Gonzalez v. NCI Group, Inc. ( 2022 )

1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 Case No.: 1:18-cv-00948-AWI-SKO 7 ARTURO GONZALEZ on behalf of himself, all others similarly situated, and on 8 behalf of the general public, ORDER GRANTING PLAINTIFF’S RENEWED MOTION FOR 9 Plaintiffs, PRELIMINARY APPROVAL OF CLASS v. ACTION SETTLEMENT 10 NCI GROUP, INC., dba NCI BUILDING 11 SYSTEMS; and DOES 1-100, (Doc. No. 24) 12 Defendants. 13 14 15 16 Plaintiff Arturo Gonzalez brings a renewed motion for preliminary approval of class action 17 settlement. Doc. No. 24. The motion is unopposed and the Court has deemed it suitable for 18 decision without oral argument pursuant to Local Rule 230(g). See Doc. No. 26. For the reasons 19 set forth below, the motion will be granted. 20 BACKGROUND 21 A. First Amended Complaint 22 As set forth in the First Amended Complaint (“1AC”), Defendant NCI Group, Inc. (“NCI”) 23 manufactures and markets metal building systems and components for the nonresidential 24 construction industry. Doc. No. 17 ¶ 38. Gonzalez was employed by NCI at times relevant to this 25 action as a non-exempt, hourly shipping checker in California. Id. ¶ 26. 26 Gonzalez filed this putative class action in Merced County Superior Court on June 6, 2018, 27 on behalf of himself and others similarly situated, including warehouse workers, industrial 1 workers, shipping clerks and other categories of non-exempt, hourly workers in NCI’s employ in 2 California during the four-year period prior to commencement of this action. Doc. No. 1 ¶¶ 2, 4. 3 NCI answered the Complaint on July 11, 2018, id., Ex. B, and removed the case to this Court on 4 diversity grounds under the Class Action Fairness Act (“CAFA”) on July 12, 2018. Id. The 1AC 5 was filed on February 3, 2020. Doc. No. 17. 6 The 1AC alleges eight causes of action under the California Labor Code, California’s 7 Unfair Competition Law and the Industrial Welfare Commission’s (“IWC”) California Wage 8 Orders based primarily on allegations that NCI had a policy and/or practice of failing to pay non- 9 exempt hourly employees for missed break time. Doc. No. 17. For example, Gonzalez contends 10 that NCI failed to provide proper compensation for time spent walking to and from break areas 11 and time spent doffing and donning protective gear prior to and following breaks, in addition to 12 failing to provide proper compensation for breaks that were missed completely. See Doc. No. 18 at 13 18:23- 28. 14 The 1AC defines the putative class (“Class”) as “[a]ll persons who are employed or have 15 been employed by [NCI] in the State of California as hourly, Non-Exempt employees during the 16 period of the relevant statute of limitations.” Doc. No. 17 ¶ 44. Further, the 1AC alleges subclasses 17 defined as all persons within the Class who worked: (i) one or more shifts in excess of five hours; 18 (ii) one or more shifts in excess of six hours; (iii) one or more shifts in excess of 10 hours; (iv) one 19 or more shifts in excess of 12 hours; (v) one or more shifts in excess of two hours; (vi) one or 20 more shifts in excess of three and one-half hours, but less than or equal to six hours; and (vii) one 21 or more shifts in excess of six hours, but less than or equal to 10 hours.1 Id. 22 B. August 6, 2020 Order 23 Gonzalez and NCI reached a settlement agreement (“Settlement Agreement”) following 24 mediation that took place on November 19, 2019 with a retired Superior Court judge. Doc. No. 19, 25 Ex. A; see also, Doc. No. 18 at 11:11-14.2 On February 3, 2020, Gonzalez brought an unopposed 26 27 1 This information is provided for context. Certification of subclasses is not sought on this motion or addressed in this order. 2 Page citations to documents on the Court’s electronic docket are to the page number in the CM/ECF stamp at the top 1 motion for an order: (i) granting conditional certification of the Class for settlement purposes; (ii) 2 preliminarily approving the proposed settlement; (iii) approving notice to the Class (“Class 3 Notice”) and the plan for distribution of Class Notice; (iv) appointing an administrator for the 4 settlement (“Settlement Administrator”); and (v) setting a Final Approval Hearing. Doc. No. 18 at 5 2. 6 The Court issued an order denying the motion without prejudice on August 6, 2020. Doc. 7 No. 21. In that order, the Court addressed the requirements for class actions under Rules 23(a) and 8 23(b) of the Federal Rules of Civil Procedure,3 as well as the fairness, reasonableness and 9 adequacy of the proposed settlement under Rule 23(e)(2). See id. The order did not address the 10 scope of the release in the Settlement Agreement, notice, the appointment of the Settlement 11 Administrator or other such issues. See id. at 22:5-6. 12 Findings in the August 6, 2020 Order as to Class Certification 13 Rule 23(a) provides that the following four criteria “must be met to certify a class action: 14 (1) numerosity; (2) commonality of law or fact; (3) typicality of the representative plaintiff’s 15 claims; and (4) adequacy of representation.” Gripenstraw v. Blazin’ Wings, Inc., 2013 WL 16 6798926, at *3 (E.D. Cal. Dec. 20, 2013) (Ishii, J.); Fed.R.Civ.P. 23(a). The Court found in the 17 August 6, 2020 order that numerosity, commonality and typicality had been satisfied. Doc. No. 21 18 at 8:4-10:8. The Court also found, however, that Gonzalez had failed to show that the adequacy 19 requirement had been met because “the Settlement Agreement [did] not take account of 20 differences among Class Members with respect to wage levels, shift lengths or the number of 21 shifts worked per week” and Plaintiff and his counsel “could have a conflict with the Class to the 22 extent other Class Members worked a larger number of longer shifts at higher wages” than 23 Gonzalez. Id. at 10:15-24. The Court also stated as follows: 24 … [I]t may well be that there is uniformity in the number and length of shifts worked by Class Members and in the wages that Class Members were paid. Such 25 assumptions, however, are at odds with common sense and in tension with the fact that the 1AC alleges multiple subclasses based on shift lengths ranging from two 26 hours to 12 hours. [citations] The Court therefore needs more information as to how Gonzalez’s work history compares to the work histories of other Class 27 1 MGoenmzbaleerzs taon dre hsoisl vceo uitnss ceol n(hceorwne avbeor ucta ppoatbelnet)i aald ceoqnufaltiecltys raenpdr etose gnet tt hcoe minftoerrte tshtsa to f all Class Members. 2 3 Id. at 11:5-12. 4 In other words, the Court found “that numerosity, typicality and commonality [were] 5 satisfied for purposes of the Rule 23(a) analysis of the settlement, but that more information [was] 6 required to determine whether Gonzalez and his counsel are adequate representatives of the 7 proposed Class as a whole.” Doc. No. 21 at 11:14-17. 8 As to the second step of the class action analysis, Gonzalez sought certification under Rule 9 23(b)(3), which requires a showing that: (1) questions of law or fact common to class members 10 predominate over any questions affecting only individual members; and (2) a class action is 11 superior to other available methods for fairly and efficiently adjudicating the controversy. See 12 Fed.R.Civ.P. 23(b)(3); Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 593 (1997); Doc. No. 21 at 13 11:20-24. The Court found that Gonzalez had satisfied both requirements. See Doc. No. 21 at 14 12:3-12:25. 15 In light of the foregoing analyses under Rules 23(a) and 23(b)(3), the Court summarized its 16 findings with respect to class certification as follows: 17 Certification of the Class for settlement purposes appears to be warranted in most respects, but the Court is not satisfied that Gonzalez and his counsel adequately 18 represent the interests of all Class Members because the subclasses alleged in the 1AC imply significant variability in Class Member work histories. …[T]his 19 concern is compounded by the fact that the Settlement Payment methodology applied in the Settlement Agreement appears to gloss over factors—including the 20 length of shifts worked, the number of shifts worked, wage levels, whether a Class Member’s employment with NCI was terminated during the Class Period, and 21 whether a Class Member was employed by NCI in the final year of the Class Period—that could have a significant impact on an individual Class Member’s 22 potential recovery at trial. The Court therefore declines to certify the Class for settlement purposes based on the record currently before it. 23 24 Doc. No. 21 at 13:27-14:8. 25 Findings in the August 6, 2020 Order as to the Settlement Agreement 26 Class action settlements are permitted “only with the court’s approval ... on a finding that 27 [the settlement] is fair, reasonable, and adequate.” See Fed.R.Civ.P. 23(e); Hanlon v. Chrysler 1 Dukes, 564 U.S. 338 (2011). The principal purpose of court supervision of a class action 2 settlement is to ensure “the agreement is not the product of fraud or overreaching by, or collusion 3 between, the negotiating parties ....” Id. at 1027. This “ensure[s] that class representatives and their 4 counsel do not secure a disproportionate benefit at the expense of the unnamed plaintiffs who class 5 counsel had a duty to represent.” Lane v. Facebook, Inc., 696 F.3d 811, 819 (9th Cir. 2012). 6 To address such issues, courts balance several factors (sometimes referred to as the 7 “Hanlon factors”) before providing final approval of a settlement, including: “[i] the strength of 8 the plaintiffs’ case; [ii] the risk, expense, complexity, and likely duration of further litigation [and] 9 the risk of maintaining class action status throughout the trial; [iii] the amount offered in 10 settlement; [iv] the extent of discovery completed and the stage of the proceedings; [and] [v] the 11 experience and views of counsel ....” Hanlon, 150 F.3d at 1026. 12 At the preliminary approval stage, some courts look only at whether the settlement “falls 13 within the range of possible approval.” See O’Connor v. Uber Technologies, Inc., 201 F.Supp.3d 14 1110, 1122 (C.D. Cal. 2016). This includes an examination of whether the settlement is the 15 product of non-collusive negotiations, has no obvious deficiencies, and does not otherwise 16 improperly grant preferential treatment to class representatives or segments of the class. See In re 17 High-Tech Employee Antitrust Litig., 2014 WL 3917126, at *3 (N.D. Cal. Aug. 8, 2014). Other 18 courts, however, examine the Hanlon factors in addition to conducting a range-of-reasonableness 19 analysis at the preliminary approval stage to weed out fatal flaws in a proposed settlement before 20 additional resources are expended on the notice and opt-out process. See Millan v. Cascade Water 21 Services, Inc., 310 F.R.D. 593 (E.D. Cal. 2015). 22 In its August 6, 2020 order, the Court applied both the Hanlon factors and the range-of- 23 reasonableness analysis. See Doc. No. 21 at 15:9-21:20. In doing so, the Court found “reason to 24 doubt that the Settlement Payment methodology adequately reflects the rights and interests of all 25 Class Members,” id. at 21:18-20, and Court stated as follows: 26 The Court cannot certify the Class for settlement purposes or grant preliminary approval of the settlement because the Court is not satisfied, based on the record 27 before it, that the interests of all Class Members have been adequately represented or taken into account in structuring the settlement. Specifically, it appears to the 1 stetrramiginhat tweda gdeusr—inga st hwee Clll aass sC Plaersiso Md aenmdb/oerrs w whhoo wsee reem epmlopylomyeendt wwiitthh NNCCII iwn atsh e year prior to the filing of this lawsuit—may get shorted in the calculation of Settlement 2 Payments. These concerns can potentially be addressed through additional facts showing uniformity in the work histories of the putative Class Members, 3 modifications to the Settlement Payment calculation methodology or some other means, so the motion will be denied without prejudice to bringing another motion 4 for settlement approval if and when circumstances warrant doing so. 5 Id. at 21:22-4. 6 PLAINTIFF’S RENEWED MOTION & THE AMENDED SETTLEMENT AGREEMENT 7 On January 28, 2022, Gonzalez filed a renewed motion—which is also unopposed—for an 8 order: (1) provisionally granting Class certification for settlement purposes; (2) preliminarily 9 approving an amended settlement agreement (“Amended Settlement Agreement”); (3) approving 10 the proposed Class Notice and the plan for distribution of the Class Notice; (4) appointing a 11 Settlement Administrator; and (5) scheduling a Final Approval Hearing. Doc. No. 24 at 2. 12 The Amended Settlement Agreement is set forth in an amended stipulation filed with the 13 motion. See Doc. No. 24-2. The Amended Settlement Agreement differs from the Settlement 14 Agreement an issue in Gonzalez’s February 3, 2020 motion, see Doc. No. 18, in that it uses claim- 15 specific subclasses and methodologies based on the actual wages and work histories of Class 16 Members to calculate individualized settlement payments. 17 Like the Settlement Agreement, the Amended Settlement Agreement seeks to settle this 18 action on behalf of a single Class defined as “all non-exempt current and former employees who 19 worked for [NCI] as hourly warehouse workers, industrial workers, shipping checkers, distribution 20 employees, shipping clerks, packers, stackers, loaders, packaging clerks, machine operators, 21 receiving clerks, production workers, and all other similarly situated employees in California at 22 any time during the Class Period.” Doc. No. 24-2, Part VI, §1.4. The Class Period is defined as the 23 period from June 6, 2014 through February 24, 2020, id., Part VI, §1.8, and the Class comprises 24 approximately 274 current and former NCI employees (“Class Members” or, individually, “Class 25 Member”). Id., Part VI, §1.4. 26 Unlike the Settlement Agreement, however, the Amended Settlement Agreement identifies 27 three subclasses (based on claim types) for purposes of calculating settlement payments: (i) the 1 Penalties Subclass, which includes all Class Members who worked for NCI at any time from June 2 6, 2015 through February 24, 2020, and who are no longer employed by Defendant; and (iii) the 3 Wage Statement and PAGA Subclass, which includes all Class Members who worked for NCI 4 from June 6, 2017 through February 24, 2020.4 Doc. No. 24-2, Part VI, §1.4. 5 Per the Amended Settlement Agreement, NCI will pay a Maximum Settlement Amount 6 (“MSA”)—defined as “the maximum total that can be paid by [NCI]” pursuant to the Amended 7 Settlement Agreement—of $600,000 (or approximately $2,190 per Class Member). Doc. No. 24- 8 2, Part VI, §1.24. The MSA will cover: (i) settlement payments to Class Members who do not opt 9 out of the settlement (“Settlement Class Members”); (ii) attorneys’ fees to Class Counsel in an 10 amount not to exceed $150,000; (iii) litigation expenses to Class Counsel, in an amount not to 11 exceed $30,000; (iv) an “enhancement payment” to Gonzalez for services rendered and risk 12 assumed as the named plaintiff in an amount not to exceed $5,000; (v) administration fees and 13 expenses to the Settlement Administrator in an amount not to exceed $15,000; and (vi) a payment 14 to the California Labor and Workforce Development Agency (“LWDA”) and Settlement Class 15 Members under the Private Attorneys General Act (“PAGA”) of $60,000 ($45,000 to the LWDA 16 and $15,000 to Settlement Class Members) (“PAGA Payment”). Id. 17 The Net Settlement Amount (“NSA”) is the amount remaining for disbursement to 18 Settlement Class Members after subtracting from the MSA attorneys’ fees and litigation expenses, 19 the enhancement payment, settlement administration costs, and the LWDA portion of the PAGA 20 payment. Doc. No. 24-2, Part VI, §1.27. The estimated NSA is $370,000, for an average of 21 approximately $1,350 per Class Member. Id. at 8:16-17, n.2. 22 In these respects, the Amended Settlement Agreement is identical to the Settlement 23 Agreement. Compare Doc. No. 24-2 at 10:5-21 to Doc. No. 18-1 at 21:16-22:10. Unlike the 24 Settlement Agreement, however, the Amended Settlement Agreement provides that the NSA shall 25 26 4 The timeframes for the Waiting Time Penalties Subclass and the Wage Statement and PAGA Subclass reflect the 27 statutes of limitation applicable to the underlying violations, which differ from those applicable to violations involving meal breaks, rest breaks and unpaid wages. See Doc. No. 24 at 10:24-11:1. Further, the Waiting Time Penalties Subclass is limited to Class Members who are no longer employed by Defendants, since termination of employment is 1 be divided into three payout funds: (i) the Meal, Rest, and Unpaid Wages Payout Fund, 2 comprising 83% of the NSA; (ii) the Waiting Time Penalties Payout Fund, comprising 7% of the 3 NSA; and (iii) the Wage Statement Payout Fund, comprising 10% of the NSA. Doc. No. 24-2, Part 4 VI, §1.27. The total payment to each Settlement Class Member will be the sum of the amounts to 5 which a given Settlement Class Member is entitled from each of these three funds, id., Part VI, 6 §1.41, which “are tied to the unique circumstances of each Class Member.” Doc. No. 24 at 14:6-7. 7 As to the first of these three funds—the Meal, Rest, and Unpaid Wages Payout Fund— 8 Meal, Rest, and Unpaid Wages Individual Adjusted Shifts are calculated for each member of the 9 Meal, Rest, and Unpaid Wages Subclass by multiplying the number of shifts a given Subclass 10 Member worked during the Class Period by the Adjusted Shift Multiplier for that Subclass 11 Member (which is the Subclass Member’s last known pay rate times .1). Individual Adjusted 12 Shifts for all Subclass Members are combined to come up with the Total Adjusted Meal, Rest, and 13 Unpaid Shifts. The Unpaid Wages Payout Fund is divided by the Total Adjusted Meal, Rest and 14 Unpaid Shifts to get the Meal, Rest, and Unpaid Shift Value, which is then multiplied by the 15 Individual Adjusted Shifts for a given Subclass Member to generate a customized award reflecting 16 rate of pay and number of shifts worked. See Doc. No. 24 at 14:7-18; Doc. No. 24-2, Part VI, 17 §§1.1, 1.25, 1.26, 1.44. 18 Awards from the Waiting Time Penalties Payout Fund are calculated using parallel 19 methodology. Waiting Time Penalties Individual Adjusted Shifts are calculated for each Waiting 20 Time Penalties Subclass Member by multiplying the number of shifts the Subclass Member 21 worked from June 6, 2015 through February 24, 2020 by the Subclass Member’s Adjusted Shift 22 Multiplier (the Subclass Member’s last known pay rate times .1). The Individual Adjusted Shifts 23 for all Subclass Members are combined to get the Total Adjusted Waiting Time Penalties Shifts. 24 The Waiting Time Penalties Payout Fund is divided by the Total Adjusted Waiting Time Penalties 25 Shifts to get the Waiting Time Penalties Shift Value, which is then multiplied by the Individual 26 Adjusted Shifts for a given Subclass Member to generate a customized award reflecting rate of 27 pay and number of shifts worked. Doc. No. 24 at 14:18-15:6; Doc. No. 24-2, Part VI, §§1.1, 1.45, 1 Finally, a Settlement Class Member may be entitled to a payment from the Wage 2 Statement Payout Fund and the PAGA Payout Fund5 if he or she is a member of the Wage 3 Statement and PAGA Subclass. Here, the Qualifying Pay Periods for a given Subclass Member 4 are the pay periods in which the Subclass Member worked from June 6, 2017 through February 5 24, 2020.6 Total Pay Periods is the sum of Qualifying Pay Periods for all members of the Wage 6 Statement and PAGA Subclass. The Wage Statement Payout Fund and PAGA Payout Fund are 7 then divided by Total Pay Periods to generate a Pay Period Value, which is then multiplied by the 8 Qualifying Pay Periods for a given Subclass Member to generate a customized award reflecting 9 the number of pay periods worked during the relevant period. Doc. No. 24 at 15:7-18; Doc. No. 10 24-2, Part VI, §§1.33, 1.35 and 1.46. 11 Aside from the foregoing modifications with respect to the creation of claim-centric funds 12 and methodologies for calculating individualized settlement payments, the Amended Settlement 13 Agreement does not differ materially from the Settlement Agreement. Compare Doc. No. 24-2 to 14 Doc. No. 18-1 at 13-56. 15 DISCUSSION 16 The Court will first address conditional Class certification and preliminary approval of the 17 Amended Settlement Agreement, and then turn to other issues, such as Class Notice. 18 A. Conditional Class Certification and Preliminary Approval of Amended Settlement 19 Agreement 20 As set forth above, the Court denied Gonzalez’s February 3, 2020 motion on findings that 21 failure to address potential disparities in the wages, work histories and employment status of Class 22 Members cast doubt on his adequacy as a class representative and the fairness of payments to 23 Class Members under the Settlement Agreement. 24 Here, Gonzalez sets forth a declaration showing that Class Members worked over five 25 hours in approximately 97.8% of shifts and overtime in approximately 90% of shifts between June 26 27 5 The PAGA Payout Fund is the 25% of the PAGA Payment to be distributed to Settlement Class Members (as opposed to the LWDA). Doc. No. 24-2, Part VI, §1.32.2. 6 The Adjusted Shift Multiplier is not applied because penalties for wage statement and PAGA claims are statutorily 1 6, 2014 and February 24, 2020. Doc. No. 24-1 at 8:19-20; Doc. No. 24-3 at 2. Gonzalez argues 2 that “his work history is in line with that of the Class Members” because he worked “five or more 3 hours in 100% of his shifts and worked overtime in 91% of his shifts.” Doc. No. 24 at 21:24-26. 4 Further, he argues that differences in the hourly wages of Class Members—and in the number of 5 shifts worked by Class Members—are adequately addressed through the claim-centric funds and 6 individualized methodologies for calculating awards set forth in the Amended Settlement 7 Agreement. Id. at 22:4-10. Similarly, the creation of the Waiting Time Penalties Subclass limits 8 payment of waiting time penalties to Class Members whose employment with NCI has been 9 terminated. Id. at 10:25-11:1. 10 The additional information Gonzalez has provided with respect to work histories and the 11 new protocols in the Amended Settlement Agreement for calculating settlement payments 12 persuade the Court that Gonzalez’s interests are sufficiently aligned with those of other Class 13 Members for him to serve as the named plaintiff in this action and that “the interests of all Class 14 Members have been adequately represented … in structuring the settlement.” See Doc. No. 21 at 15 21:22-25. 16 Further, the record shows that David Mara, Jill Vecchi and the Mara Law Firm have 17 considerable experience litigating relevant class actions. See Doc. No. 24-1. David Mara has 18 litigated over 350 class actions and PAGA lawsuits over a period of approximately 15 years. Doc. 19 No. 24-1 at 4:19-25. And although she has not been practicing as long, Vecchi focuses solely on 20 PAGA actions and wage and hour actions, and has handled more than 100 such cases over the past 21 six years, in a managerial capacity and otherwise. Id. at 6:6-14. The Court therefore finds that the 22 Mara Law Firm—and specifically, Mara and Vecchi—can adequately represent the Class as Class 23 Counsel. 24 Finally, class action settlement agreements cannot release claims of absent class members 25 that are unrelated to the factual allegations of the class complaint. Hesse v. Sprint Corp., 598 F.3d 26 581, 590 (9th Cir. 2010). The Amended Settlement Agreement states that the release applies only 27 to claims arising from “facts alleged in the Complaint, that accrued during the Class Period” and 1 the facts alleged in the Complaint.” Doc. No. 24 at 17:2-18:15. The Court therefore finds that the 2 scope of the release is satisfactory.7 3 Having already found in its August 6, 2020 order that other applicable requirements have 4 been satisfied, see Doc. No. 21, the Court will grant conditional Class certification for purposes of 5 settlement, as well as preliminary approval of the Amended Settlement Agreement. 6 B. Notice 7 For any class certified under Rule 23(b)(3), “the court must direct to class members the 8 best notice that is practicable under the circumstances.” Fed.R.Civ.P. 23(c)(2)(B). The absent class 9 members must be provided with notice, an opportunity to be heard, and a right to opt-out of the 10 class. AT & T Mobility LLC v. Concepcion, 563 U.S. 333, 349 (2011). “The notice must clearly 11 and concisely state in plain, easily understood language” the following information: 12 (i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance 13 through an attorney if the member so desires; (v) that the court will exclude from the class any member who requests exclusion; (vi) the time and manner for 14 requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(c)(3). 15 16 Fed.R.Civ.P. 23(c)(2)(B). 17 The proposed notice in this action satisfies all these requirements. The notice form, for 18 example, provides a clear and accurate description of the Class, the nature of the claims and the 19 substance of the proposed settlement, as well as concise, easy-to-understand instructions in clearly 20 marked sections for objecting, opting out and such. See Doc. No. 24-2 at 44-51. Similarly, the 21 notice plan calls for an ample 45-day window for objections and opt-outs, see, e.g., id. Part VI, 22 §§1.37, 2.6.2, as well as thorough measures to reach class members, including a website, email, 23 standard mail, skip tracing and, where necessary and feasible, second mailings. Id. Sec. VI, §2.5. 24 The Court therefore finds that the proposed notice is adequate.8 25 26 7 There is no material difference between the factual allegations in the Complaint and the factual allegations in the 1AC. Compare Doc. No. 1, Ex. A to Doc. No. 17. 27 8 One minor issue the Court notes is that the notice form states at page 2 that “[a] Preliminary Approval Hearing was held [on date of preliminary approval hearing], in the United States District Court, Eastern District of California.” Doc. No. 24-2 at 45 (brackets original). That is not correct since the Court deemed the renewed motion suitable for 1 C. Final Approval Hearing 2 As to schedule, the Amended Settlement Agreement states that NCI shall provide a contact 3 database for Class Members to the Settlement Administrator selected by the parties—Rust 4 Consulting, Inc.—within 7 business days of entry of a Preliminary Approval Order. Doc No. 24-2 5 at 18:22-23. The Settlement Administrator will mail the Class Notice to all identified Class 6 Members within 21 business days of entry of the Preliminary Approval Order (with additional 7 attempts to deliver returned mail as warranted). Id. at 19:21-23. Class Members will have 45 days 8 from the initial mailing of Class Notice (“Response Deadline”) to object, opt out or otherwise 9 respond to the Class Notice. Id. at 13:9-11. Within 5 business days of the Response Deadline, the 10 Settlement Administrator will provide counsel for the parties with a complete and accurate 11 accounting as to the delivery of the Class Notice to Class Members, and within 14 calendar days 12 after the Response Deadline, the Settlement Administrator will provide the parties with a 13 declaration of due diligence setting forth its compliance with its obligations under the Amended 14 Settlement Agreement and corresponding stipulation. Id. at 26. Class Counsel will then file an 15 unopposed motion for final approval of the Amended Settlement Agreement. Id. at 26-27. 16 The Court approves this schedule and will set the Final Approval Hearing for January 23, 17 2023 to allow adequate time for the foregoing events to take place. 18 ORDER 19 Accordingly, IT IS HEREBY ORDERED as follows: 20 1. Plaintiff’s Renewed Motion for Preliminary Approval of Class Action Settlement 21 (Doc. No. 24) is GRANTED; 22 2. The Class is conditionally certified for purposes of settlement only and is defined 23 as follows: 24 All non-exempt current and former employees who worked for Defendant NCI Group, Inc. as hourly warehouse workers, industrial workers, shipping 25 checkers, distribution employees, shipping clerks, packers, stackers, loaders, packaging clerks, machine operators, receiving clerks, production 26 workers, and all other similarly situated employees in California from June 27 1 6, 2014 through February 24, 2020; 2 3. The proposed settlement, as set forth in the Amended Stipulation re: Settlement of 3 Class and Representative Action (“Amended Stipulation”) (Doc. No. 24-2), is 4 preliminarily approved; 5 4. The Class Notice and notice plan set forth in the Amended Stipulation are 6 approved, subject to the caveat that the Class Notice shall be modified to remove 7 the reference to a Preliminary Approval Hearing (see Doc. No. 24-2 at 45) and 8 accurately reflect the relevant procedural history in this case; 9 5. The parties shall implement the notice plan set forth in the Amended Stipulation 10 and prepare for the Final Approval Hearing according to the timeline set forth in 11 the Amended Stipulation; 12 6. As set forth in the Amended Stipulation, each Class Member will have 45 days 13 after the date on which the Settlement Administrator mails the Class Notice to 14 object to or opt out of the proposed settlement by following the procedures set forth 15 in the Class Notice; 16 7. The Court authorizes the retention of Rust Consulting, Inc. as Settlement 17 Administrator, pursuant to the terms of the Amended Stipulation; 18 8. David Mara and Jill Vecchi of Mara Law Firm, PC are conditionally designated 19 Class Counsel; 20 9. Arturo Gonzalez is conditionally designated Class Representative; 21 10. The parties shall appear on January 23, 2023, 1:30 p.m. in Courtroom 2 of the 22 United States District Court, Eastern District, Fresno Division, before the 23 undersigned for the Final Approval Hearing, which may include consideration of 24 the following: 25 a. Timely written objections to the proposed settlement by Class Members; 26 b. Oral statements by Class Members in support of or in opposition to settlement; 27 c. Responses by Class Counsel and counsel for Defendant to any objections to 1 Members; 2 d. Other information provided by the parties bearing on approval of the settlement 3 or settlement administration costs; 4 a. Requests by Class Counsel for attorneys’ fees and litigation expenses, as well 5 as any application for a class representative enhancement payment; 6 11. Pending further order of the Court, all proceedings in this matter except those 7 contemplated herein and in the Amended Stipulation are stayed. 8 9 IT IS SO ORDERED. Dp 19 | Dated: _ August 8, 2022 = : : SENIOR DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28