JENNIFER L. THURSTON, Magistrate Judge.
Plaintiff Kathy Torchia requests preliminary approval of the class settlement with Defendant W.W. Grainger, Inc. (Doc. 24.) By and through this motion, Plaintiff seeks: (1) conditional certification of the settlement class; (2) preliminary approval of the settlement; (3) appointment of Plaintiff as the class representative; (4) appointment of S. Brett Sutton and Jared Hague as Class Counsel; (5) approval of the class notice and related materials; (6) appointment of Simplurius, Inc., as the settlement administrator; and (7) scheduling for final approval of the settlement. (Doc. 29 at 2-3.) Defendant does not oppose the motion for preliminary approval of the class settlement.
The Court has considered the proposed settlement between the parties, and the proposed Notice, Claim Form, and Elusion Form. On August 13, 2014, the Court heard the oral arguments of counsel. For the following reasons, Plaintiff's motion for preliminary approval of class settlement is
Plaintiff initiated this action by filing a complaint in Kern County Superior Court on May 31, 2013. (Doc. 1 at 11.) She brought her claims "on behalf of herself and all other similarly situated current and former employees of [Defendant]." (Id. at 13.) Defendant filed a Notice of Removal on September 6, 2013, thereby initiating the matter before this Court. (Doc. 1.) Defendant asserted the Court has original jurisdiction over the action pursuant to the Class Action Fairness Act, because the parties are diverse and the matter in controversy exceeded $5 million. (Id. at 3-4.)
Plaintiff filed a First Amended Complaint on November 12, 2013. (Doc. 14.) Plaintiff asserts Defendant is liable for (1) failure to pay minimum wages in violation of Cal. Labor Code §§ 1197, 1194 and 1194.2; (2) failure to pay overtime in violation of Cal. Labor Code § 510; (3) failure to provide meal periods or additional wages in lieu thereof; (4) failure to provide rest periods or additional wages in lieu thereof; (5) failure to issue accurate wage statements in violation of Cal. Labor Code § 226; (6) failure to reimburse employees for business related expenses in violation of Cal. Labor Code § 2802; (7) failure to timely pay wages due to upon termination in violation of Cal. Labor Code §§ 201, 202 and 203; (8) and violations of California's unfair competition laws, as set forth in Cal. Bus & Prof. Code § 17200, et seq. (See id. at 12-26.) Further, Plaintiff sought penalties pursuant to the Private Attorneys General Act ("PAGA") for the alleged Labor Code violations. (Id. at 26.) Defendant filed its answer on December 13, 2013. (Doc. 15.)
The Court issued its scheduling order governing the action on January 9, 2014. (Doc. 18.) The parties engaged in discovery, and Plaintiff "issued formal written discovery requests in or about February 2014." (Doc. 25 at 11.) In response to the requests for discovery, Defendant "produced extensive electronic data and hard copy documents equivalent to thousands of pages of documentary evidence." (Id.) In addition, Plaintiff took the deposition of Brian Williams, Defendant's Regional Vice President of Customer Service and Defendant's person most knowledgeable pursuant to Federal Rule of Civil Procedure 30(b)(6). (Id.)
The parties engaged in private mediation with Mark Rudy on May 15, 2014. (Doc. 25 at 11.) Although the matter was not resolved on that date, the parties continued to work with Mr. Rudy, and "ultimately gave their tentative agreement to the terms of a settlement on or about May 28, 2014." (Id. at 12.) Thereafter, Plaintiffs filed the motion for preliminary approval of class settlement on July 16, 2014 (Doc. 24), which is now pending before the Court.
Pursuant to the proposed settlement ("the Settlement"), the parties agree to a gross settlement amount not to exceed $2,750,000. (Doc. 26 at 19, Settlement ¶¶ 22-23.) Defendant agrees to fund the Settlement by providing funds to the Claims Administrator fourteen days after the Court holds a Final Approval and Fairness Hearing and issues a final order approving the terms of the Settlement. (Id. at 19, 26, Settlement ¶¶ 19, 48.)
The settlement fund will cover payments to class members with additional compensation to the Class Representative. (Doc. 25 at 2; Doc. 26 at 19.) In addition, the Settlement provides for payments to Class Counsel for attorneys' fees and expenses, to the Settlement Administrator, and the California Labor & Workforce Development Agency. (Doc. 26 at 34, Settlement ¶ 61.) Specifically, the settlement provides for the following payments from the gross settlement amount:
(Doc. 26 at 29-30, Settlement ¶¶ 53-56.) After these payments have been made, the remaining money ("Net Settlement Amount") will be distributed as settlement shares to Class Members. (Doc. 26 at 20, 34, Settlement ¶¶ 28, 61.)
To receive a settlement share from the Net Settlement Amount, a class member must submit a timely and valid claim form. (Doc. 26 at 32, Settlement ¶ 59.) Settlement shares will be calculated based upon the following formula:
(Doc. 26 at 35, Settlement ¶ 62.) Consequently, the exact amount each receives depends upon how many class members submit timely and valid claim forms.
The Settlement provides that Plaintiffs and Class Members, other than those who elect not to participate in the Settlement, at the time final judgment is entered, shall release Defendant from the claims arising in the class period. Specifically, the release for class members provides:
(Doc. 26 at 21, Settlement ¶ 33; Doc. 25 at 13.)
The release for Plaintiff encompasses more claims than the release of Class Members, providing the release of any claims that could have arisen during the course of her employment with Defendant. (Doc. 26 at 39, Settlement ¶ 75; Doc. 25 at 14.) Specifically, Plaintiff's release provides:
(Id.) Thus, claims released by Plaintiff, but not Class Members, include any claims arising under the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the Employee Retirement Income Security Act. (Id. at 40, ¶ 45.)
Any class member who wishes may file objections or elect not to participate in the Settlement. The Notice of Proposed Settlement ("the Notice") explains the procedures to claim a share of the settlement, object to the settlement, or elect not to participate in the Settlement. (Doc. 25 at 14; Doc. 26 at 52-58.) The Notice explains the claims that are released as part of the Settlement. (Doc. 26 at 51-52). With the Notice, each class member will receive the Claim Form, which will include number of pay periods each the class member was employed by Defendant and an estimate of the amount the class member will receive under the Settlement. (Id. at 57; Doc. 26 at 32, Settlement ¶ 58.)
When parties settle the action prior to class certification, the Court has an obligation to "peruse the proposed compromise to ratify both the propriety of the certification and the fairness of the settlement." Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). Preliminary approval of a class settlement is generally a two-step process. First, the Court must assess whether a class exists. Id. (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997)). Second, the Court must "determine whether the proposed settlement is fundamentally fair, adequate, and reasonable." Id. (citing Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 2998)). The decision to approve or reject a settlement is within the Court's discretion. Hanlon, 150 F.3d at 1026.
Class certification is governed by Rule 23 of the Federal Rules of Civil Procedure, which provides that "[o]ne or more members of a class may sue or be sued as representative parties on behalf of all." Fed. R. Civ. P. 23(a). Under the terms of the Settlement, the proposed class is comprised of "All current and former employees who were employed by W.W. Grainger, Inc. in California at any time from May 31, 2009 through the Preliminary Approval Date who have not settled all of the claims asserted herein." (Doc. 29 at 3.) Plaintiffs seek conditional approval of the class for settlement pursuant to Fed. R. Civ. P. 23(c)(1), under which the Court may "make a conditional determination of whether an action should be maintained as a class action, subject to final approval at a later date." (Doc. 25at 15) (quoting Fry v. Hayt, Hayt & Landau, 198 F.R.D. 461, 466 (E.D. Pa. 2000)).
Parties seeking class certification bear the burden of demonstrating the elements of Rule 23(a) are satisfied, and "must affirmatively demonstrate . . . compliance with the Rule." Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551 (2011); Doninger v. Pacific Northwest Bell, Inc., 563 F.2d 1304, 1308 (9th Cir. 1977). If an action meets the prerequisites of Rule 23(a), the Court must consider whether the class is maintainable under one or more of the three alternatives set forth in Rule 23(b). Narouz v. Charter Communs., LLC, 591 F.3d 1261, 1266 (9th Cir. 2010).
The prerequisites of Rule 23(a) "effectively limit the class claims to those fairly encompassed by the named plaintiff's claims." General Telephone Co. of the Southwest. v. Falcon, 457 U.S. 147, 155-56 (1982). Certification of a class is proper if:
Fed. R. Civ. P. 23(a). These prerequisites are generally referred to as numerosity, commonality, typicality, and adequacy of representation. Falcon, 457 U.S. at 156.
A class must be "so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). This requires the Court to consider "specific facts of each case and imposes no absolute limitations." General Telephone Co. v. EEOC, 446 U.S. 318, 330 (1980). Although there is not a specific numerical threshold, joining more than one hundred plaintiffs is impracticable. See Immigrant Assistance Project of Los Angeles Cnt. Fed'n of Labor v. INS, 306 F.3d 842, 869 (9th Cir. 2002) ("find[ing] the numerosity requirement . . . satisfied solely on the basis of the number of ascertained class members . . . and listing thirteen cases in which courts certified classes with fewer than 100 members"). Here, after reviewing Defendants' "internal payroll records," the parties estimate that the class includes "approximately 2,000 employees." (Doc. 26 at 23, Settlement ¶ 42.) Therefore, the numerosity requirement is satisfied.
Rule 23(a) requires "questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). Commonality "does not mean merely that [class members] have all suffered a violation of the same pro-vision of law," but "claims must depend upon a common contention." Wal-Mart Stores, 131 S. Ct. at 2551. In this case, the parties fail to identify any common questions of fact and law. However, the parties stipulate that the requirements of Rule 23 are satisfied. Accordingly, the Court finds the commonality requirement is satisfied for purposes of settlement.
This requirement demands that the "claims or defenses of the representative parties are typical of the claims or defenses of the class." Fed. R. Civ. P. 23(a)(3). The standards under this rule are permissive, and a claim or defense is not required to be identical, but rather "reasonably coextensive" with those of the absent class members. Hanlon, 150 F.3d at 1020. "The test of 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." Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (internal quotation marks and citation omitted).
Review of the Complaint demonstrates Plaintiff allege that she was employed by Defendant for fifteen years, including during the relevant time period. (Doc. 14 at 10, ¶ 20.). The parties agree that Plaintiff and the Settlement Class Members "all received wage statements, the format of which was identical or substantively identical." (Doc. 25 at 17.) In addition, the parties agree that Plaintiff and the Settlement Class Members "were subject to the same written policies concerning reimbursement of required safety footwear and provision of meal and rest periods, and were paid under the same pay practices as every other class member." (Id.) Therefore, the typicality requirement is satisfied.
Absentee class members must be adequately represented for judgment to be binding upon them. Hansberry v. Lee, 311 U.S. 32, 42-43 (1940). Accordingly, this prerequisite is satisfied if the representative party "will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4). "[R]esolution of this issue requires that two questions be addressed: (a) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (b) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?" In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 462 (9th Cir. 2000) (citing Hanlon, 150 F.3d at 1020).
Plaintiff seeks appointment as the Class Representative of the Settlement Class. (Doc. 25 at 17.) Plaintiff asserts that she has "acted in the best interests of the class, and . . . treated the interests of current and former Grainger employees who are in the class" the same as she would her own claims. (Doc. 28 at 3, Torchia Decl. ¶ 9.) Further, Plaintiff asserts that she does not know of any conflicts between herself and "any former or current Grainger employee." (Id., Torchia Decl. ¶ 10.) Thus, it appears Plaintiff will fairly and adequately represent the interests of the class.
S. Brett Sutton and Jared Hague seek appointment as counsel for the settlement class. (Doc. 25 at 17.) Counsel report that they "have significant experience litigating wage and hour class action cases and in serving as class counsel." (Id., citing Sutton Decl. ¶ 5; Hague Decl. ¶ 5.) Further, Mr. Sutton and Mr. Hague report that "neither [they], nor any member of the firm, have any personal affiliation or family relationship with the plaintiffs and proposed Class Representatives." (Id., quoting Sutton Decl. ¶ 28; Hague Decl. ¶ 10.) Defendant does not oppose their appointment or assert they are inadequate to represent the interest of the class. Therefore, the Court finds Mr. Sutton and Mr. Hague satisfy the adequacy requirements.
As noted above, once the requirements of Rule 23(a) are satisfied, a class may only be certified if it is maintainable under Rule 23(b). Fed. R. Civ. P. 23(b); see also Narouz, 591 F.3d at 1266. Plaintiff asserts that "[the]parties agree for purposes of the Settlement only that certification of the Class is appropriate under Rule 23(b)(3) because `questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and . . . a class action is superior to other available methods for the fair adjudication of the controversy.'" (Doc. 25 at 18) (quoting Fed. R. Civ. P. 23(b)(3)). Accordingly, the Court finds certification of the conditional settlement class is proper under Rule 23(b)(3).
Settlement of a class action requires approval of the Court, which may be granted "only after a hearing and on finding that [the settlement] is fair, reasonable, and adequate." Fed. R. Civ. P. 23(e)(2). Approval is required to ensure settlement is consistent with Plaintiffs' fiduciary obligations to the class. See Ficalora v. Lockheed Cal. Co., 751 F.2d 995, 996 (9th Cir. 1985). The Ninth Circuit has set forth several factors to determine whether a settlement agreement meets these standards, including:
Staton, 327 F.3d at 959 (citation omitted). Further, a court should consider whether settlement is "the product of collusion among the negotiating parties." In re Mego Fin. Corp. Sec. Litig., 213 F.3d at 458 (citing Class Plaintiffs v. Seattle, 955 F.2d 1268, 1290 (9th Cir. 1992)). In reviewing the settlement terms, "[t]he court need not reach any ultimate conclusions on the contested issues of fact and law which underlie the merits of the dispute." Class Plaintiffs, 955 F.2d at 1291(internal quotations and citation omitted).
According to Plaintiff, "there are several disputed claims the fact-finder would be required to determine" if the action were to proceed, and she "would face significant risks impacting the likelihood of a successful outcome." (Doc. 25 at 19.) Plaintiff asserts:
(Doc. 25 at 19-20.) Further, Plaintiff acknowledges that the ruling of the California Supreme Court in Brinker Restaurant Corp. v. Superior Ct., 53 Cal.4th 1004 (Cal. 2012) "raises significant uncertainties" as to her ability to succeed on her meal and rest break claims. (Id. at 20.) Given the uncertainties identified by Plaintiff, this factor weighs in favor of preliminary approval of the Settlement.
Approval of settlement is "preferable to lengthy and expensive litigation with uncertain results." Nat'l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 529 (C.D. Cal. 2004). If the settlement were to be rejected, the parties would have to engage in further litigation, including seeking class certification and discovery on the issue of damages. Plaintiff contends that "[t]he time and expense of continued litigation . . . could potentially outweigh any additional recovery obtained through successful litigation." (Doc. 25 at 20.) On the other hand, the proposed settlement provides for immediate recovery for the class. Thus, this factor weighs in favor of approval of the Settlement.
Plaintiffs acknowledge, [T]here is substantial risk that a class may not be certified by the Court." (Doc. 25 at 20, citing e.g., Brown v. Federal Express, 249 F.R.D. 580, 585 (C.D. Cal.2008); York v. Starbucks Corp., 2011 WL 4597489, at *3-4 (C.D. Cal. Aug. 5, 2011); Villacres v. ABM Indus. Inc., 384 Fed. App'x. 626 (9th Cir. 2010); Price v. Starbucks Corp., 192 Cal.App.4th 1136, 1142 (2011)). Due to the risk to the claims of class members, this factor supports preliminary approval of the Settlement.
The Ninth Circuit observed "the very essence of a settlement is compromise, `a yielding of absolutes and an abandoning of highest hopes.'" Officers for Justice v. Civil Serv. Commission, 688 F.2d 615, 624 (9th Cir. 1982) (citation omitted). Thus, when analyzing the amount offered in settlement, the Court should examine "the complete package taken as a whole," and the amount is "not to be judged against a hypothetical or speculative measure of what might have been achieved by the negotiators." Id., 688 F.2d at 625, 628.
Here, the proposed gross settlement amount is $2,750,000. (Doc. 26 at 19, Settlement ¶¶ 22-23.) Although, generally, orders approving class settlements compare the settlement amount to the estimated total maximum liability, the parties did not calculate the total maximum liability following a review of the evidence. (Doc. 25 at 21.) Plaintiff reports that "review of a sample of daily time records of non-exempt members of the Settlement Class generally demonstrated that such members recorded that they took meal periods for the required 30-minute time period and commenced their meal periods no later than the commencement of their fifth hour of work." (Id.) Further, Plaintiff asserts the discovery demonstrated that Defendant "instructed its employees to record all of their hours worked, including overtime hours, which undercut [the] allegations of required off-the-clock work." (Id.) In light of the information obtained in discovery, "the parties acknowledge that the gross settlement amount is reflective of a compromise as to all of Plaintiff's allegations." Accordingly, the Court finds the amount offered in settlement supports approval of the settlement agreement.
Plaintiff reports that "[t]he parties have been actively involved in the discovery process since the outset of the case." (Doc. 25 at 22.) According to Plaintiff,
(Doc. 25 at 22.) It appears that the parties made informed decisions, which lead to resolution of the matter with the assistance of a mediator. Consequently, this factor supports preliminary approval of the Settlement.
As addressed above, Plaintiff's counsel are experienced in class action litigation. Based upon discovery conducted in the matter, Mr. Sutton asserts that "the Settlement is fair and equitable for all concerned," and he believes the "Settlement is in the best interest of all involved." (Doc. 26 at 7, Sutton Decl. ¶ 23.) Likewise, Defendant "determined that it is desirable and beneficial to it that the Acton be settled in the manner and upon the terms and conditions set forth in [the Settlement]." (Doc. 26 at 25, Settlement ¶ 24.) These recommendations of counsel are entitled to significant weight, and support approval of the settlement agreement. See Nat'l Rural Telecomms., 221 F.R.D. at 528 ("Great weight is accorded to the recommendation of counsel, who are most closely acquainted with the facts of the underlying litigation").
Plaintiff has agreed to the terms of Settlement Agreement. (Doc. 26 at 46.) However, because Class Members have not yet received notice, this factor shall be revisited during and after the hearing for final approval of the Settlement.
The inquiry of collusion addresses the possibility that the settlement agreement is the result of either "overt misconduct by the negotiators" or improper incentives of class members at the expense of others. Staton, 327 F.3d at 960. Plaintiffs assert: "The Settlement was reached after informed, arm's length negotiations between the parties. Plaintiff conducted extensive investigation and discovery allowing them to assess the strengths and weaknesses of the case." (Doc. 25 at 22.) The parties utilized an impartial mediator, and settlement negotiations took approximately two weeks to complete. (See id. at 11-12.) Accordingly, it appears the agreement is the product of non-collusive conduct, and this factor weighs in favor of preliminary approval of the settlement.
Class counsel has requested attorneys' fees in the amount of "not to exceed thirty three and one-third percent (33-1/3 %) . . . of the Gross Settlement Amount." (Doc. 26 at 29, Settlement ¶¶ 53-54). The typical range of acceptable attorneys' fees in the Ninth Circuit is 20% to 33 1/3% of the total settlement value, with 25% considered the benchmark. Powers v. Eichen, 229 F.3d 1249, 1256 (9th Cir. 2000).
In general, the party seeking fees bears the burden of establishing that the fees and costs were reasonably necessary to achieve the results obtained. See Fischer v. SJB-P.D., Inc., 214 F.3d 1115, 1119 (9th 2000). Therefore, a fee applicant
The Settlement provides that "Plaintiff may petition the Court to approve an Incentive Award in an amount up to $20,000 for her efforts on behalf of the Class in the Action," to be paid from the Gross Settlement Amount. (Doc. 26 at 27, Settlement ¶ 49.) Incentive awards for class representatives are not to be given routinely by the Court. In Staton, 327 F.3d at 975, the Ninth Circuit explained:
In fact, "`excessive payments to named class members can be an indication that the agreement was reached through fraud or collusion.'" Id. (citation omitted). In evaluating the enhancement award to a class representative, a court should consider all "relevant factors including the actions the plaintiff has taken to protect the interests of the class, the degree to which the class has benefitted from those actions, . . . the amount of time and effort the plaintiff expended in pursuing the litigation . . . and reasonable fears of workplace retaliation." Staton, 327 F.3d at 977.
The Settlement explains that the enhancement is to be given to Plaintiff for "assisting in the investigation and consulting with Class Counsel." (Doc. 26 at 27, Settlement ¶ 49.) Plaintiff reports:
(Doc. 28 at 2-3, Torchia Decl. ¶¶ 7-9.) However, there is no evidence related to the actual number of hours Plaintiff spent working with Class Counsel on this action, or even an estimate of the number of meetings Plaintiff had with Class Counsel. Further, Plaintiff has no fear of workplace retaliation, because her employment with Defendant ended in April 2013. (Id. at 2, ¶ 4.) Nevertheless, given the flexibility for an award up to $20,000 to the class representatives, approval of a class representative enhancement is appropriate.
The class notice must satisfy the requirements of the Federal Rules of Civil Procedure, which provides the notice "must clearly and concisely state in plain, easily understood language" the following information:
Fed. R. Civ. P. 23(c)(2)(B). A class notice must be "reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).
Plaintiff has submitted the proposed Notice, Claim Form, and Exclusion Form (collectively "Notice Packet"). Upon review of the proposed Notice Packet, the Court finds the content is adequate. It provides information regarding the background of the action and claims asserted. The Notice explains the terms and provisions of the Settlement, including the payments from the gross settlement fund. (See Doc. 26 at 50-51.) In addition, the Notice explains the rights and procedures to claim a share of the Settlement, object to the Settlement, or elect not to participate in the Settlement, and will include the applicable deadlines. (Id. at 52-55.) Finally, the Notice Packet will provide an estimate of the Class Member's share based upon the number of pay periods employed by Defendant, and explains the effect of the judgment and settlement. (Id. at 51-52, 57-58.)
No later than 14 days after entry of this Order, Defendant will give the Settlement Administrator and Class Counsel the data it possesses for each class member, including: "names, social security numbers, dates of employment, last-known addresses and phone numbers." (Doc. 26 at 31, Settlement ¶ 48.) This information shall remain confidential. (Id.) Within 14 days of receiving this data, the Settlement Administrator will mail the Notice Packets to all Class Members. (Id. at 32, ¶ 58.) For any Notice Packet returned due to an incorrect address, the Settlement Administrator will search for a more current address and re-mail the Notice Packet. (Id. at 32, ¶ 59.)
Class members must submit and postmark their Claim Form to the Settlement Administrator within 45 days of the date on which the Notice Packets are mailed. (Doc. 26 at 32, Settlement ¶ 59.) Similarly, Class Members who elect not to participate in the settlement will have 45 days to complete the Exclusion Form. (Id.) If a Claim Form is completed improperly or is deficient in one or more respects, "the Settlement Administrator shall mail a deficiency letter to that Class Member identifying the problem and either returning the Claim Form for completion or, if deemed necessary by the Settlement Administrator, sending a new Claim Form no later than seven days after receipt of the deficient Claim Form." (Id. at 33, ¶ 59.)
Class Members who wish to object to the Settlement must serve the parties and file with the Court "a statement of why the objector believes that the Court should find that the proposed Settlement is not in the best interests of the Class and the reasons why the Settlement should not be approved, including the legal and factual arguments supporting the objection," within 45 days after mailing of the Notice Packet. (Doc. 26 at 33, Settlement ¶ 60.) In addition, the written statement must indicate whether the Class Member intends to appear at hearing. (Id. at 33-34.) Class Members will not be permitted to make objections at the Final Approval and Fairness Hearing "unless they have submitted a timely written objection and notice of intention to appear." (Id. at 34, Settlement ¶ 60.)
At least 14 days prior to the hearing for final approval of the Settlement, the Settlement Administrator will serve the parties and the Court with "a Declaration of Due Diligence and Proof of Mailing with regard to the mailing of the Class Notice and its attempts to locate Class Members." (Doc. 26 at 32-33, Settlement ¶ 59.) The declaration shall include "the number of Class Members to whom Class Notices were sent and the number of Class Members to whom Class Notices were delivered." (Id. at 33, ¶ 59.)
The Notice Packet must be modified to include information in this Order, including the date of the hearing for Final Approval of Class Settlement, and deadlines for Claim Forms, Exclusion Forms, and any opposition to the Settlement. Likewise, the Claim Form must be modified to include the relevant information, including the address and phone numbers of the Settlement Administrator.
The parties have agreed upon and propose that the Court appoint Simpluris, Inc., ("Simpluris") to serve as the Settlement Administrator. (Doc. 26 at 22, Settlement ¶ 37.) Under the terms of the proposed Settlement:
(Doc. 26 at 30, ¶ 57.) Simpluris anticipates the expenses related to its responsibilities will not exceed $22,000. (Id. at 31, ¶ 57.) Based upon the recommendation and request of the parties, Simpluris is appointed as the Settlement Administrator.
Based upon the foregoing, the Court finds the proposed class settlement is fair, adequate, and reasonable. The factors set forth by the Ninth Circuit weigh in favor of preliminary approval of the settlement agreement. Moreover, preliminary approval of a settlement and notice to the proposed class is appropriate "if [1] the proposed settlement appears to be the product of serious, informed, noncollusive negotiations, [2] has no obvious deficiencies, [3] does not improperly grant preferential treatment to class representatives or segments of the class, and [4] falls within the range of possible approval." In re Tableware Antitrust Litig., 484 F.Supp.2d 1078, 1079 (N.D. Cal. 2007) (quoting Manual for Complex Litigation, Second § 30.44 (1985)). Here, the proposed settlement agreement satisfies this test.
Accordingly,
