Conti v. L'Oreal USA S/D, Inc. ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANGELA CONTI and JUSTINE MORA, No. 1:19-cv-00769-JLT-SKO 12 individuals, on behalf of themselves and on behalf of all persons similarly situated, ORDER GRANTING PLAINTIFFS’ MOTION 13 FOR PRELIMINARY APPROVAL OF Plaintiffs, CLASS ACTION SETTLEMENT 14 v. (Doc. 28.) 15 L’OREAL USA S/D INC., a Corporation; 16 and DOES 1 through 50, inclusive, 17 Defendant. 18 Angela Conti and Justine Mora assert that L’Oreal USA S/D Inc. failed to comply with 19 California wage and hour laws by failing to pay all wages due and provide proper meal and rest 20 breaks. Conti and Mora now seek preliminary approval of a settlement reached in this action. 21 Specifically, Plaintiffs seek: (1) conditional certification of the settlement class; (2) preliminary 22 approval of the settlement terms; (3) appointment of Conti and Mora as the class representative; 23 (4)appointment of the firm of Blumenthal Nordrehaug Bhowmik De Blouw LLP as class 24 counsel; (5) approval of the class notice materials; (6) appointment of ILYM Group as the 25 settlement administrator; and (7) scheduling for final approval. 26 The Court reviewed the proposed settlement between the parties, as well as the moving 27 papers. For the following reasons, the motion for preliminary approval of the class settlement is 28 1 GRANTED. 2 BACKGROUND 3 A. Factual Background 4 L’Oreal is a retail corporation that conducts business throughout California and 5 employed Conti and Mora as hourly, non-exempt employees. (Doc. 1 at 146.) Conti and Mora 6 worked as vendors at L’Oreal makeup counters operated within Macy’s department stores. 7 (Doc. 39 at ¶ 3.) Conti and Mora bring claims against L’Oreal for labor violations related to 8 overtime calculations and meal and rest breaks. First, Conti and Mora bring “overtime claims” 9 by alleging that L’Oreal required them to work overtime without pay. Plaintiffs specifically 10 complain about Defendant’s policy requiring employees submit to “loss prevention inspections” 11 at the beginning and end of each shift while employees were “off the clock.” (Id. at 148.) 12 Plaintiffs allege these practices resulted in forfeited overtime wages for employees who were 13 caused to work without their time being correctly recorded during the loss prevention 14 inspections. (Id.) Plaintiffs allege that Defendant’s policies prevented employees from taking 15 full, truly “off-duty” meal breaks because “cell phones[, ] personal conversations . . . food, drink 16 and chewing gum” were not permitted on the selling floor. (Doc. 28-3 at 3.) Therefore, to enjoy 17 a truly “duty-free” break, employees had to leave the premises—which required them to submit 18 to off-the-clock loss prevention inspections. (Docs. 28-3 and 28-4 at 3.) Plaintiffs additionally 19 allege that Defendant failed to provide off-duty meal breaks, did not relieve employees of duty 20 for meal periods, and/or did not provide plaintiffs with a second off-duty meal break per ten 21 hours of work. (Doc. 1 at 149.) Defendant also allegedly failed to provide plaintiffs with 22 required rest periods and did not always provide complete and accurate wage statements. (Id.) 23 B. Procedural History 24 Plaintiffs filed this putative class action in Fresno County Superior Court on March 6, 25 2018, alleging violations of California Labor Code sections. (Doc. 1 at 2.) Plaintiffs then filed 26 two amended complaints, first adding a claim under the California Private Attorneys General 27 Act (“PAGA”), California Labor Code §§ 2698, et seq., and then adding additional claims for (1) 28 unfair competition in violation of California Business and Professions Code §§ 17200, et seq.; 1 (2)failure to pay overtime wages in violation of California Labor Code §§ 510, et seq.; (3) 2 failure to provide required meal periods in violation of California Labor Code §§ 226.7 and 512 3 and California Industrial Welfare Commission (IWC) Orders; (4) failure to provide required rest 4 periods in violation of California Labor Code §§ 226.7 and 512 and IWC Orders; (5) failure to 5 provide accurate itemized statements in violation of California Labor Code § 226; (6) failure to 6 provide wages when due in violation of California Labor Code §§ 201, 202, and 203; (7) 7 additional PAGA violations; and (8) failure to pay overtime compensation in violation of the 8 Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq. (See id. at 145–86.) 9 The parties then engaged in informal discovery and mediation before agreeing to a 10 settlement first presented to the court on November 12, 2019. (See Doc. 9-2 at 6, 18–42.) The 11 proposed settlement was valued at $425,000, which encompassed recovery for both the overtime 12 and “meal and rest period” claims. (Doc. 28-1 at 18.) The Court1 reviewed this first settlement 13 and found a number of concerns regarding the adequacy of named Plaintiffs as representatives of 14 the class, including Plaintiffs’ failure to demonstrate sufficient commonality between the class 15 members, (Doc. 13 at 10, 12), and Plaintiffs’ failure to show that their experience with defendant 16 was typical or that the putative class injuries were “based on conduct which is not unique to the 17 named plaintiffs.” (Id. at 11.) The Court noted that Plaintiffs additionally submitted no 18 evidence demonstrating the existence of employment practices or policies common to all 19 putative members of the settlement class. (Doc. 16 at 2.) 20 The Court further questioned whether, under Rule 23(e), the settlement was fair, 21 reasonable, and adequate. (Doc. 13 at 16–17.) Specifically, the Court noted that the FLSA 22 claim was added to the suit for the purpose of removing the case to federal court after the parties 23 had agreed on terms of the settlement. (Id. at 17.) The Court noted the FLSA claim was not 24 mentioned in the motion for preliminary approval, and no value was assigned to the FLSA claim, 25 separate and apart from the other alleged claims in the complaint. (Id. at 17.) 26 27 1 Initial analysis of the request for preliminary settlement approval was conducted by the honorable Magistrate Judge Sheila K. Oberto. Plaintiffs did not object to the findings & recommendations of Magistrate Judge Oberto 28 before the deadline to do so, and the findings were subsequently reviewed and adopted by this Court. (Docs. 13, 1 The Court ultimately concluded that Plaintiffs had not sufficiently justified conditional 2 class certification under Rule 23(a) and (b)(3) or preliminary approval of the proposed 3 settlement. Plaintiffs subsequently renewed their motion for preliminary approval of the 4 settlement by submitting a brief “address[ing] the issues raised by the Court.” (Docs. 28; 28-1 at 5 7.) 6 THE PROPOSED SETTLEMENT 7 Aside from a reduction of class representative service payments and removal of the 8 “clear sailing” provision, the proposed settlement has not been amended since this Court’s prior 9 rejection of it. (See Doc. 28-2 at 70–73.) According to the proposed settlement, the class would 10 include approximately 412 individuals “who are or previously were employed by Defendant who 11 worked in California, who were classified as non-exempt, and who separated from their employment 12 between March 6, 2014 and February 20, 2018” (the “Settlement Class”). The PAGA period is 13 defined as March 6, 2017 to April 20, 2019, and “[a]ny aggrieved employees under PAGA who are 14 not in the Class will still be mailed their share of the PAGA Payment along with an explanatory 15 letter.” (Doc. 28-2 at 2 n.1.) 16 A. Payment Terms 17 Under the proposed settlement, Defendant agrees to pay a settlement amount of $425,000 18 consisting of: 19 • Class representative service payments of $5,000 to each named Plaintiff; 20 • Attorney’s fees of up to $106,250, to be paid to class counsel, plus no more than 21 $12,000 for “expenses incurred as documented in Class Counsel’s billing records;” 22 • Estimated settlement administration costs of $15,000 or less to be paid to the 23 settlement administrator; 24 • $37,500 to the Labor and Workforce Development Agency (“LWDA”) pursuant to 25 California Labor Code § 2699(i); 26 • PAGA payments to aggrieved employees totaling approximately $12,500 on a pro 27 rata basis based upon their workweeks, distributed “irrespective of whether the 28 Aggrieved Employee opts out from the class”; and 1 • The remaining net settlement amount to be distributed to the participating class 2 members. 3 (Doc. 28-2 at 28–29, 70–73.) The net settlement amount will be distributed to class members 4 based on the number of weeks worked for each class member divided by the total weeks worked 5 by all class members during the class period. (Doc. 28-2 at 29.) 6 The Proposed Settlement provides that the settlement amount is non-reversionary: if any 7 checks remain uncashed after 180 days, those amounts will be deposited “with the Unclaimed 8 Property fund maintained by the Controller for the State of California.” (Doc. 28-2 at 39.) 9 B. Releases 10 The Proposed Settlement also provides that upon entry of final judgment, Plaintiffs and 11 participating class members will release “all claims alleged in the operative complaint” or “which 12 could have been alleged based on the asserted facts” during the class period. (Doc. 28-2 at 39, ¶ 13 F(1).) Specifically, the releases for all class members provide: 14 Participating Class Members. Upon entry of final judgment, Plaintiffs and the Participating Class Members shall release all claims alleged in 15 the operative complaint (including any amended complaint filed prior to Final Approval) or which could have been alleged based on the asserted 16 facts regardless of whether such claims arise under federal, state and/or local law, statute, ordinance, regulation, common law, or other source of 17 law, which occurred during the Class Period, and a release from the State of California of all PAGA claims based on the Labor Code violations 18 alleged in the operative complaint which occurred during the time period of March 6, 2017 to April 20, 2019 (“Released Claims”). The Released 19 Claims shall specifically include all claims under the laws alleged in the operative complaint, as well as any and all claims, causes of action, 20 damages, wages, premiums, penalties, attorneys’ fees, costs, and any other form of relief or remedy in law, equity, of whatever kind or nature 21 and for any relief whatsoever, including monetary, injunctive, or declaratory relief, whether direct or indirect, whether under federal law or 22 the law of any state, whether suspected or unsuspected, whether known or unknown, which the Plaintiffs or any Participating Class Member has 23 against the Released Parties or any of them for any acts occurring during the Class Period that were pled or could have been pled in the Action 24 based on the facts, subject matter or the factual or legal allegations in the Action including claims that are based upon or arise out of the California 25 Labor Code or any similar provision of federal, state or local law. These Released Claims exclude claims of wrongful termination, unemployment 26 insurance, social security, disability, and workers’ compensation, and class claims outside of the Class Period and PAGA claims outside of the 27 time period of March 6, 2017 to April 20, 2019. 28 The release for Conti and Mora encompasses more claims than those identified for 1 Settlement Class Members, because they agreed to release any claims known and unknown 2 against Defendant, not just those claims constrained to the facts alleged in this lawsuit. 3 Specifically, Conti and Mora’s release provides: 4 Plaintiffs. As of the date the Settlement becomes Final, Plaintiffs hereby fully and finally releases Defendant and the other Released Parties from 5 any and all claims, demands, rights, liabilities and causes of action of every nature and description whatsoever, known or unknown, asserted or 6 that might have been asserted, whether in tort, contract, or for violation of any local, state, or federal statute, rule, regulation, ordinance or common 7 law including but not limited to those claims raised in the Action and/or that could have been raised in the Action, those arising from or related to 8 their employment with Defendant or the termination thereof during the Class Period, and any other claims of any nature or origin whatsoever 9 (“Plaintiffs’ Released Claims”). This release excludes only the release of claims not permitted by law. 10 Plaintiffs’ Waiver of Rights Under California Civil Code Section 1542. 11 As partial consideration for the Class Representative Service Payments, the Plaintiffs’ Released Claims shall include all such claims, whether 12 known or unknown by the releasing party. Thus, even if Plaintiffs discover facts and/or claims in addition to or different from those that they 13 now know or believe to be true with respect to the subject matter of the Plaintiffs’ Released Claims, those claims will remain released and forever 14 barred. Therefore, with respect to Plaintiffs’ Released Claims, Plaintiffs expressly waive and relinquishes the provisions, rights and benefits of 15 section 1542 of the California Civil Code, which reads: 16 A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her 17 favor at the time of executing the release, and that if known by him or her would have materially affected his or her settlement 18 with the debtor or released party. 19 (Doc. 28-2 at 40.) 20 The proposed notice explicitly advises class members that the “release specifically 21 includes claims under the federal Fair Labor Standards Act based on the facts or theories 22 raised in this lawsuit. If you do not exclude yourself from this settlement, you will have 23 waived those claims.” (Doc. 28-2 at 52.) 24 C. Objections and Opt-Out Procedure 25 Any class member who wishes may file objections or elect not to participate in the 26 Settlement. (Doc. 28-2 at 34, 35.) The proposed notice for class members explains the 27 procedures to object to the terms request exclusion from the Settlement Class. (Id. at 51, 53.) 28 Any class member who does not opt out will automatically be mailed a check for their share of 1 the settlement. (Doc. 28-2 at 51.) 2 PRELIMINARY APPROVAL OF A CLASS SETTLEMENT 3 When parties settle the action prior to class certification, the Court has an obligation to 4 “peruse the proposed compromise to ratify both the propriety of the certification and the fairness 5 of the settlement.” Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). Preliminary 6 approval of a class settlement is generally a two-step process. First, the Court must assess 7 whether a class exists. Id. (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997)). 8 Second, the Court must “determine whether the proposed settlement is fundamentally fair, 9 adequate, and reasonable.” Id. (citing Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 10 1998)). The decision to approve or reject a settlement is within the Court’s discretion. Hanlon, 11 150 F.3d at 1026. 12 A. Conditional Certification of a Settlement Class 13 Class certification is governed by Rule 23 of the Federal Rules of Civil Procedure, which 14 provides that “[o]ne or more members of a class may sue or be sued as representative parties on 15 behalf of all.” Fed. R. Civ. P. 23(a). Conti and Mora seek to certify a class conditionally for 16 settlement purposes pursuant to Fed. R. Civ. P. 23. (Docs. 9-1 at 21; 28-1 at 25.) Parties 17 seeking class certification bear the burden of demonstrating the elements of Rule 23(a) are 18 satisfied, and “must affirmatively demonstrate … compliance with the Rule.” Wal-Mart Stores, 19 Inc. v. Dukes, 564 U.S. 338, 350 (2011); Doninger v. Pacific Northwest Bell, Inc., 563 F.2d 20 1304, 1308 (9th Cir. 1977). If an action meets the prerequisites of Rule 23(a), the Court must 21 consider whether the class is maintainable under one or more of the three alternatives identified 22 in Rule 23(b). Narouz v. Charter Communs., LLC, 591 F.3d 1261, 1266 (9th Cir. 2010). 23 1. Rule 23(a) Requirements 24 The prerequisites of Rule 23(a) “effectively limit the class claims to those fairly 25 encompassed by the named plaintiff’s claims.” General Telephone Co. of the Southwest. v. 26 Falcon, 457 U.S. 147, 155-56 (1982). Certification of a class is proper if: 27 (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the 28 class; (3) the claims or defenses of the representative parties are typical 1 of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. 2 3 Fed. R. Civ. P. 23(a). These prerequisites are generally referred to as numerosity, commonality, 4 typicality, and adequacy of representation. Falcon, 457 U.S. at 156. 5 a. Numerosity 6 This prerequisite requires the Court to consider “specific facts of each case and imposes 7 no absolute limitations.” General Telephone Co. v. EEOC, 446 U.S. 318, 330 (1980). Although 8 there is not a specific threshold, joining more than one hundred plaintiffs is impracticable. See 9 Immigrant Assistance Project of Los Angeles Cnt. Fed’n of Labor v. INS, 306 F.3d 842, 869 (9th 10 Cir. 2002) (finding the numerosity requirement … “satisfied solely on the basis of the number of 11 ascertained class members”); see also Gay v. Waiters’ & Dairy Lunchmen’s Union, 549 F.2d 12 1330, 1332 n.7 (9th Cir. 1977) (a proposed class with 110 members “clearly [included] a 13 sufficient number to meet the numerosity requirements”). 14 Conti and Mora report that there are approximately 412 class members. (Doc. 28-1 at 26.) 15 Therefore, joinder of all identified class members as plaintiffs is impracticable, and the 16 numerosity requirement is satisfied. 17 b. Commonality 18 Rule 23(a) requires “questions of law or fact common to the class.” Fed. R. Civ. P. 19 23(a)(2). To satisfy the commonality requirement, the plaintiff must demonstrate common points 20 of facts and law. See Wal-Mart Stores, 564 U.S. at 350. Thus, “commonality requires that the 21 class members’ claims depend upon a common contention such that determination of its truth or 22 falsity will resolve an issue that is central to the validity of each claim in one stroke,” and the 23 “plaintiff must demonstrate the capacity of classwide proceedings to generate common answers to 24 common questions of law or fact that are apt to drive the resolution of the litigation.” Mazza v. 25 Am. Honda Motor Co., 666 F.3d 581, 588 (9th Cir. 2012) (internal quotation marks, citations 26 omitted). In an employment context, this inquiry is satisfied when the entire class was injured by 27 the same system-wide policy or practice. See Goodwin v. Winn Management Group LLC, 2017 28 WL 3173006, at * 5 (E.D. Cal. 2017). 1 Plaintiffs asserts the commonality requirement is satisfied because there are common 2 questions regarding “whether Defendant's security check practices were lawful, whether 3 Defendant failed to properly pay wages for time worked during security checks, whether 4 Defendant failed to properly provide meal and rest periods as a result of on premise duties, 5 whether Defendant’s conduct was willful, and whether the Class is entitled to compensation and 6 related penalties.” (Doc. 28-1 at 27.) Plaintiffs assert that employees were subject to common 7 policies and practices concerning security checks and meal and rest periods. (Docs. 28-1 at 7; 28- 8 3 at ¶¶ 3–4; 28-4 at ¶¶ 3–4.) 9 In rejecting the prior motion for preliminary settlement, the Court expressed concern that 10 Plaintiffs merely made a “bare assertion” that Defendant engaged in a uniform practice without 11 even “submit[ting] their own declarations to provide evidence of how the practices were applied 12 to them.” (Doc. 13 at 10; see also Doc. 16 at 2.) Plaintiffs’ renewed motion provides more. 13 Specifically, Plaintiffs’ declarations provide that, per Defendant’s policies, non-exempt 14 employees could not clock in or out until they “ma[de] a phone call at the sales counter” and 15 underwent a “loss prevention inspection while not clocked in that took an average of 16 approximately 15 minutes.” (Docs. 28-3 at ¶¶ 4–5; 28-4 at ¶¶ 4–5.) Plaintiffs additionally 17 provide the Court with “Vendor Guidelines,” which Plaintiffs describe as “uniformly impos[ing] 18 on premise duties and required security checks.” (Docs. 28-1 at 27; 28-2 at 83–88.) Plaintiffs 19 and Class Members were subject to these vendor guidelines while they worked as vendors at 20 L’Oreal makeup counters operated inside Macy’s stores. (Doc. 39 at ¶ 3.) 2 21 Because it appears resolution of the issues—including whether Defendant’s policies 22 violated California wage and hour law—would apply to the claims of each of the Class Members, 23 the Court finds the commonality requirement is satisfied. 24 c. Typicality 25 This requirement demands that the “claims or defenses of the representative parties are 26 typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). A claim or defense is not 27 28 2 These guidelines were in effect during the Class Period for this settlement, but L’Oreal has since ceased operating 1 required to be identical, but rather “reasonably coextensive” with those of the absent class 2 members. Hanlon, 150 F.3d at 1020. “The test of typicality is whether other members have the 3 same or similar injury, whether the action is based on conduct which is not unique to the named 4 plaintiffs, and whether other class members have been injured by the same course of conduct.” 5 Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (internal quotation marks, 6 citation omitted); see also Kayes v. Pac. Lumber Co., 51 F.3d 1449, 1463 (9th Cir. 1995) (the 7 typicality requirement is satisfied when named plaintiffs have the same claims as other members 8 of the class and would not be subject to unique defenses). 9 Plaintiffs assert that typicality is met because “Plaintiffs, like every other member of the 10 Class, [were] employed by Defendant as a non-exempt employee during the class period” and 11 “subject to the same employment practices concerning security checks, meal and rest periods. 12 (Doc. 28-1, citing Docs. 28-3 and 28-4 at ¶¶ 2, 5.) Because Plaintiffs were subjected to the same 13 company policies and wage payment procedures as the Settlement Class Members, the Court 14 finds the typicality requirement is satisfied for purposes of settlement. See Hanon, 976 F.2d at 15 508; Kayes, 51 F.3d at 1463. 16 d. Adequacy of Representation 17 Absentee class members must be adequately represented for judgment to be binding upon 18 them. Hansberry v. Lee, 311 U.S. 32, 42-43 (1940). This prerequisite is satisfied if the 19 representative party “will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 20 23(a)(4). “[R]esolution of this issue requires that two questions be addressed: (a) do the named 21 plaintiffs and their counsel have any conflicts of interest with other class members and (b) will the 22 named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” In re 23 Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 462 (9th Cir. 2000) (citing Hanlon, 150 F.3d at 1020). 24 Conti and Mora seek appointment as the Class Representatives. According to Plaintiffs’ 25 memorandum, Defendant “disputes that Plaintiffs are adequate” representatives but “does not 26 oppose a finding that Plaintiffs are adequate to represent the Class for settlement purposes only.” 27 (Doc. 28-1 at 29.) Conti and Mora assert that there is “no antagonism between the interests of 28 Plaintiffs and those of the Class” because “Plaintiffs and the Class Members seek monetary relief 1 under the same set of facts and legal theories.” (Doc. 28-1 at 29.) Plaintiffs further assert that 2 they have “actively participated in the prosecution of this case to date” by “effectively 3 communicat[ing] with counsel, provid[ing] documents to counsel and participat[ing] extensively 4 in discovery, investigation and negotiations”. (Id.) Neither party identified conflicts between 5 Conti and Mora and the Settlement class members. (Id.) Thus, the Court finds that Conti and 6 Mora will fairly and adequately represent the interests of the Settlement Class. 7 The law firm of Blumenthal Nordrehaug Bhowmik De Blouw LLP seeks appointment as 8 counsel for the Settlement Class. Counsel reports that it has “extensive experience in class action 9 litigation in California, and in particular, wage and hour litigation.” Counsel asserts that it has 10 “been involved as class counsel in hundreds of wage and hour actions.” (Doc. 28-2 at 16–17.) 11 Defendant makes no objection to the Blumenthal Nordrehaug’s appointment for purposes of 12 settlement. Therefore, the Court finds that Blumenthal Nordrehaug Bhowmik De Blouw LLP 13 meets the adequacy requirement. 14 2. Certification of a Class under Rule 23(b)(3) 15 As noted above, once the requirements of Rule 23(a) are satisfied, a class may only be 16 certified if it is maintainable under Rule 23(b). Fed. R. Civ. P. 23(b); see also Narouz, 591 F.3d 17 at 1266. Plaintiffs assert that certification of the settlement class is appropriate under Rule 18 23(b)(3), which requires a finding that (1) “the questions of law or fact common to class members 19 predominate over any questions affecting only individual members,” and (2) “a class action is 20 superior to other available methods for fairly and efficiently adjudicating the controversy.” (Doc. 21 28-1 at 29–31.) 22 Conti and Mora argue that the predominance requirement is satisfied because “the 23 adjudication of the common issues as to Defendant’s uniform and systematic employment 24 policies applicable to non-exempt employees during the Class Period could establish Defendant’s 25 liability on a class-wide basis.” (Id. at 30.) Defendant disputes that the predominance 26 requirement may be satisfied but does not oppose such a finding for the purposes of settlement. 27 (Id.) 28 Conti and Mora also contend that certification of the Settlement Class is a superior method 1 of adjudicating the issues because the “damages suffered by each Class Member are not large” 2 and Settlement would end “risky, protracted and expensive litigation with significant payments to 3 class members who would not bring their individual claims because they fear potential retaliation 4 and repercussions with future employment.” (Id., citing Campbell v. PricewaterhouseCoopers, 5 LLP, 253 F.R.D. 586, 605 (E.D. Cal. 2008).) Furthermore, no issues of manageability have been 6 identified that would preclude certification. Therefore, the Court finds conditional certification of 7 the proposed Settlement Class is proper under Rule 23(b)(3). 8 B. Evaluation of the Settlement Terms 9 Settlement of a class action requires approval of the Court, which may be granted “only 10 after a hearing and on finding that [the settlement] is fair, reasonable, and adequate.” Fed. R. Civ. 11 P. 23(e)(2). Approval is required to ensure settlement is consistent with the plaintiff’s fiduciary 12 obligations to the class. See Ficalora v. Lockheed Cal. Co., 751 F.2d 995, 996 (9th Cir. 1985). 13 Toward that end, “Congress and the Supreme Court amended Rule 23(e) to set forth specific 14 factors to consider in determining whether a settlement is ‘fair, reasonable, and adequate.’” 15 Briseño v. Henderson, 998 F.3d 1014, 1023 (9th Cir. 2021); see Fed. R. Civ. P. 23(e)(2) (effective 16 Dec. 1, 2018). Rule 23(e)(2) now directs the Court to consider whether: 17 (A) the class representatives and class counsel have adequately represented the class; 18 (B) the proposal was negotiated at arm’s length; (C) the relief provided for the class is adequate, taking into account: 19 (i) the costs, risks, and delay of trial and appeal; (ii) the effectiveness of any proposed method of distributing 20 relief to the class, including the method of processing class- member claims; 21 (iii) the terms of any proposed award of attorney’s fees, including timing of payment; and 22 (iv) any agreement required to be identified under Rule 23(e)(3); and 23 (D) the proposal treats class members equitably relative to each other. 24 25 Fed. R. Civ. P. 23(e)(2); see also Briseño, 998 F.3d at 1023–24. The Ninth Circuit determined 26 this revision to Rule 23 requires courts “to go beyond [its] precedent.” Briseño, 998 F.3d at 27 1026.3 28 1 1. Representation of the Class 2 To determine adequacy of representation under Rule 23(e)(2), the Court may consider 3 whether the interests of the named plaintiff are “aligned with the interests of the Class 4 Members.” See Cottle v. Plaid Inc., 240 F.R.D. 356, 376 (N.D. Cal. 2021). In addition, a 5 finding that “Class Counsel are experienced and competent” supports a conclusion that the class 6 is adequately represented. Id.; see also In re Pac. Enters. Sec. Litig., 47 F.3d 373, 378 (9th Cir. 7 1995) (“Parties represented by competent counsel are better positioned than courts to produce a 8 settlement that fairly reflects each party's expected outcome in litigation.”). Thus, the adequacy 9 analysis under Rule 23(e)(2) is “redundant of the requirements of Rule 23(a)(4) and Rule 23(g), 10 respectively.” Moreno v. Beacon Roofing Supply, Inc., 2020 WL 1139672 *at 5 (S.D. Cal. Mar. 11 9, 2020). 12 Conti and Mora’s interests align with those of the Class because “Plaintiffs and the Class 13 Members seek monetary relief under the same set of facts and legal theories.” (Doc. 28-1 at 29.) 14 In addition, Class Counsel are clearly experienced in class action litigation. (Doc. 28-2 at 16– 15 17.) Because Plaintiffs carried the burden to show the adequacy prerequisite was satisfied under 16 Rule 23(a), the Court finds the requirement under Rule 23(e)(2) is also satisfied. See Moreno, 17 2020 WL 1139672 *at 5 (“Because the Court found that adequacy under Rule 23(a)(4) has been 18 satisfied above, due to the similarity, the adequacy factor under Rule 23(e)(2)(A) is also met.”). 19 2. Negotiation of the Settlement 20 Under Rule 23, the Court must consider whether “the proposal was negotiated at arm’s 21 length.” Fed. R. Civ. P. 23(e)(2)(B). The Ninth Circuit also “put[s] a good deal of stock in the 22 product of an arms-length, non-collusive, negotiated resolution” in evaluating a proposed class 23 24 these standards, including: the strength of plaintiff’s case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status throughout the trial; the amount offered 25 in settlement; the extent of discovery completed, and the stage of the proceedings; the experience and views of counsel; the presence of a governmental participant; and the 26 reaction of the class members to the proposed settlement. Staton, 327 F.3d at 959 (citation omitted). The Court focuses its analysis on the factors enumerated in Rule 23. See 27 Briseño, 998 F.3d at 1026; see also Herrera v. Wells Fargo Bank, N.A., 2021 U.S. Dist. LEXIS 170195, at *21 (C.D. Cal. June 8, 2021) (“The goal of [amended Rule 23(e)] is … to focus the [district] court and the lawyers on 28 the core concerns of procedure and substance that should guide the decision whether to approve the proposal”) 1 action settlement. Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 967 (9th Cir. 2009). The 2 inquiry of collusion addresses the possibility that the settlement agreement is the result of either 3 “overt misconduct by the negotiators” or improper incentives of class members at the expense of 4 others. Staton, 327 F.3d at 960. The Ninth Circuit observed that “settlement class actions 5 present unique due process concerns for absent class members” because the “inherent risk is that 6 class counsel may collude with the defendants, tacitly reducing the overall settlement in return 7 for a higher attorney’s fee.” See In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 946 8 (9th Cir. 2011) (internal quotation marks, citations omitted). Therefore, the Court must consider 9 whether the process by which the parties arrived at their settlement is truly the product of arm’s 10 length bargaining or the product of collusion or fraud. Millan v. Cascade Water Servs., Inc., 310 11 F.R.D. 593, 613 (E.D. Cal. 2015). 12 In particular, where a class action settlement agreement is reached prior to a class being 13 certified, district courts must be watchful “not only for explicit collusion, but also for more 14 subtle signs that class counsel have allowed pursuit of their own self-interests and that of certain 15 class members to infect the negotiations.” In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 16 at 947; see also Briseño, 998 F.3d at 1023. These “more subtle signs” include: (1) “when 17 counsel receive a disproportionate distribution of the settlement, or when the class receives no 18 monetary distribution but class counsel are amply rewarded”; (2) the existence of a “clear 19 sailing” arrangement, which provides “for the payment of attorneys’ fees separate and apart from 20 class funds” and “carries the potential of enabling a defendant to pay class counsel excessive 21 fees and costs in exchange for counsel accepting an unfair settlement on behalf of the class”; and 22 (3) “when the parties arrange for fees not awarded to revert to defendants rather than be added to 23 the class fund.” In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d. at 947 (internal 24 quotations, citations omitted). 25 a. Whether there is a disproportionate distribution to counsel 26 The Settlement provides that Class Counsel may request attorneys’ fees up to $106,250, 27 which is approximately 25% of the gross settlement fund. (Doc. 28-2 at 28.) The typical range of 28 acceptable attorneys’ fees in the Ninth Circuit is 20% to 33 1/3% of the total settlement value, 1 with 25% considered the benchmark. Powers v. Eichen, 229 F.3d 1249, 1256 (9th Cir. 2000). 2 Because the fees requested are within the range awarded by the Ninth Circuit from the gross 3 settlement fund, the Court finds the Settlement Agreement does not provide a disproportionate 4 distribution to Class Counsel. See Millan v. Casvade Water Servs., 310 F.R.D. 593, 612 (E.D. 5 Cal. 2015) (finding no disproportionate distribution where class counsel was to receive a third of 6 the settlement fund “although significantly above the benchmark for this Circuit,” because it was 7 “not unreasonable as an upper bound” of fees awarded in the Circuit). 8 b. Existence of a “clear sailing” provision 9 In general, a “clear sailing” provision is one in which the parties agree to the “payment of 10 attorneys’ fees separate and apart from class funds.” In re Bluetooth Headset Prods. Liab. Litig., 11 654 F.3d at 947. However, the Ninth Circuit also recognizes that a “clear sailing” arrangement 12 exists when a defendant expressly agrees not to oppose an award of attorneys’ fees up to an 13 agreed upon amount. In re Bluetooth Headset Prods., 654 F.3d at 947. Though the settlement 14 agreement here originally contained a clear sailing provision, the parties have removed it by 15 stipulation. (Doc. 28-2 at 72.) Consequently, this factor does not weigh against preliminary 16 approval of the settlement. 17 c. Whether there is a reversion to Defendant 18 The parties did not agree that any unawarded fees to revert to Defendant. Instead, the 19 parties acknowledge in the Settlement Agreement that the Gross Settlement Amount is “non- 20 reversionary,” and fees shall be paid from the Gross Settlement Amount. (Docs. 28-1 at 11; 28-2 21 at 25) 22 d. Findings on collusion 23 Based upon the factors set forth by the Ninth Circuit, the Court finds the proposed 24 settlement “appears to be the product of serious, informed, non-collusive negotiations.” See In 25 re Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 1079-80 (N.D. Cal. 2007). Thus, this factor 26 under Rule 23 supports preliminary approval of the class settlement. 27 3. Relief Provided to the Class 28 The Ninth Circuit observed “the very essence of a settlement is compromise, ‘a yielding 1 of absolutes and an abandoning of highest hopes.’” Officers for Justice v. Civil Serv. 2 Commission, 688 F.2d 615, 624 (9th Cir. 1982) (citation omitted). When analyzing an 3 agreement, the Court should examine “the complete package taken as a whole,” and the 4 proposed settlement is “not to be judged against a hypothetical or speculative measure of what 5 might have been achieved by the negotiators.” Officers for Justice, 688 F.2d at 625, 628. 6 The proposed gross settlement amount is $425,000. (Doc. 28-2 at 25.) After the 7 anticipated deductions from the gross settlement, Plaintiffs estimate that each class member will 8 receive an average net recovery of approximately $562, for a total of $230,720 for the class. 9 Analyzing the factors identified in Rule 23, as discussed below, the Court finds the amount 10 offered and relief provided to the Settlement Class supports preliminary approval of the 11 Settlement. 12 a. Costs, risks, and delays 13 “A[] central concern [when evaluating a proposed class action settlement] … relate[s] to 14 the cost and risk involved in pursuing a litigated outcome.” Feltzs v. Cox Comm’s Cal., LLC, 15 2022 WL 2079144 at *9 (C.D. Cal. Mar. 2, 2022) (quoting Fed. R. Civ. P. 23(e), 2018 Advisory 16 Committee Notes [modifications in original].) Approval of settlement is “preferable to lengthy 17 and expensive litigation with uncertain results.” Nat’l Rural Telecomms. Coop. v. DIRECTV, 18 Inc., 221 F.R.D. 523, 529 (C.D. Cal. 2004). If the settlement were to be rejected, the parties 19 would have to engage in further litigation, including seeking class certification and discovery on 20 the issue of damages. 21 Plaintiffs report that the action “is the result of extensive and hard fought negotiations" 22 during which Class Counsel “conducted a thorough investigation into the facts of the class 23 action, including a review of relevant documents and data and a diligent investigation of the 24 Class Members’ claims against Defendant.” (Doc. 28-1 at 17–18.) Plaintiffs acknowledge that 25 there are risks related to their claims and recovery because “Defendant denies every one of the 26 claims and contentions alleged” and "has asserted and continues to assert many defenses thereto” 27 while “expressly den[ying] and continu[ing] to deny any wrongdoing or liability.” In the 28 absence of approved settlement, the parties would likely face a protracted litigation course, 1 including a contested motion for certification, motions for summary judgment, and trial and 2 appellate proceedings that would consume time and resources and present each of them with 3 ongoing litigation risks and uncertainties.” (Id. at 17, citing Doc. 28-2 at ¶ 20.) 4 The time and expense of continued litigation may well outweigh any additional recovery. 5 Due to the acknowledged risk of the claims of class members, costs of future litigation that may 6 reduce the recovery to class members, and delay in payments if the settlement is not approved, 7 this factor weighs in favor of preliminary approval of the Settlement. See Rodriguez, 563 F.3d at 8 966 (risk, expense, complexity and duration of litigation supports settlement); Curtis-Bauer v. 9 Morgan Stanley & Co., Inc., 2008 WL 4667090, at *4 (N.D. Cal. Oct. 22, 2008) (“Settlement 10 avoids the complexity, delay, risk and expense of continuing with the litigation and will produce 11 a prompt, certain, and substantial recovery for the Plaintiff class.”). 12 b. Proposed Distribution 13 “[T]he goal of any distribution method is to get as much of the available damages remedy 14 to class members as possible and in as simple and expedient a manner as possible.” Hilsley v. 15 Ocean Spray Cranberries, Inc., 2020 WL 520616 at *7 (S.D. Cal. Jan. 31, 2020) (citing “Final 16 approval criteria—Rule 23(e)(2)(C)(ii): Distribution method,” 4 NEWBERG ON CLASS 17 ACTIONS § 13:53 (5th ed.)). “Often it will be important for the court to scrutinize the method of 18 claims processing to ensure that it facilitates filing legitimate claims.” Fed. R. Civ. P. 23(e), 19 2018 Advisory Committee Notes. “A claims processing method should deter or defeat 20 unjustified claims, but the court should be alert to whether the claims process is unduly 21 demanding.” Id. 22 Class members are not required to take any action, such as submitting a claim form, to 23 receive their settlement share. Rather, class members need only take specific action if they wish 24 to opt-out of the settlement, object to any of the terms of the settlement, or dispute the amount of 25 their individual settlement share. Because the class members are not required to submit a claim 26 form, the proposed method of distribution will facilitate payment for legitimate claims and is not 27 “unduly demanding” upon Settlement Class members. Thus, this factor weighs in favor of 28 preliminary approval of the settlement. See Jackson v. Fastenal Co., 2021 WL 5755583 at *11 1 (E.D. Cal. Dec. 3, 2021) (finding “the proposed method of distributing relief is effective, and 2 weighs in favor of a finding that the settlement agreement is fair, reasonable and adequate” 3 where the class members did not have to file a claim). 4 c. Attorneys’ fees 5 Under Rule 23, “courts must scrutinize ‘the terms of any proposed award of attorney’s 6 fees.’” McKinney-Drobnis v. Oreshack, 16 F.14th 594, 607 (9th Cir. 2021) (quoting Fed. R. Civ. 7 P. 23(e)(2)(C)(iii). The Ninth Circuit explained, “the new Rule 23(e) makes clear that courts 8 must balance the ‘proposed award of attorney’s fees’ vis-à-vis the ‘relief provided for the class’ 9 in determining whether the settlement is ‘adequate’ for class members.” Id., quoting Briseño, 10 998 F.3d at 1024. 11 As discussed above, Class Counsel may request fees in the amount of one quarter of the 12 settlement fund. (Doc. 28-2 at 28.) This payment will be made by the Settlement Administrator. 13 (Id. at 72.) Payments from the fund, including attorneys fees and payments to the class 14 members, must be made within 21 days after funding by the Defendant. (Id. at 38.) 15 The fees to which the parties have agreed is equal to the benchmark percentage for fees 16 in the Ninth Circuit. See Powers, 229 F.3d at 1256. Importantly, however, any party seeking 17 fees bears the burden of establishing that the fees and costs were reasonably necessary to achieve 18 the results obtained. See Fischer v. SJB-P.D., Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). 19 Therefore, a fee applicant must provide time records documenting the tasks completed and 20 the amount of time spent on the action. Hensley v. Eckerhart, 461 U.S. 424, 424 (1983); 21 Welch v. Metropolitan Life Ins. Co., 480 F.3d 942, 945-46 (9th Cir. 2007). Because the 22 percentage of fees requested corresponds to the benchmark percentage identified by the Ninth 23 Circuit, this amount is approved preliminarily. The Court will evaluate the reasonableness of the 24 fee request and the exact amount of the fee award upon application by Class Counsel with final 25 approval of the settlement. 26 d. Agreement required to be identified 27 The Court must consider any agreement that is required to be identified under Rule 28 23(e)(3). Fed. R. Civ. P. 23(e)(2)(C)(iv). Specifically, “parties seeking approval must file a 1 statement identifying any agreement made in connection with the proposal.” Fed. R. Civ. P. 2 23(e)(3). Plaintiffs have represented that there are no such agreements requiring identification. 3 (Doc. 28-2 at ¶ 25.) Therefore, this factor does not weigh against preliminary approval. 4 4. Treatment of Class Members 5 Rule 23 requires the Court to consider whether the proposed settlement “treats class 6 members equitably relative to each other.” Fed. R. Civ. P. 23(e)(2)(D). “A distribution of relief 7 that favors some class members at the expense of others may be a red flag that class counsel 8 have sold out some of the class members at the expense of others, or for their own benefit.” 9 Hilsley, 2020 WL 520616 at *7 (citation omitted). 10 Each class member’s settlement share “will be determined based on the weeks worked by 11 that individual.” (Doc. 28-1 at 21.) Because the Settlement provides pro rata distribution to 12 Class Members based upon the number of workweeks, the agreement treats the Class Members 13 equitably, and the proposed distribution plan supports preliminary approval. See Cooks v. TNG 14 GP, 2021 WL 5139613 at *4 (E.D. Cal. Nov. 4, 2021) (observing that the calculation of 15 payments to class members “on a pro-rata basis based on the number of compensable 16 workweeks each member worked … is fair and treats class members equitably”); see also 17 Gomez-Gasca v. Future AG Mgmt. Inc., 2020 WL 6149688 at *4 (N.D. Cal. Oct. 20, 2020) 18 (noting that in the preliminary approval stage, “the Court approved the proposed plan pro rata 19 allocation based on the number of workweeks the class member performed work during the 20 Class Period”); In re Regulus Therapeutics Sec. Litig., 2020 WL 6381898 at *5 (S.D. Cal. Oct. 21 29, 2020) (finding a pro rata distribution plan was equitable and weighed in favor of approving 22 the settlement terms). 23 5. Class Representative Service Payment 24 Incentive awards, service payments, for class representatives are not to be given routinely 25 by the Court. In Staton, 327 F.3d at 975, the Ninth Circuit explained: 26 Indeed, ‘[i]f class representatives expect routinely to receive special awards in addition to their share of the recovery, they may 27 be tempted to accept suboptimal settlements at the expense of the class members whose interests they are appointed to guard.” 28 Weseley v. Spear, Leeds & Kellogg, 711 F. Supp. 713, 720 1 (E.D.N.Y. 1989); see also Women’s Comm. for Equal Employment Opportunity v. Nat’l Broad. Co., 76 F.R.D. 173, 180 (S.D.N.Y. 2 1977) (“[W]hen representative plaintiffs make what amounts to a separate peace with defendants, grave problems of collusion are 3 raised.”). 4 In fact, “‘excessive payments to named class members can be an indication that the agreement 5 was reached through fraud or collusion.’” Id. (citation omitted). In evaluating the enhancement 6 award to a class representative, a court should consider all “relevant factors including the actions 7 the plaintiff has taken to protect the interests of the class, the degree to which the class has 8 benefitted from those actions, … the amount of time and effort the plaintiff expended in pursuing 9 the litigation … and reasonable fears of workplace retaliation.” Staton, 327 F.3d at 977. 10 The Settlement provides that Conti and Mora may apply “for approval of Class 11 Representative Services Payments . . . not to exceed $5,000 each.” (Doc. 28-2 at 4.) The 12 Settlement Administrator will pay the approved amount out of the Gross Settlement fund. (Doc. 13 28-2 at 71.) “If the Court approves a Class Representative Service Payment of less than $5,000 to 14 one or both of the Plaintiffs, the remainder will be retained In the Net Settlement Amount for 15 distribution to Participating Class Members.” (Id.) Conti and Mora assert that the service 16 payment is in consideration of the considerable time and effort they have put into this lawsuit, as 17 well as the risk that future employers may look negatively on the suit and Plaintiffs may 18 ultimately be responsible for paying some or all of Defendant’s legal costs. (Docs. 28-3 and 28-4 19 at ¶¶ 6–7.) Conti and Mora also note that the settlement agreement requires them to provide a 20 “general release of all claims” they may have against Defendant. (Id. at ¶ 12.) 21 Plaintiffs have provided sworn declarations describing their active representation in this 22 case, including time spent with attorneys and gathering documents. (See generally Docs. 28-3 23 and 28-4 at ¶¶ 6–12.) Though neither Conti nor Mora provide an exact accounting of their 24 efforts, they both estimate that they spent between 70 and 80 hours on this case. (Docs. 28-3 and 25 28-4 at ¶¶ 6–12.) Even still, it is not entirely clear at this stage which of Plaintiffs’ effort were 26 taken on behalf of the class, as opposed to the ordinary effort that would have been required if 27 they had filed the action only on behalf of themselves. However, due to the flexibility for an 28 award up to $5,000 each, the request for approval of a class representative service payment is 1 approved preliminarily. 2 6. Views of Counsel 3 Kyle Nodrehaug, Class Counsel, asserts that the settlement is “fair, reasonable and 4 favorable to the Class.” (Doc. 28-2 at ¶ 3.) The opinion of counsel is entitled to significant 5 weight, and support approval of the settlement agreement. See Nat’l Rural Telecomms., 221 6 F.R.D. at 528 (“Great weight is accorded to the recommendation of counsel, who are most 7 closely acquainted with the facts of the underlying litigation”). 8 7. Reaction of Class Members to the Proposed Settlement 9 Conti and Mora have agreed to the terms of the Settlement Agreement. (Docs. 28-3 and 10 28-4 at ¶ 17.) However, because Class Members have not yet received notice, this factor shall 11 be revisited with final approval of the Settlement. See Cottle, 340 F.R.D. at 376 (“The reaction 12 of the class members is best assessed at the final approval hearing since the court can look at 13 how many class members submitted … objections”). 14 APPROVAL OF PAGA SETTLEMENT 15 California adopted the Private Attorney General Act to allow individual plaintiffs “to 16 bring a civil action to collect civil penalties for Labor Code violations previously only available 17 in enforcement actions initiated by the State’s labor law enforcement agencies.” Caliber 18 Bodyworks, Inc. v. Superior Court, 134 Cal. App. 4th 365, 374 (2005); see also Cal. Lab. Code § 19 2699(a); Urbino v. Orkin Servs. of Cal., Inc., 726 F.3d 1118, 1121 (9th Cir. 2013). Thus, a 20 PAGA plaintiff now acts “as the proxy or agent of the state’s labor law enforcement agencies.” 21 Arias v. Superior Court, 46 Cal. 4th 969, 986 (2009). 22 Pursuant to PAGA, an “aggrieved employee” may bring an action for civil penalties for 23 labor code violations on behalf of himself and other current or former employees. Cal. Lab. 24 Code § 2699(a). PAGA defines an “aggrieved employee” as “any person who was employed by 25 the alleged violator and against whom one or more of the alleged violations was committed.” Id. 26 A judgment in a PAGA action “binds all those, including nonparty aggrieved employees, who 27 would be bound by a judgment in an action brought by the government.” Arias, 46 Cal. 4th at 28 986. 1 To bring an action under PAGA, an aggrieved employee must first provide written notice 2 to the employer and the Labor and Work Force Development Agency. Cal. Lab. Code § 3 2699.3(a)(1). Recovery under PAGA is limited to civil penalties, and the civil penalties must be 4 allocated with 75% directed to the LWDA and 25% to aggrieved employees. Id. § 2699(i). Any 5 proposed settlement of PAGA claims must be submitted to the LWDA, and a trial court must 6 “review and approve” any settlement of PAGA claims. Id. § 2699(l)(2); see also Haralson v. U.S. 7 Aviation Servs. Corp., 383 F. Supp. 3d 959, 971 (N.D. Cal. 2019) (because settling a PAGA 8 claim “compromises a claim that could otherwise be brought be the state,” it requires that a court 9 “review and approve any settlement of any civil action pursuant to [PAGA]”) (citation omitted). 10 Although there is no binding authority establishing the standard of review for PAGA 11 settlements, California district courts “have applied a Rule 23-like standard, asking whether the 12 settlement of the PAGA claims is ‘fundamentally fair, adequate, and reasonable in light of 13 PAGA’s policies and purposes.’” Haralson, 383 F. Supp. 3d at 972. This standard is derived 14 principally from the LWDA itself. See O’Connor v. Uber Techs., Inc., 201 F. Supp. 3d 1110, 15 1133 (N.D. Cal. 2016). The LWDA indicated: 16 It is thus important that when a PAGA claim is settled, the relief provided for under the PAGA be genuine and meaningful, 17 consistent with the underlying purpose of the statute to benefit the public and, in the context of a class action, the court evaluate 18 whether the settlement meets the standards of being “fundamentally fair, reasonable, and adequate” with reference to the public policies 19 underlying the PAGA. 20 Id. (citation omitted). When a proposed settlement involves overlapping class action and PAGA 21 claims, courts may employ a “sliding scale” in determining if the proposed settlement is 22 “fundamentally fair, reasonable, and adequate with reference to the public policies underlying 23 the PAGA.” O’Connor, 201 F. Supp. 3d at 1134; see also Haralson, 383 F. Supp. 3d at 972 24 (following O’Connor); Cooks v. TNG GP, 2020 WL 5535397 at *9-10 (E.D. Cal. Sept. 15, 25 2020) (same). “[W]here the settlement for the rule 23 class is robust, the purposes of PAGA 26 may be concurrently fulfilled.” Cooks, 2020 WL 5535397 at *10 (quoting O’Connor, 201 F. 27 Supp. 3d at 1134). 28 After reviewing both the original and renewed motions for preliminary approval, 1 including all supporting documents, the Court is unable to find confirmation that Class Counsel 2 has submitted or plans to submit the revised class and PAGA settlement to the LWDA as 3 required by the Labor Code. However, the settlement of $425,000.00 appears sufficiently robust 4 such that the Court finds the purposes of PAGA to address the alleged labor violations are 5 fulfilled by the proposed agreement. The Settlement properly designates 75% of the PAGA 6 funds—in the amount of $10,000 from the Gross Settlement Amount— to the LWDA and 25% 7 to aggrieved employees. (Doc. 28-2 at 25.) Accordingly, the Court finds approval of the PAGA 8 payment is also appropriate, conditional on confirmation that the PAGA settlement has been 9 properly submitted to the LWDA. See Jamil v. Workforce Resources, 2020 WL 6544660 at *6 10 (S.D. Cal. Nov. 5, 2020) (finding a $10,000 PAGA award was fair and adequate as part of a 11 class settlement). 12 APPOINTMENT OF SETTLEMENT ADMINISTRATOR 13 The Parties have agreed upon and propose that the Court appoint ILYM Group will be 14 appointed as a Settlement Administrator. (Doc. 28-2 at 30.) Under the terms of the proposed 15 Settlement: 16 No later than 30 calendar days after the District Court enters its order granting Preliminary Approval of the Settlement, Defendant 17 will provide to the Settlement Administrator an Excel file with the Class Data. If any or all of the Class Data is unavailable to 18 Defendant, Defendant will so inform Class Counsel and the Settling Parties will make their best efforts to reconstruct or otherwise agree 19 upon the Class Data prior to when it must be submitted to the Settlement Administrator. The Class Data, it contents and any files 20 containing Class Data shall remain strictly confidential for the Settlement Administrator’s eyes only, and shall not to be disclosed 21 to Plaintiffs or to Class Counsel. The Settlement Administrator shall agree to keep the Class Data and its contents strictly confidential. 22 Using best efforts to mail it as soon as possible, and in no event later 23 than 21 days after receiving the Class Data, the Settlement Administrator will mail the Class Notice Packets to all Class 24 Members via first-class regular U.S. Mail using the mailing address information provided by Defendant, unless modified by any updated 25 address information that the Settlement Administrator obtains in the course of administration of the Settlement. 26 If a Class Notice Packet is returned because of an incorrect address, 27 the Settlement Administrator will promptly, and not longer than ten (10) days from receipt of the returned packet, search for a more 28 current address using standard skip-tracing for the Class Member 1 and re-mail the Class Notice Packet to the Class Member. The Settlement Administrator will use the Class Data and otherwise 2 work with Defendant to find that more current address. The Settlement Administrator will be responsible for taking reasonable 3 steps, consistent with its agreed-upon job parameters, Court orders, and fee, as agreed to with Class Counsel and according to the 4 following deadlines, to trace the mailing address of any Class Member for whom a Class Notice Packet is returned by the U.S. 5 Postal Service as undeliverable. The Settlement Administrator will note for its own records and notify Class Counsel and Defendant’s 6 Counsel of the date and address of each such re-mailing as part of a weekly status report provided to the Settling Parties. 7 (Doc. 28-2 at 32–33.) In anticipation of the administration expenses related to these tasks, 8 $15,000.00 from the gross settlement fund has been designated for the Settlement Administrator. 9 (Id. at 29). 10 Based upon the recommendation and request of the parties, ILYM Group is appointed as 11 the Settlement Administrator. 12 APPROVAL OF CLASS NOTICE 13 The class notice must satisfy the requirements of the Federal Rules of Civil Procedure, 14 which provides the notice “must clearly and concisely state in plain, easily understood language” 15 the following information: 16 (i) the nature of the action; (ii) the definition of the class certified; 17 (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the member so 18 desires; (v) that the court will exclude from the class any member who requests exclusion; (vi) the time and manner for requesting 19 exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(c)(3). 20 21 Fed. R. Civ. P. 23(c)(2)(B). A class notice must be “reasonably calculated, under all 22 circumstances, to apprise interested parties of the pendency of the action and afford them an 23 opportunity to present their objections.” See Mullane v. Cent. Hanover Bank & Trust Co., 339 24 U.S. 306, 314 (1950). 25 A. Content of the Notice 26 Plaintiffs have submitted the proposed Notice Packet. (Doc. 28-2 at 49.) The Notice 27 Packet provides information regarding the background of the action and claims asserted by Conti 28 and Mora that have resolved as a result of this settlement. (Id. at 49–50.) The Notice also 1 explains the terms and provisions of the Settlement, including payments from the gross 2 settlement fund, and how payments will be received. (See id. at 50–51.) The Notice Packet will 3 provide an estimate of the Class Member’s share and explains the effect of the judgment and 4 settlement, including the claims released. (Id. at 51–52.) Finally, the Notice explains the right to 5 object to the Settlement or request exclusion, and it will include the applicable deadlines. (Id. at 6 53–54.) Consequently, the Court finds the content of the Notice Packet is adequate. 7 B. Method and Administration of Notice Packet 8 Within 30 days of the date of this Order, “Defendant will provide to the Settlement 9 Administrator an Excel file with the Class Data.” (Doc. 28-2 at 32.) “Class Data” includes: 10 (1) for each Class Member, his or her name; last-known mailing address; Social Security number; Defendant’s employee 11 identification number; the dates of employment as a member of the Class; and the number of workweeks that he or she worked for 12 Defendant during the Class Period as a Class Member, and (2) for each Aggrieved Employee, his or her name; last known mailing 13 address; Social Security number; Defendant’s employee identification number; the dates of employment as an Aggrieved 14 Employee; the number of workweeks that he or she worked as an Aggrieved Employee. 15 16 If any or all Class Data is unavailable to Defendant, “Defendant will so inform Class Counsel and 17 the Settling Parties will make their best efforts to reconstruct or otherwise agree upon the Class 18 Data prior to when it must be submitted to the Settlement Administrator.” (Doc. 28-2 at 32.) 19 Within 21 days of receiving the Class Data, the Settlement Administrator will mail the 20 Class Notice Packets to all Class Members “via first-class regular U.S. Mail using the mailing 21 address information provided by Defendant, unless modified by any updated address information 22 that the Settlement Administrator obtains in the course of administration of the Settlement.” 23 (Doc. 28-2 at 33.) 24 If a Class Notice Packet is returned due to an incorrect address, the Settlement 25 Administrator will promptly, and not longer than ten days from receipt of the returned packet: 26 search for a more current address using standard skip-tracing for the Class Member and re-mail the Class Notice Packet to the Class 27 Member. The Settlement Administrator will use the Class Data and otherwise work with Defendant to find that more current address. 28 The Settlement Administrator will be responsible for taking 1 reasonable steps, consistent with its agreed-upon job parameters, Court orders, and fee, as agreed to with Class Counsel and according 2 to the following deadlines, to trace the mailing address of any Class Member for whom a Class Notice Packet is returned by the U.S. 3 Postal Service as undeliverable. The Settlement Administrator will note for its own records and notify Class Counsel and Defendant’s 4 Counsel of the date and address of each such re-mailing as part of a weekly status report provided to the Settling Parties.” 5 6 (Id.) 7 Class Members wishing to exclude themselves from the Settlement have 45 days to mail 8 the Settlement Administrator a written, signed, and dated request to opt out. The request must be 9 sent via First Class Mail. (Doc. 28-2 at 53.) The request to opt out must state that “I have read 10 the Class Notice and I wish to opt-out of the class action and settlement of the case Conti v. 11 L’Oreal USA S/D, Inc., Case No. 1:19-cv-00769.” It must contain the name, address, and 12 signature of the class member opting out. (Doc. 28-2 at 53.) 13 Similarly, Class Members wishing to object to the settlement terms “can ask the Court to 14 deny approval by filing a written objection or appearing at the hearing to make an oral 15 objection” by mailing an objection to the Settlement Administrator and the settling parties’ 16 counsel within 45 days after the Settlement Administrator mails the Class Notice Packets. (Doc. 17 28-2 at 34, 53.) Objections must be in writing and include the objecting Class Member’s name, 18 current address, telephone number, and a description of why the Settlement is not fair and 19 reasonable. It must also explain whether the objecting Class Member intends to appear at the 20 final approval hearing. Finally, objections must state the name and number of the case. 21 Objecting Class Members may enter an appearance through an attorney if they desire. (Doc. 28- 22 2 at 53.) 23 No later than ten days before the date by which Plaintiffs file their motion for final 24 approval of the Settlement, the Settlement Administrator shall serve the parties with “a 25 declaration of due diligence setting forth its compliance with its obligations under th[e] 26 Agreement and detailing the Elections Not to Participate in the Settlement” that it received. 27 (Doc. 28-2 at 33.) 28 C. Required Revisions to the Notice Packet 1 The Notice Packet must be modified to include information in this Order, including the 2 date and location of the hearing for Final Approval of Class Settlement. In addition, the Notice 3 Packet must include the contact information, including address and telephone and fax numbers, 4 for the Settlement Administrator. 5 If Plaintiffs intend to issue a Spanish language translation of the Notice, they are 6 informed that this Court requires a declaration that the Notice was translated by a certified court 7 interpreter, asserting the translation is an accurate translation of the Court-approved English 8 version of the Notice. CONCLUSION AND ORDER 9 10 Based upon the foregoing and conditioned upon the below, the Court finds the proposed 11 class settlement is fair, adequate, and reasonable. The factors set forth under Rule 23 and Ninth 12 Circuit precedent weigh in favor of preliminary approval of the settlement agreement. 13 Accordingly, the Court ORDERS: 14 1. Plaintiffs’ request for conditional certification of the Settlement Class is 15 GRANTED with the class defined as: 16 “all individuals who are or previously were employed by Defendant who worked in California, were classified as non- 17 exempt, and who separated from their employment between March 6, 2014 and February 20, 2018”. 18 2. Preliminary approval of the parties’ proposed settlement agreement is 19 GRANTED. 20 3. The proposed PAGA award from the Gross Settlement Amount, including a 21 payment of $37,500 to the LWDA is CONDITIONALLY APPROVED subject 22 to Plaintiffs submitting confirmation that the proposed settlement of PAGA 23 claims has been properly submitted to the Labor and Work Force Development 24 Agency within 7 days of the date of this Order. Any motion for final approval of 25 the settlement MUST address whether the LWDA commented on the submitted 26 settlement. 27 4. Any motion for final approval of the settlement MUST also include the 28 1 Settlement Administrator’s declaration of due diligence, as well as a declaration 2 confirming the number of class members to whom the Class Notice was sent and 3 successfully delivered. 4 5. The proposed notice plan is APPROVED. 5 6. Angela Conti and Justine Mora are APPOINTED the Class Representatives for 6 the Settlement Class. 7 7. The firm of Blumenthal Nordrehaug Bhowmik De Blouw LLP is APPOINTED 8 as class counsel. 9 8. ILYM Group is APPOINTED as the Settlement Administrator, with 10 responsibilities pursuant to the terms set forth in the Settlement Agreement. 11 9. The Class Representative enhancement request for Plaintiffs is GRANTED 12 preliminarily up to the amount of $5,000 subject to a petition and review at the 13 Final Approval and Fairness Hearing. Class Members and their counsel may 14 support or oppose this request, if they so desire, at the Final Approval and 15 Fairness Hearing. 16 10. Class Counsel’s request for fees not to exceed $106,250 and costs up to $12,000 17 is GRANTED preliminarily, subject to counsel’s petition for fees and review at 18 the Final Approval and Fairness Hearing. Class Members and their counsel may 19 support or oppose this request, if they so desire, at the Final Approval and 20 Fairness Hearing. 21 11. The petition for attorneys’ fees and for class representative enhancement fee 22 SHALL be filed no later than February 9, 2023. 23 12. Costs of settlement administration SHALL NOT exceed $15,000. 24 13. The proposed Notice Packet is preliminarily APPROVED, and the parties 25 SHALL file a finalized Notice with the required revisions for the Court’s 26 approval within seven days of the date of service of this Order. 27 14. Defendants SHALL provide the Settlement Administrator with the Class Data no 28 later than within 21 days of this Order. 1 15. The Settlement Administrator SHALL mail the approved Class Notice Packet no 2 later than 35 days from the date of this Order. 3 16. A Class Member who wishes to be excluded from settlement shall postmark an 4 Opt Out request within 45 days of the Notice Packet mailing. 5 17. Any objections to or comments on the Settlement Agreement must be submitted 6 to the Settlement Administrator within 45 days of the Notice Packet mailing. 7 18. A Final Approval and Fairness Hearing is SET for March 9, 2023 at 9:00 a.m. at 8 the United States Courthouse located at 2500 Tulare Street, Fresno, California. 9 At this hearing, the Court shall determine whether the Settlement should be 10 granted final approval as fair, reasonable, and adequate as to the class members. 11 The Court shall hear all evidence and argument necessary to evaluate the 12 Settlement and other motions and requests, including the class representative 13 enhancement request and motion for attorneys’ fees. 14 19. Class Members may appear at the hearing on March 9, 2023, in person or 15 through his or her own attorney, to show cause why this Court should not approve 16 the Settlement Agreement, or to object to the motion for attorneys’ fees or class 17 member representative enhancement award. For comments or objections to be 18 considered at the hearing, the Class Member must file comments with the Clerk 19 of this Court indicating briefly the nature of the Class Member’s comments, 20 support, or objection. 21 20. The Court reserves the right to vacate the Final Approval and Fairness Hearing if 22 no comments or objections are filed with this Court on or before February 9, 23 2023. 24 21. The Court reserves the right to continue the date of the Final Approval and 25 Fairness Hearing without further notice to class members. 26 22. The Court retains jurisdiction to consider all further applications arising from or 27 related to the Settlement Agreement. 28 1 | IT IS SOORDERED. ? | Dated: _November 7, 2022 Charis [Tourn 3 TED STATES DISTRICT JUDGE 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30