Huddlestun v. Harrison Global, LLC et al, No. 3:2017cv00253 - Document 50 (S.D. Cal. 2018)
Court Description: ORDER Granting 41 Motion for Preliminary Approval of Class Action Settlement. The Final Approval Hearing is set for 2/22/2019 at 01:30 PM in Courtroom 13A before Judge Dana M. Sabraw. Signed by Judge Dana M. Sabraw on 8/7/2018. (aef)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 12 MARK HUDDLESTUN, on behalf of himself and all others similarly situated, and ROBERT BENSON, individually and on behalf of all others similarly situated, 13 Plaintiffs, 11 14 15 16 17 Case No. 17-cv-0253 DMS (WVG) ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT v. HARRISON GLOBAL, LLC, doing business as BOSTON COACH, MTG ACQUISITIONS, LLC, and DOES 1-100, inclusive, Defendants. 18 19 20 Pending before the Court is Plaintiffs Mark Huddlestun and Robert Benson’s 21 motion for preliminary approval of class action settlement. Defendants Harrison 22 Global, LLC, doing business as Boston Coach, and MTG Acquisitions, LLC filed a 23 non-opposition. For the following reasons, the Court grants Plaintiffs’ motion. 24 /// 25 /// 26 27 28 –1– 17-cv-0253 DMS (WVG) 1 I. 2 BACKGROUND 3 Plaintiffs bring a wage and hour class action suit on behalf of current and 4 former employees of Defendants. Defendants are limited liability corporations that 5 operate a limousine transportation service. (First Amended Complaint (“FAC”) ¶¶ 6 2, 5.) Plaintiffs and the putative Class Members are current and former employees 7 of Defendants who worked as chauffeurs in San Francisco between March 14, 2014 8 and January 26, 2018, Los Angeles between March 14, 2014 and November 16, 9 2017, and San Diego between October 1, 2015 and November 17, 2017. (Id. ¶ 10; 10 Declaration of Scott Cole (“Cole Decl.”) ¶ 32, Ex. C (“Settlement Agreement”).) 11 Plaintiffs allege the following claims for relief: (1) failure to pay overtime 12 compensation, in violation of Cal. Labor Code §§ 201–03, 226, 510, 558, 1194, and 13 1197 and the applicable IWC Wage Order, (2) failure to provide meal and rest 14 periods, in violation of Cal. Labor Code §§ 200, 500, 512, and 1198 and the 15 applicable IWC Wage Order, (3) failure to pay minimum, hourly, and overtime 16 wages, in violation of Cal. Labor Code §§ 201–02, 223, and 1194, (4) failure to pay 17 final wages, in violation of Cal. Labor Code §§ 201–02, (5) failure to provide timely 18 and accurate wage statements, in violation of Cal. Labor Code § 226, (6) unlawful, 19 unfair, and fraudulent business practices, in violation of Cal. Bus. & Prof. Code § 20 17200 et seq., and (7) civil penalties under the Private Attorneys General Act 21 (“PAGA”), Cal. Labor Code § 2699 et seq. 22 The parties participated in a mediation before mediator Michael Dickstein on 23 September 5, 2017. (Mem. of P. & A. in Supp. of Mot. at 3.) The mediation was 24 successful and resulted in a settlement. (Id.) The proposed Settlement Agreement 25 provides for a Gross Settlement Fund of $1,050,000. (Settlement Agreement ¶ 4.) 26 27 28 –2– 17-cv-0253 DMS (WVG) 1 The Class Members will be allocated a share of the Net Settlement Fund based on 2 the number of workweeks they worked for Defendants during the relevant time 3 period. (Id. ¶¶ 21–22.) The Net Settlement Fund is the remaining amount in the 4 Gross Settlement fund after deducting the following: (1) Plaintiffs’ attorneys’ fees 5 in an amount up to 28% of the Fund, (2) actual costs not to exceed $20,000, (3) an 6 incentive award to Plaintiffs in the amount of $5,000 each, (4) the costs of the 7 Settlement Administrator up to a maximum of $10,000, and (5) a payment to the 8 Labor and Workforce Development Agency (“LWDA”) for release of PAGA claims 9 in the amount of $6,666, 75% of which will be remitted to the LWDA and 25% of 10 which will become part of the Net Settlement Fund. (Id.) 11 Pursuant to the Settlement Agreement, Defendants will give the Settlement 12 Administrator the Class Members’ names, social security numbers, last known 13 addresses, home telephone number, and e-mail addresses, as well as the dates of 14 service and the number of workweeks during the Settlement Period. (Settlement 15 Agreement ¶ 28.) Within 10 business days of the entry of an order granting this 16 motion, the Settlement Administrator will mail a Class Notice Package, consisting 17 of notice of settlement and claim form,1 via first class mail to the Class Members. 18 (Id. ¶¶ 27, 29.) If any Class Notice Package sent to a Class Member is returned, the 19 Settlement Administrator will search for that Class Member’s more current address 20 and re-mail the Package. (Id. ¶ 29.) Class Members who desire to be excluded from 21 the action must submit a signed, written request to the Settlement Administrator for 22 exclusion. (Cole Decl. ¶ 32, Ex. C.) 23 /// 24 25 26 27 28 1 The claim form will contain the estimated amounts of payment from Defendants to each Class Member. (Settlement Agreement ¶ 27.) –3– 17-cv-0253 DMS (WVG) 1 II. 2 DISCUSSION 3 “Because class actions present the risk that the named parties will negotiate a 4 bad deal for the absent members of the class, the Federal Rules of Civil Procedure 5 require that any settlement that binds Class Members must be approved by a court.” 6 Relente v. Viator, Inc., No. 12-cv-05868-JD, 2014 U.S. Dist. LEXIS 160350, at *5 7 (N.D. Cal. Nov. 14, 2014). “The Court’s approval involves a two-step process in 8 which the Court first determines whether a proposed class action settlement deserves 9 preliminary approval and then, after notice is given to Class Members, whether final 10 approval is warranted.” Id. 11 Preliminary approval of the settlement “requires conditionally approving the 12 class[.]” Relente, 2014 U.S. Dist. LEXIS 160350, at *6; see also Carr v. Tadin, Inc., 13 No. 12-CV-3040 JLS JMA, 2014 WL 7497152, at *2 (S.D. Cal. Apr. 18, 2014) 14 (“Before granting preliminary approval of a class action settlement agreement, the 15 Court must first determine whether the proposed class can be certified.”) (citing 16 Amchem Products, Inc. v. Windsor, 521 U.S. 591, 620 (1997)). The court must also 17 “make a preliminary determination as to whether the proposed settlement is ‘fair, 18 reasonable, and adequate’ pursuant to” Federal Rule of Civil Procedure 23(e)(2). 19 Carr, 2014 WL 7497152, at *13. When the parties reach a settlement prior to formal 20 class certification, as they did in this case, “settlement approval requires a ‘higher 21 standard of fairness.’” Lane v. Facebook, Inc., 696 F.3d 811, 820 (9th Cir. 2012) 22 (citing Hanlon v. Chrysler Corp., 150 F.3d 1011, 1926 (9th Cir. 1998)). “The reason 23 for more exacting review of class settlements reached before formal class 24 certification is to ensure that class representatives and their counsel do not secure a 25 disproportionate benefit ‘at the expense of the unnamed plaintiffs who class counsel 26 27 28 –4– 17-cv-0253 DMS (WVG) 1 has a duty to represent.’” Id. (quoting Hanlon, 150 F.3d at 1027). Also, “[t]he 2 dangers of collusion between class counsel and the defendant ... weigh in favor of a 3 more probing inquiry than may normally be required under Rule 23(e).” Hanlon, 4 150 F.3d at 1026. 5 A. Preliminary Class Certification 6 “In order to obtain preliminary approval, the parties must demonstrate that the 7 class action meets the requirements of Rule 23.” Boyd v. Avanquest N. Am. Inc, No. 8 12-CV-04391-WHO, 2015 WL 4396137, at *2 (N.D. Cal. July 17, 2015) (citing 9 Amchem, 521 U.S. at 614). In this case, Plaintiffs move for preliminary class 10 11 12 13 certification under Rule 23(a) and (b)(3). Rule 23(a) sets out four requirements for class certification. Those requirements are: 16 (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. 17 Fed. R. Civ. P. 23(a). Rule 23(b)(3) requires “that the questions of law or fact 18 common to class members predominate over any questions affecting only individual 19 members, and that a class action is superior to other available methods for fairly and 20 efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). 14 15 21 1. 22 The first requirement is numerosity. The putative Class Members include 23 current and former non-exempt employees who were employed by Defendants as 24 chauffeurs in San Francisco between March 14, 2014 and January 26, 2018, Los 25 Angeles between March 14, 2014 and November 16, 2017, and San Diego between 26 27 28 Federal Rule of Civil Procedure 23(a) –5– 17-cv-0253 DMS (WVG) 1 October 1, 2015 and November 17, 2017. (Cole Decl. ¶ 3; Declaration of Daniel D. 2 Bodell (“Bodell Decl.”) ¶ 3.) Plaintiffs contend, and Defendants do not dispute, 3 there are hundreds of putative Class Members, which make the class so large as to 4 make joinder impracticable. 5 showing of numerosity. This is sufficient to meet Plaintiff’s preliminary 6 The second requirement is commonality. This requirement is met through the 7 existence of a “common contention” that is of “such a nature that it is capable of 8 classwide resolution[.]” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 389 (2011). 9 As summarized by the Supreme Court: 10 13 What matters to class certification ... is not the raising of common “questions” – even in droves – but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers. 14 Dukes, 564 U.S. at 390 (quoting Richard A. Nagareda, Class Certification in the Age 15 of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)). Plaintiffs contend the 16 commonality requirement is satisfied because there is a common legal issue of 17 whether Class Members are entitled to unpaid wages as a result of Defendants’ 18 implementation of workplace policies and practices that violate state law. The 19 underlying legal issue implicates the Class Members’ claims as a whole and satisfies 20 Plaintiff’s preliminary showing of commonality. 11 12 21 The next requirement is typicality, which focuses on the relationship of facts 22 and issues between the class and its representatives. “[R]epresentative claims are 23 ‘typical’ if they are reasonably co-extensive with those of absent class members; 24 they need not be substantially identical.” Hanlon, 150 F.3d at 1020. “The test of 25 typicality is whether other members have the same or similar injury, whether the 26 27 28 –6– 17-cv-0253 DMS (WVG) 1 action is based on conduct which is not unique to the named plaintiffs, and whether 2 other class members have been injured by the same course of conduct.” Hanon v. 3 Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (citation and internal 4 quotation marks omitted). Plaintiffs contend their claims are typical of other Class 5 Members’ because they are based on the same facts and the same legal theories. 6 Like the Class Members, Plaintiffs allege they were subject to the same underlying 7 policies and practices that violated state law, resulting in unpaid wages. The Court 8 agrees, and thus finds that Plaintiffs have made a preliminary showing of typicality. 9 The fourth and final requirement is adequacy which asks whether “the 10 representative parties will fairly and adequately protect the interests of the class.” 11 Fed. R. Civ. P. 23(a)(4). This requirement is grounded in constitutional due process 12 concerns; “absent class members must be afforded adequate representation before 13 entry of judgment which binds them.” Hanlon, 150 F.3d at 1020 (citing Hansberry 14 v. Lee, 311 U.S. 32, 42–43 (1940)). In reviewing this issue, courts must resolve two 15 questions: “(1) do the named plaintiffs and their counsel have any conflicts of 16 interest with other class members, and (2) will the named plaintiffs and their counsel 17 prosecute the action vigorously on behalf of the class?” Id. (citing Lerwill v. lnflight 18 Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978)). The named plaintiffs and 19 their counsel must have sufficient “zeal and competence” to protect the interests of 20 the rest of the class. Fendler v. Westgate-Cal. Corp., 527 F.2d 1168, 1170 (9th Cir. 21 1975). Here, there is no evidence to suggest that Plaintiffs or their counsel have a 22 conflict of interest with other Class Members. Plaintiffs assert they have the same 23 interests as the class in maximizing recovery. Plaintiffs’ counsel have substantial 24 25 26 27 28 –7– 17-cv-0253 DMS (WVG) 1 experience prosecuting employment class actions. Under these circumstances, 2 Plaintiffs have shown that the adequacy requirement is preliminarily satisfied.2 3 2. Federal Rule of Civil Procedure 23(b)(3) 4 Having made a preliminary showing on the requirements of Rule 23(a), the 5 next issue is whether Plaintiffs have shown the requirements of Rule 23(b)(3) are 6 met. Amchem, 521 U.S. at 614–15. Certification under Rule 23(b)(3) is proper 7 “whenever the actual interests of the parties can be served best by settling their 8 differences in a single action.” Hanlon, 150 F.3d at 1022 (internal quotation marks 9 omitted). Rule 23(b)(3), as discussed, calls for two separate inquiries: (1) do issues 10 of fact or law common to the class “predominate” over issues unique to individual 11 class members, and (2) is the proposed class action “superior” to other methods 12 available for adjudicating the controversy. Fed. R. Civ. P. 23(b)(3). In adding the 13 requirements of predominance and superiority to the qualifications for class 14 certification, “the Advisory Committee sought to cover cases ‘in which a class action 15 would achieve economies of time, effort, and expense, and promote ... uniformity of 16 decisions as to persons similarly situated, without sacrificing procedural fairness or 17 bringing about other undesirable results.’” Amchem, 521 U.S. at 615 (quoting Fed. 18 R. Civ. P. 23(b)(3) advisory committee notes). 19 Plaintiffs argue the predominance requirement is satisfied because questions 20 common to the Class Members predominate over any individualized questions. 21 Plaintiffs assert “[t]he central issue for every claimant is whether Defendants 22 violated state … law in denying them all meal and rest periods.” (Mem. of P. & A. 23 24 25 26 27 28 2 A corollary requirement for class certification is ascertainability. Ascertainability looks to whether the class is sufficiently definite or adequately defined. Turcios v. Carma Labs, Inc., 296 F.R.D. 638, 645 (C.D. Cal. 2014). That requirement is met in this case. –8– 17-cv-0253 DMS (WVG) 1 in Supp. of Mot. at 12.) This issue is at the crux of this case, and is likely to 2 predominate over any individual issues. Thus, Plaintiff has made a preliminary 3 showing of predominance. Turning to the superiority requirement, Rule 23(b)(3) provides a list of factors 4 5 relevant to this requirement: 10 (A) the Class Members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against Class Members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action. 11 Fed. R. Civ. P. 23(b)(3). This inquiry “requires the court to determine whether 12 maintenance of this litigation as a class action is efficient and whether it is fair,” 13 such that the proposed class is superior to other methods for adjudicating the 14 controversy. Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1175–76 15 (9th Cir. 2010). 6 7 8 9 16 Here, there is low incentive for the Class Members to bring separate actions 17 given the limited amount of potential recovery and high costs of pursuing individual 18 claims. 19 procedure superior to the prosecution of individual cases. Because judicial economy 20 achieved through common adjudication makes a class action a superior method for 21 adjudicating the claims of the putative class, Plaintiff has made a preliminary 22 showing of superiority. 23 B. Moreover, the common questions in this case make the class action Preliminary Fairness Determination 24 Having addressed the issue of preliminary certification of the class, the Court 25 now turns to a preliminary consideration of whether the settlement is fair, 26 27 28 –9– 17-cv-0253 DMS (WVG) 1 reasonable, and adequate. This determination involves a consideration of: 6 “(1) the strength of the plaintiff’s case; (2) the risk, expense, complexity, and likely duration of further litigation; (3) the risk of maintaining class action status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed, and the stage of the proceedings; (6) the experience and views of counsel; (7) the presence of a governmental participant; and (8) the reaction of the Class Members to the proposed settlement.” 7 Boyd, 2015 WL 4396137, at *2 (quoting Villegas v. J.P. Morgan Chase & Co., No. 8 CV 09–00261 SBA EMC, 2012 WL 5878390, at *5 (N.D. Cal. Nov. 21, 2012)). 2 3 4 5 9 The Court initially turns to the first two factors, the strength of Plaintiffs’ case 10 and the risk, expense, complexity, and likely duration of further litigation. Plaintiffs 11 allege, in part, Defendants maintained practices and policies of failing to provide 12 meal and rest periods and to pay overtime wages. (See generally FAC.) In order to 13 succeed on the merits, Plaintiff would need to show Defendants’ practices and 14 policies were fraudulent. 15 generally Answer; Cole Decl. ¶ 32, Ex. C), and have several defenses to liability that 16 could substantially reduce or potentially bar recovery for the Class Members.3 (See 17 Mem. of P. & A. in Supp. of Mot. at 8.) Plaintiffs acknowledge their recovery will 18 depend in large part on credibility determination since there is a “lack of written 19 evidence for the Class Members’ missed meal and rest periods other than their 20 declarations.” (Id.) Moreover, Plaintiffs recognize the risks of non-certification and 21 discretionary reduction of damages by the Court. In light of their desire to avoid Defendants, however, deny any wrongdoing, (see 22 23 24 25 26 27 28 Plaintiffs contend Defendant may likely argue “employers need only make breaks available and that Defendants had no obligation to ensure that breaks were actually taken[,]” and even if found liable, “the Class Members’ damages were de minimis[.]” (Mem. of P. & A. in Supp. of Mot. at 8.) 3 – 10 – 17-cv-0253 DMS (WVG) 1 further costly litigation and the risks of continued litigation, the parties ultimately 2 elected to resolve their differences through arms-length negotiations with the help 3 of a neutral third-party mediator. Under these circumstances, these factors weigh in 4 favor of preliminary approval. 5 Next, the third factor is the risk of maintaining class status throughout the trial. 6 As discussed above, Plaintiffs have made a preliminary showing that the 7 requirements for class certification are met, and Defendants do not oppose a finding 8 that the class elements are met for purposes of this settlement. Accordingly, this 9 factor is neutral. 10 The fourth factor, the amount offered in settlement, “‘is generally considered 11 the most important, because the critical component of any settlement is the amount 12 of relief obtained by the class.’” In re Celera Corp. Securities Litig., No. 5:10-CV- 13 02604-EJD, 2015 WL 7351449, at *6 (N.D. Cal. Nov. 20, 2015) (quoting Bayat v. 14 Bank of the W., No. C-13-2376 EMC, 2015 WL 1744342, at *4 (N.D. Cal. Apr. 15, 15 2015)). Here, the Settlement Agreement provides for a Gross Settlement Fund of 16 $1,050,000, which is approximately 43% of the maximum possible amount of 17 recovery of $2,428,918.80. (Cole Decl. ¶ 21; Bodell Decl. ¶ 21.) It provides that an 18 equitable formula will be applied to distribute payments to each participating Class 19 Member based upon the number of workweeks the Class Member has worked during 20 the relevant time period.4 Based upon the parties’ agreement that this amount 21 22 23 24 25 26 27 28 4 The Court finds the incentive award to Plaintiffs, cost of the Settlement Administrator, and PAGA penalties appear reasonable, and thus, preliminary approves them. As for the attorneys’ fees, Plaintiffs do not set forth adequate reasons justifying an amount totaling 28% of the Gross Settlement Fund, which is above the Ninth Circuit’s 25% “benchmark award for attorney[s’] fees.” Hanlon, 150 F.3d at 1029. Moreover, Plaintiffs has not attached any accounting of past costs to justify the $20,000 amount. Accordingly, the Court cannot undertake a preliminary – 11 – 17-cv-0253 DMS (WVG) 1 provides adequate compensation for the class claims, the uncertainties the putative 2 class faces in this case, and likely length of the proceedings before any recovery 3 could be obtained, the Court finds the amount offered supports preliminary approval 4 of the class settlement. 5 The fifth factor is the extent of discovery completed and the stage of the 6 proceedings. The parties had entered into the discovery phase of the case when the 7 case settled. Although it is unclear how much discovery the parties had completed, 8 Plaintiffs contend the parties engaged in sufficient discovery to assess the strengths 9 and weaknesses of their respective positions. (See Cole Decl. ¶¶ 5–6; Bodell Decl. 10 ¶¶ 5–6.) Accordingly, this factor weighs in favor of preliminary approval. 11 The next factor is the experience and views of counsel. As addressed above, 12 counsel appear to be sufficiently experienced in these matters, and they believe the 13 settlement is fair, reasonable, and adequate. (Cole Decl. ¶ 23; Bodell Decl. ¶ 23.) 14 Therefore, this factor weighs in favor of preliminary approval. 15 The final two factors are the presence of a governmental participant and the 16 reaction of Class Members to the proposed settlement. There is no governmental 17 participant in this case. Therefore this factor is neutral. The final factor also does 18 not apply at this stage as the class has yet to receive notice of the settlement. 19 Considering the factors discussed above, the Court finds Plaintiffs have met 20 the requirements for preliminary certification of the class and approval of the 21 settlement. 22 III. 23 CONCLUSION 24 25 26 27 28 evaluation of the attorneys’ fees and costs at this time, and therefore, will revisit these requests at the time the parties seek final approval of the settlement. – 12 – 17-cv-0253 DMS (WVG) 1 For the reasons set out above, the Court grants Plaintiffs’ motion for 2 preliminary approval of the settlement in this case. This Preliminary Approval Order 3 incorporates by reference the definitions in the Settlement Agreement, and all terms 4 used herein shall have the same meaning as set forth in the Settlement Agreement. 5 IT IS ORDERED as follows: 1. 6 7 reasonable, and adequate pursuant to Federal Rule of Civil Procedure 23(e). 2. 8 9 10 The Settlement Agreement is preliminarily approved as fair, Pursuant to Federal Rule Civil Procedure 23(b)(3), the Court hereby conditionally certifies the Settlement Class for settlement purposes only. The Settlement Class is defined as follows: 11 14 All California Chauffeurs who worked for Defendants Harrison Global, LLC and/or MTG Acquisitions, LLC from March 14, 2014 to January 26, 2018 (San Francisco); March 14, 2014 to November 16, 2017 (Los Angeles); and October 1, 2015 to November 17, 2017 (San Diego), respectively 15 3. 12 13 Pursuant to Federal Rule of Civil Procedure 23, the Court preliminarily 16 certifies Plaintiffs Mark Huddlestun and Robert Benson as Class Representatives 17 and Plaintiffs’ counsel as Class Counsel solely for purposes of settlement. 4. 18 The Court hereby approves, as to form and content, the Notice attached 19 as Exhibit C to Declaration of Scott Cole and the Notice Program set forth in 20 paragraphs 27 through 30 of the Settlement Agreement. The Court finds that the 21 Notice meets the requirements of Federal Rule of Civil Procedure 23(c)(2)(B) and 22 (e). 23 5. Pursuant to the Settlement Agreement, within five (5) business days of 24 the entry of this Preliminary Approval Order, Defendants will provide the Settlement 25 Administrator the best information in its possession, custody, or control with respect 26 27 28 – 13 – 17-cv-0253 DMS (WVG) 1 to the names, social security numbers, last known addresses, home telephone 2 number, and e-mail address for each Class Member, and the dates of service and 3 number of workweeks that each Class Member worked for Defendants during the 4 Settlement Period. The Settlement Administrator shall keep and maintain the 5 information as confidential and shall only use the Social Security numbers for 6 purposes of this Settlement Agreement, i.e. to locate the Class Members. 7 6. The Settlement Administrator shall send the Class Notice Package to 8 Class Members by first class mail within ten (10) business days of the entry of this 9 Preliminary Approval Order. Class Members shall not be required to pay return 10 postage on the Claim Form and the cost of such postage shall be included in the fees 11 and costs of the Settlement Administrator. A valid Claim Form must be postmarked 12 not more than thirty (30) business days after the date the Class Notice Package is 13 mailed to the Class Members (or not more than ten (10) business days after the date 14 the Class Notice Package is re-mailed). 15 7. Class Members may choose to exclude themselves from the Settlement 16 by submitting a written objection complying with the specifications in the Notice no 17 later than thirty (30) business days after the date the Class Notice Package is mailed 18 to the Class Members (or not more than ten (10) business days after the date the 19 Class Notice Package is re-mailed). 20 8. Class Members may object to the Settlement by mailing a written 21 objection complying with the specifications in the Notice no later than thirty (30) 22 business days after the date the Class Notice Package is mailed to the Class Members 23 (or not more than ten (10) business days after the date the Class Notice Package is 24 re-mailed). The Settlement Administrator shall promptly forward any objections 25 received to Class Counsel and Defendants’ counsel. 26 27 28 – 14 – 17-cv-0253 DMS (WVG) 1 9. Class Members may enter an appearance through counsel of their own 2 choosing and at their own expense or may appear individually and show cause, if 3 they have any facts or arguments to present, as to: (a) why the proposed settlement 4 of the Action as set forth in the Settlement Agreement should or should not be 5 approved as fair, reasonable, and adequate; and (b) why the final approval order and 6 judgment should or should not be entered on the proposed Settlement Agreement. 7 If any Class Member seeks to appear at the hearing, he or she shall file a notice of 8 appearance with the Court and serve Class Counsel and Defendants’ counsel fifteen 9 (15) days before the Final Approval Hearing. 10 10. No later than twenty-one (21) days prior to the Final Approval Hearing, 11 the parties shall file a Motion for Final Approval of Class Action Settlement. The 12 Motion shall include and address any objections received. In addition to the class 13 certification and settlement fairness factors, the Motion shall address the number of 14 Class Members who have opted out and the corresponding number of claims. 15 11. No later than twenty-one (21) days prior to the Final Approval Hearing, 16 the parties shall file a sworn declaration evidencing compliance with the provisions 17 of the Settlement Agreement as it relates to providing Notice. 18 12. No later than twenty-one (21) days prior to the Final Approval Hearing, 19 Class Counsel shall file an application for attorneys’ fees and costs. Class Counsel 20 shall provide documentation detailing the number of hours incurred by attorneys in 21 litigating this action, supported by detailed time records, as well as hourly 22 compensation to which those attorneys are reasonably entitled. 23 should be prepared to address any questions the Court may have regarding the 24 application for fees at the Final Approval Hearing. 25 26 27 28 13. Class Counsel Pursuant to Rule 23(e), the Final Approval Hearing will be held before – 15 – 17-cv-0253 DMS (WVG) 1 this Court at Courtroom 13A, 333 West Broadway, San Diego, CA 92101 on 2 February 22, 2019, at 1:30 p.m., to determine: (a) whether the proposed settlement 3 of the Action on the terms and conditions provided in the Settlement Agreement are 4 fair, reasonable, and adequate, and (b) whether a final approval order and judgment 5 should be entered herein. The Court may adjourn or continue the Final Approval 6 Hearing without further notice to the Settlement Class. 7 14. After the Final Approval Hearing, the Court may enter a Final Order 8 and Judgment in accordance with the Settlement Agreement that will adjudicate the 9 rights of the Settlement Class Members (as defined in the Settlement Agreement) 10 11 12 13 14 with respect to the claims being settled. 15. In the event the Settlement Agreement is not consummated for any reason, the conditional class certification shall be of no further force or effect. IT IS SO ORDERED. Dated: August 7, 2018 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 16 – 17-cv-0253 DMS (WVG)
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