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Michael Gong-Chun, Gladibel Sotil-Gallour, Brenda Bucaria, Jeff Brager, Tanya Lemons, Eli v. Aetna Inc.

July 11, 2012

MICHAEL GONG-CHUN, GLADIBEL SOTIL-GALLOUR, BRENDA BUCARIA, JEFF BRAGER, TANYA LEMONS, ELI CRUZ, INDIVIDUALLY, AND ON BEHALF OF OTHER ACTION SETTLEMENT MEMBERS OF THE GENERAL PUBLIC SIMILARLY SITUATED, PLAINTIFFS,
v.
AETNA INC., A PENNSYLVANIA CORPORATION; ENHANCEMENT AWARDS AETNA LIFE INSURANCE COMPANY, A CONNECTICUT CORPORATION; AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINAL ORDER APPROVING CLASS GRANTING MOTION FOR ATTORNEYS' FEES AND COSTS (Doc. No. 60) GRANTING MOTION FOR CLASS REPRESENTATIVE

I. INTRODUCTION

On April 24, 2012, Plaintiffs Michael Gong-Chun, Gladibel Sotil-Gallour, Brenda Bucaria, Jeff Brager, Tanya Lemons, and Eli Cruz ("Plaintiffs") filed a motion requesting final approval of a class action settlement, an award of attorneys' fees and costs, and for enhancement awards for Plaintiffs as class representatives.*fn1 (Doc. 60.) No opposition to the motion was filed, and no objection by a Class Member was submitted. The matter was heard on May 23, 2012. Mr. Matthew Theriault, Esq., of Initiative Legal Group APC and Mr. Michael Coats, Esq., of the Law Offices of Mark Yablonovich appeared telephonically on behalf of Plaintiffs as Class Counsel, and Ms. Leslie Abbott, Esq., of Paul Hastings LLP appeared on behalf of Defendants Aetna Life Insurance Company ("ALIC") and Aetna Inc. ("Aetna") (collectively, "Defendants"). No Class Member appeared at the hearing. For the reasons set forth below, the Court GRANTS FINAL APPROVAL of the parties' class action settlement, (2) GRANTS an award of attorneys' fees and costs, and (3) GRANTS enhancement awards to Plaintiffs as class representatives.*fn2

II. FACTUAL BACKGROUND

A. Gong-Chun v. Aetna Life Insurance Co., et al., No. 1:09-cv--01995-AWI-SKO ("Gong-Chun")

On September 17, 2009, Plaintiff Michael Gong-Chun filed a putative class action complaint against ALIC and Aetna claiming substantive Labor Code violations for (1) unpaid meal breaks under Labor Code sections 226.7 and 512(a); (2) wages not paid upon termination under Labor Code sections 201 and 202; (3) wages not timely paid during employment under Labor Code section 204; and (4) violation of the California Business & Professions Code § 17200, et seq. ALIC and Aetna removed Gong Chun, No. 1:09-cv-01995-AWI-SKO, to this Court on November 12, 2009. The Gong-Chun putative class action does not state a claim for civil penalties California Labor Code Private Attorneys General Act of 2004 .

On April 2, 2010, ALIC and Aetna filed a motion to stay all further proceedings pending the outcome of the California Supreme Court's review of Brinker Restaurant Corp. v Sup. Ct., 80 Cal. Rptr. 3d 781 (2008), petition for review granted, 85 Cal. Rptr. 3d 688. The motion to stay was granted on May 17, 2010. (See 1:09-cv-01995-AWI-SKO, Doc. 23.) Prior to a decision being issued in Brinker and before the stay of the litigation was lifted, the parties filed a stipulation permitting Plaintiffs to file a First Amended Complaint; Plaintiffs filed a Notice of Settlement and requested that the Court preliminarily approve the settlement. (Docs. 48, 49.)

B. Thomas v. Aetna Health of California, et al., No. 1:10-cv-01906-AWI-SKO ("Thomas")

On September 2, 2010, Plaintiff Dorrenda Thomas filed a complaint for violation of Labor Code §§ 2698 et seq. pursuant to the California Labor Code Private Attorneys General Act of 2004 ("PAGA") in Fresno County Superior Court against (1) Aetna Health of California, Inc. ("AHC"), (2) Aetna and (3) ALIC. The action was filed by Dorrenda Thomas individually and on behalf of other members of the general public similarly situated, and as an aggrieved employee pursuant to the PAGA.

According to the complaint, Plaintiff Thomas was a "Small Group Sales Support Broker Liaison/Renewal Consultant," a non-exempt (hourly) paid position at Defendants' Fresno County business location. (Doc. 1-1 (Complaint), ¶ 19.) Plaintiff Thomas complained that Defendants violated various California Labor Code provisions by failing to (1) pay overtime wages, (2) provide meal periods, (3) provide rest periods, (4) pay minimum wage, (5) timely pay wages upon termination, (6) timely pay wages during employment, and (6) provide complete and accurate wage statements. (Doc. 1-1, ¶¶ 41-47.)

On October 12, 2010, Defendants filed a notice of removal, claiming diversity of citizenship pursuant to 28 U.S.C. § 1332(a) as the jurisdictional predicate. On November 10, 2010, Plaintiff Thomas filed a motion for remand asserting that AHC's presence in the litigation destroyed diversity and that the amount in controversy did not exceed $75,000; thus, the Court lacked subject matter jurisdiction over Plaintiff Thomas' complaint.

The motion for remand was scheduled for hearing before Senior District Judge Oliver W. Wanger on January 31, 2011. On that date, Judge Wanger determined that reassignment to Chief Judge Anthony W. Ishii and Magistrate Judge Sheila K. Oberto was appropriate because of the similarity of the Thomas action with the Gong-Chun class action that was currently assigned to Chief Judge Ishii. (Doc. 27.) On February 7, 2011, the motion to remand was referred to Magistrate Judge Oberto. On February 16, 2011, Defendants filed a motion to consolidate the Thomas matter with the Gong-Chun action, asserting the following:

After the Gong-Chun wage and hour class action was stayed by this Court on May 15, 2010, the Gong-Chun lawyers ([Initiative Legal Group]) filed the Thomas PAGA penalties action in state court on September 2, 2010. Aetna thereafter removed Thomas (and notified the court of the related nature of the actions). Both plaintiffs purported to represent Aetna non-exempt employees in California who allegedly were denied meal periods and other timely wages. The Gong-Chun complaint seeks alleged unpaid wages, interest, related penalties, attorneys' fees and costs. See Prayer for Relief. The Thomas complaint seeks PAGA penalties based on alleged unpaid wages, attorneys' fees and costs. See Prayer for Relief. Plaintiff Thomas is a putative class member in Gong-Chun.

Although counsel never objected to Aetna's removal of the Gong-Chun action to this Court, a motion to remand the related Thomas action was filed on November 10, 2010[,] and is scheduled for hearing concurrently with this consolidation motion on March 16, 2011. This is simply counsel's attempt to circumvent the Gong-Chun stay. (Doc. 30, 2:14-3:2.)

The Court determined that the motion to consolidate could be potentially mooted by the Court's decision as to the motion for remand. Therefore, the Court vacated the March 16, 2011, hearing date with regard to Defendants' motion to consolidate and held it in abeyance until a final decision was issued with regard to Plaintiff Thomas' motion for remand. (Doc. 34.)

On June 2, 2011, Magistrate Judge Oberto issued Findings and Recommendations that Plaintiff Thomas' motion for remand be denied. (Doc. 37.) Plaintiff Thomas filed objections to the Findings and Recommendations (Docs. 40, 41), Defendants AHC, ALIC, and Aetna filed responses to Plaintiff Thomas' objections (Docs. 42, 43), and Plaintiff Thomas filed a reply (Doc. 44). Plaintiff Thomas also filed a "Notice of New Authority" for the district court's consideration (Doc. 45), and Defendants AHC, ALIC, and Aetna filed a reply to Plaintiff Thomas' Notice of New Authority. (Doc. 47).

On August 31, 2011, the district court adopted the June 2, 2011, Findings and Recommendations in full, denying Plaintiff Thomas' motion for remand. (Doc. 48.) On September 21, 2011, Plaintiff Thomas filed a request for certification of the order denying the motion to remand for interlocutory appeal. (Doc. 49.) While Plaintiff Thomas' motion for certification of the order for interlocutory appeal was pending before the district court, the parties filed a notice of settlement. (Doc. 53.)

C. Universal Settlement of Gong-Chun, 1:09-cv-01995-AWI-SKO, and Thomas, 1:10-cv-01906-AWI-SKO

Gong-Chun and Thomas were, in essence, universally settled, although Dorrenda Thomas was not a signatory to the class-action settlement agreement in Gong-Chun. The aggrieved employees represented by Dorrenda Thomas in the Thomas matter were also putative Class Members in the Gong-Chun action. The PAGA penalties sought in Thomas were necessarily dependent upon proof of the violations of the Labor Code alleged in Gong-Chun. Had the cases not settled, they would have been suitable for consolidation.

In Thomas, the parties filed a stipulation of dismissal, and the Thomas action was dismissed and closed on November 29, 2011.(Case No. 1:10-cv-01906-AWI-SKO, Docs. 55, 56.) On January 31, 2012, a notice of settlement was filed in the Gong-Chun action, for which Plaintiffs are currently seeking final approval, an award of attorneys' fees and costs, and enhancement awards to the Class Representatives. The terms of the Gong-Chun settlement include the PAGA penalties at issue in Thomas and provide for attorneys' fees for work performed in the Thomas case.

III. THE PARTIES' SETTLEMENT

On January 31, 2011, Plaintiffs filed a Notice of Settlement and a request for preliminary approval of the class-action settlement, indicating that the parties had negotiated a resolution of their dispute. (Doc. 49.) The terms of the parties' Settlement Agreement are summarized below.

A. The Composition of the Settlement Class

The Settlement Agreement provides for the certification, for settlement purposes only, of a class comprised of all non-exempt or hourly paid employees who worked for Defendants ALIC and Aetna anywhere in California at any time from September 17, 2005, through February 16, 2012. (Settlement Agreement, Doc. 60-7, ¶ 33.)

B. The Material Terms of the Settlement Agreement

1. The Class Settlement Amount

Plaintiffs and Defendants have agreed to settle the underlying class claims in exchange for a Class Settlement in the amount of $700,000.00. Certain Class Members participated in Aetna's Individual Settlement Payment Program, and such amounts paid to these Class Members are to be deemed as satisfaction of the amounts owed by Defendants under the terms of the parties' Settlement Agreement. (Settlement Agreement, Doc. 60-7, ¶¶ 17, 36(a).) When the Class Settlement Amount is reduced by the amounts that would have been received by the 35 Class Members who excluded themselves and the 31 Class Members with undeliverable addresses, a total of $697,330.74 will have been paid to Class Members. The remaining amount will be paid to the Cy Pres beneficiary, Futures Without Violence, a non-profit organization dedicated to preventing violence against women and children. (Settlement Agreement, Doc. 60-7, ¶ 36(e).)

2. The Labor Workforce and Development Agency Payment

In satisfaction of the claims arising under the PAGA, the parties have agreed that Defendants will pay $15,000 to the California Labor and Workforce Development Agency, of which $1,000 has already been paid by Aetna in connection with the dismissal of the Thomas action. (Settlement Agreement, Doc. 60-7, ¶ 36(d).)

3. Claims Administration Costs

The parties have agreed that the Claims Administrator will be paid $25,000 for the costs associated with the administration of this Settlement.(Settlement Agreement, Doc. 60-7, ¶ 36(e).)

4. Class Counsel Award of Attorneys' Fees and Costs *fn3 Defendant has also agreed to pay up to $468,500 toward Class Counsel's attorneys' fees and costs. (Settlement Agreement, Doc. 60-7, ¶ 36(b).)

5. Class Representative Enhancement Awards

The parties have agreed that the Class Representatives will be paid a total of $17,500 for prosecuting this case on behalf of the Class which shall be distributed as follows: (1) $7,500 to Plaintiff Michael Gong-Chun, (2) $2,000 each to Plaintiffs Sotil-Gaillour, Bucaria, Brager, Lemons, and Cruz. (Settlement Agreement, Doc. 60-7, ¶ 36(c).)

C. The Scope of the Release in the Settlement Agreement

The parties' Settlement Agreement sets forth the following release by the Class Members:

29. "Released Claims" means all claims, rights, demands, liabilities and causes of action, whether known or unknown, arising from, or related to, the same set of facts as those set forth in the operative complaints in the Action during the Class Period, including claims based on the following categories of allegations: All claims for unpaid meal period premiums, including claims pursuant to California Labor Code section 226.7 and 512(a); all claims for unpaid rest period premiums, including claims pursuant to California Labor Code section 226.7; all claims for the failure to timely pay wages upon termination, including claims pursuant to California Labor Code sections 201, 202, and 203; all claims for failure to timely pay wages, including claims pursuant to California Labor Code section 204; all claims for failure to pay minimum wages, including claims pursuant to California Labor Code sections 1194, 1197 and 1197.1; all claims for failure to provide complete and accurate wage statements, including claims pursuant to California Labor Code section 226; incorporated or related claims asserted through California Business and Professions Code sections 17200, et seq.; and incorporated or related claims for PAGA penalties, including claims pursuant to California Labor Code sections 2899 et seq.

60. Release of Claims by Class Members. Upon the Effective Date, Plaintiffs and all Participating Class Members shall waive and forfeit all Released Claims against all Released Parties. (Settlement Agreement, Doc. 60-7, ¶¶ 29, 60.)

The parties' Settlement Agreement also sets out a broader release for the Class Representatives:

61. Release of Additional Claims & Rights by Plaintiffs. Upon the Effective Date, specifically conditioned on receiving any portion of their respective Class Representative Enhancement, each of the Plaintiffs shall hereby agree to the additional following General Release:

Plaintiff hereby releases, acquits, and forever discharges Defendant, its parents, subsidiaries and affiliates, and each of them, and their respective agents, general agents, insurers, reinsurers, payroll companies, attorneys, representatives, owners, stockholders, policyholders, principals, partners, employees, officers, directors, trustees, heirs, successors, predecessors, assigns, parent corporations, subsidiaries, affiliated companies, and each and all of them, of and from any and all obligations, debts, claims, liabilities, demands, and causes of action of every kind, nature and description whatsoever, whether or not now known, suspected or claimed, which they ever had, now have, or may hereafter acquire by reason of employment with Defendants, accruing from the beginning of time until the date that the final approval of the Settlement is granted, including all claims, known or unknown. To the extent that the foregoing releases of the Plaintiffs are releases to which Section 1542 of the California Civil Code or similar provisions of other applicable law may apply, the foregoing releases shall be effective as a bar to any and all claims of any character, nature or kind, known or unknown, suspected or unsuspected specified herein. Plaintiff expressly waives any and all rights and benefits conferred upon her by the provisions of Section 1542 of the California Civil Code or similar provisions of applicable law.

Plaintiffs agree that they are each familiar with the provisions of the California Civil Code section 1542 which provides as follows;

"A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor."

D. Notice to the Class Members

The procedures for giving notice to the Class Members, as set forth in the parties' Settlement Agreement (see Doc. 60-7, ¶ 18) and as ordered in the Court's Preliminary Approval Order (Doc. 57), have been carried out by the Settlement Administrator, Rust Consulting, Inc. ("Rust") (Roe Decl., Doc. 60-8, ¶ 2.) On February 28, 2012, Rust received the Class Notice, which was approved by the Parties prior to mailing. (Roe Decl., Doc. 60-8, ¶ 6; Doc. 57.) The Class Notice summarized the Settlement Agreement's principal terms, provided Class Members with an estimate of how much they would be paid if the Settlement Agreement received final approval, and advised Class Members how to submit claims for payment, opt out of the Settlement, or object to the Settlement. (See Williams Decl., Doc. 49-1, Exh. A.) The Class Notice was approved by the Court in its February 16, 2012, Preliminary Approval Order. (Doc. 57.)

On February 28, 2012, counsel for Defendant provided Rust with a list ("Class List") of all Class Members' names, their last known mailing addresses and telephone numbers, Social Security Numbers, and other information necessary to calculate estimated settlement payments. (Roe Decl., Doc. 60-8, ¶ 7.) The Class List contained data for 2,051 potential Class Members. (Roe Decl., Doc. 60-8, ¶ 7.)

On March 7, 2012, Notices were mailed to 2,051 Class Members contained in the Class List via First Class mail. (Roe Decl., Doc. 60-8, ¶ 9.) The Notice advised Class Members that they could submit a Request for Exclusion or Dispute post-marked by April 6, 2012. (Roe Decl., Doc. 60-8, ¶ 9.) As of April 24, 2012, Rust received 119 undeliverable Notices. (Roe Decl., Doc. 60-8, ¶ 10.) Of the undeliverable Notices, seven (7) were returned to Rust after the filing deadline and were therefore not traced. (Roe Decl., Doc. 60-8, ¶ 10.) Rust performed address traces on 104 undeliverable Notices. (Roe Decl., Doc. 60-8, ¶ 10.) Of the 104 traces performed, 16 updated addresses could not be obtained and the notices remained undeliverable. (Roe Decl., Doc. 60-8, ¶ 10.) In total, of the 119 undeliverable Notices received by Rust, 31 were truly undeliverable. (Roe Decl., Doc. 60-8, ¶ 10.)

In total, Rust received 35 Requests for Exclusion from Class Members. (Roe Decl., Doc. 60-8, ¶ 12.) Of the Requests for Exclusion, 33 were considered valid and timely, one (1) was untimely and one (1) Request for Exclusion asked to be excluded, but also requested receipt of the Individual Settlement Payment. (Roe Decl., Doc. 60-8, ¶ 12.) This Request for Exclusion was therefore deemed by the parties as deficient. (Roe Decl., Doc. 60-8, ¶ 12.) A "cure letter" was sent to this Class Member asking that person to clarify whether he or she intended to participate in the Settlement or wished to be excluded. (Roe Decl., Doc. 60-8, ¶ 12.) As of April 24, 2012, this Class Member has not submitted a response to the "cure letter." (Roe Decl., Doc. 60-8, ¶ 12.) This Class Member's Request for Exclusion will therefore be disregarded, and the individual will be mailed his or her Individual Settlement Payment. (Roe Decl., Doc. 60-8, ¶ 12.) Rust has received no "Disputes for the Settlement" or objections to the Settlement. (Roe Decl., Doc. 60-8, ¶¶ 13, 14.)At the May 23, 2012, hearing on this motion, counsel for both parties stated that the information provided by Rust was current and had not changed.

IV. DISCUSSION

A. Final Approval of the Class-Action Settlement is Granted

1. The Rule 23(a) Class-Certification Requirements Are Satisfied

Federal Rule of Civil Procedure 23(e) requires court approval of class action settlements. "[I]n the context of a case in which the parties reach a settlement agreement prior to class certification, courts must 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). In confirming the propriety of class certification, courts assess the following prerequisites: "(1) numerosity of plaintiffs; (2) common questions of law or fact predominate; (3) the named plaintiff's claims and defenses are typical; and (4) the named plaintiff can adequately protect the interests of the class." Hanlon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (citing Fed. R. Civ. P. 23(a)).

a. Numerosity

Numerosity requires that the class be so numerous that the joinder of individual class members would be impracticable. Fed. R. Civ. P. 23(a)(1). Across the Settlement Class, 2,051 California Class Members were ultimately identified. The number of Class Members in this case indicates that the numerosity factor has been satisfied. See, e.g., Jordan v. L.A. Cnty., 669 F.2d 1311, 1319 (9th Cir. 1982) (indicating that class sizes of 39, 64, and 74 are sufficient to satisfy the numerosity requirement), vacated on other grounds, 459 U.S. 810 (1982).

b. Commonality

Rule 23(a) also requires there be "questions of law or fact common to the class." Commonality exists when there is either a common legal issue stemming from divergent factual predicates or a common nucleus of facts resulting in divergent legal theories. Hanlon v. Chrysler Corp. ("Chrysler Corp."), 150 F.3d 1011, 1019 (9th Cir. 1998). In other words, commonality is generally satisfied where, as in this case, "the lawsuit challenges a system-wide practice or policy that affects all of the putative class members." Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001), abrogated on other grounds by Johnson v. California, 543 U.S. 499, 504-05 (2005). As clarified in Wal-Mart Stores, Inc. v. Dukes, a plaintiff must demonstrate that the class members "have suffered the same injury" and that their claims "depend upon a common contention . . . of such a nature that 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." __ U.S. __, 131 S. Ct. 2541, 2551 (2011) (internal citation omitted).

The Class Members' claims arising from Defendants' alleged uniform employment policies here are different from those found insufficient to establish commonality in Dukes,131 S. Ct. at 2554. In Dukes, the purported commonality was a lack of common control over a business practice. Id. at 2554-55. The Supreme Court determined that the "only corporate policy that the plaintiffs evidence convincingly establishes is Wal-Mart's 'policy' of allowing discretion by local supervisors over employment matters." Id. The Court noted that, "[o]n its face, of course that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices." The Court concluded that there was no specific employment practice that tied all of the putative class members together and that "[m]erely showing that Wal-Mart's policy of discretion has produced an overall sex-based disparity does not suffice." Id. at 2556. Here, there is no evidence before the Court that the pay practices alleged to violate the California Labor Code were applied inconsistently, such that the complained-of employment practices do not "touch and concern all members of the class." Id. at 2557 n. 10 (internal citations omitted).

The parties have agreed for purposes of settlement only that the following questions of law and fact are common to the class:

(1) Whether Defendants' failure to pay wages, without abatement or reduction, in accordance with the California Labor Code, was willful;

(2) Whether Defendants deprived Plaintiffs and Class Members of meal periods or required Plaintiffs and Class members to work during meal periods without compensation;

(3) Whether Defendants failed to pay all wages earned by Plaintiffs and Class Members;

(4) Whether Defendants failed to timely pay all wages due to Plaintiffs and Class Members upon their discharge or resignation;

(5) Whether Defendants' conduct was willful or reckless; (6) Whether Defendants engaged in unfair business practices in violation of California Business & Professions Code section 17200, et seq.; and

(7) The appropriate amount of damages, restitution, or monetary penalties resulting from Defendants' violation of California Law.

These common questions of law or fact are sufficient to satisfy the commonality requirement.

c. Typicality

Typicality exists when "the claims or defenses of the representative are typical of the claims or defenses of the class." Fed. R. Civ. P. 23(a)(3). "Typicality . . . is said . . . to be satisfied when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability." Armstrong, 275 F.3d at 868. Under the rule's "permissive standards," representative claims are typical if they are "reasonably co-extensive with those of absent class members; they need not be substantially identical." Chrysler Corp., 150 F.3d at 1020. Plaintiffs' claims are "co-extensive" with the other Class Members, as Plaintiffs and the absent Class Members were all Defendants' employees who were paid under the same pay practices and worked under the same company-wide employment policies. The typicality requirement is satisfied.

d. Adequacy of Representation

The final Rule 23(a) prerequisite, adequacy of representation, is satisfied if "the representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4). The satisfaction of constitutional due process concerns requires that absent class members be afforded adequate representation prior to an entry of judgment, which binds them. Chrysler Corp., 150 F.3d at 1020. Determining the adequacy of representation requires consideration of 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?" Id.

The adequacy-of-representation requirement is met here because Plaintiffs have the same interests as the absent Class Members, e.g., obtaining payment for wages unlawfully withheld. Further, there is no apparent conflict of interest between the named Plaintiffs' claims and those of the other Class Members, particularly because the named Plaintiffs have no separate and individual claims apart from the Class.

Moreover, there are no allocation dilemmas among the Settlement Class as the Ninth Circuit observed were issues in Amchen Products, Inc. v. Windsor ("Amchen"), 521 U.S. 591 (1997). In Amchen, the settlement agreement eliminated all present and future claims against asbestos manufacturers, and the class counsel was attempting to represent both groups of plaintiffs, i.e., those who had present claims and those who had future claims. The conflict between the two groups of plaintiffs was that "the present plaintiffs had a clear interest in a settlement that maximized current funds, while future plaintiffs had a strong interest in preserving funds for their future needs and protecting the total fund against inflation." Chrysler Corp., 150 F.3d at 1020-21 (discussing Amchen, 521 U.S. 591 (1997)). This case does not involve sub-classes or classes with diverging interests with respect to allocation of the settlement funds in the same manner as Amchen. The Court does not perceive any conflicts of interest between Plaintiffs and Class Counsel and other Class Members.

In considering the adequacy requirement, the Court also evaluates whether Plaintiffs and Class Counsel will pursue the Class claims with vigor. The Ninth Circuit has held that, "[a]lthough 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." Chrysler Corp., 150 F.3d at 1021. There is no challenge to the competency of the Class Counsel, and the Court finds that Plaintiffs are represented by experienced and competent counsel who have successfully certified 17 class actions through contested motions. (Supp. Memorandum., Doc. 64, 3:21-4:12.) Further, this is not a case in which the Class Members will receive no monetary distribution, while Class Counsel will be amply rewarded. Chrysler Corp., 150 F.3d at 1021.

The apparent rationale to settle this case was supported, in part, by the pendency of Brinker Restaurant Corp. v. Superior Court, 165 Cal. App. 4th 25 (2008), aff'd in part, 53 Cal. 4th 1004 (2012) before the California Supreme Court at the time the matter was settled. California law, as it related to certain of the Class claims, was in potential flux, and settlement, rather than continued litigation, was potentially more beneficial to the Class Members. In other words, it appears that the settlement was reached for strategic reasons that benefitted the Class, rather than Class Counsel's inability or unwillingness to pursue further litigation. See Chrysler Corp., 150 F.3d at 1021 ...


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