Coburn v. City of Sacramento ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM COBURN, et al., No. 2:19-cv-00888-AC 12 Plaintiffs, 13 v. ORDER 14 CITY OF SACRAMENTO, et al., 15 Defendants. 16 17 Plaintiffs William Coburn, Kristina Marie Mayorga, Khalil Ferguson, and Alex Lyons 18 (“plaintiffs”) bring this putative class action against defendants City of Sacramento, Sacramento 19 Police Department, County of Sacramento, and Sacramento County Sherriff’s Department 20 alleging unconstitutional deprivations of federal and state constitutional rights resulting from 21 unlawful and unconstitutional detentions, arrests, and uses of force while plaintiffs engaged in the 22 lawful and peaceful exercise of their constitutionally protected rights by protesting the shooting 23 death of Stephon Clark. ECF No. 1, 3. On April 30, 2020, plaintiffs moved for preliminary 24 approval of class action settlement. ECF No. 29. Defendants City of Sacramento, County of 25 Sacramento, and the Sacramento County Sherriff’s Department submitted statements of non- 26 opposition. ECF Nos. 30-32.1 27 1 The Sacramento Police Department did not separately file a statement of non-opposition. 28 Because the Police Department is a municipal department of the City, the City itself is the proper 1 The matter was taken under submission by the District Judge formerly assigned to this 2 case on May 14, 2020. ECF No. 33. Following the consent of all parties, this case was 3 reassigned to the Magistrate Judge for all purposes. ECF No. 38. For the reasons discussed 4 below, the court GRANTS plaintiffs’ motion for preliminary approval of class action settlement 5 on the terms provided at the conclusion of this order. 6 I. BACKGROUND 7 A. Factual and Procedural Background 8 On March 18, 2018, Stephon Clark was fatally shot in his grandmother’s backyard. ECF 9 No. 1 at 3. On March 2, 2019, Sacramento County District Attorney Anne Marie Schubert 10 announced that the Sacramento County District Attorney’s Office would not prosecute Terrence 11 B. Mercadal and Jared E. Robinet, the two Sacramento Police Department officers responsible for 12 shooting and killing Stephon Clark. Id. This announcement resulted in public protests. Id. On 13 March 4, 2019, a large group of law enforcement officers from various local law enforcement 14 agencies, including each of the defendants in this case, arrested or ordered the arrest of 15 approximately 84 persons who marched in East Sacramento. Id. at 3-4. 16 Plaintiffs assert various federal and state law claims, including: (1) “False 17 Detention/Arrest,” U.S. Const., Amend. IV (42 U.S.C. § 1983); (2) “Unreasonable Search,” U.S. 18 Const., Amend. IV (42 U.S.C. § 1983); (3) “Unreasonable Force,” U.S. Const., Amend. IV (42 19 U.S.C. § 1983); (4) “Retaliation,” U.S. Const., Amend. I (42 U.S.C. § 1983); (5) “Equal 20 Protection,” U.S. Const., Amend. XIV (42 U.S.C. § 1983); (6) “False Detention/Arrest,” Cal. 21 Const., art. I, § 13; (7) “Unreasonable Search,” Cal. Const., art. I, § 13; (8) “Unreasonable Force,” 22 Cal. Const., art. I, § 13; (9) “Retaliation,” Cal. Const., art. I, §§ 2, 3; (10) “Equal Protection,” Cal. 23 Const., art. I, § 7(a); (11) “Bane Act,” Cal. Civ. Code § 52.1; (12) “False Imprisonment”; (13) 24 “Assault/Battery”; (14) “Intentional Infliction of Emotion Distress”; and (15) “Negligence.” ECF 25 No. 1 at 12-32. Plaintiffs seek monetary and punitive damages and equitable relief. Id. at 32-33. 26 defendant in this § 1983 lawsuit. See United States v. Kama, 394 F.3d 1236, 1240 (9th Cir. 27 2005); Hervey v. Estes, 65 F.3d 784, 791 (9th Cir. 1995). Plaintiff’s claims against the Police Department properly lie against the City, and the City’s statement of non-opposition is therefore 28 sufficient. 1 On March 10, 2020, the parties submitted a notice of a tentative class action settlement 2 which “if approved by the Court, would dispose of this entire action, including all claims alleged 3 against all parties.” ECF No. 27 at 2. The parties submitted the motion for preliminary approval 4 of class action settlement which is now before the court on April 30, 2020. 5 B. Proposed Settlement Agreement 6 The Settlement Agreement provides that each of those persons who was arrested on 7 March 4, 2019, and transported to Cal Expo for processing incident to a protest of the Sacramento 8 County District Attorney Office’s decision not to file criminal charges against the Sacramento 9 Police Department police officers who shot and killed Stephon Clark, will receive Notice of the 10 Settlement and a Claim Form to be used to seek reimbursement for medical expenses incurred 11 within a week of the incident. They will be informed of their right to opt-out of the settlement 12 and/or to object to the settlement. Those who do not opt-out of the settlement will be bound by 13 its terms and all Defendants will be released of all further claims. 14 Each member of the class of persons arrested and transported to Cal Expo for processing 15 will receive Four Thousand Dollars ($4,000); each of the four Representative Plaintiffs will 16 receive an incentive fee of Seven Thousand Dollars ($7,000); and The Law Office of Mark E. 17 Merin, class counsel, will receive Eighty-Two Thousand Eight Hundred Dollars ($82,800) from a 18 settlement paid by the City of Sacramento in the amount of Four Hundred Fourteen Thousand 19 Dollars ($414,000.00). The City of Sacramento will also pay an additional amount of Fifty 20 Thousand Dollars ($50,000) to establish a medical expense fund from which reimbursement will 21 be made to Class Members who submit Compensable Claims for medical expenses incurred for 22 treatment initiated within a week following the March 4, 2019 incident. 23 Each Class Member will receive an additional amount of approximately Five Hundred 24 Ninety-Five Dollars ($595) from the sum of Fifty Thousand Dollars ($50,000) to be paid by the 25 County of Sacramento. To qualify for reimbursement of certain medical expenses, the Class 26 Members will be informed that they must submit a claim form documenting that the claimant 27 incurred expenses for medical treatment initiated within one week from the March 4, 2019, 28 incident. The claim forms will be jointly reviewed by the Sacramento City Attorney’s Office and 1 Class Counsel and either approved for payment, denied, or disputed. Disputed claims will be 2 referred to the Court for final decision on the compensability of the claims based on the claim 3 forms and any supporting material provided with the claims. In the event that the total of 4 approved medical reimbursement claims exceeds $50,000, payment for medical reimbursement 5 will be reduced proportionately; if the total of approved medical reimbursement claims is less 6 than $50,000, the amount remaining in the fund will be returned to the City of Sacramento. If, 7 after payment of all claims, a balance remains from uncashed settlement checks, that residue will 8 be donated to a non-profit corporation selected by Class Counsel in consultation with 9 Representative Plaintiffs. 10 II. LEGAL STANDARDS 11 A. Preliminary Class Certification and Approval of Settlement under Rule 23 12 1. Preliminary Class Certification 13 Rule 23 of the Federal Rules of Civil Procedure does not expressly provide for 14 preliminary class certification; however, district courts often certify settlement classes on a 15 preliminary basis for settlement purposes while deferring final class certification until the court 16 holds a final fairness hearing. See, e.g., Aguilar v. Wawona Frozen Foods, No. 1:15-CV-00093 17 DAD EPG, 2017 WL 117789, at *7 n.9 (E.D. Cal. Jan. 11, 2017) (citations omitted). When it 18 reviews class certification, the court owes “undiluted, even heightened, attention” to certification 19 requirements in the settlement context. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 620 20 (1997); Molski v. Gleich, 318 F.3d 937, 946 (9th Cir. 2003), overruled on other grounds by 21 Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010); see Berry v. Baca, No. CV 01- 22 02069 DDP, 2005 WL 1030248, at *7 (C.D. Cal. May 2, 2005) (the parties cannot merely “agree 23 to certify a class that clearly leaves any one requirement unfulfilled”). Preliminary certification is 24 appropriate only if each Rule 23(a) certification prerequisite is satisfied. Rule 23 requires that the 25 class contain enough members; the suit involves questions common to all class members; 26 plaintiff's claims are typical of the class members; and plaintiff and his counsel fairly and 27 adequately protect the class interests. Fed. R. Civ. P. 23(a)(1)-(4). If Rule 23(a)’s threshold 28 requirements are met, the proposed class must satisfy Rule 23(b)(3)’s predominance and 1 superiority requirements. Fed. R. Civ. P. 23(b)(3); see Amchem, 521 U.S. at 615. 2 2. Preliminary Settlement Approval 3 Rule 23 requires that “[t]he claims, issues, or defenses of a certified class ... may be 4 settled, voluntarily dismissed, or compromised only with the court’s approval.” Fed. R. Civ. P. 5 23(e). “Courts have long recognized that settlement class actions present unique due process 6 concerns for absent class members.” In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 7 946 (9th Cir. 2011) (citation and internal quotation marks omitted). When approval of a 8 settlement agreement negotiated prior to formal class certification is at issue, “there is an even 9 greater potential for a breach of fiduciary duty owed the class during settlement.” Id. Thus, the 10 reviewing court analyzes such agreements with “a more probing inquiry” for evidence of 11 collusion or other conflicts of interest than ordinarily required under the Federal Rules. Hanlon v. 12 Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998), overruled on other grounds by Wal-Mart 13 Stores, 564 U.S. at 338; see also Bluetooth, 654 F.3d at 946. “Judicial review must be exacting 14 and thorough.” Manual for Complex Litigation (Fourth) § 21.61 (2004). 15 There is a “strong judicial policy” favoring settlement of class actions. Class Plaintiffs v. 16 City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992). Nonetheless, to protect due process rights 17 of absent class members, Rule 23(e) allows claims of a certified class to be “settled ... only with 18 the courts approval” and “only after a hearing and only on a finding [that the agreement is] fair, 19 reasonable, and adequate ....” Fed. R. Civ. P. 23(e). To evaluate whether a proposed class action 20 settlement is fair, reasonable and adequate, courts consider several factors, as relevant, including: 21 (1) [T]he strength of the plaintiff's case; (2) the risk, expense, complexity, and likely duration of 22 further litigation; (3) the risk of maintaining class action status throughout the trial; (4) the 23 amount offered in settlement; (5) the extent of discovery completed and the stage of the 24 proceedings; (6) the experience and view of counsel; (7) the presence of a governmental 25 participant; and (8) the reaction of the class members of the proposed settlement. In re Online 26 DVD-Rental Antitrust Litig., 779 F.3d 934, 944 (9th Cir. 2015) (quoting Churchill Vill., L.L.C. v. 27 Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004)); In re Tableware Antitrust Litig., 484 F. Supp. 2d 28 1078, 1080 (N.D. Cal. 2007) (noting that, at preliminary approval stage, courts consider whether 1 “the proposed settlement appears to be the product of serious, informed, non-collusive 2 negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to 3 class representatives or segments of the class, and falls within the range of possible approval . . .”) 4 (citations omitted). 5 These factors substantively track those effected through 2018 amendments to Rule 6 23(e)(2), under which the court may approve a settlement only after considering whether: 7 (A) the class representatives and class counsel have adequately represented the class; 8 (B) the proposal was negotiated at arm's length; 9 (C) the relief provided for the class is adequate, taking into account: 10 (i) the costs, risks, and delay of trial and appeal; 11 (ii) the effectiveness of any proposed method of distributing relief to 12 the class, including the method of processing class-member claims; 13 (iii) the terms of any proposed award of attorney's fees, including timing of payment; and 14 (iv) any agreement required to be identified under Rule 23(e)(3); and 15 (D) the proposal treats class members equitably relative to each 16 other. 17 Fed. R. Civ. P. 23(e)(2)(A)-(D). The Rule 23(e)(2) factors took effect on December 1, 2018 and, 18 as an advisory note to the Rule 23(e) amendment recognizes, “each circuit has developed its own 19 vocabulary for expressing […] concerns” regarding whether a proposed settlement is fair, 20 reasonable and adequate. Fed. R. Civ. P. 23(e)(2) advisory committee’s note. The codified 21 factors are not intended “to displace any factor, but rather to focus the court and the lawyers on 22 the core concerns of procedure and substance that should guide the decision whether to approve 23 the proposal.” Id. Indeed, the Advisory Committee warned against allowing “[t]he sheer number 24 of factors [to] distract both the court and the parties from the central concerns that bear on review 25 under Rule 23(e)(2).” Fed. R. Civ. P. 23(e)(2) advisory committee’s note. Thus, the court draws 26 on the Ninth Circuit’s longstanding guidance and the Rule 23(e)(2) factors as relevant to resolve 27 this motion. 28 //// 1 III. DISCUSSION 2 A. Preliminary Certification of the Class Under Rule 23 3 At the preliminary stage, “[a] court that is not satisfied that the requirements of Rule 23 4 have been met should refuse certification until they have been met.” Advisory Committee 2003 5 Note on Fed. R. Civ. P. 23(c)(1). Here, the parties have provided clear explanations of how each 6 factor is met, as discussed below. The court is satisfied that preliminary certification is 7 appropriate. 8 1. Rule 23(a)(1) – Numerosity 9 The class must be “so numerous that joinder of all members is impracticable.” Fed. R. 10 Civ. P. 23(a)(1). There is no set numerical cutoff used to determine whether a class is sufficiently 11 numerous; courts must examine the specific facts of each case to evaluate whether the 12 requirement has been satisfied. See General Tel. Co. v. EEOC, 446 U.S. 318, 329-30 (1980). 13 Plaintiffs “need not state the exact number of potential members nor identify all the members 14 of the class so long as the putative class is not amorphous.” Arnold v. United Artists Theatre 15 Circuit, Inc., 158 F.R.D. 439, 448 (N.D. Cal. 1994) (internal quotation omitted). “As a general 16 rule, classes of 20 are too small, classes of 20-40 may or may not be big enough depending on the 17 circumstances of each case, and classes of 40 or more are numerous enough.” Ikonen v. Hartz 18 Mountain Corp., 122 F.R.D. 258, 262 (S.D. Cal. 1988). 19 In this case, numerosity is satisfied because City Defendants’ arrest records produced 20 during the mutual exchange of pre-settlement discovery (Merin Decl., ¶4), and the numerous 21 contacts that representative plaintiffs have had with putative class members, indicate that a class 22 of 40 or more class members exists. 23 2. Rule 23(a)(2) – Commonality 24 The commonality element requires that there be “questions of law or fact common to the 25 class.” Fed. R. Civ. P. 23(a)(2). Not all questions of fact and law must be common to satisfy the 26 rule. Hanlon, 150 F.3d at 1019. Only “a single common question” is required. Dukes, 564 U.S. 27 at 359. But the “claims must depend upon a common contention ... of such a nature that it is 28 capable of classwide resolution—which means that determination of its truth or falsity will 1 resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. at 350. 2 The putative class action here contains many common issues of law and fact, including: 3 (1) whether there existed a municipal custom of falsely arresting persons carried out by City and 4 County Defendants and, if so, (2) whether class members experienced the violation of their rights 5 as a result of such customs. See Aichele v. City of Los Angeles, 314 F.R.D. 478, 490 (C.D. Cal. 6 2013); Huynh v. Harasz, No. 14-CV-02367-LHK, 2015 WL 7015567, at *7 (N.D. Cal. Nov. 12, 7 2015) (“The common questions of whether or not Defendants actually adopted a blanket policy 8 and whether or not such a policy is illegal will therefore resolve, in one stroke, the legal disputes 9 at issue in this case.”). The putative class here meets the commonality requirement of Rule 23 for 10 purposes of preliminary approval. 11 3. Rule 23(a)(3) – Typicality 12 The typicality requirement is satisfied if “the claims or defenses of the representative 13 parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “Measures of 14 typicality include ‘whether other members have the same or similar injury, whether the action is 15 based on conduct which is not unique to the named plaintiffs, and whether other class members 16 have been injured by the same course of conduct.’” Torres v. Mercer Canyons Inc., 835 F.3d 17 1125, 1141 (9th Cir. 2016) (quoting Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 18 1992)). Under this “permissive” requirement, “representative claims are ‘typical’ if they are 19 reasonably coextensive with those of absent class members; they need not be substantially 20 identical.” Parsons v. Ryan, 754 F.3d 657, 685 (9th Cir. 2014) (quoting Hanlon, 150 F.3d at 21 1020). 22 For the same reasons demonstrating that commonality exists, the requirement of typicality 23 is met. Plaintiffs and the class members were subject to same alleged violations of their rights, 24 pursuant to the same policies and/or customs, and “differences in physical contact and injury [do 25 not] defeat typicality … because they are permissible variations within a class.” Multi-Ethnic 26 Immigrant Workers Org. Network v. City of Los Angeles, 246 F.R.D. 621, 632 (C.D. Cal. 2007). 27 Nothing indicates the named plaintiffs’ claims are atypical of the putative class. As a result, the 28 class meets the typicality requirement, preliminarily. 1 4. Rule 23(a)(4) – Adequacy 2 The adequacy requirement is satisfied only if the representative plaintiffs “will fairly and 3 adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). Courts must consider 4 whether “(1) [ ] the named plaintiffs and their counsel have any conflicts of interest with other 5 class members and (2) [ ] the named plaintiff and their counsel [will] prosecute the action 6 vigorously on behalf of the class[.]” Hanlon, 150 F.3d at 1020. “Serious conflicts of interest can 7 impair adequate representation by the named plaintiffs, yet leave absent class members bound to 8 the final judgment, thereby violating due process.” In re Volkswagen ‘Clean Diesel’ Mktg., Sales 9 Practices, & Prod. Liab. Litig., 895 F.3d 597, 607 (9th Cir. 2018). 10 Here there are no indications that representative plaintiffs have any conflicts of interest 11 with the class members, and they appear sufficiently motivated to vigorously pursue the interests 12 of the absent class members in this case. Merin Decl., ¶7. Plaintiffs’ interests appear to be 13 aligned with those of the class; nothing in the record currently before the court suggests 14 otherwise. The proposed representative award of $7,000 does not appear to incentivize plaintiff 15 to act contrary to the interests of the class as a whole. 16 5. Rule 23(b) – Superiority 17 The court must also be satisfied “that a class action is superior to other available methods 18 for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). “The superiority 19 inquiry under Rule 23(b)(3) requires determination of whether the objectives of the particular 20 class action procedure will be achieved in the particular case,” which “necessarily involves a 21 comparative evaluation of alternative mechanisms of dispute resolution.” Hanlon, 150 F.3d at 22 1023 (citation omitted). 23 Here, as noted above, individual resolution of each class member’s dispute would require 24 80 or more separate lawsuits. ECF No. 29-1 at 5. The parties indicate that there is not any 25 litigation concerning the controversy already begun by or against class members. Id. at 15. Here, 26 each class member has a limited interest in individually bringing their own action as the damages 27 arising from each constitutional violation may not be significant, or alternatively, each class 28 member is not likely to pursue their individual claims given the fact that they may be ignorant of 1 their rights. Class action is therefore the superior vehicle for resolving this dispute. 2 6. Rule 23(b) – Predominance 3 “The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently 4 cohesive to warrant adjudication by representation.” Amchem, 521 U.S. at 623. While similar to 5 Rule 23(a)’s commonality requirement, the predominance requirement is more demanding. Id. at 6 624; Dukes, 564 U.S. at 359. “When common questions present a significant aspect of the case 7 and they can be resolved for all members of the class in a single adjudication, there is clear 8 justification for handling the dispute on a representative rather than on an individual basis.” 9 Hanlon, 150 F.3d at 1022 (quoting Charles Alan Wright, et al., 7AA Federal Practice & 10 Procedure § 1778 (2d ed. 1986)). But it is important to proceed with “caution when individual 11 stakes are high and disparities among class members great.” Amchem, 521 U.S. at 625. 12 Common issues predominate over individual issues in this case. See, e.g., MacNamara v. 13 City of New York, 275 F.R.D. 125, 146-54 (S.D.N.Y. 2011) (certifying Fed. R. Civ. P. 23(b)(3) 14 classes based on mass arrests, excessive detention, and conditions of confinement, stating “the 15 predominant issue here turns not on the circumstances of particular arrests, but on the existence of 16 a policy or practice of conducting mass arrests whether or not individualized probable cause 17 existed”). The class claims here are not the same as, or dependent upon, any individualized 18 claim(s) that representative plaintiffs or class members might otherwise allege. The court finds 19 that class-wide concerns predominate, and the class meets this requirement of Rule 23 at this 20 stage. 21 B. Terms of the Proposed Agreement 22 Considering the court’s duty to absent class members, the undersigned will “review class 23 action settlements just as carefully at the initial stage as [it] do[es] at the final stage.” Cotter v. 24 Lyft, Inc., 193 F. Supp. 3d 1030, 1036 (N.D. Cal. 2016); see Smothers v. Northstar Alarm Servs., 25 LLC, No. 2:17-cv-00548-KJM-KJN, 2019 WL 280294, at *10 (E.D. Cal. Jan. 22, 2019). 26 Under Rule 23(e), a court may approve a class action settlement only if the settlement is 27 fair, reasonable, and adequate. Fed. R. Civ. P. 23(e)(2); Bluetooth, 654 F.3d at 946. Although 28 the court must weigh several factors to approve a settlement, additional factors may be relevant 1 depending on the context of the case and the terms of the agreement. See Bluetooth, 654 F.3d at 2 946 (“The factors in a court’s fairness assessment will naturally vary from case to case ....). 3 1. Fairness and Adequacy of Terms 4 The proposed terms of settlement, outlined above, contain no obvious defects. Further, 5 plaintiffs have sufficiently explained several potential impediments to full recovery in this case, 6 and the prospects of plaintiffs’ losing at trial or on appeal, with all attendant costs, indicate the 7 settlement recovery here is reasonable. ECF No. 29-1 at 8-9. 8 2. Fairness and Adequacy of Notice and Claim Forms 9 “Adequate notice is critical to court approval of a class settlement under [Fed. R. Civ. P.] 10 23(e).” Hanlon, 150 F.3d at 1025. A class action settlement notice “is satisfactory if it generally 11 describes the terms of the settlement in sufficient detail to alert those with adverse viewpoints to 12 investigate and to come forward and be heard.” Churchill Village, LLC v. General Electric, 361 13 F.3d 566, 575 (9th Cir. 2004) (internal cite & quotations omitted). 14 The parties have jointly prepared a Class Notice (Merin Decl., Ex. A [Settlement 15 Agreement] at Attachment 2) and Claim Form (id. at Attachment 3) that meet the standards of 16 “the best notice practicable,” pursuant to Fed. R. Civ. P. 23(c)(2)(B). Class members will be 17 identified by citations and the City Defendants’ arrest records. The Class Notice adequately 18 informs class members of the nature of the litigation, the essential terms of the settlement 19 agreement, and how to make a claim, elect not to participate (“opt-out”), or object to the 20 settlement. Merin Decl., Ex. A [Settlement Agreement] at Attachment 2. Further, the Class 21 Notice identifies class counsel, specifies the amounts of the class representatives’ incentive 22 payment, class counsel attorneys’ fees payment, and the settlement administrator’s payment that 23 plaintiffs and class counsel will seek, and explains how to obtain additional information regarding 24 the action and the settlement. Id. 25 Within seven (7) days after preliminary approval of the Settlement Agreement by the 26 Court, the Class Notice and Claim Form will be mailed, posted, or personally delivered to each 27 potential class member at their last-known address, or obtained by other means, as necessary. 28 Merin Decl., ¶ 6. These procedures provide the best possible notice to the class members. 1 3. Arm’s Length Settlement Negotiations 2 The court also considers whether the parties reached their settlement agreement through 3 arm’s length negotiations. Fed. R. Civ. P. 23(e)(2)(B); In re Tableware Antitrust Litig., 484 F. 4 Supp. 2d at 1080 (considering whether “proposed settlement appears to be the product of serious, 5 informed, non-collusive negotiations”). In this case, the parties inform the court that, through 6 independent counsel of their choice, they conducted extensive settlement discussions, spanning 7 several months, that were ultimately successful in producing the instant settlement agreement. 8 Merin Decl., ¶¶ 3-4. During settlement discussions, the parties conducted extensive investigation 9 and discovery allowing them to assess the strengths and weaknesses of the case. Id., ¶4. 10 Specifically, Plaintiffs produced 84 pages of citations, identifying putative class members 11 names and addresses. Id. City Defendants produced hundreds of pages of documents relating to 12 the arrests, including photos, 9-1-1 radio dispatch audio recordings, computer-aided dispatch 13 (“CAD”) logs, detention certificates, notices to appear, government claims, police reports, arrest 14 processing logs, and relevant Sacramento Police Department general orders. Id. County 15 Defendants produced several documents relating to the arrests, computer-aided dispatch (“CAD”) 16 logs, government claims, incident reports, relevant Sacramento County Sheriff’s Department 17 operation orders, and three video recordings. Id. Based upon the representations made to the 18 court, the settlement appears to be the result of non-collusive, arms-length negotiations. 19 4. Adequate Representation 20 Whether “the class representatives and class counsel have adequately represented the 21 class” and whether “the proposal treats class members equitably relative to each other” also factor 22 into the court's assessment of whether the proposed settlement is fair, reasonable and adequate. 23 Fed. R. Civ. P. 23(e)(2)(A), (D). Thus, a proposed agreement should “not improperly grant 24 preferential treatment to class representatives or segments of the class . . . .” In re Tableware 25 Antitrust Litig., 484 F. Supp. 2d at 1080. Here, plaintiffs as the class representatives request a 26 payment of $7,000, in recognition of their efforts in obtaining the benefits of the settlement for 27 the Settlement Class, and in acting as representative plaintiffs in this action. Merin Decl., ¶ 31. 28 An excessive class representative service award may be an indication that the named class 1 member is not adequately representing the interests of the class. Flores v. ADT LLC, No. 1:16- 2 CV-00029 AWI JLT, 2018 WL 6981043, at *1 (E.D. Cal. Mar. 19, 2018) (citing Radcliffe v. 3 Experian Info. Solutions Inc., 715 F.3d 1157, 1164 (9th Cir. 2013)). The court ultimately will 4 grant an incentive award only upon receiving “evidence demonstrating the quality of plaintiff's 5 representative service,’ such as ‘substantial efforts taken as class representative to justify the 6 discrepancy between [his] award and those of the unnamed plaintiffs.’” Flores, 2018 WL 7 6981043, at *1 (quoting Reyes v. CVS Pharmacy, Inc., No. 1:14-CV-00964-MJS, 2016 WL 8 3549260, *15 (E.D. Cal. June 29, 2016)); In re Online, 779 F.3d at 947 (court considers 9 “proportion of the [representative] payment[s] relative to the settlement amount, and the size of 10 each payment”). Specifically, this court and others have adopted the following factors to 11 determine whether to approve an enhancement payment: (1) the risk to the class representative in 12 commencing suit, both financial and otherwise; (2) the notoriety and personal difficulties 13 encountered by the class representative; (3) the amount of time and effort spent by the class 14 representative; (4) the duration of the litigation; and (5) the personal benefit, or lack thereof, 15 enjoyed by the class representative as a result of the litigation. Van Vranken v. Atl. Richfield 16 Co., 901 F. Supp. 294, 299 (N.D. Cal. 1995); see also Zakskorn v. Am. Honda Motor Co., Inc., 17 2:11-CV-02610 KJM, 2015 WL 3622990, at *17 (E.D. Cal. June 9, 2015). 18 This court has found requests of $2,500 per representative, in cases involving three 19 representatives, to be presumptively reasonable. See Zakskorn, 2015 WL 3622990, at *17. In 20 cases in which the class representative requested an enhancement payment of $10,000, this court 21 has required evidence of substantial effort throughout a protracted case. See, e.g., Smothers v. 22 NorthStar Alarm Services, LLC, No. 2:17-CV-00548 KJM KJN, 2020 WL 1532058, at *12 (E.D. 23 Cal. Mar. 31, 2020) (awarding a $10,000 enhancement payment to each representative plaintiff 24 when they submitted declarations describing their 100 hours of work each). “Whether to 25 authorize an incentive payment to a class representative is a matter within the court’s discretion.” 26 Id. at 11. “[C]ourts may consider the following factors: (1) the risk to the class representative in 27 commencing suit, both financial and otherwise; (2) the notoriety and personal difficulties 28 encountered by the class representative; (3) the amount of time and effort spent by the class 1 representative; (4) the duration of the litigation; and (5) the personal benefit (or lack thereof) 2 enjoyed by the class representative as a result of the litigation” Id. (citing Van Vranken v. 3 Atlantic Richfield Co., 901 F. Supp. 294, 299 (N.D. Cal. 1995)). 4 An incentive award of $7,000 for each of the four representative plaintiffs is a substantial 5 request, particularly given the short timeline of this case – less than 10 months from filing to the 6 notice of settlement. ECF Nos. 1, 27. The plaintiffs have not submitted information regarding 7 the effort expended, assumed risk, personal difficulties, or personal benefits assumed by the class 8 representatives. While this does not preclude preliminary approval, and the undersigned does not 9 mean to suggest that the amount is excessive, the court will review the reasonableness of the 10 incentive award amount at the final fairness hearing; the representative plaintiffs are strongly 11 encouraged to submit declarations substantiating the hours and level of work they have each put 12 into this case. Further, at the final approval stage, plaintiffs should include an analysis of the 13 “proportion of the [representative] payment[s] relative to the settlement amount, and the size of 14 each payment.” In re Online DVD-Rental Antitrust Litig., 779 F.3d at 947. 15 5. Attorneys’ Fees 16 The court also considers “the terms of any proposed award of attorney’s fees, including 17 timing of payment.” Fed. R. Civ. P. 23(e)(2)(C)(iii). Under Rule 23(h), “[i]n a certified class 18 action, the court may award reasonable attorney’s fees and nontaxable costs that are authorized by 19 law or by the parties’ agreement.” Fed. R. Civ. P. 23(h). “The Ninth Circuit has approved two 20 methods of assigning attorney's fees in common fund cases: the “percentage of the fund” method 21 and the “lodestar” method.” Ontiveros v. Zamora, 303 F.R.D. 356, 372 (E.D. Cal. 2014). The 22 Ninth Circuit has generally set a 25 percent benchmark for the award of attorneys’ fees, and 23 “courts may adjust this figure upwards or downwards if the record shows special circumstances 24 justifying a departure.” Id. (internal quotation marks omitted) (citing In re Bluetooth, 654 F.3d at 25 942). The Ninth Circuit has also approved the use of lodestar cross-checks to determine the 26 reasonableness of a particular percentage recovery of a common fund. Seguin v. City of Tulare, 27 No. 1:16-CV-01262 DAD SAB, 2018 WL 1919823, at *6 (citing Vizcaino v. Microsoft Corp., 28 290 F.3d 1043, 1050 (9th Cir. 2002)). 1 Here, the proposed settlement includes an attorneys’ fee and expense award of Eighty- 2 Two Thousand Eight Hundred dollars ($82,800.00) representing twenty percent (20%) of that 3 portion of the Settlement Fund. ECF No. 29-2 at 15. While this amount is substantial 4 considering the short duration of this case, it is within the Ninth Circuit benchmark range. 5 Further, the court is disinclined to penalize the efficient, good faith resolution of cases. Finally, 6 as discussed above, counsel has engaged in discovery practice and has done the work to negotiate 7 a settlement for the class. Thus, the undersigned finds the fee and expense award appropriate on a 8 preliminary basis. 9 6. Notice 10 “The court must direct notice in a reasonable manner to all class members who would be 11 bound by the propos[ed] [settlement]....” Fed. R. Civ. P. 23(e)(1)(B). Under Rule 23’s provision 12 for notifying class members of class certification, the notice must state in plain, easily understood 13 language: 14 (i) the nature of the action; 15 (ii) the definition of the class certified; 16 (iii) the class claims, issues, or defenses; 17 (iv) that a class member may enter an appearance through an attorney if the member so desires; 18 (v) that the court will exclude from the class any member who 19 requests exclusion; 20 (vi) the time and manner for requesting exclusion; and 21 (vii) the binding effect of a class judgment on members under Rule 23(c)(3). 22 23 Fed. R. Civ. P. 23(c)(2)(B)(i). Furthermore, “due process requires at a minimum that an absent 24 plaintiff be provided with an opportunity to remove himself from the class by executing and 25 returning an ‘opt out’ or ‘request for exclusion’ form to the court.” Phillips Petroleum Co. v. 26 Shutts, 472 U.S. 797, 812 (1985). “In a Rule 23(b)(3) class, the notice and any Internet Web site 27 should include opt-out forms.” Ann. Manual Complex Lit. § 21.312 (4th ed.). “[D]ue process 28 requires at a minimum that an absent plaintiff be provided with an opportunity to remove himself 1 from the class by executing and returning an ‘opt out’ or ‘request for exclusion’ form to the 2 court.” Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985). 3 Here, the proposed notice of settlement includes the necessary background information 4 about the nature of the action, the class itself, as well as the process that led to the proposed 5 settlement. Merin Decl., Ex. 2, Notice (ECF No. 29-2at 41-53). The notice explicitly mentions 6 that a class member may enter objections through an attorney if the class member so desires. Id. 7 at 44. The notice identifies and lists the contact information for plaintiff’s counsel and counsel 8 for defendants (id.) and states class members can contact plaintiff’s counsel if they have questions 9 about the settlement. Id. at 45. The notice then discusses how a class member may opt out of the 10 settlement. Id. at 41, 43. 11 Plaintiffs have provided a proposed claim form (ECF No. 29-2 at 47) but have not 12 provided an opt-out form for class members to complete and return should they wish to opt out of 13 the settlement. Plaintiffs must include an opt-out form or opt-out provision on the claim form that 14 provides clear instructions regarding the process for opting-out, including the address class 15 members should return the form to, and the notice also describes the difference between opting- 16 out and objecting to the settlement, as well as the separate processes for each. The notice 17 correctly informs class members when counsel and plaintiff will file their respective motions for 18 attorneys’ fees and costs and an incentive award, and where and how class members may review 19 those documents. ECF No. 29-2 at 44-45. Importantly, the class members may contact class 20 counsel for more information or to review the relevant documents. Id. at 45. 21 The proposed notice is reasonable in all respects, except for the failure to provide an opt- 22 out form. Because this deficiency is easily correctable, the court will GRANT approval of the 23 form of the notice, contingent on the filing within fourteen days of an opt-out form that meets the 24 requirements described above. 25 IV. CONCLUSION 26 For the foregoing reasons, the court HEREBY MAKES THE FOLLOWING 27 DETERMINATIONS AND ORDERS: 28 1. The court finds, on a preliminary basis, that the Settlement Agreement incorporated in 1 full by this reference and made a part of this order granting preliminary approval: (1) is the 2 product of informed and non-collusive negotiations; (2) has no obvious deficiencies; (3) falls 3 within the range of possible approval; and (4) the Class Notice (Attachment 2) and Claim Form 4 (Attachment 3) are, in all respects, fair, reasonable, adequate, and in compliance with all 5 applicable requirements of Rule 23 of the Federal Rules of Civil Procedure, the California and 6 United States Constitutions except that the parties failed to include an opt-out form, which shall 7 be filed within 14 days of this order as instructed above, as described below. 8 2. The court also finds that, on a preliminary basis, the Settlement is fair, just, adequate, 9 and reasonable to all members of the Class when balanced against the probable outcome of 10 further litigation relating to class action certification, liability and damages issues, and potential 11 appeals of rulings. Good cause appearing, the motion for preliminary approval of class action 12 settlement is GRANTED. 13 3. As part of preliminary approval, the court finds for settlement purposes only, that the 14 class meets the requirements of Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure, 15 and conditionally certifies the class for the purposes of settlement as: All individuals who were 16 detained/arrested on March 4, 2019, on the 51st Street overpass and transported to Cal Expo for 17 processing and release. 18 4. The court approves and appoints plaintiffs as the Representative Plaintiffs of the Class 19 for settlement purposes only, subject to Final Approval. Any Settlement Class Member who does 20 not elect to be excluded from the Settlement by submitting a Request to be Excluded by the 21 Objection/Exclusion Deadline may, but need not, enter an appearance in this Action through his 22 or her own attorney. Settlement Class Members who do not enter an appearance through their 23 own attorneys will be represented by Class Counsel. 24 5. The court approves and appoints plaintiff’s counsel as Class Counsel for settlement 25 purposes only, subject to Final Approval. 26 6. The court finds the proposed class notice and the proposed method of dissemination 27 reasonably and adequately advises the class of the information required by Federal Rule of Civil 28 Procedure 23(c)(2)(B), with the exception of the failure to include an opt-out form, as discussed 1 above. The court APPROVES the proposed class notice CONTINGENT ON the filing within 2 fourteen days of an appropriate opt-out form correcting this deficiency. 3 7. The court finds the mailing to the class members’ present and last known address, with 4 safeguards to perform reasonable skip traces of returned as undeliverable Notice Packets, 5 constitutes an effective method of notifying class members of their rights with respect to the 6 proposed settlement. Accordingly, it is hereby ORDERED that: 7 a. Not later than 21 days from the court’s issuance of a minute order confirming the 8 court’s acceptance of the opt-out notice required in (6) above as satisfying the contingency and 9 resulting approval of the proposed class notice, the parties shall mail the Notice Packets to each 10 class member, by first class United States mail, postage pre-paid. The exterior of the mailing 11 envelope shall include the following language below the administrator’s address: 12 Important Legal Document: 13 You may get Money from a Class Action Settlement; your prompt reply to correct a bad address is required 14 8. IT IS FURTHER ORDERED that: 15 a. Requests for Exclusion: Requests for exclusion from the settlement must be mailed 16 counsel at any address provided for in the class notice, postmarked no later than 45 days from the 17 initial mailing of the Notice Packets to the class. If the notice response deadline falls on a 18 Saturday or federal holiday, it will be extended to the next day when the U.S. Postal Service is 19 open. 20 b. Objections: Any Settlement Class Member who did not elect to be excluded from the 21 Settlement by submitting a Request to be Excluded by the Objection/Exclusion Deadline may, but 22 need not, submit objections to the proposed Settlement by filing and serving an Objection to the 23 Settlement by the Objection/Exclusion Deadline: no later than 45 days from the initial mailing of 24 the Notice Packets to the Class. Notices of objection to the settlement may be mailed to counsel 25 at any address shown in the class notice, by first class U.S. mail on or before the notice response 26 deadline. Any written notice of objection should be signed by the class member and/or his or her 27 representative; including the objecting class member’s name, address, telephone number, the case 28 1 name and number as shown in the class notice, the basis for each objection, and whether or not 2 the class member intends to appear at the final approval hearing. Class members may also appear 3 at the time of the final approval hearing to make any objections they may have. 4 9. IT IS FURTHER ORDERED that all Settlement Class Members who do not seek to be 5 excluded from the Settlement by submitting a Request for Exclusion by the Objection/Exclusion 6 Deadline are enjoined from proceeding against the Settling Defendants, including their present or 7 former elective and/or appointive boards, agents, servants, employees, consultants, departments, 8 commissioners, attorneys, officials and officers, and all other individuals and entities, whether 9 named or unnamed in the Action, as to the claims asserted in the Action in the event the final 10 settlement is approved. 11 10. IT IS FURTHER ORDERED that within fourteen days of the notice response 12 deadline, class counsel shall file their application for awards of reasonable attorneys’ fees and 13 litigation expenses and class representative service payments. 14 11. IT IS FURTHER ORDERED that counsel shall submit a Motion for Order Granting 15 Final Approval of the Class Action Settlement with a noticed hearing date in accordance with the 16 Local Rules of this Court and the Standing Orders of Magistrate Judge Allison Claire, located on 17 the court’s website. The hearing shall be set to occur not sooner than 80 days from the date of 18 filing the motion. All papers in support of the Motion for Order Granting Final Approval of the 19 Class Action Settlement shall be filed at least twenty-eight calendar days before the final 20 fairness/final approval hearing. 21 12. The final approval hearing shall be held before the undersigned at a date to be noticed 22 in the motion for final approval. 23 13. IT IS FURTHER ORDERED that if, for any reason, the court does not execute and 24 file an order granting final approval and judgment, or if the effective date, as defined by the 25 settlement agreement, does not occur for any reason whatsoever, the settlement agreement and the 26 proposed settlement subject of this order and all evidence and proceedings had in connection 27 therewith, shall be null and void and without prejudice to the status quo ante rights of the parties 28 to this litigation as more specifically set forth in the settlement agreement. 1 14. IT IS FURTHER ORDERED that pending further order of this court, all proceedings 2 | in this matter except those contemplated by this order and in the settlement agreement are 3 | STAYED. 4 15. The court expressly reserves the right to adjourn or to continue the final approval 5 || hearing from time-to-time without further notice to class members, except that a notice of 6 || continuance shall be provided to all class members who submit a notice of objection. In the event 7 || the settlement does not become final for any reason, this preliminary approval order shall be of no 8 | further force or effect and the fact that the parties were willing to stipulate to class certification as 9 | part of the settlement shall have no bearing on, and not be admissible in connection with, the 10 || issue of whether a class should be certified in a non-settlement conference. 11 The motion for preliminary approval (ECF No. 29) is GRANTED. 12 IT IS SO ORDERED. 13 | DATED: December 17, 2020 ™ 14 AMhen—Chlne ALLISON CLAIRE 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 20