Pena v. Taylor Farms Pacific, Inc. ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 MARIA DEL CARMEN PENA, et al., Case No. 2:13-cv-01282-KJM-AC 11 Plaintiffs, 12 v. ORDER 13 TAYLOR FARMS PACIFIC, INC., et al., 14 Defendants. 15 16 In this dispute over defendants’ alleged Labor Code violations, plaintiffs renew their 17 previously denied motion for preliminary approval of a class action settlement. For the reasons 18 below, the court GRANTS the motion. 19 I. BACKGROUND 20 The factual background of this case is recounted in the court’s most recent order denying 21 preliminary approval of the parties’ settlement. See First Order on Mot. for Prelim. Approval 22 (“First Order”), ECF 305. As noted there, on February 10, 2015, the court granted in part and 23 denied in part plaintiffs’ motion for class certification. Specifically, the court: (1) denied 24 certification of all classes and subclasses as to defendant SlingShot Connections, LLC; (2) denied 25 certification of the donning and doffing subclass; (3) granted certification of two meal break 26 subclasses and approved Pena, Hernandez and Morris as representatives of those subclasses, but 27 denied certification of the rest break subclass; (4) granted certification of the waiting time subclass, 28 insofar as that subclass is entirely derivative of the mixed hourly workers subclass, and appointed 1 Pena and Hernandez as representatives of that subclass; (5) denied certification of the wage 2 statement subclass; and (6) appointed plaintiffs’ counsel as class counsel. Cert. Order, 3 ECF No. 200, at 42−43. Tyson and Abel Mendoza, Inc. appealed the court’s certification order 4 unsuccessfully. See ECF Nos. 217, 228 (notices of appeal), 243, 244 (memorandum disposition 5 affirming order and mandate), 262 (Supreme Court denied petition for writ of certiorari). The 6 parties then entered into settlement negotiations. See ECF Nos. 273, 277, 280 (minute orders 7 resetting status conference pending parties’ settlement discussions). 8 On April 5, 2019, plaintiffs first moved for preliminary approval of a class-action 9 settlement. First Mot., ECF No. 287. With leave of court, plaintiffs filed a supplemental brief and 10 declaration to address several issues the court had raised at hearing on the motion. Supp. Br., 11 ECF No. 301; Supp. Decl., ECF No. 302; see also ECF Nos. 303, 304 (statements of non-opposition 12 to supplemental filings). On August 23, 2019, the court denied the motion without prejudice to 13 renewal. See First Order at 9. 14 On February 24, 2020, plaintiffs renewed their motion for preliminary approval of the 15 settlement. As before, the parties propose a $5,300,000 gross settlement amount. Mot., ECF 16 No. 316, at 13–14. From the gross settlement, plaintiffs seek: (1) attorneys’ fees not to exceed 35 17 percent of the gross settlement ($1,855,000), (2) costs not to exceed $250,000, (3) service awards 18 of $7,500 for each named plaintiff, including plaintiffs not certified as class representatives, not to 19 exceed a total of $37,500, and (4) settlement administrative costs not to exceed $23,000. Mot. at 2 20 (relying on prior briefing); First Mot. at 5–6. Defendants Quality Farm Labor, Inc. and Abel 21 Mendoza filed statements of non-opposition. ECF Nos. 317, 318. The court submitted the matter 22 without a hearing and resolves it here. ECF No. 320. 23 II. LEGAL STANDARD 24 The court outlined the legal standard for a motion for preliminary approval of a class action 25 settlement in its previous order and incorporates it by reference here. See First Order at 3–5. 26 III. DISCUSSION 27 In its most recent order, the court concluded that although plaintiffs had adequately 28 addressed most outstanding issues the court identified at hearing, they had not sufficiently 1 explained the proposed class on whose behalf they wish to settle or the terms of the proposed 2 settlement, which prevented the court from evaluating the proposal under Rule 23(e). See First 3 Order at 5. In particular, the court was not satisfied that the proposed class, which was much 4 broader in part than the classes addressed in the court’s order granting class certification, met the 5 commonality requirement of Rule 23(a), and thus also the predominance requirement of Rule 6 23(b)(3). Id. at 5–8. Further, the court could not determine whether the settlement amount was 7 reasonable because plaintiffs had not provided any detail of the likely recovery for each claim. 8 Id. at 8–9. Accordingly, the court denied the motion without prejudice “to a renewed motion that 9 adequately addresses the court’s remaining concerns.” Id. at 9. The court further explained that 10 “[a]ssuming plaintiffs wish to renew the motion, they may do so by filing a notice of renewal and 11 reliance on prior briefing, with supplemental briefing focusing on only the issues called out by” its 12 order. Id. Plaintiffs have provided focused briefing on the Rule 23 factors and the reasonableness 13 of the settlement. The court addresses each issue in turn. 14 A. Preliminary Certification of the Class under Rule 23 15 In their first motion to approve the settlement, plaintiffs asked the court to preliminarily 16 certify a broad “Settlement Class”: 17 [A]ll former and current non-exempt hourly employees who worked at Taylor Farms Pacific, Inc.’s Tracy, California facilities during the 18 relevant time period. (For purposes of this Settlement Agreement, ‘non-exempt hourly employees’ includes employees and direct hires 19 of Taylor Farms Pacific, Inc. as well as temporary workers who provided services to Taylor Farms, Pacific, Inc.). 20 21 First Mot., Ex. 2 § 2.1, ECF No. 287-1, at 19. This “Settlement Class” appeared to include 22 subclasses for which the court had previously denied certification. 23 In their renewed motion, plaintiffs ask the court to preliminarily certify each of the original 24 four proposed subclasses “for settlement purposes only.” Mot. at 5 (citing In re Hyundai & Kia 25 Fuel Econ, Litig., 926 F.3d 539, 556–57 (9th Cir. 2019) (en banc) (“[M]anageability is not a 26 ///// 27 28 1 concern in certifying a settlement class where, by definition, there will be no trial.”).1 As discussed 2 in the motion for class certification, plaintiffs have identified the following four subclasses: 3 1. A “donning and doffing” or “off-the-clock” subclass, which includes people who were 4 required to wear protective equipment but did not receive pay for time spent putting on 5 and taking off that equipment.2 The court denied certification of this subclass. Cert. 6 Order at 42. 7 2. A “mixed hourly worker” subclass, which includes people who were not permitted to 8 take full rest breaks and meal breaks or who were not offered meal and rest breaks.3 9 The court granted certification of this subclass as to meal break claims but denied it as 10 to rest break claims. Id. at 42. 11 3. A “waiting time penalties” subclass, which includes people who either resigned or were 12 terminated and did not receive a timely or complete paycheck.4 The court granted 13 1 In its class certification order, the court found “the general class encompassing each subclass 14 [need] not be independently certified because the proposed subclasses in total embody the plaintiffs’ claims.” Cert. Order at 9. 15 2 The full subclass definition proposed by plaintiffs is “[a]ll non-exempt hourly workers paid by 16 Taylor, and all non-exempt hourly workers controlled by Taylor, but paid by Co Defendants who worked pursuant to Taylor’s rules and regulations and were required to wear personal protective 17 equipment (‘PPE’) to protect against the cross contamination of food, food-contact surfaces, or food packaging materials, and who are/were required to don and those items, of equipment, 18 without compensation, sanitize their person and equipment before the start of their paid shifts, doff those items of equipment, without compensation after the end of their paid shifts, and/or don, 19 doff those items of equipment and sanitize their persons and equipment during their meal and rest 20 break breaks.” Mot. at 4. 3 The full subclass definition proposed by plaintiffs is “[a]ll individuals who currently, or 21 formerly worked either as direct employees of Taylor, or joint/dual employees of Taylor and Co 22 Defendants, within the applicable statute of limitations, as nonexempt hourly workers, in any capacity, at Taylor’s Tracy, California facilities and who were not offered meal breaks within 5 23 hours of having started work and/or were not offered a second thirty minute meal break on work days of 10 hours or longer and/or were not offered at least two rest breaks, during work days of 8 24 – 10 hours, and/or were required to be back at their work stations ready to work within 30 minutes during meal breaks and within 10 minutes during rest breaks.” Mot. at 4. 25 4 The full subclass definition proposed by plaintiffs is “[a]ll former nonexempt hourly workers 26 paid by Taylor, who, irrespective of whether they resigned or were fired, and irrespective of whether paid by Taylor or by Co Defendants, did not either a). receive their final pay checks on a 27 timely basis and/or b). did not receive all monies due and owing to them in their final pay checks, 28 regardless of whether the checks were payable by Taylor or by Co Defendants.” Mot. at 4. 1 certification of this subclass to the extent its members’ claims were derivative of the 2 mixed hourly worker meal break claims but not the rest break claims. Id. at 43. 3 4. A “wage statement” subclass, which includes people who did not receive wage 4 statements containing all of the information required by California law.5 The court 5 denied certification of this subclass. Id. at 43. 6 Plaintiffs ask the court to reanalyze these sub-classes, including those subclasses as to 7 which the court previously denied certification, now for settlement purposes only. 8 1. Donning and Doffing Subclass 9 The court focused on Rule 23(b)(3)’s predominance requirement when it denied the 10 plaintiffs’ motion to certify the donning and doffing subclass. The court again focuses on this 11 issue here, but in the context of settlement. In their original motion for class certification, 12 plaintiffs did “not carr[y] their burden to show the predominance of common questions” because 13 “the issue of compensation [was] individualized.” Cert. Order at 15–16. The court explained: 14 The plaintiffs have not presented evidence that TFP had established a written or official uniform policy governing off-the-clock work. 15 Rather, plaintiffs rely entirely on depositions and declarations from the named plaintiffs and other former TFP employees to make their 16 case. Despite testimony from several dozen former employees that TFP required off-the-clock donning and doffing, an effectively equal 17 body of testimony from named plaintiffs and putative class members describes on-the-clock donning and doffing. . . . Beyond the 18 testimonial inconsistencies, the plaintiffs have not carried their burden to show the predominance of common questions. Not all 19 employees are required to wear the same protective equipment. . . . Dressing and removing the equipment took place in different 20 locations at different times, required more time of one employee than another, and employees became more efficient over time. 21 Because the issue of compensation is individualized, the plaintiffs’ 22 injury cannot be shown via evidence common to the class. Even if plaintiffs had established the existence of an unofficial policy, in 23 light of such disparate application, each class member would be required to make an individual case to establish the defendants’ 24 liability. The “goals of efficiency and judicial economy” would not be served by certification[.] 25 26 5 The full subclass definition proposed by plaintiffs is “[a]ll non-exempt hourly workers paid by Taylor, and all non-exempt hourly workers controlled by Taylor, but paid by Co Defendants, who 27 worked pursuant to Taylor’s rules and regulations whose wage statements did not accurately set 28 forth all required information as required by California Labor Code section 226(a).” Mot. at 4. 1 Id. at 15–16 (quoting Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 946 (9th Cir. 2 2009)). Therefore, even if plaintiffs could show an informal policy applied, “in light of . . . 3 disparate application, each class member would be required to make an individual case to 4 establish the defendants’ liability.” Id. at 16. 5 Plaintiffs have provided no new evidence to address the concerns explained in the court’s 6 previous order. They argue merely that the court’s “predominance concerns are not present in 7 this settlement,” because there is now no need for every class member to make an individual case 8 for liability. Mot. at 10. That argument misperceives the requirements of Rule 23. 9 For all classes and subclasses, Rule 23(b)(3) requires “that the questions of law or fact 10 common to class members predominate over any questions affecting only individual members.” 11 “To determine whether a class satisfies the requirement, a court pragmatically compares the 12 quality and import of common questions to that of individual questions.” Jabbari v. Farmer, 965 13 F.3d 1001, 1005 (9th Cir. 2020) (citing Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 14 (2016)). Although settlement is “relevant” for class certification, Amchem Prods., Inc. v. 15 Windsor, 521 U.S. 591, 619 (1997), the court must ensure that Rule 23 is satisfied for settlement 16 classes just the same. The court must give “undiluted, even heightened, attention in the 17 settlement context” because the court “will lack the opportunity, present when a case is litigated, 18 to adjust the class, informed by the proceedings as they unfold.” Id. at 620. Settlement affects 19 the analysis only insofar as “a district court need not inquire whether the case, if tried, would 20 present intractable management problems, . . . for the proposal is that there be no trial.” Id. But 21 if the settlement class does not have “sufficient unity so that absent members can fairly be bound 22 by decisions of class representatives,” then it cannot be certified. Id. at 621. As the Supreme 23 Court has explained, the proposed settlement class must be “sufficiently cohesive to warrant 24 adjudication by representation.” Id. at 623. 25 The Supreme Court’s decision in Amchem illustrates the types of divisions that can 26 prevent the approval of a settlement class. In Amchem, the proposed settlement class was made 27 up of people who had been exposed to asbestos products. Id. at 602–03. The defendants, who 28 had manufactured these products, wanted to resolve all of the current and future asbestos-related 1 claims against them. Id. at 603. The proposed settlement class thus included both those who had 2 already suffered the negative health consequences of asbestos exposure and those who had not yet 3 suffered any negative asbestos-related health consequences at all, even if they might in the future. 4 See id. The proposed settlement class included no subclasses, and it placed caps on the numbers 5 and amounts of the claims that class members could pursue. See id. at 603–04. These amounts 6 would not increase with inflation, and the settlement agreement did not allow the number or types 7 of claims to expand if advances in medical science supported new or stronger claims of asbestos- 8 related injuries. See id. at 606. Only a limited number of class members could opt out of the 9 class each year, and even if they did, they were forbidden from asserting certain claims, such as a 10 claim for punitive damages. Id. at 604–05. 11 The Supreme Court affirmed the lower court’s decision that the class could not be 12 certified. See id. at 622–28. Common questions did not predominate over individual questions, 13 and the class representatives would not fairly and adequately protect the interests of the class as a 14 whole. See id. The class members had been exposed to different products for different amounts 15 of time in different ways and in different places. Id. at 624. Some had suffered no physical 16 injuries, at least none that had been detected, while others had developed cancer and debilitating 17 illnesses. Id. Class members would face vastly different costs of treatment. Id. Those who had 18 not yet experienced any detectable negative health consequences shared very little in common 19 with those who had, and they faced very different incentives. As the Supreme Court explained, 20 for example, “for the currently injured, the critical goal [was] generous immediate payments,” 21 which conflicted with “the interest of exposure-only plaintiffs in ensuring an ample, inflation- 22 protected fund for the future.” Id. at 626. 23 The conflicts and the wide diversity of interests in Amchem did not disappear after the 24 parties agreed to settle, and for that reason, it did not matter that there would be no trial. See id. at 25 621. But in other cases, individualized questions and conflicts do fade away when the parties 26 ///// 27 ///// 28 ///// 1 agree to settle. This category of classes is illustrated by the Ninth Circuit’s decisions in Hanlon v. 2 Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998),6 and Hyundai, 926 F.3d 539. 3 In Hanlon, the plaintiffs sought compensation for faulty latches on the rear gates of their 4 minivans. 150 F.3d at 1017–18. The Ninth Circuit affirmed the district court’s decision to certify 5 the settlement class. It rejected analogies to Amchem, pointing out that everyone in the class had 6 experienced a similar problem, that the class was not divided into subgroups with conflicting 7 interests, that potentially high-value personal injury claims had been excluded, and that owners of 8 every minivan model and residents of every state were represented by named plaintiffs. See id. at 9 1021. 10 The settlement class certified in Hyundai was in a similar situation, and it also was 11 certified. The plaintiffs alleged they had been misled by misstatements about the fuel economy of 12 the defendants’ cars. The district court certified the settlement class, and the Ninth Circuit 13 affirmed. “[T]he crux of each consumer’s claim” was the same: “a company’s mass marketing 14 efforts, common to all consumers, misrepresented the company’s product.” Id. at 559. The range 15 of damages was small, and the plaintiffs all claimed to have suffered the same type of harm. Id. 16 at 559–60. The court was not persuaded by arguments that individual reliance questions would 17 predominate based on differences between used car and new car buyers. Id. at 560. For example, 18 used cars, unlike new cars, have no window stickers showing fuel economy estimates. See id. 19 Perhaps if the case had gone to trial, reliance questions would have made a trial difficult, but 20 reliance was no hurdle for a settlement class. See id. 21 Here, as noted, this court previously denied the plaintiffs’ motion to certify the donning 22 and doffing subclass because there was no evidence of a uniform donning and doffing policy and 23 because witnesses gave contradictory testimony about whether they were paid to put on, take off 24 and clean their protective equipment. Cert. Order at 15. Employees also wore different 25 6 The Ninth Circuit has recognized that aspects of its decision in Hanlon were overruled in Wal- 26 Mart v. Dukes, 654 U.S. 338 (2011). See In re Volkswagen “Clean Diesel” Mktg., Sales Practices, & Prod. Liab. Litig., 975 F.3d 770, 777 (9th Cir. 2020). But the Ninth Circuit has 27 continued to rely on the analysis described above, including in its recent en banc decision in 28 Hyundai. See 926 F.3d at 559–60. 1 equipment, put on and removed that equipment in different places at different times, and not 2 everyone took the same amount of time to do it. Id. So the relevant question is, are these 3 differences more like those that prevented certification of the settlement class in Amchem and 4 similar cases? Or are they more similar to the differences tolerable in a settlement class, as in 5 Hanlon and Hyundai? 6 At first glance, there are easy parallels to draw between the class proposed here and the 7 class the Supreme Court rejected in Amchem. See, e.g., 521 U.S. at 624 (“Class members were 8 exposed to different asbestos-containing products, for different amounts of time, in different 9 ways, and over different periods.” (quoting Georgine v. Amchem Prod., Inc., 83 F.3d 610, 626 10 (3d Cir. 1996))). Plaintiffs here, as there, have offered very little argument and no new evidence 11 to the contrary. But because a “strong judicial policy” favors settlement of class actions, Class 12 Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992), the court considers the law and 13 the record independently of the parties’ arguments and concludes that preliminary class 14 certification should be granted for this subclass. 15 No divisions within the donning and doffing subclass might pit some class members 16 against others. To be sure, the differences highlighted above do separate some subclass members 17 from others. And these differences might make it very difficult for some subclass members to 18 prove they were underpaid. For that reason, a trial would be very difficult and perhaps 19 impossible here, just as the differences between used and new car buyers in Hyundai would likely 20 have complicated a trial in that case. But there is no reason to suspect that people whose jobs 21 required laborious off-the-clock donning and doffing have different interests in the structure or 22 size of a settlement than people who could change and clean their equipment quickly. No 23 evidence suggests, for example, that members of this subclass would not be willing to accept 24 immediate compensation rather than developing their evidence and making a stronger case, as in 25 Amchem. Rather, every member of the donning and doffing subclass is making the same type of 26 claim as every other, even if their individual awards are different. 27 Any differences in damages claims also do not foreclose preliminary approval here. As in 28 Hanlon and Hyundai, there is no group of claimants that might advance much larger claims than 1 others. And as noted in the court’s order on class certification, the representative plaintiffs also 2 include some people with larger claims and some with smaller claims. See Class Cert. Order at 3 35. As a result, both larger and smaller claimants have their respective representatives, which 4 weighs in favor of certification. See Hanlon, 150 F.3d at 1021. In any event, differences in 5 damages amounts generally do not preclude certification. See Leyva v. Medline Indus. Inc., 6 716 F.3d 510, 513–14 (9th Cir. 2013). The court thus concludes at this stage that common issues 7 exist and will predominate for the donning and doffing subclass if it is approved for settlement 8 only. 9 The court also concludes that a settlement class is the superior method of resolving the 10 parties’ disputes. The court already has found that class litigation is the superior method of 11 resolving the claims of other subclasses in this action. See Class Cert. Order at 34–37. That 12 analysis is equally applicable to the claims of the donning and doffing subclass: 13 1. The plaintiffs assert relatively small individual claims, which do not make individual 14 litigation attractive or sustainable; 15 2 Many class members are non-native speakers of English who lack the resources to 16 finance and direct individual lawsuits; 17 3. There is no other related litigation; 18 4. The parties’ dispute is governed largely by California labor law, and the events giving 19 rise to this litigation occurred within this district; 20 5. The court is aware of no other more attractive alternative methods of resolving this 21 dispute; joinder of thousands of potential class members is impracticable, multidistrict 22 litigation would not present any advantage, and administrative remedies do not appear 23 to have generated any success; and 24 6. Because there will be no trial, the court need not consider the likely difficulties in 25 managing a trial, as noted above. 26 The court also finds the named plaintiffs’ claims are typical of those advanced by the 27 donning and doffing subclass as a whole, but again, only in the context of settlement. “The 28 purpose of the typicality requirement is to assure that the interest of the named representative 1 aligns with the interests of the class.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 2 1992). Their interests “need not be substantially identical.” Hanlon, 150 F.3d at 1020. Here, as 3 described above, the members of the donning and doffing subclass do not have identical interests, 4 but their interests are sufficiently similar now that the parties have agreed to settle: all members 5 of the subclass seek compensation for unpaid time putting on, removing and cleaning protective 6 equipment. 7 The adequacy requirement is also satisfied here. Rule 23(a) refers to the adequacy of both 8 class representatives and class counsel. See Hanlon, 150 F.3d at 1020. The court previously 9 considered each of the named plaintiffs and found several to be adequate representatives. See 10 Cert. Order at 23–26. And in the parties’ previously contested motion for class certification, the 11 defendants did not challenge the adequacy of class counsel. See id. at 23. The court also 12 determined that counsel would serve as an adequate representative. See id. No evidence suggests 13 any reason to depart from these conclusions now. 14 Finally, the court is satisfied that the subclass is sufficiently numerous. As the court found 15 in its previous order on class certification, the parties do not dispute that the class is sufficiently 16 numerous; it includes more than 4,000 people. See Class Cert. Order at 20–21. 17 The court therefore concludes the donning and doffing subclass may be preliminarily 18 approved for settlement. 19 2. Rest Break Sub-Class7 20 Unlike the donning and doffing subclass, the rest break subclass was unified by evidence 21 of a single policy that did not comply with California law. Cert. Order at 27–28. But the court 22 held in its previous order that the predominance requirement was not satisfied; contradictory 23 testimony about whether and how different supervisors implemented the rest break policy created 24 individualized factual disputes. Id. at 29–31. For example, “[s]everal employees, including the 25 plaintiffs, testified . . . that TFP did not implement or rely on the Handbook” while plaintiff 26 7 As described above, the rest break sub-class is a subset of the “Mixed Hourly Worker Sub- 27 Class,” which includes class-members who “were not offered at least two rest breaks, during 28 work days of 8–10 hours . . . .” Mot. at 4. 1 Morris testified that “he followed the rules in the Handbook” even though TFP did not. Id. at 30. 2 Timekeeping records were also unavailable for rest breaks, so individualized inquiries were 3 unavoidable. See id. at 30–31. These concerns implicated not only the feasibility of a trial, but 4 also class unity, and plaintiffs’ previous motion for preliminary certification did not address these 5 concerns. The court therefore could not conclude that common issues predominated. 6 The plaintiffs do not now offer more evidence or information to alleviate these concerns. 7 Again, however, the court has consulted the record and relevant legal authorities independently. 8 In light of the settlement agreement, the individualized issues described above appear unlikely to 9 divide the class against itself. For example, employees who did not receive adequate rest breaks 10 will receive compensation, and the court perceives no reason that employees who received 11 adequate rest breaks would object to that recovery. Some employees might also have received 12 rest breaks inconsistently, but these employees would share interests with those who never 13 received any rest breaks at all; that shared interest is in compensation for all inadequate breaks. 14 Again, as above, any differences in the amount of compensation are no obstacle to class 15 certification. See Leyva, 716 F.3d at 513–14. 16 The court also concludes the rest break subclass satisfies the remaining Rule 23 17 requirements given that a settlement agreement has materialized. The reasons are the same as 18 those described in the previous section. The motion for preliminary approval of the rest-break 19 subclass is thus granted. 20 3. Waiting Time Penalties Sub-Class 21 The court previously found that, as long as the claims of the waiting time sub-class are 22 “entirely derivative of the meal break claims of the mixed hourly worker sub-class,” the waiting 23 time penalties sub-class met the commonality and predominance requirements. Cert. Order at 40. 24 Plaintiffs have not provided any supplemental briefing on the waiting time penalties sub-class, 25 presumably because they pursue only the derivative waiting time claims. See Mot. at 7 n.2 26 (noting “waiting time claims that were derivative of the meal breaks claims satisfied the 27 commonality element and ultimately certified classes based on those claims”). Accordingly, the 28 waiting time sub-class meets the requirements of Rule 23 to the extent it is derivative of the meal 1 break sub-class. See Cert. Order at 32–34 (finding common questions predominate as to meal 2 break claims). Plaintiffs’ motion is granted in this respect. 3 The court has now also determined that the rest break subclass may be approved 4 preliminarily, as described above. This waiting -time penalties subclass is thus approved on a 5 preliminary basis to the extent it is also derivative of the rest-break subclass. 6 4. Wage-Statement Sub-Class 7 The court originally denied certification of the wage statement subclass, because plaintiffs 8 did not meet their burden to show common issues existed and predominated. Id. at 42. The 9 court’s primary concern was the scant evidence plaintiffs offered: one non-compliant wage 10 statement from one named plaintiff. Id. Plaintiffs now explain they “have since discovered that 11 the purported omissions on Plaintiff Hernandez’s paystub were also present on other employees’ 12 wage statements.” Mot. at 12 (citing Bickford Decl. ⁋ 7, ECF No. 316-18). The court finds this 13 new evidence is sufficient to establish common questions, i.e., whether defendants’ paystubs 14 violated the Labor Code, that predominate over individual questions such that commonality and 15 predominance are satisfied for the purpose of settlement. Plaintiffs’ motion is GRANTED in this 16 respect. 17 B. Reasonableness of Settlement Amount 18 In its most recent order, the court also found plaintiffs did not address the reasonableness 19 of the settlement as it pertains to all the claims the settlement would release. See First Order at 8– 20 9. In their renewed motion, plaintiffs have now more completely explained how all of the claims 21 are accounted for in the settlement. Plaintiffs’ counsel provides a declaration in which he calculates 22 the likely recovery for each of the claims at issue, totals the amounts, and shows the maximum 23 8 Mr. Bickford, plaintiffs’ counsel, states in his sworn declaration cited here: 24 In the course of this litigation, counsel have reviewed the paystubs 25 for Plaintiffs and the putative class can confirm that each Plaintiff (1) was missing the same information from their paystubs, 26 (2) received paystubs from TFP, and (3) were injured in the same manner as other class members by not being able to ascertain all 27 information on their paystubs as required by section 226(a). 28 Bickford Decl. ¶ 7. 1 exposure for the class claims is roughly $50.5 million, and the “realistic exposure,” assuming the 2 violations stopped in 2012 due to defendants’ policy changes, is roughly $13.5 million. See Mot. 3 at 14 (summarizing Bickford Decl.). The court is satisfied by this record that the class is recovering 4 roughly 39 percent of the realistic exposure, which is reasonable given that settlement avoids the 5 risks, expense and delay of litigation. See id. (citing Officers for Justice v. Civil Serv. Comm’n of 6 City & Cty. of San Francisco, 688 F.2d 615, 628 (9th Cir. 1982) (“It is well-settled law that a cash 7 settlement amounting to only a fraction of the potential recovery will not per se render the 8 settlement inadequate or unfair.”); In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 459 (9th Cir. 9 2000) (approving settlement roughly one-sixth of potential recovery)). Plaintiffs have established 10 the reasonableness of the settlement amount, and the issues identified in the previous order are 11 resolved. 12 IV. CONCLUSION 13 The motion for preliminary approval is granted. This order resolves ECF No. 316. 14 IT IS SO ORDERED. 15 DATED: November 2, 2020. 16 17 18 19 20 21 22 23 24 25 26 27 28