Opinion
No. 2:19-cv-00166 WBS KJN
08-06-2020
JOSEPH KIMBO, an individual; on behalf of himself and all others similarly situated, Plaintiff, v. MXD GROUP, INC., a California corporation; RYDER SYSTEM, INC., a Florida Corporation; and DOES 1-10, inclusive, Defendants.
MEMORANDUM AND ORDER RE: MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
Plaintiff Joseph Kimbo, individually and on behalf of all other similarly situated employees, brought this putative class action against defendants MXD Group, Inc. and Ryder System, Inc. (collectively, "defendants") alleging various violations of the California Labor Code. (Compl. (Docket No. 1-2).) Before the court is plaintiff's unopposed motion for preliminary approval of a class action settlement. (Mot. for Prelim. Approval (Docket No. 26).)
I. Factual and Procedural Background
Defendants operate a local delivery service, which makes deliveries of furniture, appliances, and other items on behalf of defendants' retail clients. (Decl. of Joshua Konecky ("Konecky Decl.") ¶ 7 (Docket No. 26-2).) Defendants relied upon two different kinds of drivers to make deliveries: (1) individuals who contracted directly with defendants ("motor carriers") and (2) individuals who were engaged by other companies to operate their commercial motor vehicles and perform discrete delivery services for defendants ("non-carriers"). (Id. ¶ 20.)
Plaintiff worked as a motor carrier delivery driver for defendants until March 2018. (Compl. ¶ 22.) Defendants retained extensive control over the way the drivers performed their duties, controlling the drivers' schedules, routes, customers, and equipment. (Id. ¶ 6.) Defendants tracked and monitored the drivers' movements throughout the day to ensure they were adhering to the delivery schedule, and while making deliveries, drivers had to wear defendants' uniforms or the uniforms of defendants' clients. (Id. ¶ 8.) If the drivers failed to abide by the provided delivery schedule, defendants reserved the right to discipline the drivers by reducing their work assignment and/or terminating them from service. (Id.) Drivers were paid a flat rate for each delivery and were forced to sign a non-compete agreement prohibiting them from directly or indirectly soliciting business from any of defendants' customers for three years following their employment with defendants. (Id. ¶¶ 9, 45.)
In spring of 2018, plaintiff and other motor carriers met with plaintiff's counsel regarding complaints they had about the terms of their compensation and work arrangements with defendants. (Mot. for Preliminary Approval at 3.) Plaintiff initially brought this action against defendants in Sacramento Superior Court challenging defendants' policies of: (1) misclassifying drivers as independent contractors, instead of employees; (2) failing to reimburse plaintiff and the class for necessary and reasonable business expenses; (3) making unlawful deductions from plaintiff's and the class' wages; (4) failing to provide, authorize, permit and/or make available meal and rest periods to plaintiff and the class as required by California law; (5) denying plaintiff and the class full compensation for all hours worked; (6) failing to pay plaintiff and the class minimum wage; (7) failing to pay plaintiff and the class overtime and double time; (8) failing to provide plaintiff and the class with accurate, itemized wage statements; and (9) failing to timely pay plaintiff and the class full wages upon termination or resignation. (Compl. ¶ 13.) Defendants timely removed the case to this court in January 2019. (Docket No. 1.) Following removal, the parties engaged in mediation proceedings, producing the settlement agreement before the court today.
II. Discussion
Federal Rule of Civil Procedure 23(e) provides that "[t]he claims, issues, or defenses of a certified class may be settled . . . only with the court's approval." Fed. R. Civ. P. 23(e). "To vindicate the settlement of such serious claims, however, judges have the responsibility of ensuring fairness to all members of the class presented for certification." Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). "Where [] the parties negotiate a settlement agreement before the class has been certified, settlement approval requires a higher standard of fairness and a more probing inquiry than may normally be required under Rule 23(e)." Roes, 1-2 v. SFBSC Mgmt., LLC, 944 F.3d 1035, 1048 (9th Cir. 2019) (citation and internal quotations omitted).
The approval of a class action settlement takes place in two stages. In the first stage, "the court preliminarily approves the settlement pending a fairness hearing, temporarily certifies a settlement class, and authorizes notice to the class." Ontiveros v. Zamora, No. 2:08-567 WBS DAD, 2014 WL 3057506, at *2 (E.D. Cal. July 7, 2014). In the second, the court will entertain class members' objections to (1) treating the litigation as a class action and/or (2) the terms of the settlement agreement at the fairness hearing. Id. The court will then reach a final determination as to whether the parties should be allowed to settle the class action following the fairness hearing. Id. Consequently, this order "will only determine whether the proposed class action settlement deserves preliminary approval and lay the groundwork for a future fairness hearing." See id. (citations omitted).
A. Class Certification
To be certified, the putative class must satisfy both the requirements of Federal Rule of Civil Procedure 23(a) and (b). Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th Cir. 2013). Each will be discussed in turn.
1. Rule 23(a)
In order to certify a class, Rule 23(a)'s four threshold requirements must be met: numerosity, commonality, typicality, and adequacy of representation. Fed. R. Civ. P. 23(a). "Class certification is proper only if the trial court has concluded, after a 'rigorous analysis,' that Rule 23(a) has been satisfied." Wang v. Chinese Daily News, Inc., 737 F.3d 538, 542-43 (9th Cir. 2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011)).
i. Numerosity
While Rule 23(a)(1) requires that the class be "so numerous that joinder of all members is impracticable," Fed. R. Civ. P. 23(a)(1), it does not require "a strict numerical cut-off." McCurley v. Royal Seas Cruises, Inc., 331 F.R.D. 142, 167 (S.D. Cal. 2019) (Bashant, J.) (citations omitted). Generally, "the numerosity factor is satisfied if the class compromises 40 or more members." Id. (quoting Celano v. Marriott Int'l, Inc., 242 F.R.D. 544, 549 (N.D. Cal. 2007)). Here, there are more than 900 class members, all of whom are identifiable from defendants' records. (Mot. for Preliminary Approval at 8.) Accordingly, the numerosity element is satisfied.
ii. Commonality
Next, Rule 23(a) requires that there be "questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). Rule 23(a)(2) is satisfied when there is a "common contention . . . of such a nature that it is capable of classwide resolution -- which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Wal-Mart Stores, 564 U.S. at 350. "Plaintiffs need not show that every question in the case, or even a preponderance of questions, is capable of classwide resolution. So long as there is 'even a single common question,' a would-be class can satisfy the commonality requirement of Rule 23(a)(2)." Wang, 737 F.3d at 544 (citing id.).
The settlement class consists of two subclasses, reflective of the two types of drivers defendants used to carry out deliveries: (1) a "motor carrier" subclass consisting of individuals under contract with the defendant directly and (2) a "non-carrier" subclass consisting of individuals under contract with other entities who were tasked with performing services for defendants. (Konecky Decl. ¶ 20.) Plaintiff's counsel estimates that motor carrier class members will receive an average of approximately $8,871, while non-carrier class members will recover approximately $1,074. (Id. ¶ 29.) The actual recovery each class members will receive, however, will be distributed on a pro rata basis in proportion to the number of calendar workweeks during which they were authorized to provide transportation services to defendants during the class period. (Mot. for Preliminary Approval at 1.)
Despite the difference in recovery between the two classes, "the presence of individual damages cannot, by itself, defeat class certification." Leyva, 716 F.3d at 514 (quoting Wal-Mart Stores, 564 U.S. at 362). Here, the claims implicate common questions of law and fact because they were all premised on the defendants' same policies, regardless of subclass. Generally, "challeng[ing] a policy common to the class as a whole creates a common question whose answer is apt to drive the resolution of the litigation." Ontiveros, 2014 WL 3057506, at *5. Accordingly, these common questions of law and fact satisfy Rule 23(a)'s commonality requirement.
iii. Typicality
Rule 23(a) further requires that the "claims or defenses of the representative parties [be] typical of the claims or defenses of the class." Fed. R. Civ. P. 23(a)(3). The test for typicality is "whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct." Sali v. Corona Reg'l Medical Ctr., 909 F.3d 996, 1006 (9th Cir. 2018) (quoting Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)). Here, the named plaintiff satisfies the typicality requirement. The work performed by the class members and the work performed by plaintiff is the same, and they share the same injuries from being misclassified as independent contractors rather than employees. Accordingly, the typicality requirement is satisfied.
iv. Adequacy of Representation
Finally, Rule 23(a) requires that "the representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4). Rule 23(a)(4) "serves to uncover conflicts of interest between named parties and the class they seek to represent" as well as the "competency and conflicts of class counsel." Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625, 626 n.20 (1997). The court must consider two factors: (1) whether the named plaintiff and his counsel have any conflicts of interest with other class members and (2) whether the named plaintiff and his counsel will vigorously prosecute the action on behalf of the class. In re Hyundai and Kai Fuel Economy Litig., 926 F.3d 539, 566 (9th Cir. 2019) (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998)).
a. Conflicts of Interest
The first portion of the adequacy inquiry considers whether plaintiff's interests are aligned with those of the class. "[A] class representative must be part of the class and possess the same interest and suffer the same injury as the class members." Amchem, 521 U.S. at 625-26 (internal modifications omitted).
In most respects, the named plaintiff's interests appear to be aligned with those of the class for the reasons set forth above. (See generally Compl.) Plaintiff served as a driver for defendants and was classified as an independent contractor rather than an employee during his tenure. (Id. ¶ 22.) Despite the many similarities, plaintiff alone stands to benefit for his participation in this litigation by receiving an incentive award of $15,000. (Mot. for Preliminary Approval at 22.) The use of an incentive award raises the possibility that a plaintiff's interest in receiving that award will cause his interests to diverge from the class's in a fair settlement. Staton, 327 F.3d at 977-78. Consequently, the court must "scrutinize carefully the awards so that they do not undermine the adequacy of the class representatives." Radcliffe v. Experian Info. Sys., Inc., 715 F.3d 1157, 1163 (9th Cir. 2013).
Plaintiff's counsel estimates that motor carrier class members will receive an average of approximately $8,871, while non-carrier class members will receive approximately $1,074. (Konecky Decl. ¶ 29.) Plaintiff's proposed award of $15,000 represents substantially more. However, incentive awards "are intended to compensate class representatives for work done on behalf of the class, to make up for financial or reputational risk undertaken in bringing the action, and, sometimes, to recognize their willingness to act as a private attorney general." Rodriguez v. West Publ'g Corp., 563 F.3d 948, 958-59 (9th Cir. 2009). Indeed, the Ninth Circuit has consistently recognized incentive awards are "fairly typical" way to "compensate class representatives for work done on behalf of the class" or "to make up for financial or reputational risk undertaken in bringing the action." Id.
Here, a $15,000 incentive payment appears appropriate at this stage. The payment represents 0.3% of the total settlement amount. Plaintiff's counsel represents that the named plaintiff has spent significant amounts of time to bring this case, providing counsel with important documents, information, and insight regarding defendants' policies and practices. (Konecky Decl. ¶ 48.) Other courts have awarded similar incentive awards in analogous cases. See, e.g., Villalpando v. Exel Direct Inc., No. 3:12-cv-04137-JCS, 2016 WL 7785852, at *2 (N.D. Cal. Dec. 9, 2016) (awarding each named plaintiff $15,000 following misclassification suit). While the incentive award does not appear to create a conflict of interest, the court emphasizes this finding is only a preliminary determination. Plaintiff represents he will formally seek the incentive award through a separate motion, to be heard at the final approval hearing. (Mot. for Preliminary Approval at 22.) At that time, plaintiff should be prepared to present further evidence of plaintiff's substantial efforts taken as a class representative to better justify the discrepancy between the award and those of the unnamed class members.
b. Vigorous Prosecution
The second portion of the adequacy inquiry examines the vigor with which the named plaintiff and his counsel have pursued the class's claims. "Although there are no fixed standards by which 'vigor' can be assayed, considerations include competency of counsel and, in the context of a settlement-only class, an assessment of the rationale for not pursuing further litigation." Hanlon, 150 F.3d at 1021.
Here, class counsel states he is an experienced employment and class action litigator fully qualified to pursue the interests of the class. (Konecky Decl. ¶¶ 3-6.) Class counsel represents that he has litigated several wage and hour class actions on the specific issue of independent contractor misclassification and was the lead counsel in an analogous class action against the same defendants in the Northern District of California. (Id. ¶ 5 (citing Villalpando, 2016 WL 7740832, at *2-3.)
Furthermore, before participating in an arms-length mediation, class counsel prepared mediation briefs and vetted his clients' claims through rigorous legal analysis. (Id. ¶¶ 13-15.) Following a full day of negotiations, the parties executed a Memorandum of Understanding memorializing their agreement. (Id. ¶ 15.) Counsel's experience, coupled with the careful vetting of his client's claims, suggest that he is well-equipped to handle this case. Accordingly, the court finds that plaintiff and plaintiff's counsel are adequate representatives of the class.
2. Rule 23(b)
After fulfilling the threshold requirements of Rule 23(a), the proposed class must satisfy the requirements of one of the three subdivisions of Rule 23(b). Leyva, 716 F.3d at 512. Plaintiff seeks provisional certification under Rule 23(b)(3), which provides that a class action may be maintained only if "the court finds that questions of law or fact common to class members predominate over questions affecting only individual members" and "that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3). The test of Rule 23(b)(3) is "far more demanding," than that of Rule 23(a). Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1172 (9th Cir. 2010) (quoting Amchem, 521 U.S. at 623-24).
i. Predominance
"The predominance analysis under Rule 23(b)(3) focuses on 'the relationship between the common and individual issues' in the case and 'tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.'" Wang, 737 F.3d at 545 (quoting Hanlon, 150 F.3d at 1022). However, plaintiff is not required to prove that the predominating question will be answered in his favor at the class certification stage. Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 468 (2013).
Here, the claims brought by the proposed settlement class all arise from defendants' same conduct. For example, all class members were erroneously classified as independent contractors rather than employees. (Konecky Decl. ¶ 9.) This policy serves as a common fact uniting plaintiff's individual claims and the class claims. Common questions of law include, inter alia, whether defendants' policies and practices are in violation of California Business and Professions Code § 17200; whether, as employees, drivers were entitled to minimum wage and overtime payments; and whether, as employees, drivers were entitled to reimbursement for expenses, meal breaks and rest periods, or premiums if those meal and rest periods were not provided. (See generally Compl. ¶ 81.) The class claims thus demonstrate a "common nucleus of facts and potential legal remedies" that can properly be resolved in a single adjudication. See Hanlon, 150 F.3d at 1022. Accordingly, the court finds common questions of law and fact predominate over questions affecting only individual class members.
ii. Superiority
Rule 23(b)(3) sets forth four non-exhaustive factors that courts should consider when examining whether "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3). They are: "(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." Id. Factors (C) and (D) are inapplicable because the parties settled this action before class certification. See Syed v. M-I LLC, No. 1:14-cv-00742 WBS BAM, 2019 WL 1130469, at *6 (E.D. Cal. Mar. 12, 2019) (citation omitted). Therefore, the court will focus primarily on facts (A) and (B).
Rule 23(b)(3) is concerned with the "vindication of the rights of groups of people who individually would be without effective strength to bring their opponents into court at all." Amchem, 521 U.S. at 617. When class members' individual recovery is relatively modest, the class members' interests generally favors certification. Zinser v. Accufix Res. Inst., Inc., 253 F.3d 1180, 1190 (9th Cir. 2001). Again, plaintiff's counsel estimates that motor carrier class members will receive approximately $8,871, while non-carrier class members will receive approximately $1,074. (Konecky Decl. ¶ 29.) These anticipated sums, while modest in light of the $5,000,000 recovery, represent a strong result for the class given the strength of the claims, the risks of litigation and delay, and the defendants' potential exposure. (Id. ¶ 30.) The amount of recovery represents more than individual class members would likely receive if they were to bring the case on their own. Accordingly, this factor weighs in favor of certification.
Factor (B), concerning the "extent and nature of the litigation," is "intended to serve the purpose of assuring judicial economy and reducing the possibility of multiple lawsuits." Zinser, 253 F.3d at 1191 (quoting 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1780 at 568-70 (2d ed. 1986)). Here, defendants submitted a notice that they are involved in a substantially similar case pending before the Los Angeles Superior Court. (See Notice of Related Case (Docket No. 2).) Plaintiff did not discuss this case in his motion for preliminary approval. (See Mot. for Preliminary Approval at 12.) While the court finds the number of potential plaintiffs makes individual resolution of these claims untenable, plaintiff is advised to address why the case before the Los Angeles Superior Court does not detract from judicial economy in its motion for final approval.
3. Rule 23(c)(2) Notice Requirements
If the court certifies a class under Rule 23(b)(3), it "must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." Fed. R. Civ. P. 23(c)(2)(B). Actual notice is not required, but the notice provided must be "reasonably certain to inform the absent members of the plaintiff class." Silber v. Mabon, 18 F.3d 1449, 1454 (9th Cir. 1994) (citation omitted).
The parties have jointly agreed to use Heffler Claims Group LLC ("Heffler") to serve as the Settlement Administrator. (Decl. of Mark Rapazzini ("Rapazzini Decl.") ¶¶ 1-2 (Docket No. 26-1).) Heffler has extensive experience in class action matters, providing administration services in more than 1,000 cases. (Id. ¶ 2.) Pursuant to the notice plan, Heffler will receive and process the class list data within thirty days of the court's order granting preliminary approval. (Id. ¶ 3.)
"Notice is satisfactory if it 'generally describes the terms of the settlement in sufficient detail to alert those with adverse viewpoints to investigate and to come forward and be heard.'" See Churchill Vill., LLC v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004). The notice will provide, among other things, a description of the case; the total settlement amount and how it will be allocated (including information about plaintiff's motion for attorney's fees); the procedures for opting out or objecting to the settlement; and the individual class member's share. (Konecky Decl. ¶ 38.) Heffler will translate the notice from English to Spanish and will provide both translations in its notice to class members. (Id. ¶¶ 4, 7.) All class members will receive individual notice by first class mail and/or through email, if class members' email addresses are available. (Id. ¶¶ 6-7.) Heffler will also create a settlement website and a toll-free number for class members to ask questions and learn more about the settlement. (Id. ¶¶ 8-9.)
The system set forth in the Settlement Agreement is reasonably calculated to provide notice to class members and inform class members of their options under the agreement. Accordingly, the manner of notice and the content of notice is sufficient to satisfy Rule 23(c)(2)(B).
B. Rule 23(e): Fairness, Adequacy, and Reasonableness of Proposed Settlement
Because the proposed class preliminarily satisfies the requirements of Rule 23, the court must consider whether the terms of the parties' settlement appear fair, adequate, and reasonable. See Fed. R. Civ. P. 23(e)(2). To determine the fairness, adequacy, and reasonableness of the agreement, the court must consider "a number of factors," including:
Strength of the plaintiff's case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status throughout the trial; the amount offered in settlement; the extent of discovery completed and the stage of the proceedings; the experience and views of counsel; the presence of a governmental participant; and the reaction of the class members to the proposed settlement.Hanlon, 150 F.3d at 1026. Many of these factors cannot be considered until the final fairness hearing; accordingly, the court's review will be confined to resolving any "'glaring deficiencies' in the settlement agreement." Syed, 2019 WL 1130469, at *7 (citations omitted).
1. Negotiations of the Settlement Agreement
Counsel for both sides appear to have diligently pursued settlement after thoughtfully considering the strength of their arguments and potential defenses. As previously discussed, the parties participated in an arms-length mediation before an experienced mediator, Antonio Piazza, on December 9, 2019. (Konecky Decl. ¶¶ 13-15.) Following a full day of negotiations, the parties executed a Memorandum of Understanding memorializing their agreement. (Id. ¶ 15.) Given the plaintiff's sophisticated representation and the parties' representation that the settlement reached was the product of arms-length bargaining, the court does not question that the proposed settlement is in the best interest of the class. See Fraley v. Facebook, Inc., 966 F. Supp. 2d 939, 942 (N.D. Cal. 2013) (holding that a settlement reached after informed negotiations "is entitled to a degree of deference as the private consensual decision of the parties" (citing Hanlon, 150 F.3d at 1027)).
2. Amount Recovered and its Distribution
In determining whether a settlement agreement is substantively fair to class members, the court must balance the value of expected recovery against the value of the settlement offer. See In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 1080 (N.D. Cal. 2007). Here, plaintiff's counsel estimates that motor carrier class members will receive an average of approximately $8,871, while non-carrier class members will receive an average of approximately $1,074. (Konecky Decl. ¶ 29.) Plaintiff's counsel represents that, given the strength of plaintiff's claims and defendants' potential exposure, the settlement and resulting distribution provides a strong result for the class. (Id. ¶ 30.) While the settlement amount represents "more than the defendants feel those individuals are entitled to" and will potentially be "less than what some class members feel they deserve," the settlement offers class members the prospect of some recovery, instead of none at all. See Officers for Justice v. Civil Serv. Comm'n, 688 F.2d 615, 628 (9th Cir. 1982). In light of the claims at issue and the defendants' potential exposure, the court finds that the substance of the settlement is fair to class members and thereby "falls within the range of possible approval." See Tableware, 484 F. Supp. 2d at 1079.
3. Attorney's Fees and Costs
"Under the 'common fund' doctrine, 'a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney's fee from the fund as a whole.'" Staton, 327 F.3d at 969 (quoting Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980)). If a negotiated class action settlement includes an award of attorney's fees, then the court "ha[s] an independent obligation to ensure that the award, like the settlement itself, is reasonable, even if the parties have already agreed to an amount." In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011).
The Ninth Circuit has recognized two different methods for calculating reasonable attorney's fees in common fund cases: the lodestar method or the percentage-of-recovery method. Id. at 941-42. In the lodestar method, courts multiply the number of hours the prevailing party expended on the litigation by a reasonable hourly rate. Id. Under the percentage-of-recovery method, courts typically delineate 25% of the total settlement as the fee. Hanlon, 150 F.3d at 1029. However, courts may adjust this figure if the record reflects "special circumstances justifying a departure." Bluetooth, 654 F.3d at 942. Where, as here, the settlement has produced a common fund for the benefit of the entire class, courts have discretion to use either method. Id. at 942 (citing In re Mercury Interactive Corp., 618 F.3d 988, 992 (9th Cir. 2010)).
Plaintiff's counsel has represented that they will be filing a separate motion for attorney's fees and costs pursuant to Federal Rule 23(h) for $1,250,000 in fees and $20,000 in costs. (Mot. for Preliminary Approval at 23.) This amount represents 25% of the $5,000,000 gross settlement amount. (Id.) The court will defer consideration of the reasonableness of counsel's fees until the fee motion is filed. Class counsel is cautioned that the reasons for the attorney's fees should be explained further in that motion. Factors considered in examining the reasonableness of the fee may include: (1) whether the results achieved were exceptional; (2) risks of litigation; (3) non-monetary benefits conferred by the litigation; (4) customary fees for similar cases; (5) the contingent nature of the fee and financial burden carried by counsel; and (6) the lawyer's "reasonable expectations, which are based on the circumstances of the case and the range of fee awards out of common funds of comparable size." See Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1048-50 (9th Cir. 2002). A lodestar cross-check, including the hours worked by each attorney, paralegal, and case manager multiplied by their hourly rate, is also a valuable means by which to check the reasonableness of requested fees. In the event that class counsel cannot demonstrate the reasonableness of the requested attorney's fee, the court will be required to reduce the fee to a reasonable amount or deny final approval of the settlement. See id. at 1047.
IT IS THEREFORE ORDERED that plaintiff's motion for preliminary certification of a conditional settlement class and preliminary approval of the class action settlement (Docket No. 23) be, and the same hereby is, GRANTED.
IT IS FURTHER ORDERED THAT:
(1) the following class be provisionally certified for the purpose of settlement:
(a) all motor carrier owners who directly contracted with defendants in his or her individual capacity or through a business entity and provided transportation services to Defendants in California at any time from December 12, 2014 through the earlier of July 26, 2020 or the date of this Order ("motor carrier class") and
(b) all individuals who did not contract with defendants and are non-owner drivers and helpers authorized to provide transportation services for defendants in California at any time from December 12, 2014 through the earlier of July 26, 2020 or the date of this Order ("non-carrier class"). In the event that the proposed settlement is not consummated for any reason, the conditional certification shall be of no further force or effect and shall be vacated without further action or order of this court;
(2) the proposed settlement is preliminarily approved as fair, just, reasonable, and adequate to the members of the settlement class, subject to further consideration at the final fairness hearing after distribution of notice to members of the settlement class;
(3) for purposes of carrying out the terms of the settlement only:
(a) Joseph Kimbo is appointed as the representative of the settlement class and is provisionally found to be an adequate representative within the meaning of Federal Rule of Civil Procedure 23;
(b) the law firm of Schneider Wallace Cottrell Konecky LLP is provisionally found to be a fair and adequate representative of the settlement class and is appointed as class counsel for the purposes of representing the settlement class conditionally certified in this Order;
(4) Heffler Claims Group, LLC is appointed as the settlement administrator;
(5) the form and content of the proposed Notice of Class Action Settlement (Konecky Decl., Ex. 1) is approved, except to the extent that it must be updated to reflect dates and deadlines specified in this Order;
(6) no later than thirty (30) days from the date this Order is signed, defendants' counsel shall provide the names and contact information of all settlement class members to Heffler Claims Group, LLC;
(7) no later than twenty-one (21) days from the date defendants submit the contact information to Heffler Claims Group, LLC, it shall mail a Notice of Class Action Settlement to all members of the settlement class;
(8) no later than forty-five (45) days from the date this Order is signed, any member of the settlement class who intends to object to, comment upon, or opt out of the settlement shall mail written notice of that intent to Heffler Claims Group, LLC pursuant to the instructions in the Notice of Class Action Settlement;
(9) a final fairness hearing shall be held before this court on Monday, December 14, 2020, at 1:30 p.m. in Courtroom 5 to determine whether the proposed settlement is fair, reasonable, and adequate and should be approved by this court; to determine whether the settlement class's claims should be dismissed with prejudice and judgment entered upon final approval of the settlement; to determine whether final class certification is appropriate; and to consider class counsel's applications for attorney's fees, costs, and an incentive award to plaintiff. The court may continue the final fairness hearing without further notice to the members of the class;
(10) no later than twenty-eight (28) days before the final fairness hearing, class counsel shall file with this court a petition for an award of attorney's fees and costs. Any objections or responses to the petition shall be filed no later than fourteen (14) days before the final fairness hearing. Class counsel may file a reply to any objections no later than seven (7) days before the final fairness hearing;
(11) no later than twenty-eight (28) days before the final fairness hearing, class counsel shall file and serve upon the court and defendants' counsel all papers in support of the settlement, the incentive award for the class representative, and any award for attorney's fees and costs;
(12) no later than twenty-eight (28) days before the final fairness hearing, Heffler Claims Group, LLC shall prepare, and class counsel shall file and serve upon the court and defendants' counsel, a declaration setting forth the services rendered, proof of mailing, a list of all class members who have opted out of the settlement, a list of all class members who have commented upon or objected to the settlement;
(13) any person who has standing to object to the terms of the proposed settlement may appear at the final fairness hearing in person or by counsel and be heard to the extent allowed by the court in support of, or in opposition to, (a) the fairness, reasonableness, and adequacy of the proposed settlement, (b) the requested award of attorney's fees, reimbursement of costs, and incentive award to the class representative, and/or (c) the propriety of class certification. To be heard in opposition at the final fairness hearing, a person must, no later than ninety (90) days from the date this Order is signed, (a) serve by hand or through the mails written notice of his or her intention to appear, stating the name and case number of this action and each objection and the basis therefore, together with copies of any papers and briefs, upon class counsel and counsel for defendants, and (b) file said appearance, objections, papers, and briefs with the court, together with proof of service of all such documents upon counsel for the parties.
Responses to any such objections shall be served by hand or through the mails on the objectors, or on the objector's counsel if there is any, and filed with the court no later than fourteen (14) calendar days before the final fairness hearing. Objectors may file optional replies no later than seven (7) calendar days before the final fairness hearing in the same manner described above. Any settlement class member who does not make his or her objection in the manner provided herein shall be deemed to have waived such objection and shall forever be foreclosed from objecting to the fairness or adequacy of the proposed settlement, the judgment entered, and the award of attorney's fees, costs, and an incentive award to the class representative unless otherwise ordered by the court;
(14) pending final determination of whether the settlement should be ultimately approved, the court preliminarily enjoins all class members (unless and until the class member has submitted a timely and valid request for exclusion) from filing or prosecuting any claims, suits, or administrative proceedings regarding claims to be released by the settlement. Dated: August 6, 2020
/s/_________
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE