Razo v. AT&T Mobility Services, LLC ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LUIS M. SALAS RAZO, on his own Case No. 1:20-cv-00172-NONE-HBK behalf and on behalf of all others similarly 12 situated, FINDINGS AND RECOMMENDATIONS TO GRANT PLAINTIFF’S MOTION TO 13 Plaintiffs, APPOINT INTERIM CLASS COUNSEL1 14 v. (Doc. No. 24) 15 AT&T MOBILITY SERVICES, LLC, SEVEN-DAY OBJECTION PERIOD 16 Defendant. 17 18 INTRODUCTION 19 Pending is Plaintiff’s Motion to Appoint Interim Class Counsel under Fed. R. Civ. P. 20 23(g). (Doc. No. 24, “Motion”). Plaintiff seeks the appointment of his counsel, 21 Bradley/Grombacher, LLP, as interim class counsel in this action in order to protect the rights of 22 the putative class members. (See generally Id.). Plaintiff charges a competing action, Wallack et. 23 al v. AT&T Mobility, Case No. CIVSB2117915, San Bernardino Superior Court (“Wallack”), is a 24 reverse auction aimed at “gutting this case” thus necessitating the appointment of interim Class 25 counsel to protect the rights of the putative class. (Id. at 10). Attached to the Motion is the 26 supporting declaration of Attorney Kiley L. Grombacher. (Doc. No. 24-1). Plaintiff also submits 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Eastern District of 28 California Local Rule 302 (E.D. Cal. 2019). 1 a request for judicial notice. (Doc. No. 25). Defendant AT&T filed an Opposition to the Motion. 2 (Doc. No. 29). Plaintiff filed a Reply. (Doc. No. 33). This matter is fully briefed. For the 3 reasons that follow, the undersigned recommends the district court GRANT the Motion. 4 JUDICIAL NOTICE 5 Initially the Court addresses Plaintiff’s request for judicial notice. This Court may 6 “judicially notice” facts and documents that “can be accurately and readily determined from 7 sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). This 8 encompasses other court proceedings “if those proceedings have a direct relation to matters at 9 issue.” United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 10 248 (9th Cir. 1992) (citation and internal quotation marks omitted); Trigueros v. Adams, 658 F.3d 11 983, 987 (9th Cir. 2011). 12 Plaintiff requests the Court take judicial notice of the proceedings in Wallack et. al v. 13 AT&T Mobility, Case No. CIVSB2117915, San Bernardino Superior Court. (Doc. No. 25). 14 Plaintiff submits the following state court filings for this Court’s judicial notice: 15 • Exhibit A: the complaint in Wallack et al. v. AT&T Mobility (San Bernardino Superior 16 Court (Case No. CIVSB2117915). 17 • Exhibit B: the notice of motion for preliminary approval and memorandum of points of 18 authorities filed in the Wallack action. 19 • Exhibit C: the declaration of Edward J. Wynne (counsel for the plaintiffs in the Wallack 20 action) in support of the Wallack plaintiffs’ motion for preliminary approval. The 21 Wallack Settlement Agreement is attached as Exhibit 1 to the Wynne declaration. The 22 proposed class notice is attached as Exhibit A to the settlement agreement. 23 • Exhibit D: the declaration of Gregg Shavitz (counsel for the plaintiffs in the Wallack 24 action) in support of the Wallack plaintiffs’ motion for preliminary approval. 25 • Exhibit E: the declaration of Plaintiff Samuel Wallack in support of the Wallack plaintiffs’ 26 motion for preliminary approval. 27 • Exhibit F: the declaration of Plaintiff Miguel Garcia in support of the Wallack plaintiffs’ 28 motion for preliminary approval. 1 • Exhibit G: the declaration of Plaintiff Marbella Baltazar in support of the Wallack 2 plaintiffs’ motion for preliminary approval. 3 • Exhibit H: the declaration of Plaintiff Gonzalo Nurena in support of the Wallack 4 plaintiffs’ motion for preliminary approval. 5 • Exhibit I: the declaration of Plaintiff Jonny Dagher in support of the Wallack plaintiffs’ 6 motion for preliminary approval. 7 • Exhibit J: the declaration of Plaintiff Sean Voight in support of the Wallack plaintiffs’ 8 motion for preliminary approval. 9 • Exhibit K: the proposed order filed by the Wallack plaintiffs in support of their motion for 10 preliminary approval. 11 These documents’ accuracy is self-evident. Accordingly, the Court takes judicial notice 12 of the above documents filed in Wallack et al. v. AT&T Mobility (San Bernardino Superior Court 13 (Case No. CIVSB2117915). 14 BACKGROUND AND ARGUMENT 15 A. Procedural History 16 This putative class action was initiated on August 27, 2019 in the Superior Court of 17 California in and for Madera County by counsel from the firm Bradley/Grombacher, LLP on 18 behalf of Plaintiff Luis M. Salas Razo. (Doc. No. 1-4 at 5-16). The named Plaintiff, Luis M. 19 Salas Razo, is a former hourly, non-exempt employee of Defendant who worked at an AT&T 20 mobility store in Madera, California, as a sales representative for eleven years until his 21 employment was terminated in June 2018. (Id.). On January 31, 2020, Defendant AT&T 22 removed the case to this court. (Doc. No. 1). Until yesterday, Plaintiff was is proceeding on his 23 Second Amended Complaint (“SAC”), filed on July 30, 2020, which sets forth the following six 24 causes of action: (1) failure to pay wages for all hours worked; (2) failure to pay overtime wages; 25 (3) failure to pay all wages due at termination of employment; (4) failure to provide timely, 26 accurate wage statements; (5) violation of California Business and Professions Code § 17200, et. 27 seq., and (6) civil penalties for violation of California Labor Code §§ 2698, et. seq. (Doc. No. 9). 28 Plaintiff asserts the primary claim in this putative class action challenges AT&T’s failure to pay 1 meal and rest period premiums at the employee’s regular rate which was recently decided by the 2 California Supreme Court on July 15, 2021 in Ferra v. Lowes Hollywood, LLC, 11 Cal. 5th 858 3 (2021). (Doc. No. 24 at 9). 4 On August 13, 2020, Defendant AT&T moved to dismiss the SAC or alternatively stay 5 the action. (Doc. No. 10). Plaintiff timely opposed the motion to dismiss on August 25, 2020. 6 (Doc. No. 11). Defendant AT&T filed its reply on September 8, 2020. (Doc. No. 15). On 7 October 14, 2021, the Court denied Defendants’ motion to dismiss or stay in its entirety and 8 permitted Plaintiff thirty days to file a Third Amended Complaint to address the issue of a prayer 9 for damages in connection with his wage statement claim. (See generally Doc. No. 38). Plaintiff 10 promptly filed his Third Amended Complaint (“TAC”) maintaining the same six-claims alleged 11 in the SAC but amending the prayer for relief. (See Doc. No. 39). 12 B. Plaintiff’s Argument in Support of Motion 13 As noted supra, Plaintiff’s primary concern for seeking appointment of interim class 14 counsel is to protect the rights of the putative class in light of the proposed settlement pending the 15 Wallack action, which Plaintiff submits is “a clandestine and collusive proposed reverse auction 16 settlement.”2 (Id. at 7). A reverse auction occurs when “the defendant in a series of class actions 17 picks the most ineffectual class lawyers to negotiate a settlement with the hope that the district 18 court will approve a weak settlement that will preclude other claims against the defendant.” 19 Reynolds v. Beneficial Nat'l Bank, 288 F.3d 277, 282 (7th Cir.2002). Such maneuvering “has an 20 odor of mendacity about it.” Negrete v. Allianz Life Ins. Co. of N. Am., 523 F.3d 1091, 1099 (9th 21 Cir. 2008). Plaintiff argues that the settlement in Wallack, if approved, will foreclose the right to 22 relief pursued by the putative class in the instant action, including the meal and rest break 23 violations recently validated by Ferra. (Doc. No. 24 at 7). Plaintiff sets forth the following facts 24 and allegations to support the characterization of the Wallack action as collusive. 25 26 2 In addition to the instant action, the Wallack settlement proposes to also resolve class claims in Natasha Ayala et. al. v. AT&T Mobility Services, LLC., Case No. 2:18-cv-08809 (C.D. Cal.); Cristian A de la Torre 27 v. AT&T Mobility Services, LLC, (Cal. Superior Court, Cnty San Diego); Luis Adrian Elizondo v. AT&T Mobility Services, Case No. CVSW2102973 (Cal. Superior Court, Cnty of Riverside). (Doc. No. 24 at 7, n. 28 1). 1 First the timing and circumstances surrounding the filing of the Wallack action. The 2 complaint in Wallack was filed in California state court on June 22, 2021, after the parties had 3 secretly reached a settlement on March 29, 2021. (Doc. No. 24 at 13, Grombacher Decl. ¶ 9). 4 The complaint in Wallack was filed nearly 2 years after Plaintiff commenced this action in state 5 court and 1 1/2 years after Defendant AT&T removed the instant case to this Court. (See 6 generally docket; see also Doc. No. 24 at 7). Plaintiff points out the complaint in Wallack did not 7 include a claim for the Ferra improper payment of meal and rest period premiums. (Doc. No. 24 8 at 9). Plaintiff further contends Wallack counsel did not even consider Ferra claims until the 9 filing of their motion for preliminary approval of settlement on August 11, 2021. (Id.). Thus, by 10 implication, the proposed settlement could not have included that claim. Plaintiff submits 11 Wallack counsel has greatly undervalued the value of the putative class claims. (Id. at 16-18). In 12 detail, Plaintiff provides estimates of the potential value of certain of the Wallack individual 13 claims ($21,168,000 “to release minimum wage claims for work performed off the clock”; 14 $33,868,800 for “meal and rest periods and . . . premium compensation for each day that meal 15 and rest period was not provided”; $31,752,000 for “waiting time penalties”) and argues the 16 proposed settlement ($4,040,000, of which $1,346,666 is to be set aside for attorney fees and 17 costs) is not only disproportionate to these three identified groups of claims, but fails to account 18 for the additional pled claims, including “unpaid overtime,” “failure to pay wages during 19 employment,” “failure to pay sick leave,” and “failure to maintain required records” inter alia. 20 (Id. at 17). Most significant, Plaintiff urges is the fact that Wallack does not include the value of 21 the Ferra claim, which was unpled, but settled. (Id). 22 Plaintiff also points to the alleged clandestine actions by defense counsel. At no time 23 prior to August 25, 2021 did Defendant AT&T disclose the existence of the Wallack action in 24 apparent violation of Eastern District of California Local Rule 123(b). (Id.). And Plaintiff only 25 learned of Wallack during a discovery meet and confer to resolve a discovery dispute—namely 26 Defendant’s refusal to provide class-wide discovery, including pay policies, compensation data 27 and deposition testimony so the Plaintiff could timely file its class certification motion. (Doc. 28 No. 24 at 14; Grombacher Decl. ¶ 9; see also Docs. Nos. 30, 31). Indeed, on August 18, 2021, 1 just one week before Defendant disclosed Wallack to Plaintiff’s counsel, Defendant’s counsel 2 signed a stipulation representing to this Court that “[p]arties have been actively engaged in the 3 certification motion related discovery process, meeting and conferring regarding the proper scope 4 of discovery written discovery as well as deposition dates for the Defendant’s witnesses pursuant 5 to F.R.C.P. 30(b)(6)” in order to extend the proposed class certification briefing schedule before 6 this Court. (See Doc. Nos. 22, 23). Yet, on August 11, 2021, one week before stipulating to the 7 extension and representing that the parties were “actively” engaged in discovery, Defendant had 8 already submitted a motion for preliminary approval of the class action settlement in the Wallack 9 action to the Superior Court in San Bernardino. (Doc. No. 25-3). 10 Plaintiff further suggests the proposed settlement in Wallack is a “windfall” to Wallack’s 11 counsel, and refers the Court to dicta in an opinion from our sister court in resolving a motion to 12 distribute competing attorney fees in a settled class action in which Wallack’s counsel was 13 discharged. (Doc. No. 24 at 8). The Court need not determine the adequacy or alleged motives 14 of the Wallack counsel for purposes of ruling on the instant Motion. 15 C. Defendant’s Argument in Opposition 16 Defendant prefaces its opposition by lodging an attack on counsel’s motive in moving for 17 appointment as interim class counsel. (Doc. No. 29 at 5). Again, the Court does not concern 18 itself with conjecture, but limits itself to the law and facts. Notably, Defendant does not address 19 the Rule 23(g) factors and instead focuses on the propriety of appointing interim class counsel in 20 the current case. (See generally Doc. No. 29). Defendant contends that the circumstances in the 21 present action do not warrant the type of special circumstances that must be demonstrated to 22 appoint interim class counsel, such as where there is consolidation of competing actions or 23 multiple counsel seeking appointment. (Id.at 5, 13). 24 Defendant argues Plaintiff produces no “evidence that Wallack threatens the putative 25 class’s interests” and contends Plaintiff’s counsel let the instant case go stagnant. (Id.). 26 Defendant denies Wallack is a reverse auction insisting it was an arm’s length negotiated 27 settlement. Defendant states the Wallack case was sparked by an October 12, 2020 demand letter 28 and the settlement was the culmination of ten months of discovery and a full day of mediation 1 with retired Superior Court Judge Gail Andler. (Id. at 7; citing Doc. No. 25-3, 14:20-27). 2 Defendant AT&T further states it had no obligation to disclose the Wallack matter to 3 Plaintiff and indeed elected not to disclose the case to Plaintiff to “avoid the appearance of a 4 reverse auction.” (Id. at 9). And Defendant admits it was “for the same reasons” it did not 5 disclose the Wallack matter to this Court or disclose it in its Notice of Related Cases, further 6 suggesting it was not obliged to provide this Court with notice under Local Rule 123 because the 7 rule requires only cases pending in the Eastern District of California be noticed.3 (Id., fn. 5). 8 Defendant explains the Wallack settlement specifically carved out Razo, including other 9 named plaintiffs from the other pending class actions, because they were represented by other 10 counsel. (Id. at 8). Defendant argues appointment of interim class counsel is not necessary 11 because Plaintiff may nonetheless move to intervene in the Wallack matter. 12 Finally, Defendant argues appointment of interim counsel violates principles of comity 13 and federalism when appointing class counsel “for several related but unconsolidated class 14 actions.” (Id. at 13). Relying on Younger v. Harris, 401 U.S. 37, 43 (1971), Defendant argues 15 that state courts must be able to try state cases without the federal court interference. (Id. at 14). 16 And Defendant submits that granting Plaintiff’s motion to appoint interim class counsel would 17 essentially result in unwanted federal court interference with the pending state court action in 18 violation of Younger and the principles of comity because Plaintiff’s counsel would then have 19 standing to speak on behalf of Plaintiff and the putative class in the state court litigation. (Id.). 20 STANDARD OF REVIEW AND ANALYSIS 21 A. Need to Protect Putative Class 22 Appointment of interim class counsel is permissible and within the Court’s discretion. 23 Federal Rule of Civil Procedure 23(g)(3) specifically recognizes a court “may designate interim 24 counsel to act on behalf of a putative class before determining whether to certify the action as a 25 class action.” The courts have found “[i]nstances in which interim class counsel is appointed are 26 3 Defendant AT&T’s Notice of Related Case filed earlier in this action belies AT&T’s alleged 27 misunderstanding of Local Rule 123. (See Doc. No. 2 where Defendant identifies the Ayala pending in the Central District of this Court as “related to this case within the meaning of Local Rule 123”). 28 1 those in which overlapping, duplicative, or competing class suits are pending before a court, so 2 that appointment of interim counsel is necessary to protect the interests of class members.” 3 Dependable Component Supply Corp. v. Murata Mfg. Co., No. 5:18-CV-00198-EJD, 2018 WL 4 3388548, at *2 (N.D. Cal. Apr. 27, 2018) (quoting White v. TransUnion, LLC, 239 F.R.D. 681, 5 683 (C.D. Cal. 2006) (citing Manual for Complex Litigation (Fourth) § 21.11 (2004)); see also In 6 re Seagate Technology LLC Litigation, 2016 WL 3401989 *2 (N.D. Cal. June 21, 2016). As 7 discussed infra, appointment of interim class counsel, however, is not limited to cases where 8 competing or overlapping cases are consolidated before a court. Furthermore, although the cases 9 discussed herein involve similar issues of law and fact, consolidation is not an option because the 10 Wallack action is pending in state court and the Ayala case is pending before the Central District. 11 See Fed. R. Civ. P. 42(a). Similarly, Defendant AT&T’s argument that Razo has other avenues to 12 voice objection to the settlement in the Wallack case is not persuasive. The Wallack settlement 13 carved out the named plaintiff Razo, so Razo does not have standing to object in the pending state 14 action. See e.g In re American Intern. Group, Inc. v. Securities Litigation, 916 F.Supp.2d 454 15 (S.D. N.Y. Jan. 7. 2013)(noting a non-party to federal security class action, who was neither a 16 member of the settlement class nor a representative of any member, did not have independent 17 grounds for standing to object to proposed settlement and further discussing standard for 18 mandatory verses permissive intervention); see also Torliatt, 2020 WL 10964876 *4 (discussing 19 carved-out class members lack of standing to object). Admittedly, Section 387 of the California 20 Code of Civil Procedure permits a nonparty to intervene in a pending case as a right or 21 permissively, if certain criteria are met. Cal. Civ. Proc. Code § 387. Because Section 387 was 22 modeled after Federal Rule 24, the California courts look to federal authority for guidance and 23 recognize the manner of intervention, i.e., whether as a right or permissive, brings with it certain 24 restrictions. See Carlsbad Police Officers Ass'n v. City of Carlsbad, 49 Cal. App. 5th 135, 151– 25 52, 262 Cal. Rptr. 3d 646, 659 (2020). Thus, “[u]nlike the permissive intervener, the intervener 26 of right has ‘an interest at stake which the other parties will not fully protect, and which the 27 intervenor can fully protect only by joining the litigation.’” Id. (quoting Stringfellow v. 28 Concerned Neighbors in Action 480 U.S. 370, 382 n. 1 (1987) (conc. opn. of Brennan, J.).) Thus, 1 “although courts may impose reasonable conditions of intervention, a [ ] court ‘has less discretion 2 to limit the participation of an intervenor of right than that of a permissive intervener.’” (Id.). 3 And the decision whether to permit intervention for a non-party solely falls within the discretion 4 of the state court. See Starks v. Vortex Industries, Inc., 2020 WL 5015248 (Cal.2d.Dist. 2020); 5 see also Edwards v. Heartland Payment Systems, Inc., 240 Cal.Rptr.3d 815 (2018) (denying non- 6 party’s motion to intervene on employment claims). 7 Defendant AT&T’s argument that appointment of interim class counsel in this case 8 violates Younger v. Harris, 401 U.S. 37 (1971) is also unavailing. A federal court’s obligation to 9 hear and decide a case is virtually unflagging, but Younger presents an exception to that rule. 10 Arevalo v. Hennessy, 882 F.3d 763 (9th Cir. 2018). In Younger, the Supreme Court held that a 11 federal court generally cannot interfere with pending state criminal proceedings. Younger, 401 12 U.S. at 46. The Younger abstention doctrine applies to civil and criminal proceedings, is based on 13 the principle of federal-state comity, and is appropriate when: “(1) there is an ongoing state 14 judicial proceeding; (2) the proceeding implicates important state interests; (3) there is an 15 adequate opportunity in the state proceedings to raise constitutional challenges; and (4) the 16 requested relief seeks to enjoin or has the practical effect of enjoining the ongoing state judicial 17 proceeding.” Page v. King, 932 F.3d 898, 901–902 (9th Cir. 2019) (quoting Arevalo, 882 F.3d at 18 765 (alterations and internal quotation marks omitted)). Even assuming arguendo that Younger 19 applies (not conceded), federal courts do not abstain if there is a showing of bad faith, 20 harassment, or some other extraordinary circumstance that would make abstention inappropriate. 21 Arevalo, 882 F.3d at 766 (citing Middlesex Cty. Ethics Comm. V. Garden State Bar Ass’n, 457 22 U.S. 423, 435 (1982)). And, critical to the Younger analysis is the date the federal action is filed. 23 Id. at 767. 24 Here, appointment of interim class counsel would not have the practical effect of 25 enjoining the state judicial proceeding. Instead, appointment of interim class counsel will help 26 protect the interests of the putative class identified in this case, not included in the Wallack 27 complaint, but apparently grouped in the settlement of the state court action. Moreover, the 28 instant case was pending in this Court before the Wallack action was filed in state court. 1 Whether to appoint interim class counsel for a non-party to intervene in a state action was 2 recently addressed in Torliatt v. Ocwen Loan Servicing, LLC, 2020 WL 10964876 (N.D. Cal. Oct. 3 2, 2020), a case factually similar in many respects to the instant case. Therein, the district court 4 rejected the notion that interim class counsel may only be appointed when there is rivalry between 5 counsel or inadequate counsel. Id. at *4. The court granted the motion to appoint interim class 6 counsel, noting the importance of safeguarding of putative class members’ rights when a 7 settlement in a competing class action that had carved out certain plaintiffs, thereby effectively 8 precluding those plaintiffs’ ability to object to the settlement. (Id.) (citations omitted). The 9 Torliatt court found significant the fact that the named plaintiff was carved out of the competing 10 claim and concluded appointment of interim counsel was necessary so that counsel could 11 intervene in the competing action to protect the putative class from a proposed settlement would 12 extinguish the putative class claims. Thus, key in determining the appropriateness of appointing 13 interim class counsel is whether a putative class may suffer from an inability to object to 14 proposed settlement in another action. 15 Here, like the plaintiff in Torliatt, Razo was carved out of the Wallack class. Plaintiff 16 demonstrates that a large portion of the putative class at issue in this case will have its rights 17 impacted by the Wallack settlement. Plaintiff does not make vague or unsubstantiated claims. 18 Instead, Plaintiff points to the fact the Wallack plaintiffs released the Ferra claims thereby 19 harming the class. (Doc. No. 24 at 18-19). A review of the record confirms the Wallack 20 complaint does not appear to raise Ferra claims. (See Doc. No. 25-1 at 1)(listing Wallack class 21 claims as: (1) failure to provide required meal periods; (2) failure to provide required rest periods; 22 (3) failure to pay overtime wages; (4) failure to pay minimum wages; (5) failure to timely pay 23 wages during employment; (6) failure to provide paid sick leave; (7) failure to pay all wages due 24 to discharged and quitting employees; (8) failure to maintain required records; (9) failure to 25 furnish accurate, itemized wage statements; (10) unfair and unlawful business practices); (see 26 also Doc. No. 25-2 at 22)(setting forth all cases impacted by the Wallack settlement agreement, 27 including the release of the Ferra claims raised in Razo, but carving out Plaintiff Razo 28 specifically). Thus, Plaintiff’s concern regarding the settlement applying to the Ferra claims 1 appears to be meritorious. 2 Additionally, Plaintiff provides specific estimates to support its contention that the 3 proposed $4 million Wallack settlement is “grossly inadequate.” (Doc. No. 24 at 16 disputing the 4 Wallack counsels’ $12 million estimate of the verdict value of certain claims and estimating the 5 actual verdict closer to $42 million when considering total workweeks, pay rates, the number of 6 class members, and the entitlement to liquidated damages). Defendant does not dispute Plaintiff’s 7 estimates or arguments in this regard, other than stating counsel for plaintiffs in Wallack are 8 adequately representing and protecting the class. (Doc. No. 29). While an early settlement 9 reduces litigation expenses and provide for certainty, “[c]lass actions certified solely for 10 settlement, particularly early in the case, sometimes make meaningful review more difficult and 11 more important.” Manual for Complex Litigation (Fourth) § 21.612 at 313 (2004). Judicial 12 scrutiny of the proposed Wallack settlement rests not with this Court, but with the San Bernardino 13 Superior Court. See, Christensen v. CLP Res., Inc., 2015 WL 13764185 at *3 (C.D. Cal. Nov. 16, 14 2015) (“alleged gamesmanship in pursuing settlements” is appropriate for court reviewing 15 settlement). Nevertheless, of importance here is whether to appoint interim class counsel. Based 16 upon credible facts alleged and the exclusion of Razo from the Wallack settlement, the 17 undersigned concludes the interests of the putative class may suffer if interim class counsel is not 18 appointed and this matter necessitates appointment of interim class counsel. 19 B. Whether Appointment of Bradley/Grombacher, LLP is Appropriate 20 Finding that appointment of interim class counsel is necessary under the circumstances of 21 this case, the Court now turns to whether Bradley/Grombacher, LLP is appropriate as class 22 counsel. Although Rule 23(g)(3) does not provide a standard for appointment of interim counsel, 23 courts consider the same factors in Federal Rule of Civil Procedure 23(g)(1) applicable to 24 choosing class counsel as appropriate in appointing interim counsel. Under that section, the court: 25 (g)(1)(A) must consider: 26 (i) the work counsel has done in identifying or investigating potential claims in the action; 27 (ii) counsel’s experience in handling class actions, other complex 28 litigation, and the types of claims asserted in the action; 1 (iii) counsel’s knowledge of the applicable law; and 2 (iv) the resources that counsel will commit to representing the class. 3 Id. The court may also “consider any other matter pertinent to counsel’s ability to fairly and 4 adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(1)(B) (emphasis added). 5 Notably, Fed. R. Civ. P. 23(g)(2) applies where only one applicant seeks appointment as class 6 counsel directs that the court may appoint that applicant only if the applicant is adequate under 7 Rule 23(g)(i) and (iv), as set forth above. 8 The Court notes Defendant AT&T opposition neither addresses any of Rule 23(g) factors 9 nor disputes that Bradley/Grombacher, LLP fail to meet any of the Civ. P. 23(g) factors. (See 10 generally Doc. 29). Turning to the factors set forth in Fed. R. Civ. P. 23(g)(1), 11 Bradley/Grombacher, LLP has done significant work identifying and investigation the claims at 12 issue in this case as the matter. This case was initiated in state court over two years ago, and 13 Bradley/Grombacher, LLP has since investigated the claims, framed the complaint and three 14 times amended it, successfully opposed a motion to dismiss or stay, and actively engaged in 15 discovery ahead of moving for class certification. Notably, to the extent any discovery has been 16 delayed, such delay appears to be attributable to Defendant AT&T. (See Doc. Nos. 30-31, 34- 17 37). Further, the instant case was initiated almost two years before the Wallack action was filed 18 in state court, after a proposed settlement had already been reached. Contrary to Defendant’s 19 assertion, there is no evidence that Plaintiff’s counsel has let this case be stagnant.4 20 It is undisputed that Bradley/Grombacher, LLP has experience handling class actions, 21 other complex litigation, and the types of claims asserts in this litigation as evidenced by the 22 declaration filed in support of the instant motion. The uncontested declaration supports the 23 conclusion that counsel is knowledge of the applicable law. Bradley/Grombacher LLP is a firm 24 compromised of attorneys knowledgeable about wage and hour laws. (Id.); (see also Doc. No. 25 24-1 at 5). Attorney Grombacher has practiced law for approximately 15 years and intensively in 26 4 As noted in the Court’s October 14, 2021 Order, the excessive delay in this case is caused by the well- 27 publicized and long-standing lack of judicial resources in the Eastern District of California that has left the instant case on a docket with no assigned United States District Judge and the District Judge covering both 28 dockets has over 1,300 civil cases and criminal matters involving 747 defendants. (Doc. No. 38 at 2, n. 2). 1 | class action litigation for more than 11 years. (/d.). Ms. Grombacher’s partner, Mr. Bradley, has 2 | litigated for 27 years in all areas of class action and complex litigation. (/d.). With their law firm 3 | they have pursued and successfully reached resolution in nearly twenty class action cases 4 | involving employment law claims. (/d. at 7-9). Finally, Plaintiff's counsel has already invested 5 || resources and significant time in gathering evidence for the class members and submit that they 6 | are consulting with an expert. (/d. at 9-11). Counsel voices an eagerness to safeguard the rights 7 | of approximately 12,600 absent class members potentially impacted by the Wallack settlement. 8 | (Ud. at 11). Based on the foregoing, the undersigned recommends Plaintiff's Motion be granted 9 | and Bradley/Grombacher LLP be appointed interim class counsel for the putative class. 10 Accordingly, it is respectfully RECOMMENDED: 11 The district court grant Plaintiff's Motion to Appoint Interim Class Counsel Under Fed. R. 12 Civ. P. 23(g). (Doc. No. 24). 13 NOTICE TO PARTIES 14 These findings and recommendations will be submitted to the United States District Judge 15 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within seven (7) 16 | days® after being served with these findings and recommendations, a party may file written 17 || objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 18 | Findings and Recommendations.” Parties are advised that failure to file objections within the 19 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 20 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21 Dated: _ October 15, 2021 oe Zh. Sareh Back 22 HELENA M. BARCH-KUCHTA 33 UNITED STATES MAGISTRATE JUDGE 24 25 26 —— > Due to time sensitivities, namely the imminent hearing on Razo’s motion to intervene in Wallack 28 currently set for October 29, 2021, the Court shortens the objection period. 13