4) Similarly, Mr. Dion-Kindem asserts he has “extensive experience litigating wage 18 and hour and FCRA class actions, employee rights’ claims, and other claims in federal and state 19 court.” (Doc. 41-2 at 2, ¶ 8) Both attorneys identify numerous class action cases in which they were 20 counsel of record. (See Doc. 41-2 at 2-5; Doc. 41-3 at 2-3) Defendants do not oppose their 21 appointment or assert they are inadequate to represent the interest of the class. Therefore, the Court 22 finds Mr. Blanchard and Mr. Dion-Kindem satisfy the adequacy requirement. 23 B. Certification of a Class under Rule 23(b)(3) 24 As noted above, once the requirements of Rule 23(a) are satisfied, a class may only be certified 25 if it is maintainable under Rule 23(b). Fed. R. Civ. P. 23(b); see also Narouz, 591 F.3d at 1266. 26 Plaintiff asserts certification of the settlement class is appropriate under Rule 23(b)(3), which requires a 27 finding that (1) “the questions of law or fact common to class members predominate over any questions 28 affecting only individual members,” and (2) “a class action is superior to other available methods for 1 fairly and efficiently adjudicating the controversy.” 2 Plaintiff argues the predominance requirement is satisfied because “[t]he elements of Plaintiff’s 3 substantive claims are subject to proof by generalized, common evidence” given the policies of 4 Defendants related to calculation of overtime. (Doc. 41-1 at 14) Plaintiff asserts the superiority 5 requirement is met “because individual litigation is not feasible and the claims are manageable.” (Id. at 6 15, emphasis omitted) Plaintiff also contends there has been “no interest by class members to 7 individually litigate” and “absent a class action, most class members simply could not otherwise 8 enforce their rights.” (Id. at 16) Therefore, the Court finds conditional certification of the proposed 9 Settlement Class is proper under Rule 23(b)(3). 10 II. Evaluation of the Settlement Terms 11 Settlement of a class action requires approval of the Court, which may be granted “only after a 12 hearing and on finding that [the settlement] is fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). 13 Approval is required to ensure settlement is consistent with Plaintiffs’ fiduciary obligations to the class. 14 See Ficalora v. Lockheed Cal. Co., 751 F.2d 995, 996 (9th Cir. 1985). The Ninth Circuit identified 15 several factors to determine whether a settlement agreement meets these standards, including: 16 the strength of plaintiff’s case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status throughout the trial; the 17 amount offered in settlement; the extent of discovery completed, and the stage of the proceedings; the experience and views of counsel; the presence of a governmental 18 participant;1 and the reaction of the class members to the proposed settlement. 19 Staton, 327 F.3d at 959 (citation omitted). A court should consider whether settlement is “the product 20 of collusion among the negotiating parties.” In re Mego Fin. Corp. Sec. Litig., 213 F.3d at 458 (citing 21 Class Plaintiffs v. Seattle, 955 F.2d 1268, 1290 (9th Cir. 1992)). In reviewing the settlement “[t]he 22 court need not reach any ultimate conclusions on the contested issues of fact and law which underlie 23 the merits of the dispute.” Class Plaintiffs, 955 F.2d at 1291(quotations, citation omitted). 24 A. Strength of Plaintiff’s Case 25 Plaintiffs raised eight causes of action that the factfinder would be required to evaluate on the 26 merits. (See generally Doc. 1-3) The proposed settlement of many of these claims was reached 27 28 1 Because there is not a government participant in this action, though PAGA penalties will be paid, this factor does 1 following the exchange of written discovery and taking depositions, which allowed the parties to 2 assess the strengths and weaknesses of the action. (See Doc. 41-1 at 16-17) Accordingly, this factor 3 weights in favor of preliminary approval of the Settlement. 4 B. Risks, Expense, Complexity, and Likely Duration of Further Litigation 5 Approval of settlement is “preferable to lengthy and expensive litigation with uncertain 6 results.” Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 529 (C.D. Cal. 2004). If 7 the settlement were to be rejected, the parties would have to engage in further litigation related to the 8 resolved claims, including seeking class certification and discovery on the issue of damages. Plaintiff 9 contends that the partial settlement—including “significant settlement payments to the Class now”— 10 is favorable “to risking (i) the Court’s denial of certification; and (ii) an unfavorable result on the 11 merits on summary judgment or at trial and/or on an appeal, a process that can take several more years 12 to litigate.” (Doc. 41-1 at 19) 13 With regard to the claims resolved through this partial settlement, Plaintiff contends “some of 14 the specific risks related to each of the claims” include: 15 • Subclass 1 - Overtime Sub-class: Defendants contend that the safety bonuses were “discretionary” and therefore not includable in calculating the regular rate of pay. (29 16 U.S.C. § 207(e)(1).) (Dion-Kindem Decl., ¶ 44.) 17 • Subclass 2 – Wage Statement Sub-class: Defendants contend that because there was no substantive violation with respect to the payment of overtime on the safety 18 bonuses, there are no derivative wage statement violations and that any violation, if proven, was not “knowing and intentional” as required by Section 226(e). (Dion- 19 Kindem Decl., ¶ 44.) 20 • Subclass 3 – 203 Sub-class: Defendants contend that any violation is subject to a good-faith defense. “A willful failure to pay wages within the meaning of Labor Code 21 Section 203 occurs when an employer intentionally fails to pay wages to an employee when those wages are due. However, a good faith dispute that any wages are due will 22 preclude imposition of waiting time penalties under Section 203.” (Cal. Code Regs., tit. 8, § 13520). (Dion-Kindem Decl., ¶ 44.) 23 24 (Doc. 41-1 at 19) 25 As Plaintiff observes, the time and expense of continued litigation related to these claims could 26 outweigh any additional recovery. On the other hand, the proposed settlement provides for immediate 27 recovery on claims presented by Plaintiff on behalf of the class. Due to the acknowledged risk of the 28 claims of class members, this factor weighs in favor of preliminary approval of the Settlement. 1 C. Amount Offered in Settlement 2 The Ninth Circuit observed “the very essence of a settlement is compromise, ‘a yielding of 3 absolutes and an abandoning of highest hopes.’” Officers for Justice v. Civil Serv. Commission, 688 4 F.2d 615, 624 (9th Cir. 1982) (citation omitted). Thus, when analyzing the amount offered in 5 settlement, the Court should examine “the complete package taken as a whole,” and the amount is “not 6 to be judged against a hypothetical or speculative measure of what might have been achieved by the 7 negotiators.” Id., 688 F.2d at 625, 628. 8 The proposed gross settlement amount is $525,000.00. (Doc. 41-2 at 24, Settlement § 1, ¶30) 9 Though, generally, orders approving class settlements compare the settlement amount to the estimated 10 total maximum liability, the parties have not identified the total maximum liability for the settled 11 claims. (See Doc. 41-1 at 17-18) Nevertheless, given the time expended by parties with discovery and 12 mediation, it appears the parties agree this amount reflects a fair compromise as to the resolved causes 13 of action. Indeed, in the Settlement Agreement, the parties indicate terms “are the result of lengthy, 14 intensive arms-length negotiations.” (Doc. 41-2 at 44, ¶ 58) Accordingly, the Court finds the amount 15 offered supports preliminary approval of the Settlement. 16 D. Extent of Discovery Completed and Stage of the Proceedings 17 Plaintiff contends that the parties “conducted sufficient informal and formal discovery to be 18 sufficiently familiar with the facts, merits, and risks of Plaintiff’s claims.” (Doc. 41-1 at 7) According 19 to Plaintiff, during discovery he received “extensive payroll and time-keeping data” from Defendants. 20 (Id. at 16) In addition, Plaintiff was deposed and took the deposition of Defendants’ Rule 30(b)(6) 21 designee. (Id. at 17) 22 Based upon the information provided, the parties made informed decisions, which lead to 23 partial resolution of the matter with the assistance of a mediator. Consequently, this factor supports 24 preliminary approval of the Settlement. 25 E. Experience and Views of Counsel 26 As addressed above, Plaintiff’s counsel are experienced in class action litigation. In addition, 27 “Class Counsel believe that the [Settlement] is fair, reasonable, adequate, and is in the best interest of 28 the Class in light of all known facts and circumstances.” (Doc. 41-2 at 25, Settlement ¶ 32) In addition, 1 Defendants indicated they “desire fully, finally, and forever to settle, compromise, and discharge all 2 Claims.” (Id. at 26, ¶ 34) These opinions of counsel are entitled to significant weight, and support 3 approval of the settlement agreement. See Nat’l Rural Telecomms., 221 F.R.D. at 528 (“Great weight is 4 accorded to the recommendation of counsel, who are most closely acquainted with the facts of the 5 underlying litigation”). 6 F. Reaction of Class Members to the Proposed Settlement 7 Plaintiff has agreed to the terms of Settlement Agreement. (Doc. 41-2 at 48) However, because 8 Class Members have not yet received notice, this factor shall be revisited during and after the hearing 9 for final approval of the Settlement. 10 G. Collusion between Negotiating Parties 11 The inquiry of collusion addresses the possibility that the settlement agreement is the result of 12 either “overt misconduct by the negotiators” or improper incentives of class members at the expense of 13 others. Staton, 327 F.3d at 960. In the settlement agreement, the parties indicate terms “are the result 14 of lengthy, intensive arms-length negotiations.” (Doc. 41-2 at 44, ¶ 58) Furthermore, the parties 15 utilized an impartial mediator, and were able to reach the resolution “[a]s a result of a mediator’s 16 proposal.” (Doc. 41-1 at 7) Thus, it appears the agreement is the product of non-collusive conduct, 17 and this factor weighs in favor of preliminary approval of the settlement. 18 H. Attorneys’ Fees 19 Class counsel has requested attorneys’ fees up to $175,000.00, which is one third of the 20 settlement fund. (Doc. 41-2 at 37, Settlement § 9, ¶ 49) The parties agree that “[i]f less than these 21 amounts are approved by the Court, then the Net Settlement Amount will be adjusted accordingly.” 22 (Id.) The typical range of acceptable attorneys’ fees in the Ninth Circuit is 20% to 33 1/3% of the total 23 settlement value, with 25% considered the benchmark. Powers v. Eichen, 229 F.3d 1249, 1256 (9th 24 Cir. 2000). 25 In general, the party seeking fees bears the burden of establishing that the fees and costs were 26 reasonably necessary to achieve the results obtained. See Fischer v. SJB-P.D., Inc., 214 F.3d 1115, 27 1119 (9th 2000). Therefore, a fee applicant must provide time records documenting the tasks 28 completed and the amount of time spent on the action. Hensley v. Eckerhart, 461 U.S. 424, 424 1 (1983); Welch v. Metropolitan Life Ins. Co., 480 F.3d 942, 945-46 (9th Cir. 2007). Because the 2 percentage of the gross fund is within the accepted range outlined by the Ninth Circuit, this amount is 3 approved preliminarily. The Court will determine the exact amount of the fee award upon application 4 by Class Counsel for approval of fees. 5 I. Class Representative Enhancement 6 The Settlement provides that “Plaintiff may seek a payment of $7,500 as an enhancement for 7 the Representative Plaintiff’s services.” (Doc. 41-2 at 36, Settlement § 7, ¶ 48) Incentive awards, or 8 enhancements, for class representatives are not to be given routinely by the Court. In Staton, 327 F.3d 9 at 975, the Ninth Circuit explained: 10 Indeed, ‘[i]f class representatives expect routinely to receive special awards in addition to their share of the recovery, they may be tempted to accept suboptimal settlements at 11 the expense of the class members whose interests they are appointed to guard.” Weseley v. Spear, Leeds & Kellogg, 711 F. Supp. 713, 720 (E.D.N.Y. 1989); see also 12 Women’s Comm. for Equal Employment Opportunity v. Nat’l Broad. Co., 76 F.R.D. 173, 180 (S.D.N.Y. 1977) (“[W]hen representative plaintiffs make what amounts to a 13 separate peace with defendants, grave problems of collusion are raised.”). 14 In fact, “‘excessive payments to named class members can be an indication that the agreement was 15 reached through fraud or collusion.’” Id. (citation omitted). In evaluating the enhancement award to a 16 class representative, a court should consider all “relevant factors including the actions the plaintiff has 17 taken to protect the interests of the class, the degree to which the class has benefitted from those 18 actions, . . . the amount of time and effort the plaintiff expended in pursuing the litigation . . . and 19 reasonable fears of workplace retaliation.” Staton, 327 F.3d at 977. 20 The Settlement explains the enhancement is to be given to Plaintiff for “his service on behalf 21 of the Class, including filing the Complaint, participating in discovery, gathering and/or providing 22 information, responding to other discovery, meeting with Class Counsel, assisting in preparing 23 litigation strategy, submitting to deposition, and assuming the risks of costs and hardships that were 24 not agreed to or experienced by other Class Members.” (Doc. 41-2 at 36, ¶ 48) Plaintiff reports: 25 I have spent many hours of my time in connection with this case to date. The activities I have performed have included, but have not been limited to: obtaining legal counsel, 26 speaking with my legal counsel on countless occasions, both in person and over the phone, assisting them in gathering information, reviewing documents, giving 27 information for pleadings filed by my lawyers, assisting my lawyers in locating witnesses and talking to witnesses, giving information for and reviewing damage 28 calculations, submitting to two days of deposition by Defendants, signing documents and making myself available to communicate with my lawyers during a full day of 1 mediation. I have also spent time carefully reviewing the Settlement and other case- related documents on my own and with my counsel to make sure that the Settlement and 2 other work my attorneys performed are in the best interest of the Settlement Class. Further, I anticipate I will incur additional time even after the Court grants preliminary 3 approval of the Settlement. I believe I have been diligent and acted above and beyond that of which is expected of a Class Representative throughout all stages of litigation. 4 5 (Doc. 41-4 at 3, Garcia Decl. ¶ 9) 6 Significantly, there is no evidence related to the actual number of hours Plaintiff spent working 7 with Class Counsel on this action, or even an estimate of the number of meetings Plaintiff2 had with 8 Class Counsel. Without additional information the Court is unable to evaluate the reasonableness of 9 this requested award. In seeking final approval, Plaintiff must provide specific and unambiguous 10 evidence supporting the requested enhancement. Furthermore, Plaintiff will incur additional time as 11 the matter is only partially resolved. Nevertheless, given the flexibility for an award up to $7,500 to 12 the class representatives, the request for approval of a class representative enhancement is 13 preliminarily approved. 14 APPOINTMENT OF SETTLEMENT ADMINISTRATOR 15 The parties have agreed upon and propose that the Court appoint Simpluris, Inc., (“Simpluris”) 16 to serve as the Settlement Administrator. (Doc. 41-2, Settlement ¶ 28) Under the terms of the 17 proposed Settlement: 18 The duties of the Settlement Administrator shall include, without limitation: the printing and mailing of court-approved Notice Form to Class Members; taking all 19 steps as are reasonably necessary to ensure Class Members timely receive a Notice including conducting a National Change of Address search before mailing the Notice 20 Form; communicating with Class Members and others regarding any reasons as deemed reasonably necessary by the Settlement Administrator in order to ensure that 21 the highest percentage of Class Members receive notice of this Joint Stipulation; the utilization of agreed methods to ensure the most up-to-date and accurate addresses for 22 Class Members; conducting address searches on all returned, undelivered mail and re- mailing Notices Forms to Class Members for whom addresses are found; the 23 providing of toll-free, live operator telephone support to receive telephone calls from Class Members or others regarding the claims process; the maintenance of 24 appropriate databases to fulfill its duties; the receipt and control of all returned Notices Forms, requests for opt-out, and objections; the calculation of the Settlement 25 Shares; the preparation of all necessary reports listing the Settlement Shares; periodic reporting to Class Counsel and Defendants’ Counsel; the timely issuance and, if 26 necessary, re-issuance of Settlement Share checks to Settlement Class Members; 27 2 It is unlikely that there have been so many meetings with counsel that they can properly be described as “countless.” 28 Indeed, the Court would be surprised if counsel have not documented every conversation in their billing records such that 1 conducting address searches for all Settlement Share checks that are returned as undeliverable… 2 (Doc. 41-2 at 38, ¶ 39) In anticipation of the administration expenses, $6,000.00 from the settlement 3 fund has been designated for the Settlement Administrator. (Id. at 34, ¶46(e). Based upon the 4 recommendation and request of the parties, Simpluris is appointed as the Settlement Administrator. 5 APPROVAL OF CLASS NOTICE 6 The class notice must satisfy the requirements of the Federal Rules of Civil Procedure, which 7 provides the notice “must clearly and concisely state in plain, easily understood language” the 8 following information: 9 (i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, 10 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 11 member who requests exclusion; (vi) the time and manner for requesting exclusion; and 12 (vii) the binding effect of a class judgment on members under Rule 23(c)(3). 13 Fed. R. Civ. P. 23(c)(2)(B). A class notice must be “reasonably calculated, under all circumstances, to 14 apprise interested parties of the pendency of the action and afford them an opportunity to present their 15 objections.” See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). 16 I. Content of the Notice 17 Plaintiff has submitted the proposed Notice form. (Doc. 41-2 at 52-62) Upon review of the 18 proposed Notice, the Court finds the content is adequate. It provides information regarding the 19 background of the action and claims asserted by Plaintiff that have resolved as a result of this partial 20 settlement. The Notice also explains the terms and provisions of the Settlement, including payments 21 from the gross settlement fund, and how payments will be received. (See id. at 53-55) In addition, the 22 Notice explains the right to object to the Settlement or request exclusion and will include the 23 applicable deadlines. (Id. at 52, 57-59) Finally, the Notice Packet will provide an estimate of the Class 24 Member’s share based upon the number of pay periods employed by Defendant and explains the effect 25 of the judgment and settlement, including the claims released. (Id. at 56-57) 26 II. Method and Administration of Notice Packet 27 Within thirty days of the date of service of this Order, “Defendants shall provide the Settlement 28 1 Administrator with the following information for each Class Member: name, last-known address, dates 2 of employment, and social security number, if available to Defendants.” (Doc. 41-2 at 30, Settlement 3 §5, ¶ 42) If any of this information is unknown, “Defendants will so advise Class Counsel and the 4 Parties will endeavor prior to the date for submitting data to the Settlement Administrator to use 5 available means to reconstruct, if possible, the data for the Class Member, or otherwise agree on the 6 data for a Class Member. If the Parties are unable to reconstruct the data or otherwise agree, the Parties 7 will submit the dispute to the Court.” (Id.) 8 Within fifteen days of receiving this data, the Settlement Administrator will mail the Notice to 9 all Class Members. (Doc. 41-2 at 30, ¶ 43) For any Notice returned due to an incorrect address, the 10 Settlement Administrator will search for a more current address and re-mail the Notice. (Id.) “The 11 Settlement Administrator shall provide updates to Class Counsel and Defendants’ Counsel at least 12 every week of (1) the number of undeliverable notices; (2) the number and names of opt-outs; and (3) 13 any objections or disputes by Class Members.” (Id. at 31, ¶ 43) 14 Class members who elect not to participate in the Settlement will have 60 days from date the 15 Notice is mailed to submit a written request for exclusion from the Settlement. (Doc. 41-2 at 23, ¶19) 16 The written notice must: (1) “contain the name, address, social security number of the person seeking to 17 opt-out, and home telephone number, if any;” (2) “be returned to the Settlement Administrator at the 18 specific address referenced in the Notice;” and (3) “must be postmarked (if mailed) or received (if 19 otherwise delivered) by the Settlement Administrator on or before the applicable Opt-Out Deadline.” 20 (Id. at 31, ¶ 44) Class Members who properly completes a written request for exclusion will not be 21 entitled to a settlement share; will not be bound by the terms of the settlement agreement; and will not 22 have the “right to object, appeal, or comment thereon.” (Id.) 23 Similarly, Class Members who wish to object to the Settlement have 60 days to submit a written 24 objection to the Settlement Administrator. (Doc. 41-2 at 23, ¶ 20) Any objection “must be signed and 25 must contain the Class Member’s name, the address of counsel, if any, and the name of and the case 26 number for the Action.” (Id. at 40, ¶ 53) The objector must clearly state the grounds for the objection. 27 (Id.) If the agreement is approved by the Court, any objecting Class member will be bound by the 28 terms and final judgment “in the same way and to the same extent as a Class Member who does not 1 object.” (Id. at 40-41, ¶ 53) Class Members will not be permitted to make objections at the Final 2 Approval and Fairness Hearing unless they have submitted a timely written objection that includes 3 notice of intention to appear. 4 Prior to the hearing for final approval, the Settlement Administrator shall serve the parties and 5 the Court with a declaration due diligence setting forth its compliance with its obligations under the 6 Agreement. (Doc. 41-2 at 31, Settlement § 5, ¶ 43) The declaration shall include the number of Class 7 Members to whom Notices were sent and the number of Class Members to whom the Notices were 8 delivered. This declaration shall be filed with the Court with the motion for final approval of the 9 settlement. 10 III. Required Revisions to the Notice Packet 11 The Notice Packet must be modified to include information in this Order, including the date 12 and location of the hearing for Final Approval of Class Settlement. In addition, the Notice must be 13 modified to include the deadlines for requesting exclusion, any opposition to the Settlement, and 14 disputes of the employment information for the class member. 15 If Plaintiff intends to issue a Spanish language translation of the Notice, he is informed that this 16 Court requires a declaration that the Notice was translated by a certified court interpreter, asserting the 17 translation is an accurate translation of the Court-approved English version of the Notice. 18 CONCLUSION AND ORDER 19 Based upon the foregoing, the Court finds the proposed class settlement is fair, adequate, and 20 reasonable. The factors set forth by the Ninth Circuit weigh in favor of preliminary approval of the 21 settlement agreement. Moreover, preliminary approval of a settlement and notice to the proposed 22 class is appropriate “if [1] the proposed settlement appears to be the product of serious, informed, 23 noncollusive negotiations, [2] has no obvious deficiencies, [3] does not improperly grant preferential 24 treatment to class representatives or segments of the class, and [4] falls within the range of possible 25 approval.” In re Tableware Antitrust Litig., 484 F.Supp.2d 1078, 1079 (N.D. Cal. 2007) (quoting 26 Manual for Complex Litigation, Second § 30.44 (1985)). Here, the proposed settlement agreement 27 satisfies this test. Accordingly, the Court ORDERS: 28 1. The hearing date of July 21, 2020 is VACATED; 1 2. Plaintiff’s request for conditional certification of the Settlement Class is GRANTED, 2 and the class is defined as follows: 3 All non-exempt employees of Schlumberger Lift Solutions LLC or Schlumberger Rod Lift, Inc. who do not opt out of the settlement and who, at 4 any time within the period beginning June 5, 2014 and ending on January 19, 2019 (“Class Period”), worked in California and received a safety bonus by 5 Schlumberger Lift Solutions LLC or Schlumberger Rod Lift, Inc. pursuant to a safety bonus program of Schlumberger Lift Solutions LLC or 6 Schlumberger Rod Lift, Inc. at any time within the Class Period. 7 3. Preliminary approval of the parties’ proposed settlement agreement is GRANTED; 8 4. The propose notice plan is APPROVED; 9 5. Cristobal Garcia is APPOINTED the Class Representative for the Settlement Class; 10 6. Lonnie Blanchard, III and Peter Dion-Kindem are APPOINTED Class Counsel; 11 7. Simpluris, Inc. is APPOINTED as the Settlement Administrator, with responsibilities 12 pursuant to the terms set forth in the Settlement Agreement; 13 8. The Class Representative enhancement request for Plaintiff is GRANTED 14 preliminarily up to the amount of $7,500, subject to a petition and review at the Final 15 Approval and Fairness Hearing. Class Members and their counsel may support or 16 oppose this request, if they so desire, at the Final Approval and Fairness Hearing; 17 9. Class Counsel’s request for fees of not to exceed 33 1/3% of the gross settlement 18 amount and costs up to $20,000 is GRANTED preliminarily, subject to counsel’s 19 petition for fees and review at the Final Approval and Fairness Hearing. Class 20 Members and their counsel may support or oppose this request, if they so desire, at the 21 Final Approval and Fairness Hearing; 22 10. The petition for attorneys’ fees and for class representative enhancement fee SHALL 23 be filed no later than November 2, 2020; 24 11. Costs of settlement administration shall not exceed $6,000; 25 12. The proposed Notice is preliminarily APPROVED, and the parties SHALL file a 26 finalized Notice with the required revisions for the Court’s approval within five days of 27 the date of service of this Order; 28 13. Defendants SHALL provide the Settlement Administrator with the Class Data no later 1 than within thirty days of this Order, or no later than August 17, 2020; 2 14. The Settlement Administrator SHALL mail the approved Class Notice Packet no later 3 than September 1, 2020; 4 15. A Class Member who wishes to be excluded from settlement shall postmark the Opt- 5 Out request no later than October 31, 2020; 6 16. Any objections to or comments on the Settlement Agreement must be submitted to the 7 Settlement Administrator no later than October 31, 2020; 8 17. A Final Approval and Fairness Hearing is SET for November 23, 2020 at 9:00 a.m. at 9 the United States Courthouse located at 510 19th Street, Bakersfield, California. At this 10 hearing, the Court shall determine whether the Settlement should be granted final 11 approval as fair, reasonable, and adequate as to the class members. The Court shall 12 hear all evidence and argument necessary to evaluate the Settlement and other motions 13 and requests, including the class representative enhancement request and motion for 14 attorneys’ fees; 15 18. Class Members may appear at the hearing on November 23, 2020, in person or through 16 his or her own attorney, to show cause why this Court should not approve the 17 Settlement Agreement, or to object to the motion for attorneys’ fees or class member 18 representative enhancement award. For comments or objections to be considered at the 19 hearing, the Class Member must file comments with the Clerk of this Court indicating 20 briefly the nature of the Class Member’s comments, support, or objection. 21 19. The Court reserves the right to vacate the Final Approval and Fairness Hearing if no 22 comments or objections are filed with this Court on or before November 2, 2020; 23 20. The Court reserves the right to continue the date of the Final Approval and Fairness 24 Hearing without further notice to class members; and 25 /// 26 /// 27 /// 28 /// 1 21. The Court retains jurisdiction to consider all further applications arising from or related 2 to the Settlement Agreement. 3 4 IT IS SO ORDERED. 5 Dated: July 15, 2020 /s/ Jennifer L. Thurston 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28