Abdul Jamil v. Workforce Resources, LLC

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 AHMAD JAWAD ABDUL JAMIL, Case No.: 18-CV-27 JLS (NLS)

AHMAD JAMSHID ABDUL JAMIL,

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AHMAD FARHAD ABDUL JAMIL, ORDER: (1) GRANTING

13 individual and on behalf of all employees PRELIMINARY APPROVAL OF

similarly situated, CLASS ACTION SETTLEMENT;

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(2) PROVISIONALLY CERTIFYING

Plaintiffs,

15 SETTLEMENT CLASS;

v. (3) APPOINTING CLASS COUNSEL;

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(4) APPOINTING PLAINTIFFS

WORKFORCE RESOURCES, LLC;

17 AHMAD JAWAD ABDUL JAMIL,

BRISTOL BAY NATIVE

AHMAD JAMSHID ABDUL JAMIL,

18 CORPORATION; and DOES 1 through

AND AHMAD FARHAD ABDUL

10, inclusive,

19 JAMIL AS CLASS

Defendants. REPRESENTATIVES;

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(5) APPOINTING SETTLEMENT

21 ADMINISTRATOR; (6) APPROVING

NOTICE AND DIRECTING

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DISTRIBUTION OF NOTICE; AND

23 (7) SETTING SCHEDULE FOR

FINAL APPROVAL PROCESS

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25 (ECF No. 51)

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27 Presently before the Court is Plaintiffs’ unopposed Motion for Preliminary Approval

28 of Proposed Class Action Settlement (“Prelim. Approval Mot.,” ECF No. 51). Having

1 reviewed the terms of the Joint Stipulation re: Class Action Settlement and Release

2 (“Proposed Settlement Agreement”), Prelim. Approval Mot. Ex. 1, ECF No. 51-1 at

3 10–43; Plaintiffs’ arguments; and the law, the Court preliminarily concludes that the

4 settlement falls within the range of reasonableness warranting preliminary approval, i.e.,

5 that the settlement appears fundamentally fair, reasonable, and adequate. Accordingly, the

6 Court GRANTS the Preliminary Approval Motion.

7 GENERAL BACKGROUND

8 Plaintiffs Ahmad Jawad Abdul Jamil, Ahmad Jamshid Abdul Jamil, and Ahmad

9 Farhad Abdul Jamil filed a putative class action complaint against Workforce Resources,

10 LLC (“Workforce”) in the Superior Court of California for the County of San Diego on

11 September 27, 2017. See ECF No. 1-2 at 6–27. The allegations included failure to pay

12 minimum wages; failure to pay overtime wages; failure to provide meal and rest periods;

13 failure to provide accurate, itemized wage statements; and failure timely to pay wages due

14 at separation in violation of various provisions of the California Labor Code. See generally

15 id. Plaintiffs also alleged unfair business practices in violation of California Business and

16 Professions Code section 17200. See generally id. Plaintiffs added Bristol Bay Native

17 Corporation (“BBNC”) as a Defendant on November 13, 2017. See ECF No. 1-2 at 28

18 –29.

19 Plaintiffs removed the action to federal court on January 24, 2018. See ECF No. 1.

20 Defendants filed a motion to dismiss the meal and rest break claims on January 11, 2018,

21 see ECF No. 3, while Plaintiffs filed a motion to remand the action to state court on

22 February 14, 2018, see ECF No. 4, which the Court denied on May 21, 2018. See ECF No.

23 12. Plaintiffs filed the operative First Amended Complaint on July 20, 2018, adding a

24 claim for civil penalties under the Labor Code Private Attorneys General Act of 2004

25 (“PAGA”). See ECF No. 22. Because Defendants’ prior motion to dismiss was dismissed

26 as moot, see ECF No. 21, Defendants filed a renewed motion to dismiss Plaintiffs’ meal

27 and rest break claims, see ECF No. 23, which the Court denied. See ECF No. 29.

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1 The Parties attended two Early Neutral Evaluation Conferences with the Honorable

2 Nita L. Stormes, on April 23 and July 29, 2019, but were unable to reach a settlement. See

3 generally ECF Nos. 38, 44. On September 24, 2019, the Parties attended a mediation

4 conducted by Jill Sperber, Esq., during which they reached the Proposed Settlement

5 Agreement presently before the Court. Declaration of Kevin Mahoney in Support of

6 Prelim. Approval Mot. (“Mahoney Decl.,” ECF No.51-1) ¶ 4.

7 On April 9, 2020, the plaintiffs of a separate, related putative class action, Abikar v.

8 Bristol Bay Native Corporation, No. 18CV1700 JLS (AGS) (S.D. Cal. filed July 25, 2018),

9 filed a motion to intervene and objection to proposed settlement. See ECF No. 55. They

10 have since withdrawn their motion and objection, see ECF Nos. 56, 57, leaving the instant

11 Motion unopposed.

12 SETTLEMENT TERMS

13 The Parties have submitted a comprehensive Proposed Settlement Agreement

14 detailing the substantive settlement terms, Prelim. Approval Mot. Ex. 1, ECF No. 51-1 at

15 10–43, as well as a Proposed Notice of Settlement. Proposed Settlement Agreement Ex.

16 A, ECF No. 51-1 at 44–50.

17 I. Proposed Settlement Class

18 The proposed Settlement Class is defined to include “all non-exempt employees who

19 worked for Workforce at Marine Corps Base Camp Pendleton in the position of Role

20 Player, Interpreter, Amputee, and/or Team Lead at any time during the Class Period,”

21 Proposed Settlement Agreement ¶ 1.4, while the Class Period is defined as “the period

22 from September 27, 2013 through and including July 31, 2017.” Id. ¶ 1.8. The proposed

23 Settlement Class amounts to approximately 1,089 members. Prelim. Approval Mot. at 10.

24 Class Members have the option to opt out of the Settlement or to object to the Settlement

25 within sixty days of the mailing of the Notice of Settlement. Id.

26 II. Proposed Monetary Relief

27 The Proposed Settlement Agreement provides that Defendants will pay a Maximum

28 Settlement Amount of $900,000. Proposed Settlement Agreement ¶ 3.6.1. The Maximum

1 Settlement Amount will be used to pay Plaintiffs’ Class Representative Service Awards in

2 the amount of $10,000 each, a Class Counsel Fees Award of $300,000, a Class Counsel

3 Costs Award of $15,000, Settlement Administration Costs of $35,000, and payment to the

4 California Labor and Workforce Development Agency (“LWDA”) pursuant to PAGA. Id.

5 at ¶¶ 3.6.1–3.6.1.5.

6 All Participating Class Members, i.e., Class Members who do not submit a timely

7 and valid Request for Exclusion, will receive a portion of the Net Distribution Fund “paid

8 on a pro rata basis based on the numbers of shifts . . . worked . . . during the Class Period.”

9 Id. at ¶ 3.6.1.6. In calculating the Individual Settlement Payments, the Settlement

10 Administrator will “divide[ the Net Distribution Fund by] the total number of eligible shifts

11 worked by Participating Class Members during the Class Period to determine the shift

12 value,” then multiply the shift value and the total number of eligible shifts worked by each

13 Participating Class Member during the Class Period. Id. Plaintiffs estimate that the

14 average net distribution to individual members of the Settlement Class will be $470 per

15 member, if no Class Members opt out of the Settlement. Prelim. Approval Mot. at 15.

16 After disbursing payments, any funds remaining in the Net Distribution Fund will be

17 donated to the State of California’s Justice Gap Fund. Proposed Settlement Agreement

18 ¶ 3.8.10.

19 In exchange for the monetary consideration, all Participating Class Members will

20 release all “Released Class Claims” and “Released PAGA Claims” as defined in the

21 Proposed Settlement Agreement. Id. ¶¶ 1.31–1.32.

22 RULE 23 SETTLEMENT CLASS CERTIFICATION

23 Before granting preliminary approval of a class action settlement agreement, the

24 Court must first determine whether the proposed class can be certified. Amchem Prods. v.

25 Windsor, 521 U.S. 591, 620 (1997) (indicating that a district court must apply “undiluted,

26 even heightened, attention [to class certification] in the settlement context” to protect

27 absentees).

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1 Class actions are governed by Federal Rule of Civil Procedure 23. To certify a class,

2 each of the four requirements of Rule 23(a) must first be met. Zinser v. Accufix Research

3 Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001). Rule 23(a) allows a class to be certified

4 only if:

5 (1) the class is so numerous that joinder of all members is

impracticable;

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7 (2) there are questions of law or fact common to the class;

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(3) the claims or defenses of the representative parties are

9 typical of the claims or defenses of the class; and

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(4) the representative parties will fairly and adequately protect

11 the interests of the class.

12 In addition to Rule 23(a)’s requirements, the proposed class must satisfy the

13 requirements of one of the subdivisions of Rule 23(b). Zinser, 253 F.3d at 1186. Here,

14 Plaintiffs seek to certify the Settlement Class under subdivision Rule 23(b)(3), see Prelim.

15 Approval Mot. at 21–22, which permits certification if “questions of law or fact common

16 to class members predominate over any questions affecting only individual class members”

17 and “a class action is superior to other available methods for fairly and efficiently

18 adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). The Court addresses each of these

19 requirements in turn.

20 I. Rule 23(a)

21 A. Rule 23(a)(1): Numerosity

22 Federal Rule of Civil Procedure 23(a)(1) requires that a class must be “so numerous

23 that joinder of all members is impracticable.” “[C]ourts generally find that the numerosity

24 factor is satisfied if the class comprises 40 or more members and will find that it has not

25 been satisfied when the class comprises 21 or fewer.” Celano v. Marriott Int’l, Inc., 242

26 F.R.D. 544, 549 (N.D. Cal. 2007). Here, the proposed Settlement Class consists of

27 approximately 1,089 members, Prelim. Approval Mot. at 10, so joinder of all members

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1 would be impracticable for the purposes of Rule 23(a)(1). The numerosity requirement is

2 therefore satisfied.

3 B. Rule 23(a)(2): Commonality

4 Federal Rule of Civil Procedure 23(a)(2) requires that there be “questions of law or

5 fact common to the class.” Commonality requires that “the class members ‘have suffered

6 the same injury.’” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349–50 (2011) (quoting

7 Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)). “The existence of shared legal

8 issues with divergent factual predicates is sufficient, as is a common core of salient facts

9 coupled with disparate legal remedies within the class.” Hanlon v. Chrysler Corp., 150

10 F.3d 1011, 1019 (9th Cir. 1998).

11 Here, the Settlement Class is defined as all “non-exempt employees who worked for

12 Workforce at Marine Corps Base Camp Pendleton in the position of role player, interpreter,

13 amputee, and/or team lead . . . at any time during the period from September 27, 2013

14 through and including July 31, 2017.” Prelim. Approval Mot. at 2; see also Proposed

15 Settlement Agreement ¶ 1.4. Common issues revolve around the questions of whether

16 Defendants failed to compensate employees for all hours worked, including minimum

17 wage and overtime, and whether Defendants failed to provide all required meal and rest

18 periods. Prelim. Approval Mot. at 19–20. Accordingly, it is appropriate for these issues

19 to be adjudicated on a class-wide basis, and Rule 23(a)(2) is satisfied. See, e.g., Millan v.

20 Cascade Water Servs., Inc., 310 F.R.D. 593, 605 (E.D. Cal. 2015) (holding that the

21 commonality requirement was satisfied where all members of the class were subject to the

22 same allegedly unlawful wage practices of the defendant).

23 C. Rule 23(a)(3): Typicality

24 To satisfy Federal Rule of Civil Procedure 23(a)(3), the named plaintiffs’ claims

25 must be typical of those of the class. The typicality requirement is “permissive” and

26 requires only that the named plaintiffs’ claims “are reasonably coextensive with those of

27 absent class members.” Hanlon, 150 F.3d at 1020. “The test of typicality is ‘whether other

28 members have the same or similar injury, whether the action is based on conduct which is

1 not unique to the named plaintiffs, and whether other class members have been injured by

2 the same course of conduct.” Hanon v. Dataprods. Corp., 976 F.2d 497, 508 (9th Cir.

3 1992) (quoting Schwartz v. Harp, 108 F.R.D. 279, 282 (C.D. Cal. 1985)). “[C]lass

4 certification should not be granted if ‘there is a danger that absent class members will suffer

5 if their representative is preoccupied with defenses unique to it.’” Id. (citation omitted).

6 Here, Plaintiffs’ claims arise out of the same policies and practices of Defendants as

7 those pertaining to the proposed Settlement Class. Specifically, Plaintiffs contend that

8 Defendants failed to compensate Class Members for time spent donning and doffing

9 uniforms and time spent riding Defendants’ buses to and from Camp Pendleton. Prelim.

10 Approval Mot. at 5. Plaintiffs also contend that Defendants failed to provide adequate meal

11 and rest breaks for Class Members. Id. at 6–7. As members of the proposed Settlement

12 Class, Plaintiffs’ claims are identical to the claims of other Class Members. Id. at 20. The

13 typicality requirement of Rule 23(a)(3) is therefore satisfied.

14 D. Rule 23(a)(4): Adequacy

15 Federal Rule of Civil Procedure 23(a)(4) requires that the named representatives

16 fairly and adequately protect the interests of the class. “To satisfy constitutional due

17 process concerns, absent class members must be afforded adequate representation before

18 entry of judgment which binds them.” Hanlon, 150 F.3d at 1020 (citing Hansberry v. Lee,

19 311 U.S. 32, 42–43 (1940)). To determine legal adequacy, the Court must resolve two

20 questions: “(1) do the named plaintiffs and their counsel have any conflicts of interest with

21 other class members, and (2) will the named plaintiffs and their counsel prosecute the

22 action vigorously on behalf of the class?” Id.

23 Here, there is no reason to believe that the named Plaintiffs and Class Counsel have

24 any conflicts of interest with members of the proposed Settlement Class. Plaintiffs’ claims

25 are identical to those of the other members of the proposed Settlement Class, Prelim.

26 Approval Mot. at 20, and there is no evidence of any conflicts of interest in the record. Id.

27 at 21.

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1 There also is no reason to believe that Plaintiffs and Class Counsel have failed

2 vigorously to investigate and litigate this case to this point. Plaintiffs have retained

3 competent counsel who has engaged in motion practice and negotiation to arrive at the

4 Proposed Settlement. See Proposed Settlement Agreement ¶ 2.1. Furthermore, Class

5 Counsel has significant experience litigating wage and hour class action matters. Mahoney

6 Decl. ¶¶ 17–18. Accordingly, Plaintiffs and Class Counsel adequately represent the

7 proposed Settlement Class, and Rule 23(a)(4)’s adequacy requirement is met.

8 II. Rule 23(b)(3)

9 Federal Rule of Civil Procedure 23(b)(3) permits certification if “questions of law

10 or fact common to class members predominate over any questions affecting only individual

11 class members” and “a class action is superior to other available methods for fairly and

12 efficiently adjudicating the controversy.”

13 A. Predominance

14 “The Rule 23(b)(3) predominance inquiry tests whether the proposed classes are

15 sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., 521 U.S.

16 at 623. “Rule 23(b)(3) focuses on the relationship between the common and individual

17 issues.” Hanlon, 150 F.3d at 1022.

18 Here, the Parties agree that all Class Members share “a common nucleus of facts and

19 potential legal remedies.” Prelim. Approval Mot. at 22 (quoting Hanlon, 150 F.3d at 1011).

20 Plaintiffs allege that employees were not paid all overtime wages as a result of Defendants’

21 policies and practices and seek minimum wages and overtime wages on behalf of

22 themselves and Settlement Class Members. Id. The potential legal remedies of the

23 Settlement Class Members are identical. Id. The Court finds that the common wage and

24 hour issues predominate over any individual issues. Accordingly, the predominance

25 requirement of Rule 23(b)(3) is satisfied.

26 B. Superiority

27 The final requirement for certification pursuant to Federal Rule of Civil Procedure

28 23(b)(3) is “that a class action [be] superior to other available methods for fairly and

1 effectively adjudicating the controversy.” The superiority inquiry requires the Court to

2 consider the four factors listed in Rule 23(b)(3):

3 (A) the class members’ interests in individually controlling the

prosecution or defense of separate actions;

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5 (B) the extent and nature of any litigation concerning the

controversy already begun by or against class members;

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7 (C) the desirability or undesirability of concentrating the

litigation of the claims in the particular forum; and

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9 ( D) the likely difficulties in managing a class action.

10 See also Zinser, 253 F.3d at 1190. A court need not consider the fourth factor, however,

11 when certification is solely for the purpose of settlement. See True v. Am. Honda Motor

12 Co., 749 F. Supp. 2d 1052, 1066 n.12 (C.D. Cal. 2010); see also Amchem, 521 U.S. at 620

13 (“Confronted with a request for settlement-only class certification, a district court need not

14 inquire whether the case, if tried, would present intractable management problems, for the

15 proposal is that there be no trial.”).

16 The superiority inquiry focuses “‘on the efficiency and economy elements of the

17 class action so that cases allowed under [Rule 23(b)(3)] are those that can be adjudicated

18 most profitably on a representative basis.’” Zinser, 253 F.3d at 1190 (quoting 7A Charles

19 Alan Wright, Arthur R. Miller & Mary Kay Kane, Fed. Practice & Proc. § 1780, at 562

20 (2d ed. 1986)). A district court has “broad discretion” in determining whether class

21 treatment is superior. Kamm v. Cal. City Dev. Co., 509 F.2d 205, 210 (9th Cir. 1975).

22 Here, the Settlement Class Members’ claims involve the same factual and legal

23 questions and all Settlement Class Members have the same potential legal remedies. See

24 Prelim. Approval Mot. at 22. If all Settlement Class Members were to file claims on an

25 individual basis, there would be over one thousand cases with similar questions and results.

26 This immense quantity of individual cases would absorb significant resources from both

27 the Court and the Parties. Furthermore, individual Settlement Class Members might not

28 pursue litigation on their own due to high costs of individual litigation. Given all of the

1 above, class treatment is the superior method of adjudicating this controversy, and the

2 superiority requirement of Rule 23(b)(3) is met.

3 III. Conclusion

4 For the foregoing reasons, the Court finds certification of the Settlement Class

5 proper under Rule 23(b)(3). Accordingly, the proposed Settlement Class is CERTIFIED

6 for settlement purposes only.

7 RULE 23 PRELIMINARY FAIRNESS DETERMINATION

8 Having certified the proposed Settlement Class, the Court must next make a

9 preliminary determination as to whether the Proposed Settlement Agreement is “fair,

10 reasonable, and adequate” pursuant to Federal Rule of Civil Procedure 23(e)(1)(C).

11 Factors relevant to this determination include:

12 The strength of the plaintiff’s case, the risk, expense, complexity,

and likely duration of further litigation; the risk of maintaining

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class action status throughout the trial; the amount offered in

14 settlement; the extent of discovery completed and the stage of the

proceedings; the experience and views of counsel; the presence

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of a governmental participant; and the reaction of the class

16 members to the proposed settlement.

17 Hanlon, 150 F.3d at 1026. “Where a settlement is the product of arms-length negotiations

18 conducted by capable and experienced counsel, the court begins its analysis with a

19 presumption that the settlement is fair and reasonable.” Garner v. State Farm Mut. Auto

20 Ins. Co., No. CV 08 1365 CW (EMC), 2010 WL 1687832, *13 (N.D. Cal. Apr. 22, 2010)

21 (quoting Brown v. Hain Celestial Grp., Inc., No. 3:11-CV-03082-LB, 2016 WL 631880,

22 at *5 (N.D. Cal. Feb. 17, 2016)). “Additionally, there is a strong judicial policy that favors

23 settlements, particularly where complex class action litigation is concerned.” In re Syncor

24 ERISA Litig., 516 F.3d 1095, 1101 (9th Cir. 2008) (citing Class Pls. v. City of Seattle, 955

25 F.2d 1268, 1276 (9th Cir. 1992)).

26 I. Strength of Plaintiffs’ Case

27 To succeed on the wage claims, Plaintiffs would have to prove that Defendants’

28 failure to compensate Class Members for time spent donning and doffing uniforms and

1 riding Defendants’ buses to and from Camp Pendleton violated the California Labor Code.

2 See Mahoney Decl. ¶ 5. Defendants argue that Class Members were paid for all time on

3 the base, including time spent donning and doffing uniforms. Id. Defendants also argue

4 that employees were not required to ride the Defendants’ buses, so Defendants had no

5 requirement to compensate employees for time spent on the buses. Id.

6 Plaintiffs further allege that Defendants failed to provide adequate meal and rest

7 breaks, while Defendants argue that Class Members were not entitled to meal and rest

8 breaks because Class Members worked on federal property and were subject to the “federal

9 enclave” doctrine. Id. ¶ 6. Some of Plaintiffs’ additional claims against Defendants, such

10 as failure to provide accurate wage statements, also turn on the issues of whether Class

11 Members were entitled to compensation for time spend on Defendants’ buses and whether

12 Class Members were entitled to meal and rest breaks. See id. ¶¶ 7–8.

13 Given the considerable diversion between Plaintiffs’ and Defendants’ contentions,

14 the Court finds that this factor weighs in favor of finding the Proposed Settlement

15 Agreement fair, reasonable, and adequate.

16 II. Risk, Expense, Complexity, and Likely Duration of Further Litigation

17 Were the case to proceed to further litigation, the Parties would each bear substantial

18 risk and a strong likelihood of protracted and contentious litigation. Defendants continue

19 to dispute the validity of Plaintiffs’ claims, see generally Prelim. Approval Mot. at 4–10,

20 as well as the appropriateness of class certification (absent settlement). Id. at 17. Plaintiffs

21 acknowledge the existence of “[many unresolved legal and procedural issues” and “clear

22 risk that if Defendants defeated Plaintiff[s’] Motion for Class Certification, Class Members

23 would simply not receive any monetary recovery.” Id. at 17–18. The Court therefore finds

24 that significant risk and uncertainty remains for both Parties. Accordingly, this factor

25 weighs in favor of the Proposed Settlement Agreement being fair, reasonable, and

26 adequate.

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1 III. Risk of Maintaining the Class Action Through Trial

2 Defendants “strongly argued” that class certification was inappropriate in this

3 matter. Prelim. Approval Mot. at 17. Weighed against the fact that Defendants do not

4 object to a finding that the class certification requirements are met for purposes of the

5 Proposed Settlement Agreement, this factor weighs in favor of the Proposed Settlement

6 Agreement being fair, reasonable, and adequate.

7 IV. Amount Offered in Settlement

8 Defendants have agreed to pay the Maximum Settlement Amount of $900,000, with

9 no monies reverting back to Defendants. Prelim. Approval Mot. at 16; see also Proposed

10 Settlement Agreement ¶ 3.6.1. This amount represents 83% of Defendants’ full exposure

11 at trial, which is estimated to be approximately $1,072,500, excluding attorney’s fees,

12 interest, and cost. Mahoney Decl. ¶ 12. Less Plaintiffs’ Service Awards, Class Counsel

13 Fees and Costs, Administrative Expenses, and payment to LWDA, the Maximum

14 Settlement Amount will provide approximately $520,000 to be divided among

15 Participating Class Members. Mahoney Decl. ¶ 14; see also Proposed Settlement

16 Agreement ¶¶ 3.61–3.6.6. The resulting average disbursement to the estimated 1,089

17 Settlement Class Members will be approximately $470 per member. Mahoney Decl. ¶ 14;

18 Prelim. Approval Mot. at 16. Given the risks of litigation, the Court determines that the

19 Maximum Settlement Amount is fair and reasonable and that this factor weighs in favor of

20 settlement.

21 V. Extent of Discovery Completed and Stage of Proceedings

22 Plaintiffs assert that they have a “wealth of information,” including “timekeeping

23 sheets, payroll, and compensation data, and Defendants’ written policies and procedures.”

24 Prelim. Approval Mot. at 14. Prior to drafting the Proposed Settlement, the Parties engaged

25 in motion practice; two Early Neutral Evaluation Conferences; and a mediation with Jill

26 Sperber, Esq., “a well-known and experienced wage and hour class action mediator.” Id.

27 at 3. Furthermore, Class Counsel asserts that the Proposed Settlement Agreement is “the

28 product of extensive arms’ length negotiations by experienced counsel on both sides after

1 thorough discovery and recognition of the strengths and weaknesses of each other’s

2 positions.” Mahoney Decl. ¶ 13.

3 Accordingly, it appears the Parties have entered into the Proposed Settlement

4 Agreement with a strong working knowledge of the relevant facts, law, and strengths and

5 weaknesses of their respective claims and defenses. Given the above, this factor weighs in

6 favor of the Proposed Settlement Agreement being fair, reasonable, and adequate.

7 VI. Experience and Views of Counsel

8 “The recommendations of plaintiff’s counsel should be given a presumption of

9 reasonableness.” Boyd v. Bechtel Corp., 485 F. Supp. 610, 622 (N.D. Cal. 1979). Here,

10 Plaintiffs’ Counsel finds the Proposed Settlement “fair and reasonable because it provides

11 substantial and immediate benefits to the class members.” Mahoney Decl. ¶ 13.

12 Furthermore, the presumption of reasonableness is warranted in this case given Class

13 Counsel’s extensive experience in employment law class action litigation and settlements.

14 See Mahoney Decl. ¶¶ 17–18. This factor therefore weighs in favor of finding the proposed

15 Settlement Agreement fair, reasonable, and adequate.

16 VII. Attorney’s Fees Provision

17 In the Ninth Circuit, a district court has discretion to apply either a lodestar method

18 or a percentage-of-the-fund method in calculating a class fee award in a common fund case.

19 Fischel v. Equitable Life Assur. Soc’y of U.S., 307 F.3d 997, 1066 (9th Cir. 2002). When

20 applying the percentage-of-the-fund method, an attorney’s fees award of “twenty-five

21 percent is the ‘benchmark’ that district courts should award.” In re Pac. Enters. Sec. Litig.,

22 47 F.3d 373, 379 (9th Cir. 1995) (citing Six Mexican Workers v. Ariz. Citrus Growers, 904

23 F.2d 1301, 1311 (9th Cir. 1990)); Fischel, 307 F.3d at 1006. A district court, however,

24 “may adjust the benchmark when special circumstances indicate a higher or lower

25 percentage would be appropriate.” In re Pac. Enters. Sec. Litig., 47 F.3d at 379 (citing Six

26 Mexican Workers, 904 F.2d at 1311. “Reasonableness is the goal, and mechanical or

27 formulaic application of either method, where it yields an unreasonable result, can be an

28 abuse of discretion.” Fischel, 307 F.3d at 1007.

1 Here, Defendants have agreed not to oppose Class Counsel’s request for the Court

2 to approve attorney’s fees in the amount of up to $300,000 and litigation fees up to $15,000.

3 See Proposed Settlement Agreement ¶¶ 3.6.1.2–3.6.1.3. This request equals one-third of

4 the Maximum Settlement Amount, or approximately thirty-three percent, and exceeds the

5 “benchmark” of twenty-five percent. At this point, the Court finds no reason to award fees

6 that exceed that Ninth Circuit’s benchmark. Class Counsel will need to show what special

7 circumstances exist warranting a higher percentage in their motion for attorney’s fees.

8 VIII. Class Representative Service Award Provision

9 The Ninth Circuit recognizes that named plaintiffs in class action litigation are

10 eligible for reasonable incentive payments. Staton v. Boeing Co., 327 F.3d 938, 977 (9th

11 Cir. 2003). The district court must evaluate each incentive award individually, using

12 “relevant factors includ[ing] the actions the plaintiff has taken to protect the interests of the

13 class, the degree to which the class has benefitted from those actions, . . . [and] the amount

14 of time and effort the plaintiff expended in pursuing the litigation.” Id. (citing Cook v.

15 Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998)).

16 Here, the Parties have agreed to a Service Award of $10,000 to each named Plaintiff,

17 totaling $30,000 in Service Awards. Proposed Settlement Agreement ¶ 3.6.1.1. The Court

18 is not convinced that an award of $10,000 to each named Plaintiff is reasonable where the

19 average payment the Settlement Class Members will receive is $470. See Sandoval v.

20 Tharaldson Emp. Mgmt., Inc., 2010 WL 2486346, 10 (E.D. Cal. 2010) (finding a service

21 award of $12,500 unreasonable where class members would receive an average payment

22 of $749.60). In the aggregate, Plaintiffs’ Service Awards will amount to more than 3% of

23 the Maximum Settlement Amount, which is higher than what other courts have approved.

24 See Bellinghausen v. Tractor Supply Co., 306 F.R.D. 245, 267 (N.D. Cal. 2015) (collecting

25 cases where incentive awards were under 1% of the settlement) (citing Sandoval, 2010 WL

26 2486346 at 10).

27 The Service Award is explained as “warranted due to [Plaintiffs] time and effort.”

28 Mahoney Decl. ¶ 15. Plaintiffs gathered documents, answered questions, provided Class

1 Counsel with information, were “involved weekly for the benefit of the class,” participated

2 in the Early Neutral Evaluation Conferences, and participated in the mediation. Id.; Prelim.

3 Approval Mot. at 15–16. At this, stage the Court preliminarily approves the proposed

4 $10,000 Service Award to each named Plaintiff; however, before final approval of the

5 Service Award, the Court requests that named Plaintiffs provide documentation detailing

6 the time and effort they expended in pursuit of this litigation and the actions they took to

7 benefit the Settlement Class in its motion for final approval. Without such information,

8 the Court may lower the requested Service Award.

9 IX. Conclusion

10 For the reasons stated above, the Court GRANTS Plaintiffs’ unopposed Preliminary

11 Approval Motion.

12 PROPOSED SETTLEMENT NOTICE

13 Pursuant to Federal Rule of Civil Procedure 23(c)(2)(B), “[f]or any class certified

14 under Rule 23(b)(3) the court must direct to class members the best notice that is

15 practicable under the circumstances, including individual notice to all members who can

16 be identified through reasonable effort.” Because the Court has determined that

17 preliminary certification is appropriate under Rule 23(b)(3), the mandatory notice

18 procedures required by Rule 23(c)(2)(B) must be followed.

19 Where there is a class settlement, Federal Rule of Procedure 23(e)(1) requires the

20 court to “direct notice in a reasonable manner to all class members who would be bound

21 by the proposal.” “‘Notice is satisfactory if it ‘generally describes the terms of the

22 settlement in sufficient detail to alert those with adverse viewpoints to investigate and to

23 come forward and be heard.’” Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 962 (9th Cir.

24 2009) (quoting Churchill Vill., LLC v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004)); see

25 also Grunin v. Int’l House of Pancakes, 513 F.2d 114, 120 (8th Cir. 1975) (“[T]he

26 mechanics of the notice process are left to the discretion of the court subject only to the

27 broad ‘reasonableness’ standards imposed by due process.”).

28 / / /

1 Here, Parties intend to notify the Class Members through first-class mail. See

2 Proposed Settlement Agreement ¶ 3.7.6. Defendants will provide the Settlement

3 Administrator with the Employee List containing each Class Member’s “full name, last

4 known address, last known telephone number, social security number, date of birth, and

5 the number of shifts worked in a Role Player Position . . . during the Class Period.” Id.

6 ¶¶ 1.14, 3.7.5. Within fourteen days of receiving this information, the Settlement

7 Administrator will send the Notice to all Class Members. Id. ¶ 3.7.6. Before sending the

8 Notice, the Settlement Administrator will update all addresses using a national change of

9 address search and a skip trace. Id. The Settlement Administrator will make “reasonable

10 efforts” to obtain forwarding mailing addresses for any Notices returned as non-

11 deliverable. Id. ¶ 3.7.7. The Proposed Notice includes a description of the Action, the

12 terms of the Proposed Settlement, and an explanation of Class Members’ rights to

13 participate in, object to, or opt-out of the Settlement. See Proposed Notice.

14 Having thoroughly reviewed the Proposed Notice, the Court finds that both the

15 method and content of the Proposed Notice comply with Rule 23. Accordingly, the Court

16 APPROVES both the content of the Proposed Notice and the proposed notification plan.

17 CONCLUSION

18 For the foregoing reasons, the Court GRANTS Plaintiffs’ Preliminary Approval

19 Motion (ECF No. 51) and ORDERS:

20 1. PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT

21 AGREEMENT: The Settlement Agreement is PRELIMINARILY APPROVED as fair,

22 reasonable, and adequate pursuant to Federal Rule of Civil Procedure 23(e).

23 2. PRELIMINARY CLASS CERTIFICATION: Pursuant to Federal Rule of

24 Civil Procedure 23(b)(3), this action is PRELIMINARILY CERTIFIED, for settlement

25 purposes only, as a class action on behalf of the following Settlement Class Members with

26 respect to the Released Class Claims and Released PAGA Claims asserted in this Action:

27 “all non-exempt employees who worked for Workforce at Marine Corps Base Camp

28 / / /

1 Pendleton in the position of Role Player, Interpreter, Amputee, and or/Team Lead . . . at

2 any time during the Class Period.” Proposed Settlement Agreement ¶ 1.4.

3 3. CLASS REPRESENTATIVE, CLASS COUNSEL, AND

4 SETTLEMENT ADMINISTRATOR: Pursuant to Federal Rule of Civil Procedure 23,

5 the Court PRELIMINARILY CERTIFIES, for settlement purposes only, Plaintiffs

6 Ahmad Jawad Abdul Jamil, Ahmad Jamshid Abdul Jamil, and Ahmad Farhad Abdul Jamil

7 as Class Representatives and Mahoney Law Group, APC as Class Counsel. Additionally,

8 the Court APPROVES AND APPOINTS Simpluris as the Settlement Administrator.

9 4. NOTICE: The Court PRELIMINARILY APPROVES the form and

10 substance of the Proposed Notice set forth in Exhibit A to the Settlement Agreement. See

11 ECF No. 51-1 at 44–50. The form and method for notifying the Class Members of the

12 Settlement Agreement and its terms and conditions satisfy the requirements of Federal

13 Rules of Civil Procedure 23(c)(2)(B) and 23(e). The Court further concludes that the

14 Notice Procedure constitutes the best notice practicable under the circumstances. As

15 provided in the Settlement Agreement, the Settlement Administrator SHALL PROVIDE

16 notice to the Class Members and respond to Class Member inquiries. Within fourteen (14)

17 days of the date of this Preliminary Approval Order, Defendants SHALL PROVIDE the

18 Settlement Administrator with the Employee List. Within twenty-one (21) days of

19 receiving the Employee List, the Settlement Administrator SHALL DISSEMINATE the

20 Notice in the form and manner provided in the Proposed Settlement Agreement.

21 5. REQUESTS FOR EXCLUSION: Requests for Exclusion from the

22 Settlement must be submitted by mail to the Settlement Administrator and postmarked no

23 later than sixty (60) days of the initial mailing of the Notice to the Class Members

24 (“Response Deadline”). Class Members who do not submit a timely and valid Request for

25 Exclusion from the Settlement on or before the Response Deadline shall be Participating

26 Class Members bound by all terms of the Settlement and any Final Approval Order entered

27 in this Action.

28 / / /

1 6. OBJECTIONS: Objections to the Settlement must be mailed to the Court as

2 instructed in the Notice, no later than the Response Deadline. To be valid, the Notice of

3 Objection: (a) must contain the full name, address and last four digits of the social security

4 number of the Class Member; and (b) must be signed by the Class Member. The Notice

5 of Objection should also state the basis for the objection and whether the Class Member

6 intends to appear at the Final Approval Hearing.

7 7. FINAL APPROVAL HEARING: The Court SETS a Final Approval

8 Hearing for November 5, 2020 at 1:30 p.m., in Courtroom 4D of the Edward J. Schwartz

9 United States Courthouse, 221 W. Broadway, San Diego, CA 92101, to consider:

10 a. the fairness, reasonableness, and adequacy of the Proposed Settlement

11 Agreement;

12 b. Plaintiffs’ request for an award of attorneys’ fees and costs;

13 c. the Class Representative Service Awards;

14 d. dismissal with prejudice of the action with respect to Defendants; and

15 e. the entry of Final Judgment in this action.

16 At the Final Approval Hearing, the Parties also shall be prepared to update the Court on

17 any new developments since the filing of the Motion, including any untimely submitted

18 opt-outs, objections, and claims or any other issues as the Court deems appropriate. The

19 date and time of the Final Approval Hearing SHALL BE INCLUDED in the Notice to be

20 mailed to all Class Members.

21 8. MOTION FOR FINAL APPROVAL OF CLASS ACTION

22 SETTLEMENT: No later than twenty-eight (28) days before the Final Approval Hearing,

23 the Parties SHALL FILE a Motion for Final Approval of Class Action Settlement. The

24 Motion SHALL INCLUDE AND ADDRESS any objections received as of the filing date.

25 In addition to the class certification and settlement fairness factors, the motion SHALL

26 ADDRESS the number of putative Class Members who have opted out and the

27 corresponding number of claims and their value.

28 / / /

1 9. APPLICATION FOR ATTORNEY FEES, COSTS, AND CLASS

2 REPRESENTATIVE SERVICE AWARD: No later than twenty-eight (28) days before

3 the Final Approval Hearing, Class Counsel SHALL FILE an application for attorneys’

4 fees, costs, and Class Representative Service Awards. Class Counsel SHALL PROVIDE

5 documentation detailing the number of hours incurred by attorneys in litigating this action,

6 supported by detailed time records, as well as hourly compensation to which those

7 attorneys are reasonably entitled. Class Counsel SHALL ADDRESS the appropriateness

8 of any upward or downward departure in the lodestar calculation, as well as reasons why a

9 percentage-of-the-fund approach to awarding attorney fees may be preferable and the

10 appropriateness of any upward or downward departure from the 25% benchmark. Class

11 Counsel SHALL BE PREPARED to address any questions the Court may have regarding

12 the application for fees at the Final Approval Hearing.

13 12. MISCELLANEOUS PROVISIONS: In the event the Proposed Settlement

14 Agreement is not consummated for any reason, the conditional class certification SHALL

15 BE of no further force or effect. Should the Settlement not become final, the fact that the

16 Parties were willing to stipulate to class certification as part of the Settlement SHALL

17 HAVE no bearing on, nor be admissible in connection with, the issue of whether a class

18 should be certified in a non-settlement context.

19 11. SCHEDULE: The Court orders the following schedule for further

20 proceedings:

21 Event Date

22 Deadline for Defendants to send Within 14 days of the date of

Settlement Administrator the this Order

23

Employee List

24

Deadline for Settlement Within 21 days of receipt of the

25

Administrator to mail Proposed Employee List

26 Notice

27

/ / /

28 / / /

1 Deadline for Objections and Within 60 days of the date the

> Requests for Exclusion Settlement Administrator mails

the Notice to Class Members

3

A Deadline for Claims No later than 30 days prior to

Administrator to prepare and the Final Approval Hearing

5 Class Counsel to file

6 Declaration of Compliance with

Class Notice requirements

7

8 Deadline for Class Counsel to No later than 28 days prior to

file motion for attorney’s fees the Final Approval Hearing

9 and costs and Class

10 Representative Service Awards

I] Deadline for the Parties to file a | No later than 28 days prior to

12 motion for final approval of the Final Approval Hearing

class action settlement

13

14 Final Approval Hearing November 5, 2020 at 1:30 p.m.

15

16 10. STAY: At the request of the Parties, pending the Final Approval Hearing, all

17 || proceedings in the Action, including all current deadlines other than those set forth herein,

18 |}are STAYED until further Order from this Court.

19 IT ISSO ORDERED.

20

21 ||Dated: June 9, 2020 al. :

on. Janis L. Sammartino

United States District Judge

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