Flores v. Dart Container Corporation ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 ANGELA FLORES, individually and No. 2:19-cv-00083 WBS JDP on behalf of other similarly 13 situated current and former employees, 14 ORDER RE: PLAINTIFF’S MOTION Plaintiff, FOR PRELIMINARY APPROVAL OF 15 CLASS ACTION SETTLEMENT v. 16 DART CONTAINER CORPORATION, a 17 Nevada corporation; DART CONTAINER CORPORATION OF 18 CALIFORNIA, a Michigan corporation; and DOES 1-100, 19 inclusive, 20 Defendants. 21 22 ----oo0oo---- 23 Plaintiff Angela Flores, individually and on behalf of 24 all other similarly situated employees, brought this putative 25 class action against defendants Dart Container Corporation and 26 Dart Container Corporation of California (collectively, 27 “defendants”) alleging violations of the California Labor Code, 28 Cal. Lab. Code §§ 201-203, 226, 218, 233, 246, the California 1 Business and Professions Code, Cal. Bus. Prof. Code § 17200, and 2 the California Private Attorneys General Act of 2004 (“PAGA”), 3 Cal. Lab. Code § 2698, et seq. (See First Am. Compl. (“FAC”) 4 (Docket No. 23).) Plaintiff has filed an unopposed motion for 5 preliminary approval of a class action settlement. (Mot. for 6 Prelim. Approval (Docket No. 36-2).) 7 I. Factual and Procedural Background 8 Plaintiff began working for defendants on approximately 9 September 11, 2017, as an “inspector/packer.” (FAC ¶ 8.) As an 10 inspector/packer, plaintiff’s primary job duty was to ensure 11 quality control and pack products on the production line. (Id.) 12 Many of defendants’ employees, including plaintiff, are paid 13 hourly and thus are not exempt from minimum wage or overtime pay 14 laws and regulations. (Id. ¶¶ 8-18.) 15 On January 11 2019, plaintiff filed a putative class 16 action in this court, claiming that defendants failed to provide 17 her and other class members with wage statements that accurately 18 identified the total hours worked during the pay period and 19 failed to pay overtime wages in violation of (1) California Labor 20 Code § 226, (2) California Business and Professions Code § 17200, 21 and (3) the California PAGA. (See Compl.) 22 After the parties exchanged initial disclosures and 23 engaged in some formal written discovery, plaintiff amended her 24 complaint to add a claim for failure to compensate her and other 25 class members for redeemed sick leave at their regular rate of 26 pay in violation of California Labor Code § 246 and California 27 Business and Professions Code § 17200. (See FAC. ¶¶ 20-25; 62- 28 75.) 1 As proposed, the Settlement Agreement establishes two 2 distinct classes: the “Sick Pay Class” and the “Non-Exempt Wage 3 Statement Class.” (See Declaration of Jenny Baysinger, Ex. A 4 (“Settlement Agreement”) at ¶¶ 1.15, 1.20, 1.37, 32 (Docket No. 5 36-1).) The Sick Pay Class contains one subclass for former 6 employees who separated from employment at any time between 7 January 11, 2016, and November 30, 2020 (the “Former Employee 8 Sub-Class”). (See id.) There are approximately 423 Non-Exempt 9 Wage Statement Class Members, 502 Sick Pay Class Members, and 131 10 Former Employee Sub-Class Members. (See id. ¶ 12a.) 11 Defendants have agreed to pay up to $411,000 to create 12 a common fund (the “Maximum Settlement Amount” or “MSA”), from 13 which payments will be made for (1) attorney’s fees in an amount 14 up to $137,000 or 33% of the fund; (2) litigation costs incurred 15 by class counsel, estimated at $7,500; (3) an incentive award for 16 plaintiff of $2,500; (4) settlement administration costs 17 estimated at $8,850, payable to Phoenix Class Action 18 Administration Solutions; and (5) PAGA penalties in the amount of 19 $15,000, $11,250 of which will be paid to the California Labor 20 and Workforce Development Agency (“LWDA”) and $3,750 of which 21 will be paid to members of the Non-Exempt Wage Statement Class 22 members. (See id. at ¶¶ 16, 19.) 23 The remaining funds (“Net Settlement Amount”), 24 estimated at $243,900, will be distributed to class members who 25 do not opt out of the settlement. (See id.) $25,000 will be 26 allocated to the Sick Pay Class, $109,450 will be allocated to 27 the Former Employee Sub-Class, and $109,450 will be allocated to 28 the Non-Exempt Wage Statement Class. (Id. at ¶ 32.) Settlement 1 proceeds will be distributed on a pro-rata basis to Non-Exempt 2 Wage Statement Class and Sick Pay Class members based on total 3 workweeks worked within the respective class period. (Id.) 4 Settlement proceeds will be distributed equally among Former 5 Employee Sub-Class Members. (Id.) Each Non-Exempt Wage 6 Statement Class Member is expected to receive $258.74; each 7 Former Employee Sub-Class Member is expected to receive $835.49; 8 and each Sick Pay Class Member is expected to receive $49.80--an 9 amount that exceeds the actual wage loss believed to have been 10 suffered because of sick pay underpayments. (Baysinger Decl. ¶¶ 11 45, 63.) The named plaintiff herself estimates that she was only 12 underpaid a total of $16.00 for redeemed sick leave, for 13 instance. (Id. ¶ 63 n.1.) If the number of employees in any of 14 these classes increases, the Settlement Agreement contains an 15 “escalator clause” that increases the amount of the MSA by an 16 amount equal to the percentage increase above 5% (e.g., if the 17 number of class members increases by 6%, the MSA increases by 18 1%). (See Settlement Agreement at ¶ 17.) 19 Plaintiff provided a copy of the proposed settlement 20 agreement to the LWDA on November 16, 2020, the day before filing 21 this Motion for Preliminary Approval. (Baysinger Decl. ¶ 77.) 22 The Notice of Class Action Settlement will be mailed to 23 all class members via first class mail. The Notice informs class 24 members of the terms of the Settlement Agreement, their right to 25 opt out and/or object, and an estimate of their share of the Net 26 Settlement Amount. (See Settlement Agreement ¶ 31.) The Notice 27 also informs class members of the fact that, separate and apart 28 from the class claims, plaintiff has agreed to settle individual 1 claims under the California Fair Employment and Housing Act 2 (“FEHA”) for sexual harassment, retaliation, and failure to 3 prevent harassment and retaliation, as well as a claim under the 4 California Labor Code for failure to pay wages upon termination, 5 that she brought against defendants in a separate lawsuit in San 6 Joaquin County Superior Court. (See Settlement Agreement, Ex. 1, 7 at 4 (“Proposed Notice”) (Docket No. 36-1); Pl.’s Request for 8 Judicial Notice, Ex. 2 (“Pl.’s FEHA Complaint”) (Docket No. 36- 9 4).) Finally, the Notice informs class members of the existence 10 of two other ongoing cases against defendants, Prado v. Dart 11 Container Corp. of California., et al., Santa Clara County Case 12 No. 18CV336217, and Alvarado v. Dart Container Corp., Riverside 13 County Superior Court Case No. RIC1211707. The Notice indicates 14 that the Settlement Agreement expressly excludes members of the 15 Alvarado class, that some of the claims in the Prado Class Action 16 have the potential to overlap with claims in this matter, and 17 that class members may opt out of the settlement if they wish to 18 pursue any potentially overlapping claims as part of the Prado 19 Class Action instead. (See id. at 2-3; Settlement Agreement 20 ¶ 1.20.) Class members shall have 60 days from the date of the 21 Notice’s mailing to either opt out or to submit an objection to 22 the proposed settlement. (Id. at 6-7.) 23 II. Discussion 24 Federal Rule of Civil Procedure 23(e) provides that 25 “[t]he claims, issues, or defenses of a certified class may be 26 settled . . . only with the court’s approval.” Fed. R. Civ. P. 27 23(e). “To vindicate the settlement of such serious claims, 28 however, judges have the responsibility of ensuring fairness to 1 all members of the class presented for certification.” Staton v. 2 Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). “Where [] the 3 parties negotiate a settlement agreement before the class has 4 been certified, settlement approval requires a higher standard of 5 fairness and a more probing inquiry than may normally be required 6 under Rule 23(e).” Roes, 1-2 v. SFBSC Mgmt., LLC, 944 F.3d 1035, 7 1048 (9th Cir. 2019) (citation and internal quotations omitted). 8 The approval of a class action settlement takes place 9 in two stages. In the first stage, “the court preliminarily 10 approves the settlement pending a fairness hearing, temporarily 11 certifies a settlement class, and authorizes notice to the 12 class.” Ontiveros v. Zamora, No. 2:08-567 WBS DAD, 2014 WL 13 3057506, at *2 (E.D. Cal. July 7, 2014). In the second, the 14 court will entertain class members’ objections to (1) treating 15 the litigation as a class action and/or (2) the terms of the 16 settlement agreement at the fairness hearing. Id. The court 17 will then reach a final determination as to whether the parties 18 should be allowed to settle the class action following the 19 fairness hearing. Id. 20 Consequently, this order “will only determine whether 21 the proposed class action settlement deserves preliminary 22 approval and lay the groundwork for a future fairness hearing.” 23 See id. (citations omitted). 24 A. Class Certification 25 To be certified, the putative class and subclasses must 26 satisfy both the requirements of Federal Rule of Civil Procedure 27 23(a) and (b). Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 28 (9th Cir. 2013). The court will address each subpart in turn. 1 1. Rule 23(a) 2 In order to certify a class, Rule 23(a)’s four 3 threshold requirements must be met: numerosity, commonality, 4 typicality, and adequacy of representation. Fed. R. Civ. P. 5 23(a). “Class certification is proper only if the trial court 6 has concluded, after a ‘rigorous analysis,’ that Rule 23(a) has 7 been satisfied.” Wang v. Chinese Daily News, Inc., 737 F.3d 538, 8 542-43 (9th Cir. 2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 9 564 U.S. 338, 351 (2011)). 10 a. Numerosity 11 While Rule 23(a)(1) requires that the class be “so 12 numerous that joinder of all members is impracticable,” Fed. R. 13 Civ. P. 23(a)(1), it does not require “a strict numerical cut- 14 off.” McCurley v. Royal Seas Cruises, Inc., 331 F.R.D. 142, 167 15 (S.D. Cal. 2019) (citations omitted). Generally, “the numerosity 16 factor is satisfied if the class compromises 40 or more members.” 17 Id. (quoting Celano v. Marriott Int’l, Inc., 242 F.R.D. 544, 549 18 (N.D. Cal. 2007)). Here, the parties estimate that there are 19 approximately 423 Non-Exempt Wage Statement Class Members, 502 20 Sick Pay Class Members, and 131 Former Employee Sub-Class 21 Members. (See Baysinger Decl. ¶ 37.) The numerosity element is 22 therefore satisfied. 23 b. Commonality 24 Next, Rule 23(a) requires that there be “questions of 25 law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). 26 Rule 23(a)(2) is satisfied when there is a “common contention . . 27 . of such a nature that it is capable of classwide resolution -- 28 which means that determination of its truth or falsity will 1 resolve an issue that is central to the validity of each one of 2 the claims in one stroke.” Wal-Mart Stores, 564 U.S. at 350. 3 “Plaintiffs need not show that every question in the case, or 4 even a preponderance of questions, is capable of classwide 5 resolution. So long as there is ‘even a single common question,’ 6 a would-be class can satisfy the commonality requirement of Rule 7 23(a)(2).” Wang, 737 F.3d at 544 (citing id.). 8 Here, the claims implicate common questions of law and 9 fact because they are all premised on policies that applied to 10 all class members equally. All members of each subclass were 11 non-exempt hourly employees of defendants and thus share common 12 legal questions with their respective subclass members, 13 including: (1) whether defendants’ policy of failing to provide 14 wage statements that accurately identified the total hours worked 15 during the pay period and failing to pay overtime wages violated 16 California Labor Code section 226, California Business and 17 Professions Code § 17200, and the California PAGA; and (2) 18 whether defendants’ policy of failing to compensate its employees 19 for redeemed sick leave at their regular rate of pay violated 20 California Labor Code section 246 and California Business and 21 Professions Code § 17200. (See FAC.) 22 Generally, “challeng[ing] a policy common to the class 23 as a whole creates a common question whose answer is apt to drive 24 the resolution of the litigation.” Ontiveros, 2014 WL 3057506, 25 at *5. Even if individual members of the class will be entitled 26 to different amounts of damages because, for instance, they 27 worked for defendants for different amounts of time or were 28 compensated for redeemed sick leave at the incorrect rate of pay 1 less often than others, “the presence of individual damages 2 cannot, by itself, defeat class certification.” Leyva, 716 F.3d 3 at 514 (quoting Wal-Mart Stores, 564 U.S. at 362). Accordingly, 4 these common questions of law and fact satisfy Rule 23(a)’s 5 commonality requirement. 6 c. Typicality 7 Rule 23(a) further requires that the “claims or 8 defenses of the representative parties [be] typical of the claims 9 or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The test 10 for typicality is “whether other members have the same or similar 11 injury, whether the action is based on conduct which is not 12 unique to the named plaintiffs, and whether other class members 13 have been injured by the same course of conduct.” Sali v. Corona 14 Reg’l Med. Ctr., 909 F.3d 996, 1006 (9th Cir. 2018) (quoting 15 Hanon v. Dataprods. Corp., 976 F.2d 497, 508 (9th Cir. 1992)). 16 Here, the named plaintiff satisfies the typicality requirement. 17 The named plaintiff and the other class members all worked for 18 defendants and performed similar, if not the same, work. 19 Plaintiff alleges that she received the same inaccurate wage 20 statements, failed to receive overtime pay, and failed to receive 21 sick pay commensurate with her regular rate of pay in the same 22 manner as other class members. (See FAC ¶¶ 18, 24, 37-41.) 23 Plaintiff is therefore a member of both the Sick Pay Class and 24 the Non-Exempt Wage Statement Class. Because plaintiff is a 25 former employee of defendants, she is, specifically, also a 26 member of the Former Employee Sub-Class. (Id. at ¶ 39.) Though 27 this entitles plaintiff to statutory waiting-time penalties that 28 members of the Sick Pay Class who still work for defendants are 1 not entitled to, because these waiting-time penalties ultimately 2 arise from the same conduct on the part of defendants--namely, 3 failing to provide sick pay at the employee’s “regular rate of 4 pay” during the employee’s employment--the court finds that 5 plaintiff’s claim is “reasonably co-extensive with those of the 6 absent class members” in the Sick Pay Class. See McKenzie v. 7 Federal Express Corp., 275 F.R.D. 290, 297 (C.D. Cal. 2011) 8 (Feess, J.) (holding former employee’s claims to be typical of 9 class, which included current employees, because claims were 10 based on the same conduct by defendant employer). Accordingly, 11 the typicality requirement is satisfied. 12 d. Adequacy of Representation 13 Finally, Rule 23(a) requires that “the representative 14 parties will fairly and adequately protect the interests of the 15 class.” Fed. R. Civ. P. 23(a)(4). Rule 23(a)(4) “serves to 16 uncover conflicts of interest between named parties and the class 17 they seek to represent” as well as the “competency and conflicts 18 of class counsel.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 19 625, 626 n.20 (1997). The court must consider two factors: (1) 20 whether the named plaintiff and her counsel have any conflicts of 21 interest with other class members and (2) whether the named 22 plaintiff and her counsel will vigorously prosecute the action on 23 behalf of the class. In re Hyundai and Kia Fuel Econ. Litig., 24 926 F.3d 539, 566 (9th Cir. 2019) (quoting Hanlon v. Chrysler 25 Corp., 150 F.3d 1011, 1020 (9th Cir. 1998)). 26 i. Conflicts of Interest 27 The first portion of the adequacy inquiry considers 28 whether plaintiff’s interests are aligned with those of the 1 class. “[A] class representative must be part of the class and 2 possess the same interest and suffer the same injury as the class 3 members.” Amchem, 521 U.S. at 625-26 (internal modifications 4 omitted). 5 In most respects, the named plaintiff’s interests 6 appear to be aligned with those of the class. (See generally 7 FAC.) Plaintiff was employed in the same workplace, performed 8 similar tasks, and was subjected to the same policies and 9 practices that allegedly violated California law as other class 10 members. (Id.) Despite the many similarities, plaintiff alone 11 stands to benefit for her participation in this litigation by 12 receiving an incentive award of $2,500. (Settlement Agreement ¶ 13 16.) The use of an incentive award raises the possibility that a 14 plaintiff’s interest in receiving that award will cause her 15 interests to diverge from the class’s in a fair settlement. 16 Staton, 327 F.3d at 977-78. Consequently, the court must 17 “scrutinize carefully the awards so that they do not undermine 18 the adequacy of the class representatives.” Radcliffe v. 19 Experian Info. Sys., Inc., 715 F.3d 1157, 1163 (9th Cir. 2013). 20 Plaintiff’s counsel estimates that class members will 21 receive somewhere between $49.80 and $1,144.03, depending on how 22 many classes they are members of. (See Baysinger Decl. ¶ 63.) 23 Plaintiff’s proposed award of $2,500 represents substantially 24 more. However, incentive awards “are intended to compensate 25 class representatives for work done on behalf of the class, to 26 make up for financial or reputational risk undertaken in bringing 27 the action, and, sometimes, to recognize their willingness to act 28 as a private attorney general.” Rodriguez v. West Publ’g Corp., 1 563 F.3d 948, 958-59 (9th Cir. 2009). Indeed, the Ninth Circuit 2 has consistently recognized incentive awards are “fairly typical” 3 way to “compensate class representatives for work done on behalf 4 of the class” or “to make up for financial or reputational risk 5 undertaken in bringing the action.” Id. 6 Here, a $2,500 incentive payment appears appropriate at 7 this stage. The payment represents approximately 0.6% of the 8 total settlement amount. Plaintiff represents that she has spent 9 significant amounts of time participating in this case and has 10 exposed herself to significant reputational and professional 11 risks by tying her name to a class action lawsuit against her 12 former employer. (Decl. of Angela Flores (“Flores Decl.”) ¶¶ 12- 13 13 (Docket No. 36-6).) The amount of the requested service award 14 is also less than what other courts have determined is 15 “presumptively reasonable” in the Ninth Circuit. See Roe v. 16 Frito-Lay, Inc., No. 14CV-00751, 2017 WL 1315626, at *8 (N.D. 17 Cal. Apr. 7, 2017) (“[A] $5,000 incentive award is ‘presumptively 18 reasonable’ in the Ninth Circuit.”) (collecting cases). 19 Plaintiff’s individual FEHA claims do not pose a 20 problem either. See Roberts v. Electrolux Home Prods., Inc., 21 SACV12–1644–CAS(VBKx), 2014 WL 4568632, at *9 (C.D. Cal. 2014) 22 (noting that individual settlement amounts paid to named class 23 representatives for unique harms suffered did not undermine 24 adequacy). Plaintiff’s individual claims of employment 25 discrimination arise out of different policies and practices 26 employed by defendants, and both she and her counsel represent 27 that she negotiated her individual claims completely separately 28 from her claims brought on behalf of class members in this case 1 (though her individual discrimination claims were resolved at the 2 same mediation as the class action claims at issue here). (See 3 Flores Decl. ¶ 11; Baysinger Decl. ¶ 79.) Notice of plaintiff’s 4 individual claims and the fact that she has settled them will 5 also be provided to class members as part of the Notice Packet. 6 (See Proposed Notice ¶ 4.F.) 7 Rule 23(a)(4)’s adequacy requirement is aimed at 8 ensuring that class representatives do not have adverse interests 9 that are fundamental to the suit and “go to the heart of the 10 litigation,” from representing other class members, not at 11 prohibiting class representatives from having any unique 12 interests at all. See In re Online DVD-Rental Antitr. Litig., 13 779 F.3d 934, 942 (9th Cir. 2015) (citing Rubenstein, Newberg on 14 Class Actions § 3:58 (5th Ed. 2011)); Dukes v. Wal-Mart Stores, 15 Inc., 222 F.R.D. 137, 168-69 (9th Cir. 2004) (holding that named 16 plaintiffs could represent class even though they possessed 17 unique interests as supervisory employees of defendant). Though 18 the parties agreed to keep the amount of Flores’ individual 19 settlement confidential, counsel represented at oral argument 20 that it was for a de minimus value, indicating that it did not 21 likely interfere with Flores’ ability to represent the interests 22 of the class during negotiations. The settlement of separate, 23 individual claims that arose out of circumstances unique to 24 Flores, through negotiations which the parties represent occurred 25 separately from negotiations regarding the class claims, does not 26 render Flores fundamentally unfit to act as a class 27 representative. See Roberts, 2014 WL 4568632, at *9 (individual 28 settlement amounts paid to named class representatives for unique 1 harms did not undermine adequacy). 2 Though Flores’ proposed incentive award and settlement 3 of her individual claims do not appear to create a conflict of 4 interest, the court emphasizes this finding is only a preliminary 5 determination. Plaintiff represents that she will formally seek 6 the incentive award through a separate motion, to be heard at the 7 final approval hearing. (Mot. for Prelim. Approval at 4.) At 8 that time, plaintiff should be prepared to present further 9 evidence of her substantial efforts taken as a class 10 representative to better justify the discrepancy between her 11 award and those of the unnamed class members. The court will 12 also note any objections concerning the settlement of plaintiff’s 13 individual claims against defendants, if any are made, at the 14 time of the final approval hearing. 15 ii. Vigorous Prosecution 16 The second portion of the adequacy inquiry examines the 17 vigor with which the named plaintiff and her counsel have pursued 18 the class’s claims. “Although there are no fixed standards by 19 which ‘vigor’ can be assayed, considerations include competency 20 of counsel and, in the context of a settlement-only class, an 21 assessment of the rationale for not pursuing further litigation.” 22 Hanlon, 150 F.3d at 1021. 23 Here, class counsel appear to be experienced employment 24 and class action litigators fully qualified to pursue the 25 interests of the class. (See Baysinger Decl. ¶¶ 84-88.) Class 26 counsel represent that they have litigated dozens of wage and 27 hour class actions as lead counsel in state and federal court and 28 that they have carefully vetted their clients’ claims and 1 defendants’ arguments through rigorous legal analysis. (Id. 2 (citing cases); Decl. of Robert J. Wasserman ¶¶ 21-23 (Docket No. 3 36-3).) This experience, coupled with the diligent work expended 4 on this case, suggest that class counsel are well-equipped to 5 handle this case. Accordingly, the court finds that plaintiff 6 and plaintiff’s counsel are adequate representatives of the 7 class. 8 2. Rule 23(b) 9 After fulfilling the threshold requirements of Rule 10 23(a), the proposed class must satisfy the requirements of one of 11 the three subdivisions of Rule 23(b). Leyva, 716 F.3d at 512. 12 Plaintiff seeks provisional certification under Rule 23(b)(3), 13 which provides that a class action may be maintained only if “the 14 court finds that questions of law or fact common to class members 15 predominate over questions affecting only individual members” and 16 “that a class action is superior to other available methods for 17 fairly and efficiently adjudicating the controversy.” Fed. R. 18 Civ. P. 23(b)(3). The test of Rule 23(b)(3) is “far more 19 demanding,” than that of Rule 23(a). Wolin v. Jaguar Land Rover 20 N. Am., LLC, 617 F.3d 1168, 1172 (9th Cir. 2010) (quoting Amchem, 21 521 U.S. at 623-24). 22 a. Predominance 23 “The predominance analysis under Rule 23(b)(3) focuses 24 on ‘the relationship between the common and individual issues’ in 25 the case and ‘tests whether proposed classes are sufficiently 26 cohesive to warrant adjudication by representation.’” Wang, 737 27 F.3d at 545 (quoting Hanlon, 150 F.3d at 1022). However, 28 plaintiff is not required to prove that the predominating 1 question will be answered in her favor at the class certification 2 stage. Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 3 468 (2013). 4 Here, the claims brought by the proposed settlement 5 class all arise from defendants’ same conduct. For example, 6 defendants failed to provide all Non-Exempt Wage Statement Class 7 members with wage statements that accurately identified the total 8 hours worked during the pay period and failed to pay overtime 9 wages. (See Baysinger Decl. ¶¶ 48-49.) Defendants also failed 10 to compensate all Sick Pay Class members for redeemed sick leave 11 at their regular rate of pay, and to provide Former Employee Sub- 12 Class Members with this pay upon their departure from the 13 company. (Id. at ¶¶ 44-45.) These policies serve as common 14 facts uniting plaintiff’s individual claims and the class claims. 15 Common questions of law include whether defendants’ policies and 16 practices violated various sections of the California Labor Code, 17 the California Business and Professions Code, as well as whether 18 defendants’ violations of the California Labor Code give rise to 19 penalties under the PAGA. (See FAC ¶¶ 45-81.) The class claims 20 thus demonstrate a “common nucleus of facts and potential legal 21 remedies” that can properly be resolved in a single adjudication. 22 See Hanlon, 150 F.3d at 1022. Accordingly, the court finds 23 common questions of law and fact predominate over questions 24 affecting only individual class members. 25 b. Superiority 26 Rule 23(b)(3) sets forth four non-exhaustive factors 27 that courts should consider when examining whether “a class 28 action is superior to other available methods for fairly and 1 efficiently adjudicating the controversy.” Fed. R. Civ. P. 2 23(b)(3). They are: “(A) the class members’ interests in 3 individually controlling the prosecution or defense of separate 4 actions; (B) the extent and nature of any litigation concerning 5 the controversy already begun by or against class members; (C) 6 the desirability or undesirability of concentrating the 7 litigation of the claims in the particular forum; and (D) the 8 likely difficulties in managing a class action.” Id. Factors 9 (C) and (D) are inapplicable because the parties settled this 10 action before class certification. See Syed v. M-I LLC, No. 11 1:14-cv-00742 WBS BAM, 2019 WL 1130469, at *6 (E.D. Cal. Mar. 12, 12 2019) (citation omitted). Therefore, the court will focus 13 primarily on factors (A) and (B). 14 Rule 23(b)(3) is concerned with the “vindication of the 15 rights of groups of people who individually would be without 16 effective strength to bring their opponents into court at all.” 17 Amchem, 521 U.S. at 617. When class members’ individual recovery 18 is relatively modest, the class members’ interests generally 19 favors certification. Zinser v. Accufix Res. Inst., Inc., 253 20 F.3d 1180, 1190 (9th Cir. 2001). Again, plaintiff’s counsel 21 estimates that class members will receive somewhere between 22 $49.80 and $1,144.03, depending on how many classes they are 23 members of. (See Baysinger Decl. ¶ 63.) This anticipated sum, 24 while modest in light of the overall $411,000 recovery, 25 represents a strong result for the class given the strength of 26 the claims, the risks of litigation and delay, and the 27 defendants’ potential exposure. (See id. at ¶¶ 41-73.) 28 Accordingly, factor (A) weighs in favor of certification. 1 Factor (B), concerning the “extent and nature of the 2 litigation,” is “intended to serve the purpose of assuring 3 judicial economy and reducing the possibility of multiple 4 lawsuits.” Zinser, 253 F.3d at 1191 (quoting 7A Charles Alan 5 Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and 6 Procedure § 1780 at 568-70 (“Wright & Miller”) (2d ed. 1986)). 7 If the court finds that several other actions already are pending 8 and that “a clear threat of multiplicity and a risk of 9 inconsistent adjudications actually exist, a class action may not 10 be appropriate since, unless the other suits can be enjoined, . . 11 . a Rule 23 proceeding only might create one more action.” Id. 12 (quoting Wright and Miller at 568-70)). “Moreover, the existence 13 of litigation indicates that some of the interested parties have 14 decided that individual actions are an acceptable way to proceed, 15 and even may consider them preferable to a class action.” Id. 16 (quoting Wright and Miller at 568-70). 17 Here, plaintiff represents that two other class actions 18 against defendants are currently pending in California state 19 courts. (See Baysinger Decl. ¶¶ 8-10, 13-14.) The first, Prado 20 v. Dart Container Corp. of California, No. 18CV336217 (“the Prado 21 Class Action”), is a wage and hour class action that was filed in 22 Santa Clara Superior Court on October 12, 2018, and appears to 23 still be pending. (Id.) The Prado Class Action consists of 24 claims brought under the Federal Credit Reporting Act (“FCRA”) as 25 well as a number of general wage and hour claims. (Id.) Though 26 the Prado Class Action also contains a claim for failure to 27 provide accurate wage statements, this claim is simply derivative 28 of the Prado plaintiff’s other wage and hour claims (i.e., the 1 wage statements failed to include the overtime hours and premium 2 wages for missed meal and rest periods that the Prado plaintiff 3 also alleges defendants failed to provide). See Prado, No. 4 18CV336217, Compl. ¶¶ 48-52, 165-71. The Prado plaintiff 5 therefore alleges that defendants’ wage statements suffered from 6 deficiencies for reasons that are slightly different than Flores, 7 who alleges that defendants’ wage statements failed to include a 8 value for the total number of hours worked, included inaccurate 9 values for the number of hours worked in each pay category, and 10 that hours not actually worked, including sick time and vacation 11 time, were included in the “hours” column, all of which made it 12 difficult for Flores to determine if she was being compensated at 13 an accurate rate for all of her hours worked. (See FAC ¶¶ 12-17; 14 45-51.) Because both Prado and Flores allege that defendants 15 failed to compensate them adequately for overtime hours worked 16 and provided inadequate wage statements (whether those wage 17 statements were simply derivative of the failure to adequately 18 compensate employees for their hours worked), wage statement and 19 overtime claims in the two actions have the potential to overlap, 20 at least to some extent. (See id.) However, Flores’ complaint 21 also contains claims for failure to properly calculate and pay 22 redeemed sick pay wages not found in the Prado Class Action, and 23 the Prado Class Action contains several claims under the FCRA not 24 found here. See Cartwright v. Viking Indus., Inc., No. 2:07-cv- 25 02159 FCD EFB, 2009 WL 2982887, at *14-15 (E.D. Cal. Sep. 14, 26 2009) (holding class treatment to be superior under Rule 23(b)(3) 27 because claims and purported class were broader than those found 28 in parallel state court class action). 1 The second case, Alvarado v. Dart Container Corp. of 2 California, No. RIC1211707 (“the Alvarado Class Action”), was 3 filed in Riverside Superior Court in 2012. (Id. at ¶ 13.) 4 Similar to the Prado Class Action, the Alvarado Class Action 5 contains wage statement claims that are derivative of claims for 6 alleged overtime underpayments, and does not contain any claims 7 related to sick pay wages. (See id.; Alvarado, No. RIC1211707, 8 Compl. ¶¶ 20-21.) Plaintiff represents that the Alvarado Class 9 Action settled in April 2020, obtained preliminary approval of 10 the settlement from the Riverside Superior Court in August 2020, 11 and that this settlement implicates only non-exempt employees in 12 just one of defendant’s warehouses in Corona, California. (See 13 Baysinger Decl. ¶¶ 13-14.) 14 Because Prado and Alvarado have also been brought as 15 putative class actions, they do not “indicate[] that some of the 16 interested parties have decided that individual action are an 17 acceptable [or preferable] way to proceed.” See Zinser, 253 F.3d 18 at 1191. Though Flores’ case was filed after the Prado and 19 Alvarado matters, the Prado matter has not yet settled or 20 otherwise been resolved, see Shwartz v. Lights of America, Inc., 21 No. CV 11-01712 JVS (MLGx), 2012 WL 12883222 (C.D. Cal. Jun. 15, 22 2012) (holding class action to be superior under Rule 23(b)(3) 23 because putative class members had not yet received any relief in 24 parallel FTC action), and the Settlement Agreement expressly 25 excludes any individuals who participated in the Alvarado Class 26 Action settlement (see Settlement Agreement ¶ 1.15). The 27 Settlement Agreement also informs class members of the existence 28 of the Prado Class Action and of the potential for overlap among 1 some of the claims, and gives class members the opportunity to 2 opt out of the settlement to pursue any potentially overlapping 3 claims as part of the Prado Class Action if they wish. (See 4 Proposed Notice at 2-3.) The risk is therefore low that class 5 certification here will merely “create one more action” that 6 subjects defendants to a multiplicity of litigation or risk of 7 inconsistent judgments. Zinser, 253 F.3d at 1191. Accordingly, 8 factor (B) also weighs in favor of certification. See id. 9 3. Rule 23(c)(2) Notice Requirements 10 If the court certifies a class under Rule 23(b)(3), it 11 “must direct to class members the best notice that is practicable 12 under the circumstances, including individual notice to all 13 members who can be identified through reasonable effort.” Fed. 14 R. Civ. P. 23(c)(2)(B). Actual notice is not required, but the 15 notice provided must be “reasonably certain to inform the absent 16 members of the plaintiff class.” Silber v. Mabon, 18 F.3d 1449, 17 1454 (9th Cir. 1994) (citation omitted). 18 The parties have jointly agreed to use Phoenix Class 19 Action Administration Solutions (“Phoenix”) to serve as the 20 Settlement Administrator. (Baysinger Decl. ¶ 74.) Pursuant to 21 the notice plan, defendants will provide Phoenix with the class 22 list data within ten business days of the court’s order granting 23 preliminary approval. (See Settlement Agreement ¶ 28.) This 24 class list data will include the name, last known address and 25 telephone number, social security number, dates of employment, 26 and pay period data (i.e., the total number of workweeks worked) 27 for each Class Member during each relevant time period. (Id.) 28 “Notice is satisfactory if it ‘generally describes the 1 terms of the settlement in sufficient detail to alert those with 2 adverse viewpoints to investigate and to come forward and be 3 heard.’” See Churchill Vill., LLC v. Gen. Elec., 361 F.3d 566, 4 575 (9th Cir. 2004). The notice will provide, among other 5 things, a description of the case; the terms of the Settlement 6 Agreement, including the total settlement amount and how it will 7 be allocated; information about plaintiff’s attorney’s fees; the 8 procedures for opting out or objecting to the settlement; an 9 estimate of the individual class member’s share; and notice that 10 plaintiff settled her individual FEHA claims with defendants for 11 a separate, confidential amount. (See Settlement Agreement, Ex. 12 1.) The notice will also inform class members of the ongoing 13 Prado Class Action, that some its claims may overlap with the 14 claims alleged in this matter, and that, to the extent there is 15 overlap, the Prado claims will be resolved along with the class 16 claims in this action upon the court’s final approval of the 17 Settlement Agreement. (See id. at 2.) Class members will be 18 informed that they have the option to opt out of this action if 19 they would prefer to pursue their claims against defendants as 20 part of the Prado Class Action. All class members will receive 21 individual notice by first class mail. (Settlement Agreement ¶ 22 29.) 23 The system set forth in the Settlement Agreement is 24 reasonably calculated to provide notice to class members and 25 inform class members of their options under the agreement. 26 Accordingly, the manner of notice and the content of notice is 27 sufficient to satisfy Rule 23(c)(2)(B). 28 B. Rule 23(e): Fairness, Adequacy, and Reasonableness of 1 Proposed Settlement 2 Because the proposed class preliminarily satisfies the 3 requirements of Rule 23(a) and (b), the court must consider 4 whether the terms of the parties’ settlement appear fair, 5 adequate, and reasonable. See Fed. R. Civ. P. 23(e)(2). To 6 determine the fairness, adequacy, and reasonableness of the 7 agreement, Rule 23(e) requires the court to consider four 8 factors: “(1) the class representatives and class counsel have 9 adequately represented the class; (2) the proposal was negotiated 10 at arm's length; (3) the relief provided for the class is 11 adequate; and (4) the proposal treats class members equitably 12 relative to each other.” Id. The Ninth Circuit has also 13 identified eight additional factors the court may consider, many 14 of which overlap substantially with Rule 23(e)’s four factors: 15 (1) The strength of the plaintiff’s case; (2) the 16 risk, expense, complexity, and likely duration of further litigation; (3) the risk of maintaining class 17 action status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery 18 completed and the stage of the proceedings; (6) the experience and views of counsel; (7) the presence of a 19 governmental participant; and (8) the reaction of the class members to the proposed settlement. 20 See Staton, 327 F.3d at 959. 21 However, many of these factors cannot be considered 22 until the final fairness hearing. Accordingly, the court’s 23 review will be confined to resolving any “‘glaring deficiencies’ 24 in the settlement agreement.”1 Syed, 2019 WL 1130469, at *7 25 26 1 Because claims under PAGA are “a type of qui tam action” in which an employee brings a claim as an agent or proxy 27 of the state’s labor law enforcement agencies, the court will have to “review and approve” settlement of plaintiff’s and other 28 class members’ PAGA claims when the parties move for final 1 (citations omitted). 2 1. Adequate Representation 3 The court must first consider whether “the class 4 representatives and class counsel have adequately represented the 5 class.” Fed. R. Civ. P. 23(e)(2)(A). This analysis is 6 “redundant of the requirements of Rule 23(a)(4) . . . .” Hudson 7 v. Libre Tech., Inc., No. 3:18-cv-1371-GPC-KSC, 2020 WL 2467060, 8 at *5 (S.D. Cal. May 13, 2020) (quoting Rubenstein, 4 Newberg on 9 Class Actions § 13:48 (5th ed.)) see also In re GSE Bonds Antitr. 10 Litig., 414 F. Supp. 3d 686, 701 (S.D.N.Y. 2019) (noting 11 similarity of inquiry under Rule 23(a)(4) and Rule 23(e)(2)(A)). 12 Because the Court has found that the proposed class 13 satisfies Rule 23(a)(4) for purposes of class certification, the 14 adequacy factor under Rule 23(e)(2)(A) is also met. See Hudson, 15 2020 WL 2467060, at *5. 16 approval of the Settlement Agreement. See Cal. Lab. Code § 17 2669(k)(2); Sakkab v. Luxottica Retail N. Am., Inc., 803 F.3d 18 425, 435-36 (9th Cir. 2015). Though “[the] PAGA does not establish a standard for 19 evaluating PAGA settlements,” Rodriguez, 2019 WL 331159 at *4 (citing Smith v. H.F.D. No. 55, Inc., No. 2:15-CV-01293 KJM KJN, 20 2018 WL 1899912, at *2 (E.D. Cal. Apr. 20, 2018)), a number of district courts have applied the eight Staton factors, listed 21 above, to evaluate PAGA settlements. See, e.g., Smith, 2018 WL 22 1899912, at *2; Ramirez, 2017 WL 3670794, at *3; O’Connor v. Uber Techs., 201 F. Supp. 3d 1110, 1134 (N.D. Cal. 2016). “Many of 23 these factors are not unique to class action lawsuits and bear on whether a settlement is fair and has been reached through an 24 adequate adversarial process.” See Ramirez, 2017 WL 3670794, at *3. Thus, the court finds that these factors will also govern 25 its review of the PAGA settlement. See id. As noted above, because some of these factors cannot be evaluated until the final 26 fairness hearing, the court will limit its review of the PAGA 27 settlement on preliminary approval to determining whether there are any “‘glaring deficiencies’ in the settlement agreement.” 28 See Syed, 2019 WL 1130469, at *7 (citations omitted). 1 2. Negotiations of the Settlement Agreement 2 Counsel for both sides appear to have diligently 3 pursued settlement after thoughtfully considering the strength of 4 their arguments and potential defenses. The parties participated 5 in an arms-length mediation before an experienced employment 6 litigation mediator, Kim Deck, on August 31, 2020, ultimately 7 agreeing to the mediator’s proposal proposed by Ms. Deck at the 8 close of mediation. (Baysinger Decl. ¶¶ 34-36.) Given the 9 sophistication and experience of plaintiff’s counsel, the 10 parties’ representation that the settlement reached was the 11 product of arms-length bargaining, and the parties’ 12 representation that negotiations regarding plaintiff’s individual 13 FEHA claims occurred separately from negotiations regarding the 14 class’ claims (although at the same mediation), the court does 15 not question that the proposed settlement is in the best interest 16 of the class. See Fraley v. Facebook, Inc., 966 F. Supp. 2d 939, 17 942 (N.D. Cal. 2013) (holding that a settlement reached after 18 informed negotiations “is entitled to a degree of deference as 19 the private consensual decision of the parties” (citing Hanlon, 20 150 F.3d at 1027)). 21 3. Adequate Relief 22 In determining whether a settlement agreement provides 23 adequate relief for the class, the court must “take into account 24 (i) the costs, risks, and delay of trial and appeal; (ii) the 25 effectiveness of any proposed method of distributing relief to 26 the class, including the method of processing class-member 27 claims; (iii) the terms of any proposed award of attorney's fees, 28 including timing of payment; and (iv) any [other] agreement[s]” 1 made in connection with the proposal. See Fed. R. Civ. P. 2 23(e)(2)(C); Baker v. SeaWorld Entm’t, Inc., No. 14-cv-02129-MMA- 3 AGS, 2020 WL 4260712, at *6-8 (S.D. Cal. Jul. 24, 2020). 4 Here, plaintiff’s counsel estimates that class members 5 who do not opt out will receive somewhere between $49.80 and 6 $1,144.03, depending on how many classes they are members of. 7 (See Baysinger Decl. ¶ 63.) Because the amount class members 8 receive is based on the number of workweeks each class member 9 worked or how much sick pay time for which they were improperly 10 compensated during the period covered by the Settlement 11 Agreement, the court finds that it is an effective method of 12 distributing relief to the class. 13 The Settlement Agreement also sets aside $15,000 of the 14 common fund for civil penalties under PAGA, $3,750 of which will 15 be distributed evenly among class members who do not opt out. 16 (See Baysinger Decl. ¶ 76.) While plaintiff’s counsel estimates 17 that plaintiff’s Labor Code claims could be worth up to 18 $1,143,384.51 and that the PAGA claim could be worth up to an 19 additional $1,411,750.00, counsel recognizes that defendants had 20 legitimate defenses to these claims that risked reducing the 21 amount plaintiff and the class could recover at trial, including 22 that (1) that plaintiff does not have Article III standing to 23 pursue the wage statement claims under Spokeo v. Robins, 136 S. 24 Ct. 1540 (2016); (2) that the wage statements actually identify a 25 number that equates to total hours worked (though not labeled as 26 such); (3) that plaintiff and other Non-Exempt Class Members were 27 not injured by any technical omissions from the wage statements; 28 (4) that redeemed sick pay cannot underscore a waiting time 1 penalty claim because such payments are not “wages”; and (5) that 2 any violations by defendants were not sufficiently willful to 3 allow for the imposition of waiting time penalties. (See 4 Baysinger Decl. ¶¶ 52-70.) Because the amount of penalties 5 plaintiff would be entitled to under the PAGA depends on how many 6 violations of the California Labor Code defendants committed, 7 these defenses also potentially apply to plaintiff’s PAGA claim. 8 (See id.) 9 Plaintiff’s counsel represents that, given the strength 10 of plaintiff’s claims and defendants’ potential exposure, the 11 settlement and resulting distribution provides a strong result 12 for the class. (Id. at ¶¶ 41-70.) They estimate that the amount 13 of the MSA allocated to resolving the non-PAGA claims, $396,000, 14 represents approximately 34.6% of the maximum damages that could 15 be recovered on behalf of the class in this matter. (Id. at ¶ 16 53.) Based on their experience litigation class actions, 17 defendants’ likely defenses, difficulties in proving “willful” 18 violations of the law, and general judicial skepticism of wage 19 statement claims seen as “technical” in nature (i.e., that do not 20 implicate substantive failure to pay wages), however, plaintiff’s 21 counsel estimates that this amount actually represents closer to 22 68% of a more “realistic” appraisal of the value of the class’ 23 claims and that it is therefore in the best interest of the 24 class. (See id. at ¶¶ 56-65.) There also does not appear to be 25 any “glaring deficiency” in the amount of the common settlement 26 fund reserved for PAGA penalties, see Syed, 2019 WL 1130469, at 27 *7 (citations omitted), at least compared to settlements in other 28 wage and hour and PAGA actions, where the parties appear to 1 maximize the total amount of the settlement that is paid to class 2 members. See, e.g., Nen Thio v. Genji, LLC, 14 F. Supp. 3d 1324, 3 1330 (N.D. Cal. 2014) (preliminarily approving $10,000 in PAGA 4 penalties out of a total settlement amount of $1,250,000); Garcia 5 v. Gordon Trucking, Inc., No. 1:10-cv-0324 AWI SKO, 2012 WL 6 5364575 (E.D. Cal. Oct. 31, 2012) (granting final approval of 7 $10,000 in PAGA penalties out of a total settlement amount of 8 $3,700,000). 9 Thus, while the settlement amount represents “more than 10 the defendants feel those individuals are entitled to” and will 11 potentially be “less than what some class members feel they 12 deserve,” the settlement offers class members the prospect of 13 some recovery, instead of none at all. See Officers for Justice 14 v. Civil Serv. Comm’n, 688 F.2d 615, 628 (9th Cir. 1982). 15 The Settlement Agreement further provides for an award 16 of attorney’s fees totaling 33% of the $411,000 Maximum 17 Settlement Amount. (See Settlement Agreement ¶ 16.) If a 18 negotiated class action settlement includes an award of 19 attorney’s fees, then the court “ha[s] an independent obligation 20 to ensure that the award, like the settlement itself, is 21 reasonable, even if the parties have already agreed to an 22 amount.” In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 23 935, 941 (9th Cir. 2011). 24 “Under the ‘common fund’ doctrine, ‘a litigant or a 25 lawyer who recovers a common fund for the benefit of persons 26 other than himself or his client is entitled to a reasonable 27 attorney’s fee from the fund as a whole.’” Staton, 327 F.3d at 28 969 (quoting Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980)). 1 The Ninth Circuit has recognized two different methods for 2 calculating reasonable attorney’s fees in common fund cases: the 3 lodestar method or the percentage-of-recovery method. Id. at 4 941-42. In the lodestar method, courts multiply the number of 5 hours the prevailing party expended on the litigation by a 6 reasonable hourly rate. Id. Under the percentage-of-recovery 7 method, courts typically delineate 25% of the total settlement as 8 the fee. Hanlon, 150 F.3d at 1029. However, courts may adjust 9 this figure if the record reflects “special circumstances 10 justifying a departure.” Bluetooth, 654 F.3d at 942. Where, as 11 here, the settlement has produced a common fund for the benefit 12 of the entire class, courts have discretion to use either method. 13 Id. at 942 (citing In re Mercury Interactive Corp., 618 F.3d 988, 14 992 (9th Cir. 2010)). 15 Plaintiff’s counsel have represented that they will 16 seek fees totaling 33% of the common fund by filing a separate 17 motion for attorney’s fees and costs pursuant to Federal Rule 18 23(h). (See Settlement Agreement ¶ 21.) The court will defer 19 consideration of the reasonableness of counsel’s fees until the 20 fee motion is filed. Class counsel is cautioned that the reasons 21 for the attorney’s fees should be explained further in that 22 motion. Factors considered in examining the reasonableness of 23 the fee may include: (1) whether the results achieved were 24 exceptional; (2) risks of litigation; (3) non-monetary benefits 25 conferred by the litigation; (4) customary fees for similar 26 cases; (5) the contingent nature of the fee and financial burden 27 carried by counsel; and (6) the lawyer’s “reasonable 28 expectations, which are based on the circumstances of the case 1 and the range of fee awards out of common funds of comparable 2 size.” See Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1048-50 3 (9th Cir. 2002). A lodestar cross-check, including the hours 4 worked by each attorney, paralegal, and case manager multiplied 5 by their hourly rate, is also a valuable means by which to check 6 the reasonableness of requested fees. In the event that class 7 counsel cannot demonstrate the reasonableness of the requested 8 attorney’s fee, the court will be required to reduce the fee to a 9 reasonable amount or deny final approval of the settlement. See 10 id. at 1047. 11 In light of the claims at issue, defendants’ potential 12 exposure, the risk to plaintiff and to the class of proceeding to 13 trial, and the fact that the court will separately assess the 14 reasonableness of plaintiff’s request for attorney’s fees at a 15 later date, the court finds that the substance of the settlement 16 is fair to class members and thereby “falls within the range of 17 possible approval,” both for plaintiff’s California Labor Code 18 claims and his PAGA claim. See Tableware, 484 F. Supp. 2d at 19 1079; Ramirez, 2017 WL 3670794, at *3. Counsel has not directed 20 the court to any other relevant agreements that would alter this 21 analysis. The court therefore finds that Rule 23(e)’s third 22 factor is satisfied. See Fed. R. Civ. P. 23(e)(C). 23 4. Equitable Treatment of Class Members 24 Finally, the court must consider whether the Settlement 25 Agreement “treats class members equitably relative to each 26 other.” See Fed. R. Civ. P. 23(e)(2)(D). In doing so, the Court 27 determines whether the settlement “improperly grant[s] 28 preferential treatment to class representatives or segments of 1 the class.” Hudson, 2020 WL 2467060, at *9 (quoting Tableware, 2 484 F. Supp. at 1079. 3 Here, the Settlement Agreement does not improperly 4 discriminate between any segments of the class, as all class 5 members are entitled to monetary relief based on the number of 6 compensable workweeks they spent working for defendants, the 7 amount of redeemed sick pay they were improperly compensated for, 8 or both. See id. While the Settlement Agreement allows 9 plaintiff to seek an incentive award of $2,500, plaintiff will 10 have to submit additional evidence documenting her time and 11 effort spent on this case to ensure that her additional 12 compensation above other class members is justified. See Hudson, 13 2020 WL 2467060, at *9. The court will retain the discretion to 14 award less than the requested $2,500 if it finds that such an 15 award is not warranted by plaintiff’s submission. See Willner v. 16 Manpower Inc., No. 11-CV-02846-JST, 2015 WL 3863625, at *9 (N.D. 17 Cal. June 22, 2015) (reducing $11,000 service award to $7,500). 18 The court therefore finds that the Settlement Agreement treats 19 class members equitably. See Fed. R. Civ. P. 23(e)(D). 20 5. Remaining Staton Factors 21 In addition to the Staton factors already considered as 22 part of the court’s analysis under Rule 23(e)(A)-(D), the court 23 must also take into account “the extent of the discovery 24 completed . . . the presence of government participation, and the 25 reaction of class members to the proposed settlement.” Staton, 26 327 F.3d at 959. 27 Through initial disclosures and formal written 28 discovery, defendants provided a substantial amount of 1 information that appears to have allowed the parties to 2 adequately assess the value of plaintiff’s and the class’ claims. 3 (See Baysinger Decl. 16-17, 27; Settlement Agreement ¶ 8. ) 4 Defendants provided time and payroll data for all Class members 5 between September 2015 and August 7, 2020, amounting to hundreds 6 of thousands of lines of data. (Settlement Agreement ¶ 8.) 7 Defendants also provided numerical data related to class sizes 8 and wage statements furnished, and written policies applicable to 9 plaintiff’s claims. (Id.) For her part, plaintiff retained an 10 expert to assist in evaluating the data to prepare a damages 11 evaluation for mediation and potentially for subsequent 12 litigation. (Id.) This factor weighs in favor of preliminary 13 approval of the settlement. 14 The seventh Staton factor, pertaining to government 15 participation, also weighs in favor of approval. Staton, 327 16 F.3d at 959. Under the PAGA, “[t]he proposed settlement [must 17 be] submitted to the [LWDA] at the same time that it is submitted 18 to the court.” Cal. Lab. Code § 2669(k)(2). Here, plaintiff 19 provided a copy of the proposed settlement agreement to the LWDA 20 on November 16, 2020, the day before plaintiff filed her Motion 21 for Preliminary Approval. (Baysinger Decl. ¶ 77.) As of the 22 date of this order, the LWDA has not sought to intervene or 23 otherwise objected to the PAGA settlement. The court will 24 continue to monitor LWDA’s involvement until the final fairness 25 hearing. 26 The eighth Staton factor, the reaction of the class 27 members to the proposed settlement, is not relevant at this time 28 because class members have not yet received notice of the 1 settlement. See Staton, 327 F.3d at 959. 2 The court therefore finds that the remaining Staton 3 factors weigh in favor of preliminary approval of the Settlement 4 Agreement. See Ramirez, 2017 WL 3670794, at *3. 5 In sum, the four factors that the court must evaluate 6 under Rule 23(e) and the eight Staton factors, taken as a whole, 7 appear to weigh in favor of the settlement. The court will 8 therefore grant preliminary approval of the Settlement Agreement. 9 C. Rule 23(e) Notice Requirements 10 Under Rule 23(e)(1)(B), “the court must direct notice 11 in a reasonable manner to all class members who would be bound 12 by” a proposed settlement. Fed. R. Civ. P. 23(e)(1)(B). While 13 there are “no rigid rules to determine whether a settlement 14 notice to class members satisfies constitutional and Rule 23(e) 15 requirements,” Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 16 F.3d 96, 114 (2d Cir. 2005), notice of settlement--like any form 17 of notice--must comply with due process requirements under the 18 Constitution. See Rubenstein, 4 Newberg on Class Actions § 8:15 19 (5th ed.). That is, the notice must be “reasonably calculated, 20 under all the circumstances, to apprise interested parties of the 21 pendency of the action and afford them an opportunity to present 22 their objections.” Mullane v. Cent. Hanover Bank & Tr. Co., 339 23 U.S. 306, 314 (1950). While actual notice is not required, the 24 notice provided must be “reasonably certain to inform the absent 25 members of the plaintiff class.” Silber, 18 F.3d at 1454 26 (citation omitted). 27 For the reasons provided above in the court’s 28 discussion of notice under Rule 23(c)(2), the court finds that 1 the Agreement’s system for providing notice of the settlement is 2 reasonably calculated to provide notice to class members and 3 inform class members of their options under the agreement. 4 Accordingly, the manner of notice and the content of notice is 5 sufficient to satisfy Rule 23(e). 6 IT IS THEREFORE ORDERED that plaintiff’s motion for 7 preliminary certification of a conditional settlement class and 8 preliminary approval of the class action settlement (Docket No. 9 36) be, and the same hereby is, GRANTED. 10 IT IS FURTHER ORDERED THAT: 11 (1) the following classes be provisionally certified for the 12 purpose of settlement: 13 (a) all current and former non-exempt California 14 employees of Defendants who were eligible for and used paid sick 15 leave during a workweek when he/she also earned shift 16 differentials, non-discretionary bonuses, commissions, or other 17 remuneration between January 11, 2015 and November 30, 2020 or 18 Preliminary Approval, whichever is earlier, and who did not 19 participate in the class action settlement in Alvarado v. Dart 20 Container Corp., Riverside County Superior Court Case No. 21 RIC1211707 (the “Sick Pay Class”); 22 (b) all Sick Pay Class Members who separated from 23 employment at any time between January 11, 2016 and November 30, 24 2020 or Preliminary Approval, whichever is earlier, and who did 25 not participate in the class action settlement in Alvarado v. 26 Dart Container Corp., Riverside County Superior Court Case No. 27 RIC1211707 (“Former Employee Sub-Class”) 28 (c) all current and former hourly, nonexempt California 1 employees of Defendants who received a wage statement between 2 January 11, 2018 and November 30, 2020 or Preliminary Approval, 3 whichever is earlier, and (1) worked at least one shift during 4 which he/she both worked overtime and earned a shift differential 5 and 2) did not participate in the class action settlement in 6 Alvarado v. Dart Container Corp., Riverside County Superior Court 7 Case No. RIC1211707 (“Non-Exempt Wage Statement Class”); 8 (2) the proposed settlement is preliminarily approved as 9 fair, just, reasonable, and adequate to the members of the 10 settlement class, subject to further consideration at the final 11 fairness hearing after distribution of notice to members of the 12 settlement class; 13 (3) for purposes of carrying out the terms of the settlement 14 only: 15 (a) Angela Flores is appointed as the representative of 16 the settlement class and is provisionally found to be an adequate 17 representative within the meaning of Federal Rule of Civil 18 Procedure 23; 19 (b) the law firm of Mayall Hurley, P.C. is 20 provisionally found to be a fair and adequate representative of 21 the settlement class and is appointed as class counsel for the 22 purposes of representing the settlement class conditionally 23 certified in this Order; 24 (4) Phoenix Class Action Administration Solutions is 25 appointed as the settlement administrator; 26 (5) the form and content of the proposed Notice of Class 27 Action Settlement (Settlement Agreement, Ex. 1) is approved, 28 except to the extent that it must be updated to reflect dates and 1 deadlines specified in this Order and to reflect the fact that 2 the final fairness hearing will occur over Zoom; 3 (6) no later than ten (10) business days from the date this 4 Order is signed, defendants’ counsel shall provide the names and 5 contact information of all settlement class members to Phoenix 6 Class Action Administration Solutions; 7 (7) no later than ten (10) business days from the date 8 defendants submit the contact information to Phoenix Class Action 9 Administration Solutions, it shall mail a Notice of Class Action 10 Settlement to all members of the settlement class via first class 11 mail; 12 (8) no later than sixty (60) days from the date Phoenix 13 Class Action Administration Solutions mails the Notice of Class 14 Action Settlement, any member of the settlement class who intends 15 to object to, comment upon, or opt out of the settlement shall 16 mail written notice of that intent to Phoenix Class Action 17 Administration Solutions pursuant to the instructions in the 18 Notice of Class Action Settlement; 19 (9) a final fairness hearing shall be held before this court 20 electronically, with all parties appearing via Zoom, on Monday, 21 May 17, 2021, at 1:30 p.m., to determine whether the proposed 22 settlement is fair, reasonable, and adequate and should be 23 approved by this court; to determine whether the settlement 24 class’s claims should be dismissed with prejudice and judgment 25 entered upon final approval of the settlement; to determine 26 whether final class certification is appropriate; and to consider 27 class counsel’s applications for attorney’s fees, costs, and an 28 incentive award to plaintiff. The parties shall update the 1 proposed Notice of Class Action Settlement to inform class 2 members that the final fairness hearing will take place over 3 Zoom. The Notice shall instruct any person who is interested in 4 attending the hearing to contact plaintiff’s counsel no later 5 than sixty (60) days from the date Phoenix Class Action 6 Administration Solutions mails the Notice of Class Action 7 Settlement to obtain instructions for gaining access via Zoom. 8 The courtroom deputy shall provide plaintiff’s counsel with these 9 instructions no later than May 12, 2021. Plaintiff’s counsel 10 shall, in turn, provide the instructions to persons who have 11 expressed interest in attending no later than May 14, 2021. The 12 court may continue the final fairness hearing without further 13 notice to the members of the class; 14 (10) no later than twenty-eight (28) days before the final 15 fairness hearing, class counsel shall file with this court a 16 petition for an award of attorney’s fees and costs. Any 17 objections or responses to the petition shall be filed no later 18 than fourteen (14) days before the final fairness hearing. Class 19 counsel may file a reply to any objections no later than seven 20 (7) days before the final fairness hearing; 21 (11) no later than twenty-eight (28) days before the final 22 fairness hearing, class counsel shall file and serve upon the 23 court and defendants’ counsel all papers in support of the 24 settlement, the incentive award for the class representative, and 25 any award for attorney’s fees and costs; 26 (12) no later than twenty-eight (28) days before the final 27 fairness hearing, Phoenix Class Action Administration Solutions 28 shall prepare, and class counsel shall file and serve upon the 1 court and defendants’ counsel, a declaration setting forth the 2 services rendered, proof of mailing, a list of all class members 3 who have opted out of the settlement, a list of all class members 4 who have commented upon or objected to the settlement; 5 (13) any person who has standing to object to the terms of 6 the proposed settlement may appear at the final fairness hearing 7 via zoom (themselves or through counsel) and be heard to the 8 extent allowed by the court in support of, or in opposition to, 9 (a) the fairness, reasonableness, and adequacy of the proposed 10 settlement, (b) the requested award of attorney’s fees, 11 reimbursement of costs, and incentive award to the class 12 representative, and/or (c) the propriety of class certification. 13 To be heard in opposition at the final fairness hearing, a person 14 must, no later than sixty (60) days from the date Phoenix Class 15 Action Administration Solutions mails the Notice of Class Action 16 Settlement, (a) serve by hand or through the mails written notice 17 of his or her intention to appear, stating the name and case 18 number of this action and each objection and the basis therefore, 19 together with copies of any papers and briefs, upon class counsel 20 and counsel for defendants, and (b) file said appearance, 21 objections, papers, and briefs with the court, together with 22 proof of service of all such documents upon counsel for the 23 parties. 24 Responses to any such objections shall be served by 25 hand or through the mails on the objectors, or on the objector’s 26 counsel if there is any, and filed with the court no later than 27 fourteen (14) calendar days before the final fairness hearing. 28 Objectors may file optional replies no later than seven (7) eee ene ene nnn nn on nn nnn OE IIS NO EE 1 calendar days before the final fairness hearing in the same 2 manner described above. Any settlement class member who does not 3 |} make his or her objection in the manner provided herein shall be 4 deemed to have waived such objection and shall forever be 5 foreclosed from objecting to the fairness or adequacy of the 6 proposed settlement, the judgment entered, and the award of 7 attorney’s fees, costs, and an incentive award to the class 8 representative unless otherwise ordered by the court; 9 (14) pending final determination of whether the settlement 10 should be ultimately approved, the court preliminarily enjoins 11 all class members (unless and until the class member has 12 submitted a timely and valid request for exclusion) from filing 13 or prosecuting any claims, suits, or administrative proceedings 14 regarding claims to be released by the settlement. 15 (15) in light of the court’s preliminary approval of the 16 parties’ settlement, the court hereby vacates the Final Pretrial 17 Conference and trial date currently set in this matter for March 18 29, 2021, and May 11, 2021, respectively. 19 | Dated: January 12, 2021 be thom th Ad. 20 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 39