Vasquez v. Leprino Foods Company ( 2024 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ISAIAS VASQUEZ and LINDA HEFKE Case No. 1:17-cv-00796-JLT-BAM on behalf of all other similarly situated 11 individuals, Member cases: 12 Plaintiffs, 1:13-cv-02059-JLT-BAM 1:15-cv-00105-JLT-BAM 13 v. 1:17-cv-00686-JLT-BAM 14 LEPRINO FOODS COMPANY, a 1:18-cv-01404-JLT-BAM Colorado Corporation; LEPRINO FOODS 2:20-cv-00700-JLT-BAM 15 DAIRY PRODUCTS COMPANY, a Colorado Corporation; and DOES 1-50, 16 inclusive, ORDER GRANTING PLAINTIFFS’ MOTION (1) CONDITIONALLY 17 Defendants. CERTIFYING THE SETTLEMENT CLASS; (2) PRELIMINARILY 18 APPROVING THE CLASS ACTION SETTLEMENT; (3) APPOINTING 19 PLAINTIFFS AS CLASS REPRESENTATIVES AND THEIR 20 COUNSEL AS CLASS COUNSEL; (4) APPROVING THE NOTICE PACKET; 21 AND (5) SETTING A HEARING FOR FINAL APPROVAL OF THE CLASS 22 ACTION SETTLEMENT 23 (Doc. 443) 24 25 26 Presently pending before the Court is Plaintiffs’ unopposed motion for certification of a 27 settlement class under Federal Rule of Civil Procedure 23 and preliminary approval of the parties’ 28 class action settlement. Plaintiffs Isaias Vazquez, Linda Hefke, Jerrod Finder, Jonathan Talavera, 1 John Perez, Andrew Howell, and Fred Walter (collectively “Plaintiffs”) on behalf of themselves 2 and others similarly situated filed the motion on October 16, 2023. (Doc. 443.) Defendants 3 Leprino Foods Company and Leprino Foods Dairy Products Company (collectively “Defendants” 4 or “Leprino,”) filed a statement of non-opposition to the motion on December 4, 2023. (Doc. 5 452.) The motion was referred to United States Magistrate Judge Barbara A. McAuliffe 6 following consent by the parties for the motion to be heard and decided by the assigned 7 Magistrate Judge. 28 U.S.C. § 636(b)(1)(B); 636(c)(1); (Doc. 450, 451.) A hearing on the motion 8 was held via Zoom video conference on January 22, 2024, before the Honorable Barbara A. 9 McAuliffe. Counsel Kitty Kit Szeto appeared via Zoom on behalf of Plaintiffs. Counsel Lisa 10 Pooley appeared via Zoom on behalf of Defendants. 11 At the hearing, the Court requested supplemental briefing on several issues: (1) the 12 requested enhancement payment to Donald Null, (2) appointment of class counsel, (3) a lodestar 13 related to requested attorneys' fees; and (4) documentation of costs. Plaintiffs filed supplemental 14 briefing on February 4, 2024. (Doc. 460.) 15 For the following reasons, the Court GRANTS the motion for preliminary settlement 16 approval; CERTIFIES the proposed Settlement Class; APPOINTS Plaintiffs as Class 17 Representatives; APPOINTS the Parris Law Firm and The Downey Law Firm, LLC as Class 18 Counsel; and ORDERS dissemination of notice to the Class pursuant to the proposed notice plan. 19 BACKGROUND 20 A. Background of the Leprino Cases 21 Beginning in 2013 and until 2020, Plaintiffs filed a series of proposed class actions against 22 Leprino challenging various of Leprino’s employment policies and practices. After years of 23 litigation, Plaintiffs now seek preliminary approval of the following cases pending in this Court: 24 (1) Finder v. Leprino Foods Company, et al.; (2) Talavera v. Leprino Foods Company, et al.; (3) 25 Vasquez, et al. v. Leprino Foods Company, et al.; (4) Perez v. Leprino Foods Company, et al.; (5) 26 Howell v. Leprino Foods Company, et al.; and (6) Walter v. Leprino Foods Company, et al. 27 28 1 (collectively “Leprino Cases”).1 The Leprino Cases challenge certain wage and hour policies and 2 practices, which allegedly resulted in denial of full compensation for employees, at some or all of 3 Leprino’s three processing facilities in California: Lemoore West, Lemoore East, and Tracy. All 4 of the Leprino Cases were ultimately related to one another under this Court’s Local Rule 123. 5 Following a long and convoluted procedural history, Plaintiffs in the Leprino Cases and 6 Leprino reached a settlement. On October 16, 2023, ten years after filing the first of the Leprino 7 Cases, Plaintiffs filed this Motion for Preliminary Approval of Class Action Settlement to settle 8 all of the Leprino Cases. Soon thereafter, the Leprino Cases were consolidated on December 7, 9 2023, for purposes of preliminary and final approval of the settlement. (Doc. 454.) The Leprino 10 Cases are described as follows: 11 Finder and Talavera Cases 12 Plaintiff Jerrod Finder filed a lawsuit entitled Finder v. Leprino Foods Company, et al., 13 Case No. 1:13-cv-02059-JLT-BAM (“Finder”), on November 15, 2013, alleging California Labor 14 Code violations including failures to provide a second meal break or accurate itemized wage 15 statements, waiting time violations, Unfair Business Practices Act violations, and Private 16 Attorneys General Act (“PAGA”) claims based on those substantive violations. On January 21, 17 2015, Plaintiff Jonathon Talavera filed a second wage-and hour class action against Leprino 18 entitled Talavera v. Leprino Foods Company, et al., Case. No. 1:15-cv-00105-JLT-BAM 19 (“Talavera”), which ultimately included substantively similar claims as Finder. On November 20 21, 2016, the Honorable Anthony W. Ishii, the then-assigned district judge, found significant 21 overlap between Finder and Talavera and consolidated them into a single action (Finder, 1:13-v- 22 02059, Doc. 63.) Much of the litigation in Finder and Talavera was stayed pending an 23 interlocutory appeal and then while awaiting the Vasquez case, described below, to be resolved. 24 1 In their motion, Plaintiffs also requested preliminary approval of the settlement to resolve Null 25 v. Leprino Foods Company, et al., Case No. 1:19-cv-00525-AWI-BAM. (Doc. 443, p. 9.) However, the Null case was remanded to Kings County Superior Court on January 22, 2020. 26 (Doc. 34, Case No. 1:19-cv-00525-AWI-BAM). Because the case was remanded, the Court lacks 27 jurisdiction to resolve any issue related to Null, including any request for an enhancement award. In supplemental briefing filed on February 5, 2024, Plaintiffs withdrew their request for an 28 enhancement payment to Donald Null. (Doc. 460 p. 2.) 1 (Finder, 1:13-cv-02059, see, e.g., Docs. 49, 81, 134, 146.) 2 Perez Case 3 On April 13, 2017, Plaintiff John Perez filed a similar wage-and-hour class action, which 4 Leprino removed to federal court, entitled Perez v. Leprino Foods Company, et al., Case No. 5 1:17-cv-00686-JLT-BAM (“Perez”), on behalf of the hourly employees at Leprino’s Lemoore 6 East facility. Perez challenged policies and practices of requiring non-exempt employees to work 7 substantial amounts of time without pay as a result of donning and doffing of sanitary gear off the 8 clock, and allegedly failing to provide their non-exempt employees with the meal and rest 9 periods. The Court related Perez to Finder/Talavera. On January 6, 2021, Judge Ishii granted 10 class certification of certain of Perez’s off-the-clock, meal and rest period, and derivative claims. 11 (Perez, 1:17-cv-00686, Doc.74.) 12 Vasquez Case 13 On May 8, 2017, Plaintiffs Isaias Vasquez and Linda Hefke filed another wage-and-hour 14 class action, which Leprino removed to federal court, entitled Vasquez, et al. v .Leprino Foods 15 Company, et al., Case No. 1:17-cv-00796-JLT-BAM (“Vasquez”), on behalf of the hourly 16 employees at Leprino’s Lemoore West facility. The Court related Vasquez to Perez and 17 Finder/Talavera. On March 31, 2020, Judge Ishii granted class certification of claims for meal 18 and rest break; off-the-clock; overtime; minimum wage; failure to compensate for all hours 19 worked; accurate itemized wage statements; failure to pay wages when due; and unfair 20 competition claims. (Vasquez, 1:17-cv-796, Doc. 163, p. 31.) 2 Thereafter, Plaintiffs and 21 Defendants proceeded to a jury trial on March 14, 2023. The jury returned a verdict in Leprino’s 22 favor and against Plaintiffs on April 6, 2023. (Vasquez, 1:17-cv-796, Doc. 430.) Following the 23 jury’s verdict, Plaintiffs appealed. During the pendency of the appeal, the parties settled the 24 Leprino Cases. 25 Howell Case 26 On April 24, 2018, Plaintiff Andrew Howell filed a class action on behalf of the hourly 27 28 2 All page numbers refer to the CM/ECF pagination number. 1 employees at the Tracy facility, entitled Howell v. Leprino Foods Company, et al., Case No. 1:18- 2 cv-01404-JLT-BAM (“Howell”). On March 23, 2022, Judge Ishii granted class certification in 3 Howell on the on-call meal and rest break claims. (Howell, 1:18-cv-1404, Doc. 108.) The Court 4 related Howell to Finder. 5 Walter Case 6 On February 28, 2020, Charles Bates filed a nearly identical wage-and-hour class action 7 as Howell, which Leprino removed to federal court. The Court related Bates to Howell. Then, on 8 August 16, 2022, Judge Ishii granted leave to substitute Charles Bates with Plaintiff Fred Walter 9 as the class representative in the case now entitled Walter v. Leprino Foods Company, et al., Case 10 No. 2:20-cv-00700-JLT-BAM (“Walter”). On April 25, 2022, Judge Ishii granted class 11 certification on claims for late and short meal breaks, on-call breaks, and on-duty meal period. 12 (Walter, 2:20-cv-00700, Doc. 62.) 13 B. Events Leading to the Settlement in the Leprino Cases 14 The Leprino Cases involve a decade-long sojourn through this Court. Only the relevant 15 highlights to the motion currently pending are provided. 16 On March 14, 2023, the Vasquez case proceeded to a jury trial. At issue was whether 17 Leprino had a facility-wide policy at its Lemoore West facility between May 8, 2013 and 18 March 31, 2020 that required class members to be on-call during their meal and rest breaks. On 19 April 6, 2023, the jury rendered a verdict for Leprino, finding that Leprino did not have a 20 facility-wide policy at its Lemoore West facility and that the class was not required to be on-call 21 during rest breaks or during meal breaks. (Doc. 430.) Plaintiffs appealed the verdict on May 5, 22 2023, and Leprino filed a conditional cross-appeal in the event the Ninth Circuit did not affirm 23 the verdict. (Docs. 436 and 439.) 24 During the pendency of the Vasquez appeal, the parties participated in two (2) full-day, 25 in-person mediation sessions with Ninth Circuit Mediator, Kyungah Kay Suk, on July 31, 2023 26 and September 18, 2023. (Doc. 443, p. 11.) The parties had attempted previously to mediate the 27 Vasquez case unsuccessfully on January 31, 2020 with a private mediator. After ten years of hard- 28 fought litigation, the parties finally agreed to settle all of the Leprino Cases according to the terms 1 of the fully executed Settlement Agreement. Id. 2 C. Summary of the Proposed Settlement 3 1. Settlement Class 4 Plaintiffs seek to certify the following Class, which Leprino does not oppose or contest for 5 settlement purposes only: 6 All individuals who currently or formerly worked at Leprino’s Lemoore West, Lemoore East, or Tracy facilities in the State of California as hourly, non-exempt 7 employees at any time between November 15, 2009 and July 31, 2023. (“Settlement Class.”) 8 9 Subsets of this class had been certified previously in the Vasquez, Perez, Howell, and Walter 10 matters. (Doc. 443-1, Szeto Decl. Exs. 2-5.) 11 2. Monetary Value: Maximum Settlement Amount, Attorney’s fees and Costs, 12 Incentive Award, Settlement Administrator’s Fees 13 Leprino has agreed to pay a total maximum settlement fund of $3,500,000.00 (“Maximum 14 Settlement Amount”) to settle these long-standing cases against Leprino. (Doc. 443-1, Ex. 1 15 (Settlement Agreement) ¶ 28.) 16 The following amounts will be deducted from the Maximum Settlement Amount: 17 (1) payment of attorneys’ fees ($1,400,000) and costs ($800,000) to Class Counsel (Doc. 18 443-1, Ex. 1 (Settlement Agreement) ¶ 5), 19 (2) Settlement Administration Costs ($25,375.94) (Doc. 443-1, Ex. 1 (Settlement 20 Agreement) ¶ 47), 21 (3) the PAGA Settlement ($10,000) (Doc. 443-1, Ex. 1 (Settlement Agreement) ¶¶ 27, 22 35), and 23 (4) the Plaintiff Enhancement Payment ($45,000) (Doc. 443-1, Ex. 1 (Settlement 24 Agreement) ¶ 57; Doc. 460, pp. 2, 5.)3 25 /// 26 27 3 The Settlement Agreement states a total Plaintiff Enhancement Payment of $50,000 for class representatives. In supplemental briefing, Plaintiffs withdrew the $5,000 requested Enhancement 28 Payment for Ronald Null, leaving a total Plaintiff Enhancement Payment of $45,000. 1 3. Net Settlement Amount 2 A Net Settlement Amount of approximately $1,219,624.06 prior to deducting payroll 3 taxes, will be automatically paid out to Settlement Class Members without the need to submit a 4 claim form. The entire Net Settlement Amount will be distributed to the Participating Class 5 Members. A Participating Class member is any Class Member who does not submit a timely and 6 valid request for exclusion. (Doc. 443-1, Ex. 1 (Settlement Agreement) ¶ 36.) 7 Each Individual Settlement Payment shall be calculated by dividing the Class Member’s 8 total number of Workweek(s) employed as an hourly, non-exempt employee of Leprino in the 9 State of California during the Class Period as reflected in Defendants’ records by the total number 10 of Workweek(s) for all Class Members employed as hourly, non-exempt employees of Leprino in 11 the State of California during the Class Period. Leprino estimates about 2,000,000 workweeks for 12 the class. (Doc. 443-1, Ex. 1 (Settlement Agreement) ¶ 60.) The resulting number shall be 13 multiplied by the Net Settlement Amount to arrive at each Individual Settlement Payment. (Doc. 14 443-1, Ex. 1 (Settlement Agreement) ¶ 62.) 15 Following Final Approval and dismissal of the Leprino Cases, Defendants agree to waive 16 their Bill of Costs totaling $65,297.26 awarded in Vasquez, et al. v. Leprino Foods Company, et 17 al., Case No. 1:17-cv-00796-JLT-BAM filed on April 21, 2023. (Doc. 443-1, Ex. 1 (Settlement 18 Agreement) ¶ 79.) 19 4. Scope of Release 20 “Released Class Claims” means all claims under state, federal or local law, whether 21 statutory, common law or administrative law, alleged in the operative complaints in the Action,4 22 or that could have been alleged based on the factual allegations in the operative complaints in the 23 Action, including: (1) Failure to Pay Minimum Wage; (2) Failure to Pay Overtime Wages; (3) 24 Failure To Provide Meal Periods and Failure to Pay One Hour of Pay at Regular Rate of 25 26 4 The Settlement Agreement defines “Action” as the Vasquez Action, the Perez Action, the 27 Finder/Talavera Action, the Howell Action, the Null Action, and the Walter Action. (Doc. 443-1, Ex. 1 (Settlement Agreement) ¶ 3.). Thus, the Action is basically the Leprino Cases, and 28 including the Null case, which was remanded to state court. 1 Compensation; (4) Failure To Provide Rest Periods and Failure to Pay One Hour of Pay at 2 Regular Rate of Compensation; (5) Failure to Furnish Accurate Wage Statements; (6) Failure to 3 Pay Earned Wages Upon Termination; (7) Conversion; and (8) Unfair Competition in Violation 4 of California Business and Professions Code Section 17200, et seq., including, but not limited to, 5 claims for injunctive relief; punitive damages; liquidated damages, penalties of any nature; 6 interest; fees; costs; and all other claims and allegations made or which could have been made 7 based on the allegations in the operative complaints in the Action, from November 15, 2009 8 through the Release Date. The released claims specifically include all claims for alleged 9 violations of California Labor Code sections 201, 202, 203, 204, 210, 218, 218.5, 218.6, 225.5, 10 226, 226.3, 226.6, 226.7, 510, 512, 558, 1174, 1194, 1194.2, 1197.1, 1198, and 2699; California 11 Code of Civil Procedure sections 382 and 1021.5, and applicable Wage Order(s). (Doc. 443-1, 12 Ex. 1 (Settlement Agreement) ¶ 43.) 13 5. Notice 14 The parties have designated Phoenix Class Action Administration Solutions as the 15 settlement administrator. (Doc. 443-1, Ex. 1 (Settlement Agreement) ¶¶ 68-72.) Based upon the 16 declaration of Michael Moore, President, Phoenix Class Action Administration Solutions has 17 extensive experience in administering complex wage and hour, labor and employment, consumer/ 18 product liability, TCPA, FLSA, FACTA, ERISA and PAGA class action matters, through final 19 approval and distribution. Phoenix Class Action Administration Solutions has developed a system 20 of quality assurance measures, to ensure the highest quality service is provided in our cases and to 21 class members. (Doc. 460-10.) 22 Phoenix Class Action Administration Solutions will notify Class Members as follows. 23 Within five (5) calendar days after the Court’s entry of an order granting preliminary approval of 24 this Settlement Agreement, Defendants shall provide to Phoenix Class Action Administration 25 Solutions as the Settlement Administrator a Class Member List which includes the first and last 26 name, last known mailing address, telephone number, social security number, dates of 27 employment as an hourly-paid, non-exempt employee in the State of California during the Class 28 1 Period, and Workweek(s) for every Class Member. Within five (5) calendar days after receipt of 2 the Class Member List, the Settlement Administrator shall send the Notice to the Class Members. 3 The Settlement Administrator will use the United States Postal Service National Change of 4 Address (“NCOA”) List to verify the accuracy of all addresses on the Class Member list before 5 the initial mailing date. (Doc. 443-1, Ex. 1 (Settlement Agreement) ¶¶ 68-70.) 6 With respect to any returned envelopes, the Settlement Administrator will perform a 7 routine skip trace procedure to obtain a current address. The Settlement Administrator will 8 provide all counsel with a weekly report that certifies the number of Class Members who have 9 submitted a valid Request for Exclusion, Objection, and whether any Class Member submitted a 10 challenge to any information contained in the Class Notice. (Doc. 443-1, Ex. 1 (Settlement 11 Agreement) ¶¶ 70-71.) 12 As stated above, Settlement Administration Costs are requested of $25,375.94. 13 6. Opt-Outs (Exclusions) and Objections 14 There is no claim form for the Rule 23 class; and Class Members do not need to opt into 15 the class. Class Members are given 45 days after mailing of the Notice to opt out in writing. 16 Class members who wish to exclude themselves from the class action settlement must mail a 17 written Request for Exclusion which must be postmarked not more than forty-five (45) calendar 18 days after the date the Notice is mailed to the Class Members. (Doc. 443-1, Ex. 1 (Settlement 19 Agreement) ¶ 75.) The Request for Exclusion must: (i) set forth the name, address, telephone 20 number and last four digits of the Social Security Number of the Class Member requesting 21 exclusion; (ii) be signed by the Class Member; (iii) be returned to the Settlement Administrator; 22 (iv) clearly state that the Class Member does not wish to be included in the Settlement; and (v) be 23 postmarked on or before the Response Deadline (forty-five (45) calendar days from the initial 24 mailing of the Class Notice by the Settlement Administrator). (Id. at ¶¶ 45, 46.) 25 Class Members who wish to object to the class action settlement must mail objections to 26 the Settlement Administrator and postmarked not more than forty-five (45) calendar days after the 27 date the Notice is mailed to the Class Members (or not more than ten (10) calendar days after the 28 1 date the Notice is remailed). The Settlement Administrator shall promptly forward any Objections 2 received to counsel for the parties. Class Counsel and Counsel for Defendants shall file any 3 responses to Objections no later than fifteen (15) court days before the date of the final fairness 4 and approval hearing. The Class Notice shall include specific instructions to Class Members for 5 submitting Objections. A Class Member who wishes to object but who fails to comply with the 6 instructions set forth in the Class Notice shall be deemed not to have objected. (Doc. 443-1, Ex. 1 7 (Settlement Agreement) ¶ 76.) 8 7. Enhancement Awards 9 Plaintiffs request that the Court approve a Plaintiff Enhancement Payment in the total 10 amount of $45,000, broken down as follows, for the individual Plaintiffs’ efforts in filing and 11 prosecuting the Leprino Cases: Jerrod Finder ($5,000.00), Jonathan Talavera ($5,000.00), Isaias 12 Vasquez ($10,000.00), Linda Hefke ($10,000.00), John Perez ($5,000.00), Andrew Howell 13 ($5,000.00), and Fred Walters ($5,000.00).5 (Doc. 443, p. 29-30; Doc. 460, p. 2.) 14 Plaintiffs’ counsel represents that each of the listed Plaintiffs spearheaded their respective 15 Leprino Case. They “committed time to the litigation by reviewing pleadings, communicating 16 with Class Counsel during the prosecution of this case, participated in written discovery, and 17 sitting for deposition. Plaintiffs spent a substantial amount of time and effort in producing 18 relevant documents and past employment records and providing the facts and evidence to prove 19 the allegations in the complaint.” (Doc. 443-2, Szeto Decl. ¶ 12.) Plaintiffs assert that they have 20 “taken a substantial risk by electing to have their names as part of the public record in the Leprino 21 Cases. Any time they attempt to seek new employment or is under investigation by a prospective 22 employer, any search for lawsuits brought by them will be disclosed and they will have to deal 23 with the possible stigma of bringing a lawsuit against their former employer.” (Id.) 24 In addition, each Plaintiff has agreed to a full general release of their claims against 25 5 As previously indicated, Plaintiffs are no longer requesting an enhancement payment to Donald 26 Null. The $5,000.00 initially requested for Mr. Null as a Plaintiff Enhancement Payment has not 27 been subtracted from the Net Settlement Amount, and instead, remains part of the Net Settlement Amount to be distributed to the Participating Class Members . (Doc. 460, p. 2; Doc. 443-1, Ex. 1 28 at ¶ 62). 1 Leprino, which is broader that the release that applies to the Class Members. (Doc. 443-1, Ex. 1 2 (Settlement Agreement) ¶ 80.) The Plaintiffs release any claims related to their employment with 3 Leprino. (Id.) The class release is not as broad; the Class Members release claims related to 4 factual allegations in the operative complaints. (Doc. 443-1Ex. 1 (Settlement Agreement) ¶¶ 43, 5 78.) 6 8. Attorney’s Fees and Costs 7 Class Counsel (identified below) seek preliminary approval of their request attorneys’ fees 8 in the amount of $1,400,000 and request reimbursement of litigation costs and expenses in the 9 amount of $800,000. 10 9. Other Notable Terms of Settlement 11 Leprino has the option to rescind the Settlement Agreement if more than five percent (5%) 12 of the Class Members timely and validly submit a Request for Exclusion. (Doc. 443-1, Ex. 1 13 (Settlement Agreement) ¶ 74.) There is no reversion of any portion of the Maximum Settlement 14 Amount to Defendants. (Doc. 443-1, Ex. 1 (Settlement Agreement) ¶ 24.) 15 LEGAL STANDARDS 16 Court approval of a class action settlement requires a two-step process—a preliminary 17 approval followed by a later final approval. See Tijero v. Aaron Bros., Inc., No. C 10–01089 18 SBA, 2013 WL 60464, at *6 (N.D. Cal. Jan. 2, 2013) (“The decision of whether to approve a 19 proposed class action settlement entails a two-step process.”); West v. Circle K Stores, Inc., No. 20 CIV. S-04-0438 WBS GGH, 2006 WL 1652598, at *2 (E.D. Cal. June 13, 2006) (“[A]pproval of 21 a class action settlement takes place in two stages.”). At the preliminary approval stage, the court 22 “must make a preliminary determination on the fairness, reasonableness, and adequacy of the 23 settlement terms.” Fed. R. Civ. P. 23(e). However, the “settlement need only be potentially fair, 24 as the Court will make a final determination of its adequacy at the hearing on Final Approval.” 25 Acosta v. Trans Union, LLC, 243 F.R.D. 377, 386 (C.D. Cal. 2007) (emphasis in original); 26 Gruber v. Grifols Shared Services North America, Inc., No. 2:22-CV-02621-SPG-AS, 2023 WL 27 8610504, at *3 (C.D. Cal. Nov. 2, 2023). 28 1 A. Certification of the Class 2 To certify a class, a party must demonstrate that all of the prerequisites of Federal Rule of 3 Civil Procedure 23(a), and at least one of the requirements of Rule 23(b) has been met. Wang v. 4 Chinese Daily News, Inc., 737 F.3d 538, 542 (9th Cir. 2013); see also Valentino v. Carter- 5 Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996). Under Rule 23(a), the four requirements that 6 must be met for class certification are: “(1) the class is so numerous that joinder of all members is 7 impracticable; (2) there are questions of law or fact common to the class; (3) the claims or 8 defenses of the representative parties are typical of the claims or defenses of the class; and (4) the 9 representative parties will fairly and adequately protect the interest of the class.” Fed. R. Civ. P. 10 23(a)(1)–(4). These factors are known as “numerosity,” “commonality,” “typicality,” and 11 “adequacy,” respectively. Assessing these requirements involves “rigorous analysis” of the 12 evidence. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351, (2011). 13 Rule 23(b) requires a plaintiff to establish one of the following: (1) that there is a risk of 14 substantial prejudice from separate actions; (2) that declaratory or injunctive relief benefitting the 15 class as a whole would be appropriate; or (3) that common questions of law or fact predominate 16 and the class action is superior to other available methods of adjudication. Fed. R. Civ. P. 17 23(b)(1)– (3). Rule 23(b)(3) “requires only that the district court determine after rigorous analysis 18 whether the common question predominates over any individual questions, including 19 individualized questions about injury or entitlement to damages.” Olean Wholesale Grocery 20 Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 669 (9th Cir. 2022) (en banc). Rule 23(c)(1) 21 permits a court to make a conditional determination of whether an action should be maintained as 22 a class action, subject to final approval at a later date. Dukes v. Wal-Mart Stores, Inc., No. C 01- 23 02252 CRB, 2012 WL 4329009, at *4 (N.D. Cal. Sept. 21, 2012). 24 B. Court Approval of Class Settlement Agreements 25 Rule 23(e)(2) mandates that any settlement in a class action may only be approved by the 26 court after finding that the settlement is “fair, reasonable, and adequate” upon consideration of 27 whether: 28 (A) the class representatives and class counsel have adequately represented the class; 1 (B) the proposal was negotiated at arm’s length; 2 (C) the relief provided for the class is adequate, taking into account: 3 (i) the costs, risks, and delay of trial and appeal; 4 (ii) the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims; 5 (iii) the terms of any proposed award of attorney’s fees, including timing of payment; and 6 (iv) any agreement required to be identified under Rule 23(e)(3); and 7 (D) the proposal treats class members equitably relative to each other. 8 Fed. R. Civ. P. 23(e)(2)(A)–(D). The role of the district court in evaluating the fairness of the 9 settlement is not to assess the individual components, but to consider the settlement as a whole. 10 Lane v. Facebook, Inc., 696 F.3d 811, 818–19 (9th Cir. 2012), reh’g denied, 709 F.3d 791 (9th 11 Cir. 2013). In reviewing a proposed settlement, the court represents those class members who 12 were not parties to the settlement negotiations and agreement. In re Toys R Us-Delaware, Inc.— 13 Fair & Accurate Credit Transactions Act Litig., 295 F.R.D. 438, 448 (C.D. Cal. 2014). The 14 Ninth Circuit has recognized a strong judicial policy favoring settlement, particularly of complex 15 class actions. Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992). 16 Nevertheless, even where a proposed settlement is unopposed, the court must fully 17 examine whether the proposed settlement class satisfies Rule 23(a)’s requirements of numerosity, 18 commonality, typicality, and adequacy of representation. Hanlon v. Chrysler Corp., 150 F.3d 19 1011, 1019 (9th Cir. 1998), overruled on other grounds by Wal-Mart Stores, Inc. v. Dukes, 564 20 U.S. 338 (2011). Particularly when, as here in some of the Leprino Cases, the settlement occurs 21 prior to class certification, courts must scrutinize the proposed settlement to ensure the propriety 22 of class certification and the fairness of the proposed settlement. Staton v Boeing, 327 F.3d 938, 23 952 (9th Cir. 2003); Hanlon, 150 F.3d at 1026). This more exacting review of class settlements 24 reached before formal class certification is required to ensure that the class representatives and 25 their counsel do not receive a disproportionate benefit “at the expense of the unnamed plaintiffs 26 who class counsel had a duty to represent.” Lane, 696 F.3d at 819 (quotation and citation 27 omitted). 28 1 DISCUSSION-RULE 23 REQUIREMENTS 2 This consolidated action comprises member cases which are at various stages. 6 The lead 3 case, Vasquez, has been certified and tried to a jury, while some cases have been certified as class 4 actions, and another case has not been certified. The Court shall consider whether preliminary 5 approval of the proposed settlement is appropriate, and whether the settlement class should be 6 certified for purposes of settlement only, in light of the mixed procedural posture of the Leprino 7 Cases. The Court now turns to determining whether certification of the Settlement Class is 8 appropriate for purposes of settlement. 9 A. Numerosity 10 Numerosity is met if “the class is so numerous that joinder of all members is 11 impracticable.” Fed. R. Civ. P. 23(a)(1). There is no absolute number or cut-off for determining 12 numerosity, and the specific facts of each case may be examined. Schwarm v. Craighead, 233 13 F.R.D. 655, 660 (E.D. Cal. 2006); Cervantez v. Celestica Corp., 253 F.R.D. 562, 569 (C.D. Cal. 14 2008) (“Courts have not required evidence of specific class size or identity of class members to 15 satisfy the requirements of Rule 23(a)(1).”). “A reasonable estimate of the number of purported 16 class members satisfies the numerosity requirement of Rule 23(a)(1).” In re Badger Mountain Irr. 17 Dist. Sec. Litig., 143 F.R.D. 693, 696 (W.D. Wash. 1992). 18 Here, the proposed class consisted of approximately 3,300 Class Members during the 19 Class Period. (Doc. 443-1, Ex. 1 (Settlement Agreement), ¶ 60 (“Defendants represent that there 20 are approximately 3,300 Class Members during the Class Period who were employed as hourly, 21 non-exempt employees of Leprino in California for approximately 2,000,000 Workweeks.”).) 22 In light of the foregoing authorities, the Court finds the proposed class of 3,300 members 23 satisfies the numerosity requirement as joinder of such members is impracticable. See also 24 Celano v. Marriott Int'l, Inc., 242 F.R.D. 544, 549 (N.D. Cal. 2007) (noting “courts generally find 25 that the numerosity factor is satisfied if the class comprises 40 or more members and will find that 26 it has not been satisfied when the class comprises 21 or fewer.”); Cervantez, 253 F.R.D. at 569 27 6 The Vasquez case, the Perez case, the Howell case, and the Walter case have been certified. The 28 Finder/Talavera case has not been certified. (Doc. 443-1, Exh. 1 ¶13-19.) 1 (“Courts have held that numerosity is satisfied when there are as few as 39 potential class 2 members.”) 3 B. Commonality 4 Commonality requires “questions of law or fact common to the class.” Fed. R. Civ. P. 5 23(a)(2). Parties seeking class certification must prove their claims depend on a common 6 contention of such a nature it is capable of class-wide resolution, meaning the determination of its 7 truth or falsity will resolve an issue central to the validity of each claim at once. Wal-Mart, 564 8 U.S. at 350. Class-wide proceedings must generate common answers to common questions of law 9 or fact apt to drive resolution of the litigation. Id. The parties must demonstrate class members 10 have suffered the same injury. Id. at 349-350. 11 The parties here identify common contentions and demonstrate class members suffered 12 the same injury. The common questions across the Settlement Class include the certified 13 questions of whether Leprino had an on-call policy at its facilities that deprived Class Members of 14 meal and rest breaks, whether Leprino failed to provide second meal breaks, whether Leprino had 15 a timekeeping policy that rounded punches resulting in late and short meal breaks, whether 16 Leprino’s policies resulted in Class Members donning and doffing off the clock, and also include 17 the questions on which Plaintiffs would still seek certification, including, whether Leprino failed 18 to pay minimum wage, failed to pay overtime wages, failed to pay appropriate premium pay for 19 meal or rest breaks not provided, failed to furnish accurate wage statements, or failed to pay 20 earned wages at termination. Certification has already been granted in Vasquez, Perez, Howell, 21 and Walter cases on some of these common policies. Certification of this Settlement Class is 22 appropriate because Leprino engaged in uniform practices with respect to the Class Members. 23 Hanlon, 150 F.3d at 1022. 24 C. Typicality 25 Rule 23 also requires that “the claims or defenses of the representative parties are typical 26 of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). Under Rule 23’s permissive 27 standard, claims “need not be substantially identical,” but are typical if the representative's claims 28 are “reasonably co-extensive with those of the absent class members.” Parsons v. Ryan, 754 F.3d 1 657, 685 (9th Cir. 2014) (quoting Hanlon, 150 F.3d at 1020). Typicality is based on the “nature of 2 the claim or defense of the class representative, and not to the specific facts from which it arose or 3 the relief sought.” Parsons, 754 F.3d at 685 (quoting Hanon v. Dataproducts Corp., 976 F.2d 4 497, 508 (9th Cir. 1992)). Typicality tests “whether other members have the same or similar 5 injury, whether the action is based on conduct which is not unique to the named plaintiffs, and 6 whether other class members have been injured by the same course of conduct.” Id. (quoting 7 Hanon, 976 F.2d at 508). The requirements of commonality and typicality occasionally merge, 8 and “[b]oth serve as guideposts for determining whether under the particular circumstances 9 maintenance of a class action is economical and whether the named plaintiff’s claim and the class 10 claims are so interrelated that the interests of the class members will be fairly and adequately 11 protected in their absence.” Id. (quoting Wal-Mart, 564 U.S. at 349 n.5). 12 As with the commonality requirement, the Court finds the typicality requirement is 13 satisfied since Plaintiffs’ claims arise from the same factual bases and are premised upon the 14 same legal theories as those applicable to the purported class members. Plaintiffs, like every other 15 class member, were employed by Leprino as non-exempt employees and, like every other class 16 member, were allegedly subject to the same employment practices concerning on-call meal and 17 rest breaks, second meal breaks, rounding of time punches, donning and doffing off the clock, 18 wages, overtime and premium pay, accurate wage statements and final wages at termination. 19 D. Adequacy of Representation 20 The Court must ensure “the representative parties will fairly and adequately protect the 21 interests of the class.” Fed. R. Civ. P. 23(a)(4). In determining whether the named plaintiffs will 22 adequately represent the class, courts must resolve two questions: “(1) do the named plaintiffs and 23 their counsel have any conflicts of interest with other class members and (2) will the named 24 plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” Ellis v. Costco 25 Wholesale Corp., 657 F.3d 970, 985 (9th Cir. 2011) (quoting Hanlon, 150 F.3d at 1020). 26 “Adequate representation depends on, among other factors, an absence of antagonism between 27 representatives and absentees, and a sharing of interest between representatives and absentees.” 28 Ellis, 657 F.3d at 985 (citing Molski v. Gleich, 318 F.3d 937, 955 (9th Cir. 2003)). Class 1 representatives “must be part of the class and possess the same interest and suffer the same injury 2 as the class members.” Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 626 (1997) (internal 3 quotations and citations omitted). This factor also tends to merge with the commonality and 4 typicality criteria of Rule 23. Id. at 626 n.20. 5 Here, the Court finds the representative Plaintiffs and Class Counsel are adequate 6 representatives of the class. As the Court has noted, Plaintiffs and the class share common injuries 7 and possess the same interests. Plaintiffs and counsel have averred they have no conflicts of 8 interest with the class and have prosecuted the action vigorously up to this point. (Doc. 460-1, 9 Szeto Suppl. Decl. ¶¶ 3-4 (over 80 depositions, trial, discovery); Doc. 460-2, Downey Suppl. 10 Decl. ¶ 3.) 11 Plaintiffs have no conflicts of interest with other class members, suffered the same alleged 12 statutory injury as all other class members, and share with the class the common goal of 13 protecting workers’ rights. (See, e.g., Doc. 460-3, Finder Decl. ¶ 10 (“My interests as a named 14 plaintiff in the lawsuit are not adverse to the interests of the other employees.”); Doc. 460-4, 15 Talavera Decl. ¶ 10 (“I have always put the best interests of the other employees first while 16 performing my duties as a potential leader in this case.”); Doc. 460-5, Vazquez Decl. ¶10 (“I do 17 not have any conflicts with any of the other employees at Leprino, and I never intend to.”); Doc. 18 460-6, Hefke Decl. ¶ 11 (“I brought this case so I could help the other employees correct the legal 19 wrongs I believe Leprino committed.”); Doc. 460-7, Perez Decl. ¶ 10 (“I have always put the best 20 interests of the other employees first while performing my duties as a potential leader in this 21 case.”); Doc. 460-8, Howell Decl. ¶ 9 (“I brought this case so I could help the other employees 22 correct the legal wrongs I believe Leprino committed.”); Doc. 460-9, Walter Decl. ¶ 10 (“I have 23 always put the best interests of the other employees first while performing my duties as a 24 potential leader in this case.”).) 25 In addition, the Court has previously appointed certain of the Plaintiffs as class 26 representatives when it certified classes in Vasquez (Isaias Vasquez and Linda Hefke), Perez 27 (John Perez), Howell (Andrew Howell), and Walter (Fred Walter). 28 The Court must also consider the adequacy of representation by Class Counsel: the Parris 1 Law Firm and The Downey Law Firm, LLC . Class Counsel have significant experience 2 prosecuting wage-and-hour class actions. Based on review of the submitted declarations, the 3 Court finds Plaintiffs’ counsel have demonstrated they have sufficient experience litigating 4 employment class actions in which they were certified by the state and federal courts as 5 competent and adequate class counsel. (See Doc. 443-1, Szeto Decl. ¶¶ 10-11 and Ex. 6; Doc. 6 443-2, Downey Decl. ¶ 2 and Ex. A.) The Parris Law Firm and the Downey Law Firm have been 7 appointed counsel in other of the Leprino Cases. 8 Here, there do not appear to be any conflicts of interest between Plaintiffs and the 9 purported class members. Additionally, all Plaintiffs have the same interests and suffered from 10 the same injury as the purported class members, albeit not every injury. All alleged injuries arose 11 from employment policies while employed at Leprino. Class Counsel have extensive experience 12 in class actions and complex litigation, including many wage-and-hour cases (See Doc. 443-1, 13 Szeto Decl. Ex. 6 and ¶¶ 10-11), there is no evidence of any potential conflicts, and they have 14 prosecuted the Leprino Cases for over a decade. Accordingly, Plaintiffs and their counsel appear 15 to be adequate representatives of the proposed class. 16 Accordingly, the Court finds Plaintiffs Jerrod Finder, Jonathan Talavera, Isaias Vasquez, 17 Linda Hefke, John Perez, Andrew Howell, and Fred Walter have demonstrated they will 18 adequately and fairly protect the interests of the class. Fed. R. Civ. P. 23(a)(4). For purposes of 19 settlement only, the Court hereby appoints Plaintiffs Jerrod Finder, Jonathan Talavera, Isaias 20 Vasquez, Linda Hefke, John Perez, Andrew Howell, and Fred Walter as Class Representatives. 21 Similarly, based on the aforementioned litigation efforts detailed by counsel, the Court appoints 22 the Parris Law Firm and The Downey Law Firm, LLC as Class Counsel in this matter. 23 E. Rule 23(b)(3) Requirements 24 Both the predominance and superiority requirements are satisfied under Rule 23(b)(3). 25 1. Predominance 26 “The first requirement of Rule 23(b)(3) is predominance of common questions over 27 individual ones.” Valentino, 97 F.3d at 1234. The predominance inquiry “trains on the legal or 28 1 factual questions that qualify each class member's case as a genuine controversy, questions that 2 preexist any settlement,” and “tests whether proposed classes are sufficiently cohesive to warrant 3 adjudication by representation.” Amchem Prod., 521 U.S. at 594. If a common question will drive 4 the resolution of the litigation, the class is sufficiently cohesive. Jabbari v. Farmer, 965 F.3d 5 1001, 1005 (9th Cir. 2020) (court must determine which questions are likely “to drive the 6 resolution of the litigation.) 7 Plaintiffs contend that common questions of law or fact predominate over individual 8 questions pursuant to Rule 23(b)(3). The challenged Leprino policies and practices apply 9 uniformly across all Class Members at Leprino’s three facilities. There are no individualized 10 inquiries, and the same common legal questions qualify each Class Member’s case as a genuine 11 controversy such that the proposed class is sufficiently cohesive to warrant adjudication by 12 representation. The issues are common to the class: whether it was Defendants’ standard practice 13 and policy to fail to pay minimum wage, fail to pay overtime wages, fail to pay appropriate 14 premium pay for meal or rest breaks not provided, fail to furnish accurate wage statements, or fail 15 to pay earned wages at termination. Other issues similarly predominate: whether Leprino had an 16 on-call policy at its facilities that deprived Class Members of meal and rest breaks, whether 17 Leprino failed to provide second meal breaks, whether Leprino had a timekeeping policy that 18 rounded punches resulting in late and short meal breaks, and whether Leprino’s policies resulted 19 in Class Members donning and doffing off the clock. These are questions of law and fact subject 20 to common proof that would predominate over individualized inquiries. Either such policies 21 existed as to all or such policies did not exist. Given that common policies apply to the Class, the 22 Court finds questions of law or fact common to the class members predominate over any 23 questions affecting only individual members. 24 2. Superiority 25 The class action mechanism is the superior method for adjudicating this lawsuit. Fed. R. 26 Civ. P. 23(b)(3). “Where classwide litigation of common issues will reduce litigation costs and 27 promote greater efficiency, a class action may be superior to other methods of litigation. A class 28 action is the superior method for managing litigation if no realistic alternative exists.” Valentino, 1 97 F.3d at 1234–35. Factors relevant to the superiority requirement include: 2 (A) the class members’ interests in individually controlling the prosecution or defense of 3 separate actions; 4 (B) the extent and nature of any litigation concerning the controversy already begun by or 5 against class members; 6 (C) the desirability or undesirability of concentrating the litigation of the claims in the 7 particular forum; and 8 (D) the likely difficulties in managing a class action. 9 Fed. R. Civ. P. 23(b)(3); Zinser v. Accufix Rsch. Inst., Inc., 253 F.3d 1180, 1190 (9th Cir.), 10 opinion amended on denial of reh'g, 273 F.3d 1266 (9th Cir. 2001) (“In determining superiority, 11 courts must consider the four factors of Rule 23(b)(3).”) “A consideration of these factors 12 requires the court to focus on the efficiency and economy elements of the class action so that 13 cases allowed under subdivision (b)(3) are those that can be adjudicated most profitably on a 14 representative basis.” Zinser, 253 F.3d at 1190. However, where “confronted with a request for 15 settlement-only class certification, a district court need not inquire whether the case, if tried, 16 would present intractable management problems, for the proposal is that there be no trial.” 17 Amchem Prod., Inc., 521 U.S. at 620. 18 Resolution of the claims of approximately 3,300 total class members in one class action 19 settlement is far superior to individual lawsuits because it promotes consistency and efficiency of 20 adjudication. Further, the Court finds a class action avoids the inefficiency of each class member 21 litigating similar claims individually. Therefore, the Court finds that a class action is the superior 22 method for adjudicating the claims in this action. 23 For the foregoing reasons, the Court finds Plaintiffs have sufficiently met the requirements 24 of Rule 23(a) and (b). The Settlement Class is preliminarily certified for purposes of settlement, 25 subject to a final fairness hearing and certification of the settlement class under the Federal Rules 26 of Civil Procedure and related case law. 27 DISCUSSION-PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT 28 Having concluded that class treatment appears to be warranted, the Court now considers 1 whether the proposed settlement is fair, adequate, and reasonable. Fed. R. Civ. P. 23(e)(2); In re 2 Bluetooth Headset Products Liab. Litigation., 654 F.3d 935, 946 (9th Cir. 2011). The role of the 3 district court in evaluating the fairness of the settlement is not to assess the individual 4 components, but to consider the settlement as a whole. Lane, 696 F.3d at 818–19. Preliminary 5 approval of a settlement and notice to the proposed class is appropriate if: (i) the proposed 6 settlement appears to be the product of serious, informed, non-collusive negotiations; and (ii) the 7 settlement falls within the range of possible approval, has no obvious deficiencies, and does not 8 improperly grant preferential treatment to class representatives or segments of the class. In re 9 Tableware Antitrust Litigation, 484 F. Supp. 2d 1078, 1079 (N.D. Cal. 2007) (citing Schwartz v. 10 Dallas Cowboys Football Club, Ltd., 157 F. Supp. 2d 561, 570 n.12 (E.D. Pa. 2001)). 11 In making this inquiry, the Court should weigh: (1) the strength of the plaintiff's case; (2) 12 the risk, expense, complexity, and likely duration of further litigation; (3) the risk of maintaining 13 class action status throughout the trial; (4) the amount offered in settlement; (5) the extent of 14 discovery completed and the stage of the proceedings; (6) the experience and views of counsel; 15 (7) the presence of a governmental participant; and (8) the reaction of the class members of the 16 proposed settlement. In re Bluetooth Headset Prod. Liab. Litig., 654 F.3d at 946. Some of these 17 eight factors cannot be fully assessed until the court conducts its final fairness hearing. Zwicky v. 18 Diamond Resorts Mgmt. Inc., 343 F.R.D. 101, 119 (D. Ariz. 2022). Thus, at the preliminary 19 approval stage, courts need only evaluate “whether the proposed settlement [1] appears to be the 20 product of serious, informed, non-collusive negotiations, [2] has no obvious-deficiency, [3] does 21 not improperly grant preferential treatment to class representatives or segments of the class and 22 [4] falls within the range of possible approval.” Zwicky, 343 F.R.D. at 119; accord Collins v. 23 Cargill Meat Sols. Corp., 274 F.R.D. 294, 301-303 (E.D. Cal. 2011) (citing In re Tableware 24 Antitrust Litig., 484 F. Supp. 2d at 1079). Because collusion may not be evident on a settlement’s 25 face, courts must be vigilant for subtle signs “class counsel have allowed pursuit of their own 26 self-interests and that of certain class members to infect the negotiations.” In re Bluetooth 27 Headset Prod. Liab. Litig., 654 F.3d at 947. 28 At this juncture, the Court will review the parties’ Proposed Settlement Agreement 1 according to the four Zwicky considerations listed above and conduct a cursory review of its terms 2 in deciding whether to order the parties to send the proposed notice to Class Members and 3 conduct the final fairness hearing. 4 A. The Proposed Settlement Appears to be the Product of Serious, Informed, Non- 5 Collusive Negotiations 6 The Ninth Circuit observed that “the very essence of a settlement is compromise, ‘a 7 yielding of absolutes and an abandoning of highest hopes.’ ” Officers for Justice v. Civil Serv. 8 Comm'n of City & Cnty. of S.F., 688 F.2d 615, 624 (9th Cir. 1982) (citation omitted). Thus, when 9 analyzing the amount offered in settlement, the Court should examine “the complete package 10 taken as a whole,” and the amount is “not to be judged against a hypothetical or speculative 11 measure of what might have been achieved by the negotiators.” Id. at 625, 628. The Court must 12 look at the means and negotiations by which the parties settled the action in addition to reviewing 13 the Proposed Settlement Agreement for obvious deficiencies. Zwicky, 343 F.R.D. at 120. 14 Here, the parties reached a settlement after participating in a mediation and subsequent 15 settlement negotiations. Following the jury verdict in Vasquez, and while the Vasquez case was 16 pending on appeal, the parties engaged in two (2) arm’s length mediations with Ninth Circuit 17 Mediator, Kyungah Kay Suk, who Plaintiffs represent is a very well-respected, experienced 18 mediator who specializes in resolving cases on appeal before the Ninth Circuit. (Doc. 443, p. 15.) 19 During the mediation, the parties exchanged information and discussed all aspects of the Leprino 20 Cases including the risks and delays of further litigation, the risks to both parties, the evidence 21 produced and analyzed, and the possible outcome of the Vasquez appeal and its effect on the other 22 Leprino cases, among other things. Id. At all times, the parties’ negotiations reportedly were 23 adversarial and non-collusive. Both parties felt strongly about their case on appeal and arriving at 24 a settlement that was acceptable to both parties was difficult. All parties considered the risks in 25 continued litigation in all of the other pending Leprino Cases, and agreed that the Leprino Cases 26 were well-suited for settlement, given the costs and risks both sides faced in further, very 27 protracted litigation. 28 As Plaintiffs note in their motion, the parties heavily litigated the Leprino Cases for ten 1 years, until after a verdict rendered in favor of Leprino in 2023 and until the settlement was 2 reached while on appeal of the jury’s verdict. The attestations regarding the process of mediation 3 evinces good faith negotiations and a thorough process for arriving at settlement. 4 In terms of discovery, four of the Leprino Cases had been certified for class action 5 treatment. The Vasquez case had been tried to a jury. Thus, sufficient discovery and litigation 6 had been conducted to evaluate the strength of the claims. 7 B. No Obvious Deficiencies 8 Obvious deficiencies in a settlement agreement include “any subtle signs that class 9 counsel have allowed pursuit of their own self-interests to infect the negotiations.” McKinney- 10 Drobnis v. Oreshack, 16 F.4th 594 (9th Cir. 2021) (quoting Roes, 1-2 v. SFBSC Mgmt., LLC, 944 11 F.3d 1035, 1043 (9th Cir. 2019)). The Ninth Circuit has identified three such “subtle signs,” 12 which it refers to as the Bluetooth factors: “(1) when counsel receives a disproportionate 13 distribution of the settlement; (2) when the parties negotiate a clear-sailing arrangement, under 14 which the defendant agrees not to challenge a request for an agreed-upon attorney’s fee; and (3) 15 when the agreement contains a kicker or reverter clause that returns unawarded fees to the 16 defendant, rather than the class.” McKinney-Drobnis, 16 F.4th at 607–08 (citation omitted); In re 17 Bluetooth, 654 F.3d at 947 (internal quotation and citation omitted). 18 1. Disproportionate Distribution of the Settlement to Counsel 19 Here, Class Counsel seeks 40% of the Maximum Settlement Amount for attorneys’ fees. 20 As explained more fully below, the Court does not consider this request as a deficiency. 21 Plaintiffs’ counsel litigated the Leprino Cases for ten years, four of the cases were certified for 22 class treatment, and the Vasquez case was tried before a jury. 23 2. Clear-sailing Arrangement for Attorneys’ Fees 24 Here, there is the presence of a clear-sailing agreement in the Proposed Settlement 25 Agreement, namely, Defendants promise not to oppose Plaintiffs’ request for attorneys’ fees of 26 40% of the Settlement Fund. A court is always concerned with “the potential that [Defendants] 27 agreed to pay class counsel excessive fees in exchange for counsel accepting a lower amount for 28 the class members.” McKinney-Drobnis, 16 F.4th at 610 (quoting Henderson, 998 F.3d at 1027). 1 However, given the longevity of the Leprino Cases, the hard-fought nature of the litigation, 2 including substantial motion practice and a jury trial, the clear sailing agreement is not a 3 substantial concern. The Court does not believe that Plaintiffs’ counsel is getting a windfall by 4 unreasonably high fees nor acting to the disadvantage of the class. Accordingly, the Court does 5 not find that the clear sailing provision weighs against preliminary approval. See Paredes Garcia 6 v. Harborstone Credit Union, No. 3:21-CV-05148-LK, 2023 WL 4315117, at *7 (W.D. Wash. 7 July 3, 2023) (fee award was appropriate where the award equated to a “slight haircut” of actual 8 fees). 9 3. Reversion of Unawarded Fees to the Defendant 10 Here, the Settlement Agreement states that there will be no reversion of unpaid settlement 11 funds to Defendants. 12 C. Does not Grant Preferential Treatment 13 The proposed settlement appears to treat class members equally. Payment to any Class 14 Member is based on the number of work weeks that member worked at any of the Leprino 15 facilities. The number of workweeks is calculated based upon objective information in Leprino’s 16 business records. Aside from the Enhancement Payments, discussed below, all of the class 17 members are subject to the same payment calculations based on the number of workweeks 18 worded. 19 D. The Settlement Falls Within the Range of Possible Approval 20 “To determine whether a settlement ‘falls within the range of possible approval’ a court 21 must focus on ‘substantive fairness and adequacy,’ and ‘consider plaintiffs’ expected recovery 22 balanced against the value of the settlement offer.’ ” Collins, 274 F.R.D. at 302 (quoting In re 23 Tableware Antitrust Litig., 484 F. Supp. 2d at 1080). The Court should examine “the complete 24 package taken as a whole,” and the amount is “not to be judged against a hypothetical or 25 speculative measure of what might have been achieved by the negotiators.” Officers for Justice, 26 688 F.2d at 625, 628. 27 Plaintiffs estimate that the damages exposure for the claims, other than the jury-rejected 28 on-call and rest break claim, as follows: 1 - potential damages for the off-the-clock claim in the Leprino Cases according to 2 Plaintiffs’ expert’s calculations equate to $353,079. (Doc. 443-1, Szeto Decl. at ¶ 7.) 3 - damages for the late and short meal breaks resulting from Leprino’s rounding policy 4 extrapolate out to roughly $279,167.88 in unpaid wages based on the 2,089.58 hours 5 of unpaid wages for the 25% sample Leprino provided for class certification, applying 6 Plaintiff Walter’s hourly rate of $33.40. (Doc. 443, p. 16.) 7 - damages for the second meal break claim across all three plants for the entire ten-year 8 Class Period are extrapolated to be approximately $1,279,350 based on Plaintiffs’ 9 expert’s analysis that 8,529 workdays from 2011 to 2015 reflected no second meal 10 break recorded. Id. 11 - PAGA penalties for the initial violation equate to $330,000 for one Labor Code 12 violation.7 13 Here, the proposed all-in, non-revisionary Settlement is $3,500,000.00. The Court 14 considers Plaintiffs’ expected recovery, as outlined above. However, given that the jury rendered 15 a defense verdict in Vasquez, the Court acknowledges that the total possible exposure to 16 Defendants, and Plaintiffs’ expected recovery, must be discounted when considering the realistic 17 potential of achieving and maintaining class certification and recovering under each of the 18 theories in the various Leprino Cases. In other words, potential recovery to Plaintiffs must be 19 discounted because a jury has already rejected Plaintiffs’ claim in Vasquez. Plaintiffs state that 20 the “crux of the monetary value in the Leprino Cases has always been on the on-call meal and rest 21 break claim because that theory allocated damages to every single shift for ten years across all 22 three plants.” (Doc. 443, p. 16.) For this claim, the Vasquez jury rendered a verdict for Leprino 23 and against Plaintiffs and did not award any damages to Plaintiff for the on-call and rest break 24 claim Thus, pursuing this claim for the remainder of the Leprino Cases risks that Class Members 25 7 The number of anticipated Labor Code violations is unclear from the motion. When a PAGA claim is settled, the relief provided for under PAGA must be genuine and meaningful, consistent 26 with the underlying purpose of the statute to benefit the public Syed v. M-I, L.L.C., No. 1:12-cv- 27 01718-DAD-MJS, 2017 WL 714367, at *13 (E.D. Cal. Feb. 22, 2017) (approving PAGA payment penalty representing 2.53% of the estimated gross settlement amount). 28 1 will not recover anything, just as in the Vasquez case. 2 Plaintiffs’ motion represents that there are approximately 3,300 Class Members.. (Doc. 3 443-1, Ex. 1 (Settlement Agreement) ¶ 60.) This case equates to a pre-tax recovery of 4 approximately $1,060.61 based on the Maximum Settlement Amount ($3,500,000.00 / 3,300 = 5 $1,060.61). The net recovery, from the Court’s review, equates to a pre-tax recovery of 6 approximately $366.25 based on the Net Settlement Amount. ($1,219,624.06 / 3,330 = $363.25.) 7 “[I]t must not be overlooked that voluntary conciliation and settlement are the preferred 8 means of dispute resolution [, especially] in complex class action litigation....” In re SyncorE 9 RISA Litig., 516 F.3d 1095, 1101 (9th Cir. 2008) (quoting Officers for Justice, 688 F.2d at 625). 10 Thus, “[a]pproval of settlement is preferable to lengthy and expensive litigation with uncertain 11 results.” Munoz v. Giumarra Vineyards Corp., No. 1:09-cv-00703-AWI-JLT, 2017 WL 2665075, 12 at *9 (E.D. Cal. June 21, 2017). 13 Here, the Leprino Cases have already been pending for a substantial amount of time, and 14 the best alternative is settlement. The proposed settlement amount, $3,500,000, falls within the 15 range of possible settlement, given the estimated maximum recovery for the remaining viable 16 claims. 17 E. PAGA Penalty 18 Under PAGA, an “aggrieved employee” may bring an action for civil penalties for labor 19 code violations on behalf of himself and other current or former employees. Cal. Lab. Code § 20 2699(a). A plaintiff suing under PAGA “does so as the proxy or agent of the state’s labor law 21 enforcement agencies.” Arias v. Superior Ct., 95 Cal. Rptr. 3d 588, 600 (Cal. 2009). A PAGA 22 plaintiff thus has “the same legal right and interest as state labor law enforcement agencies” and 23 the action “functions as a substitute for an action brought by the government itself”; therefore, “a 24 judgment in that action binds all those, including nonparty aggrieved employees, who would be 25 bound by a judgment in an action brought by the government.” Id. A plaintiff bringing a 26 representative PAGA action not only owes a duty to their “fellow aggrieved workers,” but “also 27 owes responsibility to the public at large; they act, as the statute’s name suggests, as a private 28 attorney general.” O’Connor v. Uber Techs., Inc., 201 F. Supp. 3d 1110, 1133–34 (N.D. Cal. 1 2016). 2 Under PAGA, civil penalties collected are distributed between the aggrieved employees 3 (25%) and the Labor and Workforce Development Agency (“LWDA”) (75%). Cal. Lab. Code § 4 2699(i). Any settlement of PAGA claims must be approved by the court. Cal. Lab. Code § 5 2699(l)(2). The proposed settlement must also be sent to the agency at the same time that it is 6 submitted to the court. Cal. Lab. Code § 2699(l)(2). 7 While PAGA requires a trial court to approve a PAGA settlement, district courts have 8 noted there is no governing standard to review PAGA settlements. Scott v. Blackstone Consulting, 9 Inc., No. 21-CV-1470-MMA-KSC, 2024 WL 271439, at *8 (S.D. Cal. Jan. 24, 2024) (collecting 10 cases). District courts have applied “a Rule 23-like standard” asking whether the settlement of 11 the PAGA claims is “fundamentally fair, reasonable, and adequate.” Id. 12 First, in accordance with the statutory requirements, Plaintiffs submitted the Settlement 13 Agreement to the LWDA. LWDA will have an opportunity to file a response to the proposed 14 settlement. The Settlement Agreement provides for a $10,000 PAGA Penalty. This amount 15 represents less than 1 percent of the Maximum Settlement Amount. However, district courts have 16 approved a broad range of PAGA penalties. See Magadia v. Wal-Mart Assocs., Inc., 384 F. Supp. 17 3d 1058, 1101 (N.D. Cal. 2019) (collecting cases in which settlements providing for $10,000 in 18 PAGA penalties were preliminarily or finally approved despite total settlement amounts of 19 $900,000 and $6.9 million); see also Alcala v. Meyer Logistics, Inc., No. CV 17-7211 PSG 20 (AGRx), 2019 U.S. Dist. LEXIS 166879, at *26 (C.D. Cal. June 17, 2019) (collecting cases in 21 which PAGA penalties within the zero to two percent range were approved by courts); Scott, 22 2024 WL 271439, at *8 (approving 5 percent PAGA settlement). Further, the Settlement 23 Agreement provides that 75% of the PAGA Penalty will be paid to the LWDA and 25% will be 24 paid to the PAGA Members, in accordance with California Labor Code § 2699(i). (Doc. 443-1, 25 Ex. 1 (Settlement Agreement) ¶¶ 33-35.) 26 F. Enhancement Awards to Plaintiffs 27 Incentive payments are to be evaluated individually, and the court should look to factors 28 such as “the actions the plaintiff has taken to protect the interests of the class, the degree to which 1 the class has benefitted from those actions, ... the amount of time and effort the plaintiff expended 2 in pursuing the litigation ... and reasonabl[e] fear[s of] workplace retaliation.” Staton, 327 F.3d at 3 977 (quoting Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998)). 4 Plaintiffs request that the Court approve a Plaintiff Enhancement Payment, for their efforts 5 in filing and prosecuting the Leprino Cases, in the total amount of $45,000, broken down as 6 follows: Jerrod Finder ($5,000.00), Jonathan Talavera ($5,000.00), Isaias Vasquez ($10,000.00), 7 Linda Hefke ($10,000.00), John Perez ($5,000.00), Andrew Howell ($5,000.00), and Fred Walter 8 ($5,000.00). (Doc. 443, p. 29-30.) A service award of $5,000 is presumptively reasonable. See 9 Harris v. Vector Marketing Corp., No. C-08-5198 MEC, 2012 WL 381202, at *7 (N.D. Cal. Feb. 10 6, 2012) (collecting cases). But courts have preliminarily approved higher amounts subject to 11 additional documentation from class representatives detailing the time and effort expended and 12 actions taken to benefit the settlement class prior to final approval. See, e.g., Howell v. 13 Advantage RN, LLC, No. 17-CV-883 JLS (BLM), 2020 WL 3078522, at *5 (S.D. Cal. June 9, 14 2020) (preliminarily approving service award of $10,000 subject to submission of additional 15 information from plaintiff before final approval); Jamil v. Workforce Res., LLC, No. 18-CV-27 16 JLS (NLS), 2020 WL 3079221, at *8 (S.D. Cal. June 9, 2020) (preliminarily approving the 17 proposed $10,000 service award to each named plaintiff, but requesting plaintiffs provide 18 documentation detailing the time and effort they expended in pursuit of the litigation and the 19 actions they took to benefit the settlement class before final approval of the service award); 20 Castro v. Paragon Indus., Inc., No. 1:19-cv-00755-DAD-SKO, 2020 WL 1984240, at *17 (E.D. 21 Cal. Apr. 27, 2020) (preliminarily approving proposed $15,000.00 incentive award on the 22 condition that plaintiff demonstrate at the final approval stage that the requested award is 23 commensurate with and does not dwarf the average or median award received by the class and 24 FLSA members). In assessing the appropriateness of class representative enhancements or 25 incentive payments, the Court must consider factors such as: (1) the actions the plaintiff took to 26 protect the interests of the class; (2) the degree to which the class has benefitted from those 27 actions; (3) the duration of the litigation and the amount of time and effort the plaintiff expended 28 in pursuing litigation; and (4) any notoriety or personal difficulties encountered by the 1 representative plaintiff. See Khanna v. Intercon Sec. Systems, Inc., No. 2:09-CV-2214 KJM EFB, 2 2014 WL 1379861, at *10 (E.D. Cal. Apr. 8, 2014). 3 To substantiate Plaintiffs’ activities in the cases, Plaintiffs’ counsel submitted a 4 declaration which generically states: 5 [The Plaintiffs] committed time to the litigation by reviewing pleadings, 6 communicating with Class Counsel during the prosecution of this case, participated in written discovery, and sitting for deposition, warranting an enhancement 7 payment. Plaintiffs spent a substantial amount of time and effort in producing relevant documents and past employment records and providing the facts and 8 evidence to prove the allegations in the complaint. They were available to Class Counsel as needed. The information and aid that she provided to Class Counsel was 9 invaluable and ensured the successful resolution of this case. 10 (Doc. 443-1, Szeto Decl. ¶12.) Counsel also states that each of the Plaintiffs took risks by being 11 associated with the cases when “they attempt to seek new employment or is under investigation 12 by a prospective employer.” Id. In supplemental briefing, Plaintiffs submitted declarations for 13 each of the representative plaintiffs in support of preliminary approval. (Doc. 460-3 through 14 460-9.) Each of the declarations describe the actions the individual Plaintiffs engaged in to 15 support counsel. (See, e.g., Doc. 460-5, Vazquez Decl. ¶ 8 (“Since my deposition, I have spent a 16 great deal of additional time with my attorneys, including searching for and providing them with 17 relevant documents that Leprino requested from me.”); Doc. 460-6, Hefke Decl. ¶ 13 (listing the 18 tasks she performed).) 19 At this stage, there is no indication the service awards constitute an improper award to 20 defeat preliminary approval. Each Plaintiff seeks a $5,000 enhancement payment with the 21 exceptions of Plaintiffs Vasquez and Hefke who seek $10,000 each. The increased enhancement 22 for Plaintiffs Vasquez and Hefke is presumably because the Vasquez case, for which they were 23 representatives, went to trial and the added work associated with trial. (See Doc. 460-5, Vazquez 24 Decl. ¶ 14 (“I believe that this amount is reasonable considering the time and effort over the last 6 25 years I have personally spent pursuing this case on behalf of the entire class and the risks that I 26 undertook in pursuing the case against my current employer.”).) Based on the foregoing and for 27 purposes of this preliminary approval of the settlement, the Court finds the settlement terms are 28 “within the range of possible approval.” 1 G. Attorneys’ Fees 2 Class Counsel seeks approval of an attorneys’ fee award equal to 40% of the Maximum 3 Settlement Amount, which equates to $1,400,000 of the $3,500,000 Maximum Settlement 4 Amount. 5 “In a certified class action, the court may award reasonable attorneys’ fees and nontaxable 6 costs that are authorized by law or by the parties’ agreement.” Fed. R. Civ. P. 23(h). “Where a 7 settlement produces a common fund for the benefit of the entire class, courts have discretion to 8 employ either the lodestar method or the percentage-of-recovery method” when determining the 9 reasonableness of a request for attorneys’ fees. Bluetooth Headset Prod. Liab. Litig., 654 F.3d at 10 942; Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 2002) (concluding district court 11 has discretion in a common fund case to choose either the lodestar method or the percentage-of- 12 the-fund method when calculating reasonable attorneys’ fees). Under the percentage-of-recovery 13 method, 25% of a common fund is the benchmark for fee awards. See, e.g., In re Bluetooth, 654 14 F.3d at 942 (“[C]ourts typically calculate 25% of the fund as the ‘benchmark’ for a reasonable fee 15 award, providing adequate explanation in the record of any ‘special circumstances’ justifying a 16 departure.”). Under the lodestar method, a “lodestar figure is calculated by multiplying the 17 number of hours the prevailing party reasonably expended on the litigation (as supported by 18 adequate documentation) by a reasonable hourly rate for the region and for the experience of the 19 lawyer.” Id. at 941 (citing Staton, 327 F.3d at 965). The product of this computation, the 20 “lodestar” amount, yields a presumptively reasonable fee. Gonzalez v. City of Maywood, 729 F.3d 21 1196, 1202 (9th Cir. 2013); Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008). 22 The Ninth Circuit has recommended that district courts apply one method but cross-check the 23 appropriateness of the amount by employing the other as well. See Bluetooth, 654 F.3d at 944. 24 To support their claim for 40% of the Maximum Settlement Amount, Plaintiffs’ counsel 25 argue: “The continued viability of wage-and-hour laws, like the viability of other remedial 26 statutes, depends on the ability of private litigants to seek redress through litigation. The success 27 of these lawsuits depends in part on the availability and willingness of attorneys to bring them. 28 Substantial fee awards also encourage reputable law firms with skilled, capable attorneys to take 1 the risk of serving as ‘private attorneys general.’” (Doc. 443, p. 19.) Plaintiffs’ counsel also 2 argue that an upward adjustment of the 25% benchmark is warranted because of the “the results 3 achieved and the difficulties attendant in litigating all of the Leprino Cases and the fact that Class 4 Counsel took one all the way through a jury trial.” Id. 5 The percentage may be adjusted upward or downward based on (1) the results achieved; 6 (2) the risks of litigation; (3) the skill required and the quality of work; (4) the contingent nature 7 of the fee; (5) the burdens carried by counsel; and (6) the awards made in similar cases. Vizcaino, 8 290 F.3d at 1048–50. 9 Results Achieved 10 Courts have recognized that the result achieved for the class is a major factor to be 11 considered in making a fee award. Hensley v. Eckerhart 461 U.S. 424, 436 (1983); Wilcox v. City 12 of Reno, 42 F.3d 550, 554 (9th Cir. 1994). The Ninth Circuit has observed that “[e]xceptional 13 results are a relevant circumstance” to an adjustment from the benchmark award. Vizcaino, 290 14 F.3d at 1048. 15 Plaintiffs argue that the results are remarkable considering the status of the cases. The 16 parties were in the midst of the Vasquez appeal, and Leprino was unwilling to settle and place any 17 value on the Leprino Cases. As a result of the settlement, all of the Class Members will be 18 provided a recovery. 19 Here, the result is a good result, in light of the history of the cases. Considering that the 20 Vasquez on-call meal and rest break claim, which is the crux of the Leprino Cases, was soundly 21 rejected by a jury, the result obtained of the Maximum Settlement Amount is a decent result. 22 Risks of Litigation 23 Risk is a relevant circumstance. See In re Pac. Enter. Sec. Litig., 47 F.3d 373, 379 (9th 24 Cir.1995) (holding fees justified “because of the complexity of the issues and the risks”); 25 Vizcaino, 290 F.3d at 1048 (finding case “extremely risky” when, among other factors, plaintiffs 26 lost twice in district court and there was absence of supporting precedent). Given that the Vasquez 27 case was unsuccessful before a jury, the risk is real that subsequent juries in the other Leprino 28 cases would reject Plaintiffs’ claims. 1 Skill and Quality of the Work 2 The Court does not doubt Class Counsel are experienced and skilled litigators. The Parris 3 Law firm resume shows their extensive class action litigation experience. (Doc. 443-1, Szeto 4 Decl. Ex. 6, p. 164.) The Court’s own experience in dealing with Class Counsel over the past 5 decade has shown competent, prepared, zealous representation of class members. Thus, this 6 factor weighs slightly in favor of an upward deviation from the benchmark. 7 Contingent Nature of the Fee and Burdens Carried 8 “It is an established practice in the private legal market to reward attorneys for taking the 9 risk of non-payment by paying them a premium over their normal hourly rates for winning 10 contingency cases.” In re Washington Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1299 11 (9th Cir. 1994). Thus, whether counsel have taken the case on a contingency fee basis must be 12 considered when deciding to vary from the 25% benchmark. Here, Class Counsel took this case 13 on a contingency fee basis. (Doc. 443, p. 20.) Thus, this factor weighs in favor of an upward 14 deviation from the benchmark. 15 Burdens Carried by Class Counsel 16 Class Counsel have provided information as to the costs in prosecuting this action, 17 indicating that they incurred $800,000 in costs across all of the Leprino Cases. In supplemental 18 briefing, Class Counsel submitted documentation in support of their litigation costs and expenses, 19 identifying an amount in excess of $800,000. (Doc. 460-1, Szeto Suppl. Decl., Ex. 15; Doc. 460- 20 2, Downey Suppl. Decl., Ex. C.) Plaintiffs’ Counsel has carried their burden to show they 21 incurred costs, over a 10 year time frame, in prosecuting the Leprino Cases. 22 Awards Made in Similar Cases 23 As noted above, 25% is the Ninth Circuit’s “benchmark award for attorney[s’] fees.” 24 Hanlon, 150 F.3d at 1029. Class Counsel request the Court enhance the fee award, citing to cases 25 in which courts have awarded attorneys’ fees at or above one third of the total settlement fund. 26 (Doc. 443, pp. 23-24.) Plaintiffs cite cases in which many courts approved common fund fee 27 awards equivalent to or greater than the percentage requested here, and even when the award 28 resulted in a substantial multiplier. See, e.g., In re Pac. Enter. Sec. Litig., 47 F.3d at 379 1 (affirming an award equal to 33% of the common fund); In re Ampicillin Antitrust Litigation, 526 2 F. Supp. 494 (D.D.C. 1981) (45% of settlement fund); Beech Cinema, Inc. v. Twentieth-Century 3 Fox Film Corp., 480 F. Supp. 1195 (S.D.N.Y. 1979), aff’d 622 F.2d 1106 (2nd Cir. 1980) (53% 4 of settlement fund); Van Gemert v. Boeing Co., 516 F. Supp. 412, 420 (S.D.N.Y. 1981) (36% of 5 settlement fund). (Doc. 443, p. 23-24.) Class Counsel argue that the 40% fee request is in line 6 with the customary fees awarded in similar cases given the amount of work Class Counsel 7 devoted on behalf of the Class, particularly in light of taking the Vasquez case to trial and 8 appealing the verdict, something that most plaintiffs’ counsel would not have done. 9 Given that the percentage of the fund is above the benchmark, the Court will conduct a 10 cursory lodestar cross check. If a court applies the percentage method, it then typically calculates 11 the lodestar as a “cross-check to assess the reasonableness of the percentage award.” See, e.g., 12 Weeks v. Kellogg Co., No. CV-09-8102-MMM-RZx, 2013 WL 6531177, at *25 (C.D. Cal. Nov. 13 23, 2013); Suarez v. Bank of Am., Nat’l Ass’n, No. 18-CV-01202-LB, 2024 WL 150721, at *3 14 (N.D. Cal. Jan. 11, 2024). To guard against an unreasonable result, the Ninth Circuit has 15 encouraged district courts to cross-check any calculations done in one method against those of 16 another method. See Vizcaino, 290 F.3d at 1050–51. 17 The “lodestar” approach calculates attorney fees by multiplying the number of hours 18 reasonably expended by a reasonable hourly rate. Gonzalez, 729 F.3d at 1202; Camacho, 523 19 F.3d at 978. Where, as here, the lodestar is employed to cross-check a percentage-of-fund 20 determination, courts may do a rough calculation. In re Toys R Us-Delaware, Inc.—Fair & 21 Accurate Credit Transactions Act (FACTA) Litig., 295 F.R.D. 438, 460 (C.D. Cal. 2014). 22 In their supplemental briefing, Plaintiffs provided information about the number of hours 23 worked and the attorney hourly rates. The Parris Law Firm has devoted a total of 8,928.99 hours 24 with a total lodestar of $5,803,844.00 at $650.00 per hour. (Doc. 460-1, Szeto Suppl. Decl. ¶ 6.) 25 The following chart provides a breakdown of the 8,928.99 hours for the Parris Law Firm between 26 each of the Leprino Cases, as well as lodestar calculation at differently hourly rates and hours 27 between each of the Leprino Cases: 28 1 Lodestar 2 Hours $700/Hour $600/Hour $650/Hour $550/Hour $500/Hour 3 Vasquez 5,433.22 $3,803,254.00 $3,259,932.00 $3,351,593.00 $2,988,271.00 $2,716,610.00 4 Perez 877.62 $614,334.00 $526,572.00 $570,453.00 $482,691.00 $438,810.00 5 Howell 1,448.60 $1,014,020.00 $869,160.00 $941,590.00 $796,730.00 $724,300.00 6 Walter 1,024.95 $717,465.00 $614,970.00 $666,217.50 $563,722.50 $512,475.00 7 Finder/Talavera 144.60 $101,220.00 $86,760.00 $93,990.00 $79,530.00 $72,300.00 8 TOTAL 8,928.99 $6,250,293.00 $5,357,394.00 $5,803,843.50 $4,910,944.50 $4,464,495.00 9 (See Doc. 460-1, Szeto Suppl. Decl. ¶ 6.) 10 In the Fresno Division of the Eastern District of California, attorneys with twenty or more 11 years of experience are awarded $350.00 to $400.00 per hour. See, e.g., Leprino Foods Co. v. 12 JND Thomas Co., Inc., No. 1:16-CV-01181-LJO-SAB, 2017 WL 128502, at *13 (E.D. Cal. Jan. 13 12, 2017), report and recommendation adopted in part, No. 1:16-CV-01181-LJO-SAB, 2017 WL 14 432480 (E.D. Cal. Feb. 1, 2017) (finding $400.00 per hour a reasonable hourly rate for attorney 15 with more than thirty years of experience); Sanchez v. Frito-Lay, Inc., No. 1:14-CV-00797-AWI- 16 MJS, 2015 WL 4662636, at *18 (E.D. Cal. Aug. 5, 2015), report and recommendation adopted, 17 No. 1:14-CV-797-AWI-MJS, 2015 WL 5138101 (E.D. Cal. Aug. 26, 2015) (finding reasonable 18 rate for attorney with twenty years of experience was $350 per hour in a wage and hour class 19 action). Generally, “$300 is the upper range for competent attorneys with approximately a decade 20 of experience.” Barkett v. Sentosa Props. LLC, No. 1:14-CV-01698-LJO, 2015 WL 5797828, at 21 *5 (E.D. Cal. Sept. 30, 2015) (O’Neill, J.) (citing Silvester v. Harris, No. 1:11-CV-2137 AWI 22 SAB, 2014 WL 7239371, at *4 (E.D. Cal. Dec. 17, 2014). For attorneys with “less than ten years 23 of experience ... the accepted range is between $175 and $300 per hour.” Silvester, 2014 WL 24 7239371 at *4 (citing Willis v. City of Fresno, 1:09-cv-01766-BAM, 2014 WL 3563310 (E.D. 25 Cal. July 17, 2014). 26 Recent cases have maintained the same hourly rates. Accord Deerpoint Grp., Inc. v. 27 Agrigenix, LLC, No. 1:18-cv-00536-AWI-BAM, 2022 WL 16551632, at *19 (E.D. Cal. Oct. 31, 28 1 2022); Langer v. Cooke City Raceway, Inc., No. 1:21-CV-01488-JLT-BAK, 2022 WL 2966172, 2 at *16 (E.D. Cal. July 27, 2022), report and recommendation adopted, No. 1:21-cv-01488-JLT- 3 BAK, 2022 WL 3348015 (E.D. Cal. Aug. 12, 2022); Webb v. Cty. of Stanislaus, No. 1:19-cv- 4 01716-DAD-EPG, 2022 WL 446050, at *6 (E.D. Cal. Feb. 14, 2022) (“In the Fresno Division of 5 the Eastern District of California, generally, attorneys with twenty or more years of experience 6 are awarded $325.00 to $400.00 per hour, attorneys with ten to twenty years of experience are 7 awarded $250.00 to $325.00, attorneys with five to ten years of experience are awarded $225.00 8 to $250.00, and less than $200.00 for attorneys with less than five years of experience.”) Finally, 9 “[t]he current reasonable hourly rate for paralegal work in the Fresno Division ranges from $75 to 10 $150, depending on experience.” Silvester, 2014 WL 7239371, at *4 (citations omitted); cf. 11 Franco v. Ruiz Food Prods., Inc., No. 1:10-cv-02354-SKO, 2012 WL 5941801, at *20 (E.D. Cal. 12 Nov. 27, 2012) (approving a rate of “$100 per hour” for “legal assistants”). 13 The rates Plaintiffs propose range from $500 per hour, at the low end, to $700 per hour, at 14 the high end. Counsels’ stated rates may be high and above the upper limit of rates previously 15 accepted in this District, without knowing which particular attorney did which activity. See Avery 16 v. Akima Support Operations, LLC, No. 2:19-CV-00924-DAD-AC, 2022 WL 4473211, at *13 17 (E.D. Cal. Sept. 26, 2022) (approving associate attorneys with rates ranging from $250 through 18 $300; and twenty-third- through thirty-sixth-year attorneys with rates ranging from $650 through 19 $750). Therefore, the rates will be adjusted for purposes of the lodestar calculation. 20 In addition, the Court must also consider the reasonable number of hours spent. The 21 Parris Law firm worked 8,928.99 hours on the various Leprino Cases. (Doc. 460-1, Szeto Suppl. 22 Decl. ¶ 6.) The Downey Law Firm, LLC worked 1,040.3 hours on the cases. (Doc. 460-2, 23 Downey Decl. ¶ 5.) The total number of hours worked on the Leprino Cases is 9,969.29 (Doc. 24 460, p. 3.) A cursory review of the types of tasks performed substantiates the hours expended are 25 reasonable given the scope and breadth of the Leprino Cases. (See, e.g., Doc. 460-1, pp. 19-30.) 26 Therefore, a rough lodestar calculation using the Fresno area highest hourly rate, $400, for 27 the hours worked (9,969.29 hours) yields $3,987,716.00 in fees. Using the lowest Fresno area 28 hourly rate, $200, yields $1,993,858.00. Thus, using the rates accepted in this District, the Court 1 concludes that the lodestar cross-check supports the requested award amount of $1,4000,000 in 2 attorneys’ fees. 3 H. Costs 4 Rule 23(h) provides that, “[i]n a certified class action, the court may award reasonable 5 attorney’s fees and nontaxable costs that are authorized by law or by the parties’ agreement.” Fed. 6 R. Civ. P. 23(h). Counsel are entitled to reimbursement of the out-of-pocket costs they reasonably 7 incurred investigating and prosecuting the case. See In re Media Vision Tech. Sec. Litig., 913 F. 8 Supp. 1362, 1366 (N.D. Cal. 1996) (citing Mills v. Elec. Auto-Lite Co., 396 U.S. 375, 391–92 9 (1970)); see also Staton, 327 F.3d at 974. The Ninth Circuit has held that an award to a 10 prevailing party “can include reimbursement for out-of-pocket expenses including ... travel, 11 courier and copying costs.” Grove v. Wells Fargo Fin. Cal., Inc., 606 F.3d 577, 580 (9th Cir. 12 2010). Other recoverable expenses include expenses related to discovery and expenses related to 13 computerized research. See Harris v. Marhoefer, 24 F.3d 16, 19–20 (9th Cir. 1994) (noting that 14 “expenses related to discovery” are recoverable); Trs. Of Constr. Indus. & Laborers’ Health & 15 Welfare Trust v. Redland Ins. Co., 460 F.3d 1253, 1258-59 (9th Cir. 2006) (holding that 16 “reasonable charges for computerized research may be recovered.”); Hartless v. Clorox Co., 273 17 F.R.D. 630, 646 (S.D. Cal. 2011) (holding that consulting fees as costs were reasonable because 18 the evidence was necessary to negotiate a settlement). 19 Plaintiffs request $800,000 in costs. In supplemental briefing, Plaintiffs submit evidence 20 of the costs incurred in the Leprino Cases. Plaintiffs contend that the Parris Law Firm and The 21 Downey Law Firm, LLC have incurred costs well beyond the $800,000 requested. (Doc. 460, p. 22 3.) The Parris Law Firm has incurred $784,225.19 in costs and litigation expenses across all of 23 the Leprino Cases. (Doc. 460-1, Szeto Suppl. Decl. ¶ 6.) A breakdown of the Parris Law Firm’s 24 total costs between each of the Leprino cases is: 25 /// 26 /// 27 /// 28 /// 1 Vasquez $443,475.65 Perez $166,369.30 2 Howell $124,446.17 Walter $47,914.40 3 Finder $1,794.20 Talavera $225.47 4 TOTAL $784,225.19 5 (Id. at p. 5.) 6 The Downey Law Firm seeks reimbursement for its costs of $81,537.69 expended in 7 prosecution of this action. (Doc. 460-2, Downey Suppl. Decl. ¶5 and Ex. C.) 8 From the documents submitted, the total costs incurred are $865,762.88. Given the length 9 of time these cases have been pending, the extensive discovery and use of experts, the jury trial in 10 Vasquez , the Court approves the request for costs on a preliminary basis. 11 I. Notice Requirements 12 Under Rule 23(c)(2)(B), “the court must direct to class members the best notice that is 13 practicable under the circumstances, including individual notice to all members who can be 14 identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). The Rule directs: The notice 15 must clearly and concisely state in plain, easily understood language: (i) the nature of the action; 16 (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class 17 member may enter an appearance through an attorney if the member so desires; (v) that the court 18 will exclude from the class any member who requests exclusion; (vi) the time and manner for 19 requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 20 23(c)(3). “Notice is satisfactory if it generally describes the terms of the settlement in sufficient 21 detail to alert those with adverse viewpoints to investigate and to come forward and be heard.” 22 Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004) (citation and internal 23 quotations omitted). 24 The revised class notice here complies with Rule 23(c)(2). (Doc. 443-1, p. 41 (Notice); as 25 revised, Doc. 460-1, Szeto Suppl. Decl. Ex. 8.) The revised notice includes the nature of the 26 action, the class definition, the class claims, the terms of the settlement, and information that the 27 class member may be represented by an attorney (Doc. 460-1, Ex. 8, p. 11), the binding effect of 28 1 the class judgment, how and when to opt-out, and how to object to the settlement. The Rule 23 2 notice also provides information regarding the final fairness hearing. 3 In addition, the parties agree the “best form of notice practicable” is to send the 4 settlement notice via first class mail to the last known address of each class member as indicated 5 by Defendants’ business records and a search of the United States Postal Service National Change 6 of Address. (Doc. 443-1, Ex. 1 (Settlement Agreement) ¶¶ 68-72.) As previously discussed, 7 Phoenix Class Action Administration Solutions will mail the class notice to each class member 8 The Settlement Administrator will use the United States Postal Service National Change of 9 Address (“NCOA”) List to verify the accuracy of all addresses on the Class Member list before 10 the initial mailing date. With respect to any returned envelopes, the Settlement Administrator will 11 perform a routine skip trace procedure to obtain a current address. The Settlement Administrator 12 will provide all counsel with a weekly report that certifies the number of Class Members who 13 have submitted a valid Request for Exclusion, Objection, and whether any Class Member 14 submitted a challenge to any information contained in the Class Notice. 15 Under the settlement agreement, class members do not have to submit claims to receive 16 payment; instead, they are identified through Defendants’ employment records, receive a notice 17 calculating each member’s potential award based on how many workweeks worked during the 18 class period (as determined by the employment records), and are given an opportunity to dispute 19 the calculations. 20 The Court finds the notice and the method of delivery is appropriate and appears to be the 21 “best notice that is practicable under the circumstances.” Fed. R. Civ. P. 23(c)(2)(B). The Court 22 also finds it significant that there is no opt-in procedure here, as Class Members do not have to 23 confirm workweeks or take other action to have a check mailed to them, and there is no reversion 24 to Defendants here. Accordingly, based on all of the above, the Court finds the notice and the 25 method of delivery by U.S. mail, with an initial check for updated addresses with a national 26 database, re-mailing of notice information following return as undeliverable after a further 27 database check for updated addresses, is appropriate, appears to be the “best notice that is 28 practicable under the circumstances,” and therefore meets the requirements of Federal Civil 1 Procedure Rule 23(c)(2)(B). 2 CONCLUSION AND ORDER 3 The Court will grant Plaintiffs’ motion for preliminary approval of the settlement. 4 Considering the risks Plaintiffs would face in taking these cases to trial, together with the value of 5 all of the claims being released and the value of the proposed settlement to the class members in 6 light of the apparent strengths and weaknesses of the claims and defenses, the Court preliminarily 7 concludes that the proposed settlement, on the current record, is “fair, reasonable, and adequate” 8 within the meaning of Rule 23(e)(2). 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. The motion for preliminary approval of the proposed settlement (Doc. 443), as 11 supplemented with declarations (Doc. 460), is GRANTED for the reasons described above, and 12 subject to the terms below; 13 2. A hearing on the Final Approval of the settlement (“Final Approval Hearing”) shall be 14 held before the Honorable Barbara A. McAuliffe in Courtroom 8 of the United States District 15 Court for the Eastern District of California located at 2500 Tulare Street, Sixth Floor, Fresno, 16 California, 93721 on June 14, 2024 at 9:00 a.m. to determine: whether the proposed Settlement, 17 on the terms and conditions provided for in the Settlement Agreement, is fair, reasonable, and 18 adequate and whether said Settlement should be finally approved by the Court. The Court may 19 adjourn or continue the Final Approval Hearing without further notice to the Class Members.; 20 3. The following persons are conditionally certified as Class Members solely for the 21 purpose of entering a settlement in this matter: 22 All individuals who currently or formerly worked at Leprino’s Lemoore West, 23 Lemoore East, or Tracy facilities in the State of California as hourly, non-exempt 24 employees at any time between November 15, 2009 and July 31, 2023. (“Settlement Class.”) 25 26 4. The Court finds that, for settlement purposes only, the Settlement Class meets the 27 requirements for certification under Rule 23 of the Federal Rules of Civil Procedure in that: (1) 28 the Class is ascertainable and so numerous that joinder of all members of the Class is 1 impracticable; (2) there are common questions of law and fact, and the questions of law and fact 2 common to the Class predominate; (3) Plaintiffs’ claims are typical of the claims of the members 3 of the Class; (4) Plaintiffs will fairly and adequately protect the interests of the members of the 4 Class; and (5) a class action is superior to other available methods for the efficient adjudication of 5 the controversy; 6 5. The Court finds that, on a preliminary basis, that the Settlement Agreement, entered 7 into among the parties and their counsel, is fair, adequate and reasonable. It further appears to the 8 Court that the parties conducted extensive investigation and research, and that they were able to 9 reasonably evaluate their position and the strengths and weaknesses of the claims. The parties 10 have provided the Court with enough information about the nature and magnitude of the claims 11 being settled, as well as the impediments to recovery, to make an independent assessment of the 12 reasonableness of the terms to which the parties have agreed. Settlement now will avoid 13 additional and potentially substantial litigation costs, as well as delay and risks if the parties were 14 to continue to litigate the Leprino Cases. It further appears that the Settlement has been reached as 15 the result of intensive, serious, and non-collusive arms-length negotiations, and was entered into 16 in good faith, to mitigate the potential of further losses to Plaintiffs and the Class Members; 17 6. The Court preliminarily finds that the Settlement, which provides for a Maximum 18 Settlement Amount of $3,500,000 for approximately 3,300 Class Members, appears to be within 19 the range of reasonableness of a settlement that could ultimately be given final approval by this 20 Court. The Maximum Settlement Amount includes all attorneys’ fees, litigation costs, 21 Settlement Administration Costs, and Plaintiffs’ Enhancement Payments; 22 7. The Court hereby preliminarily approves Class Counsel’s request for attorneys’ 23 fees in the amount of $1,400,000 and costs in the amount of $800,000 to be paid out of the 24 Maximum Settlement Amount; 25 8. The Court hereby preliminarily approves the Plaintiffs’ Enhancement Payment in 26 the total amount of $45,000 to be paid out of the Maximum Settlement Amount; and 27 /// 28 /// 1 9. Phoenix Class Action Administration Solutions is appointed to act as the 2 Administrator, pursuant to the terms set forth in the Settlement Agreement. 3 10. Plaintiffs Isaias Vazquez, Linda Hefke, Jerrod Finder, Jonathan Talavera, John Perez, 4 Andrew Howell, and Fred Walter are appointed the Class Representatives and the representatives 5 of the Settlement Class for settlement purposes only; 6 11. Plaintiffs’ Counsel, the Parris Law Firm and The Downey Law Firm, LLC are 7 appointed Class Counsel; Class Counsel are authorized to act on behalf of the Class 8 Representatives and the Settlement Class with respect to all acts or consents required by or which 9 may be given pursuant to the Settlement and such other acts reasonably necessary to consummate 10 the Settlement; the authority of Class Counsel includes entering into any necessary modifications 11 or amendments to the Settlement on behalf of the Class Representatives and the Settlement Class 12 which they deem appropriate; 13 12. The settlement of Plaintiffs’ California Labor Code Private Attorney General Act 14 (“PAGA”) claim is fair and reasonable, and the Court preliminarily approves the Settlement and 15 release of that claim as well as the PAGA Allocation in the amount of $10,000, which included 16 payment to the LWDA and to the PAGA Members; 17 13. The Court hereby approves, as to form and content, the Notice of Settlement attached 18 as Exhibit “8” (“Notice”) to the Supplemental Declaration of Kitty Szeto (Doc. 460-1), except 19 that the Final Fairness hearing is set for June 14, 2024 at 9:00 and that the revised notice 20 erroneously lists Plaintiff Walter as “Walters” in multiple spots. The rights of any potential 21 objectors to the proposed Settlement are adequately protected in that they may exclude 22 themselves from the Settlement and proceed with any alleged claims they may have against 23 Leprino, or they may object to the Settlement and appear before this Court. However, to do so, 24 they must follow the procedures outlined in the Settlement Agreement which are set out in the 25 Notice; 26 14. The Court finds that the mailing of the Notice substantially in the manner and form as 27 set forth in the Settlement Agreement and this Order meets the requirements of Federal Rules of 28 Civil Procedure, Rule 23 and due process, and is the best notice practicable under the 1 circumstances, and shall constitute due and sufficient notice to all persons entitled thereto; and 2 15. The Court finds that the notice of settlement that Class Counsel provided to the 3 LWDA satisfies the notice requirements of the California Private Attorneys General Act. 4 IT IS SO ORDERED. 5 6 Dated: February 12, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28