STANLEY A. BOONE, Magistrate Judge.
On July 30, 2014, Plaintiffs Leticia Ceja-Corona and Margarita Rubio Armenta, on behalf of themselves and others similarly situated (hereinafter collectively referred to as "Plaintiffs"), filed a motion for preliminary approval of a class action settlement. (ECF No. 48.) Plaintiffs' motion is unopposed.
The hearing on Plaintiffs' motion took place on September 10, 2014. Attorney David Yeremian appeared telephonically on behalf of Plaintiffs. Attorney Thomas McInerney appeared telephonically on behalf of Defendant. For the reasons set forth below, the Court will require the parties to submit additional briefing in support of the motion.
The operative complaint in this action is the Second Amended Complaint filed on February 26, 2014. (ECF No. 45.) Plaintiffs' complaint raises six causes of action: 1) for failure to pay minimum wages and overtime, 2) for failure to provide reporting time pay, 3) for failing to provide accurate earnings statements, 4) for failure to timely pay wages upon termination, 5) for unfair competition under California Business & Professions Code § 17200, and 6) for failure to pay wages and overtime for off-the-clock work, and 7) for penalties under California's Private Attorney's General Act, California Labor Code § 2699.
Plaintiffs Leticia Ceja-Corona and Margarita Rubio Armenta were employed by Defendant CVS Pharmacy, Inc. ("Defendant") in the County of Stanislaus in California. (Second Am. Compl. ¶ 2.) Plaintiffs originally brought this action on behalf of two classes: first, on behalf of all persons who are or have been employed by Defendant at distribution centers as nonexempt hourly employees in the State of California at any time four years prior to the filing of this lawsuit and continuing on to the present. (Second Am. Compl. ¶ 27.) The second class consists of all persons who are or have been employed by Defendant at distribution centers as nonexempt hourly employees at any time three (3) years prior to the filing of this lawsuit and continuing to the present and who elect to opt into this action. (Second Am. Compl. ¶ 27.)
Plaintiffs allege that Defendant failed to pay Plaintiffs all wages, overtime, and reporting time pay due under the California Labor Code, the applicable California Industrial Welfare Commission Wage Orders, and the Fair Labor Standards Act. (Second Am. Compl. ¶ 10.) Plaintiffs allege that, prior to clocking in for the day, they must gain admittance into distribution centers using security badges that are swiped before passing through turnstiles. (Second Am. Compl. ¶ 14.) After entering the facility, employees must deposit their personal belongings in lockers because Defendant's policy prohibits employees from taking personal belongings into areas where merchandise is stored. (Second Am. Compl. ¶ 15.) While at their lockers, employees must also collect the tools they use to perform their job duties. (Second Am. Compl. ¶ 15.) Employees then walk to the stock room, which requires employees to swipe their security badges. (Second Am. Compl. ¶ 16.) Frequently, there is a line of employees entering the stock room. (Second Am. Compl. ¶ 16.) Employees do not clock in until they are inside the stock room, and spend 15-20 minutes going through the entry process before they clock in. (Second Am. Compl. ¶ 16.) Employees must repeat the same process any time they leave the distribution center for a lunch or rest break. (Second Am. Compl. ¶ 16.) Employees are not compensated for this time. (Second Am. Compl. ¶ 16.)
Any time an employee leaves the distribution center, they must return to their lockers, return their tools and collect their personal belongings before going through the security screenings required by Defendant. (Second Am. Compl. ¶ 17.) During the security screenings, employees are searched. (Second Am. Compl. ¶ 18.) Often, employees must wait in long lines while other employees are searched as they leave. (Second Am. Compl. ¶ 18.) Employees spend 15-20 minutes after clocking out to go through the security screening and are not compensated for their time. (Second Am. Compl. ¶ 20.)
Plaintiffs allege that the off-the-clock work described above causes employees to work overtime, either extending their shifts more than eight hours per day or over forty hours per week. (Second Am. Compl. ¶ 21.) Plaintiffs further allege that, in some instances, employees reported to work, but were given no work to do or worked less than one half of their scheduled shift, but did not receive reporting time pay. (Second Am. Compl. ¶ 22.) Plaintiffs further allege that employees were not given timely, accurate and itemized wage statements. (Second Am. Compl. ¶ 23.) Plaintiffs also allege that employees who quit their jobs with Defendant were not given all wages owed to them within 72 hours of resignation or thirty days thereafter. (Second Am. Compl. ¶ 24.)
The parties attended mediation on April 8, 2014. At the mediation, the parties reached a settlement. Defendant agrees to pay $900,000.00 in cash to resolve the claims of any class members who do not timely and validly opt out. The $900,000.00 is paid by Defendant on a non-reversionary basis. The parties propose the following deductions from the $900,000.00 settlement figure:
Defendant's records show that there are approximately 2,273 class members in this action. The proposed settlement provides that an equitable formula will be applied to distribute the settlement funds to each participating class member based upon the number of workweeks the member has worked during the relevant time period. The settlement provides for a $50.00 guaranteed minimum payment for participating class members.
The parties propose the following timeline for settlement:
Federal Rule of Civil Procedure 23(e) states:
Rule 23 "requires the district court to determine whether a proposed settlement is fundamentally fair, adequate, and reasonable."
"Assessing a settlement proposal requires the district court to balance a number of factors: the strength of the plaintiffs' 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."
Moreover:
At the hearing, the Court discussed a number of apparent defects in the motion for preliminary approval of the class settlement. Accordingly, the Court will defer on making a recommendation on whether the motion should be granted or denied and require the parties to submit additional briefing on the issues outlined below.
Moreover, for the sake of clarity in the record, the Court will require any additional briefing submitted by the parties to be complete in and of itself, without reference to the previously filed motion for preliminary approval of the class action settlement. In other words, the Court will require the parties to file an amended motion so that any class members looking at the record will only need to review the newly filed amended motion, without having to refer back to the previously filed motion.
At the hearing, the Court noted that the operative complaint in this action sought to certify two classes: a California class for the claims under California law and a Nationwide class for claims under the Fair Labor Standards Act. However, the proposed settlement only pertained to a class of California employees, as well as a separate class for PAGA claims. It was unclear how Nationwide Class members would be affected by the settlement.
At the hearing, the parties indicated that it was their intent that the settlement would only bind members of the California class and that Nationwide class members (who were not also members of the California class) would not be precluded from bringing their claims in a separate action. Moreover, the parties indicated that the settlement would resolve this action in its entirety, without addressing the claims brought by Nationwide class members outside California. Accordingly, the Court will require the parties' amended motion to expressly acknowledge that the claims brought on behalf of the Nationwide class members outside of California would effectively be dismissed without prejudice as a result of this settlement.
At the hearing, the Court noted that Plaintiffs' motion was largely boilerplate, without sufficient evidence to support certification of a class for settlement purposes. Accordingly, the Court will require the parties' amended motion to address the issues set forth below.
When the parties seek approval of a proposed class action settlement, the Court must "ascertain whether the proposed settlement class satisfies the requirements of Rule 23(a) of the Federal Rules of Civil Procedure applicable to all class actions, namely: (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation."
Additionally, Plaintiffs seek certification of a class under Federal Rule of Civil Procedure 23(b)(3), which requires a demonstration that questions of law or fact common to class members predominate over any questions affecting only individual members and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.
Finally, the Court notes:
As discussed in more detail below, Plaintiffs' motion lacks sufficient evidentiary support because it does not include any evidentiary support, other than a declaration from Plaintiffs' attorney.
The numerosity requirement is satisfied where "the class is so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). Plaintiffs' motion for preliminary approval states that there are approximately 2,273 class members.
However, Plaintiffs' motion does not submit any evidence detailing how the 2,273 figure was calculated. The only evidence regarding the number of class members is the declaration of David Yeremian, the attorney for Plaintiffs. Mr. Yeremian only provides the vague statement that "There are approximately 2,273 Class Members." (Decl. of David Yeremian ¶ 30.) Mr. Yeremian provides no foundation as to how he reached this figure. At the hearing, the parties informed the Court that the 2,273 figure is likely outdated since it was calculated some time ago. The parties informed the Court that Defendant provided this figure, along with names and addresses, to the third party administrator to send notice out class members, but provides no insight as to how Defendant came up with this figure.
Accordingly, the Court will require any amended motion to include a declaration from a competent witness detailing how class members were identified and how their names and addresses were ascertained.
The commonality requirement is satisfied where "there are questions of law or fact that are common to the class." Fed. R. Civ. P. 23(a)(2). However, "[a]ll questions of fact and law need not be common to satisfy the rule. The existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class."
Again, Plaintiffs submit a vague declaration from Mr. Yeremian stating, in conclusory fashion, that the commonality requirement is met because all the class members were subject to the same employment policies and practices. Plaintiffs do not submit evidence establishing the existence of commonality in this action.
"Commonality requires the plaintiff to demonstrate that the class members `have suffered the same injury.'"
Plaintiffs argue that commonality exists because all class members suffered the same injuries, namely unpaid wages, overtime and inaccurate wage statements. However, this in and of itself does not meet the standard set forth in
At the hearing, the parties indicated that Defendant has two distribution centers in California. The parties state that the same security policies are in effect at both distribution centers, but provide no evidentiary detail as to what these security policies entail and how they caused or contributed to a common injury among all class members. Accordingly, any amended motion should include admissible evidence which establishes the "common contention" connecting employees from both distribution centers to a shared injury.
Moreover, at the hearing, Plaintiff's conceded that their claims for unpaid reporting time pay are largely unrelated to their claims based upon off-the-clock work associated with waiting for security screenings. Further, both parties indicated that the unpaid reporting time pay claims were determined to be not as widespread and insubstantial. Yet, settlement in this action purports to bind all class members with respect to any potential unpaid reporting time pay claim they may possess. This outcome would unduly prejudice individual class members who may possess valid and substantial claims for unpaid reporting time pay. The Court is not inclined to approve a settlement where the parties acknowledge that these reporting time claims were not found to be an issue common to the class, yet individual class members would be required to give up their right to pursue their claims. Accordingly, any amended motion should either amend the terms of the proposed settlement such that class members are not required to release these claims, or the parties should present persuasive arguments to the Court why it would be fair and equitable for class members to release a claim that was found not to be common to the class.
Rule 23(a)(3) requires that "the claims or defenses of the representative parties are typical of the claims or defenses of the class[.]" This does not require the claims to be substantially identical, but that the representatives claims be "reasonably co-extensive with those of the absent class members."
Plaintiffs vaguely argue that Plaintiff's claims are typical of the claims of the whole class. Notably, Plaintiffs' boilerplate brief makes no distinction between the claims of Plaintiff Leticia Ceja-Corona and the claims of Plaintiff Margarita Rubio Armenta. Furthermore, there is no admissible
The named plaintiffs must fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a)(4). In determining whether the named plaintiffs will adequately represent the class, the courts must resolve two questions: "(1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?"
At this point in time, the Court does not see any issues regarding the adequacy of the named plaintiffs and their counsel, and therefore reserves any decision on this issue until after the parties file an amended motion.
"[T]he focus of the Rule 23(b)(3) predominance inquiry is on the balance between individual and common issues."
For the same reasons discussed above, in the context of the issue of commonality, the Court notes that Plaintiffs have not identified any common policy that applies across all distribution centers. Further, the off-the-clock work claims and the reporting time pay claims asserted by Plaintiffs raise different factual issues which would require individualized assessment for each class member. Thus, it is unclear whether class issues predominate over the individual issues.
Further, the Court notes that the nature of Plaintiffs claims raises individualized inquiries as well. Plaintiffs claim that Defendant failed to pay employees for time spent waiting in employer mandated security lines. However, the amount of time waiting in line would necessarily vary from person to person. The first employee in line may not have a claim or may have a smaller claim that the last employee in line, who naturally would wait longer and thus be entitled to more damages. Further, the length of the line may vary at different times during the day, with longer lines and longer waits during busier times (such as at 9:00 a.m. or at 5:00 p.m.), and shorter lines and shorter waits during less busy times. Plaintiffs offer no insight as to how such issues could be resolved on a class-wide basis or how, in spite of these issues, the common class issues predominate over the individual issues. Accordingly, any amended motion should provide further support on the issue of predominance.
Rule 23(b)(3) provides that courts should consider "(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." Where the parties have agreed to pre-certification settlement (D) and perhaps (C) are irrelevant.
Plaintiffs note that resolving each class members' claims on an individual basis would be uneconomical because each individual suit would be for a relatively small amount. However, Plaintiffs do not provide any evidence or argument regarding exactly how much each claim is worth for each individual member. While Plaintiffs' argument seems reasonable in theory, the Court must be given some insight as to how much off-the-work time was unpaid for the average class member in order to evaluate this argument. Moreover, Plaintiffs would have to demonstrate how much in damages, PAGA penalties, etc. an average class member would be entitled to if they brought an individual claim. Accordingly, any amended motion should provide concrete numbers which demonstrate that the value of each individual's claim is so low that individual claims would be uneconomical.
Plaintiffs must demonstrate that the proposed settlement is fundamentally fair, adequate, and reasonable.
Plaintiffs' boilerplate motion does not adequately address these factors. First, the Court notes that there is little discussion regarding the strength of Plaintiffs' case. Plaintiffs' have not discussed what evidence, if any, is in their possession. Although Plaintiffs identify a single favorable case regarding compensation for off-the-time work associated with employer mandated security clearances, Plaintiffs provide little discussion of the facts specific to this case.
Second, there is no indication of the risk, expense, complexity or likely duration of further litigation, or the risk of maintaining class action status throughout trial. It is unclear how much discovery has been completed.
Third, the Court notes that the proposed settlement provides for a payment of $7,500 to the California Labor and Workforce Development Agency ("LWDA") for PAGA penalties pursuant to Labor Code § 2699, et seq. However, Plaintiffs provide no justification for this amount. Thus, the $7,500 figure appears to be largely arbitrary and bears no relationship to the total amount of settlement. The Court notes that California Labor Code § 2699(l) requires court approval of any settlement of a PAGA claim. The Court further notes that, generally, the settlement of PAGA claims is ripe for collusion between a class of plaintiffs and a defendant, as neither party has any incentive to increase the amount awarded to the LWDA. In an amended motion, the parties are expected to demonstrate the basis of the $7,500. For example, the parties could provide the Court with an estimate of the maximum total damages that would be awarded to Plaintiffs if they prevail on all the claims, and calculate what percentage of that total award would be attributable to PAGA penalties. Alternatively, the parties may submit a reasonable proposal whereby notice is given to the LWDA of the terms of the proposed settlement, with the LWDA given a chance to object to the terms of the settlement of the PAGA claim.
Moreover, the Court notes that the proposed class notice references "an equitable formula" where each member receives an amount proportional to the number of workweeks she or he worked for Defendant compared to all the weeks worked by all class members. Based upon the Joint Stipulation of Class Action Settlement and Release, this equitable formula divides the number of weeks worked by an individual class member by the number of weeks worked by all class members to determine the percentage of the total settlement that the individual class member should receive. The Court notes that the number of weeks worked is not precisely proportional to the amount each individual is entitled to, as someone who works full time each week may be entitled to a greater settlement payment than someone who worked a few days each week for the same period of time. Further, this formula does not appear to take into account any differences in the hourly rate of pay that may exist between class members.
Similarly, it is unclear how the "equitable formula" takes into account the sums paid out associated with Plaintiffs' claim based upon reporting-time pay. It is unclear how the sums owed for claims based upon being sent home early without reporting time pay can be calculated using only the number of weeks worked by each individual class member.
Further, the Court notes that Plaintiffs have not introduced any evidence or argument regarding the adequacy of the settlement. Plaintiffs only state, in boilerplate fashion, that the settlement was reached after extensive negotiations. "To determine whether a settlement falls within the range of possible approval, a court must focus on substantive fairness and adequacy, and "consider plaintiffs' expected recovery balanced against the value of the settlement offer."
Moreover, the Court notes that the settlement is described as non-reversionary, yet the settlement funds not claimed by class members are to be forwarded to a "CVS Caremark Employee Relief Fund." Plaintiffs provide no insight as to what this fund is, or what benefit it provides to the class.
Finally, the Court notes that Plaintiffs request "up to 30%" in attorneys' fees. It is unclear what is meant by "up to" and the Court assumes that Plaintiffs will be requesting 30%. In the Ninth Circuit, courts typically calculate 25% of the common fund as the "benchmark" for a reasonable fee award providing adequate explanation in the record for any special circumstances that justify departure.
Based upon the foregoing, the Court will require the parties to submit an amended motion which addresses the issues outlined above.
Based upon the foregoing, the Court will order the parties to submit an amended motion for preliminary approval of class action settlement which addresses the issues outlined above. The parties' amended motion shall be completed in and of itself without reference to the prior motion for preliminary approval of class action settlement.
Accordingly, it is HEREBY ORDERED that:
