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Fernando Rodriguez, and Guadalupe Hererra, On Behalf of v. D.M. Camp & Sons and Does 1-20

December 6, 2012


The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge


Plaintiffs Fernando Rodriguez and Guadalupe Herrera ("Plaintiffs") seek preliminary approval of class settlement. (Doc. 37). By and through this motion, Plaintiffs seek: (1) conditional certification of the settlement class; (2) preliminary approval of the settlement; (3) appointment of Plaintiffs as class representatives; (4) appointment of Stan Mallison and Hector Martinez 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. (Id. at 2). Defendant D. M. Camp & Sons ("Defendant") has not opposed the motion.

The Court has considered the proposed settlement between the parties, and the proposed Notice, Claim, and Opt-Out Forms. On December 6, 2012, the Court heard the oral arguments of counsel. For the following reasons, Plaintiffs' motion for preliminary approval of class settlement is GRANTED.


On November 9, 2005, "Doe" plaintiffs initiated an action against table grape growers based in Kern County, including D.M. Camp & Sons; Stevco, Inc.; Marko Zaninovich, Inc.; Sunview 4 Vineyards of California; Guimarra Vineyards Corp.; El Rancho Farms; Castlerock; and FAL, Inc.*fn1 See Doe v. D.M. Camp & Sons, 624 F.Supp.2d 1153 (E.D. Cal. 2008). Plaintiffs alleged that they 6 were former and current employees of the defendants. Id. at 1156. 7

Defendants to the Doe action, including D.M. Camp & Sons, filed motions to dismiss the 8 operative complaint, which were granted by the Court on March 31, 2008. Likewise, the Court 9 granted motions to sever the action, and the Court required the plaintiffs to file amended pleadings against each defendant to effectuate the severance. On May 29, 2008, Fernando Rodriguez and Guadalupe Herrera were named as plaintiffs in the Third Amended Complaint against D.M. Camp & Sons. (Doe, Doc. 170). On March 31, 2009, the Court ordered Plaintiffs to re-file their suit in a new case number within twenty days to finalize the severance. (Doe, Doc. 240).

On April 20, 2009, Plaintiffs filed their complaint against D.M. Camp & Sons. (Doc. 1 at 1). The complaint alleges: violation of the Agricultural Workers Protection Act, 29 U.S.C. § 1801, et seq.; failure to pay wages; failure to pay reporting time wages; failure to provide rest and meal periods; failure to pay wages of terminated or resigned employees; knowing and intentional failure to comply with itemized employee wage statement provisions; penalties under Labor Code § 2699, et seq.; breach of contract; and violation of unfair competition law. (Id.) Plaintiffs brought the action "on behalf of Plaintiffs and members of the Plaintiff Class comprising all non-exempt agricultural, packing shed, and storage cooler employees employed, or formerly employed, by each of the Defendants within the State of California." (Id. at 4).

The parties engaged in private mediation with Daniel Quinn, and the matter was resolved after "numerous sessions and telephone calls covering a period well in excess of one year." (Doc. 42 at 4; 3 see also Doc. 36 at 2). Thereafter, Plaintiffs filed the motion for preliminary approval of class 4 settlement on November 2, 2012 (Doc. 37), now pending before the Court. 5


Pursuant to the proposed settlement ("the Settlement"), the parties agree to a gross settlement 7 amount of $675,000. (Settlement § III.A, Doc. 41-1 at 6). Defendant agrees to make payments 8 totaling $675,000 to the settlement fund by January 15, 2012. (Id. § III.F.7; Doc. 42 at 4). 9

I. Payment Terms

The settlement fund will cover payments to qualified class members with additional compensation to class representatives. (Settlement § III.B.1, Doc. 41-1 at 6). 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. (Settlement § III.B; Doc. 41-1 at 6-7). Specifically, the settlement provides for the following payments from the gross settlement amount:

* Class representatives will receive up to $10,000 each;

* Class counsel will receive no more than $225,000 for attorneys' fees, which equals 33.33% of the gross settlement amount, and $15,000 for expenses;

* The California Labor and Workforce Development Agency shall receive $15,000; and

* The Settlement Administrator will receive up to $23,000 for fees and expenses.

(Id. at § III.B; Doc. 42 at 4-5). After these payments have been made, the remaining money ("Net Settlement Fund") will be distributed as settlement shares. (Id. at § III.D).

To receive a settlement share from the Net Settlement Fund, a class member must submit a timely and valid claim form. (Settlement §§ I.B, III.D). Settlement shares will be calculated based upon the following formula: "(a) the Claimant's total number of Months of Employment*fn2 during the Class Period*fn3 (b) divided by the aggregate number of Months of Employment of Participating Class 2 Members during the Class Period (with the division rounded to four decimal places) (c) multiplied by 3 the value of the Net Settlement Fund." (Id. at § III.D.1). Consequently, the exact amount each 4 receives depends upon how many other class members submit timely and valid claim forms. The 5 entire Net Settlement Fund will be distributed, but if any checks are not cashed, that money will be 6 distributed to the Community Action Partnership of Kern Food Bank.*fn4 (Id. at §§ III.F.10; Doc. 14-1 at 7 13-14). 8

II. Releases 9

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:

As of the date of the Judgment, all Participating Class Members hereby fully and finally release Defendant, and its parents, predecessors, successors, subsidiaries, affiliates, and trusts, and all of its employees, officers, agents, attorneys, stockholders, fiduciaries, other service providers, and assigns, from any and all claims, known and unknown, for or related to all claims based on or arising from the allegations that they were or are improperly compensated under federal, California, or local law (the "Class's Released Claims"). The Class's Released Claims are limited to the time period November 17, 2001 to December 31, 2006 for claims for alleged unpaid wages, overtime compensation, missed meal-period and rest-break wages or penalties, and interest; related penalties, recordkeeping penalties, pay-stub penalties, minimum-wage penalties, missed meal-period and rest-break penalties, and waiting-time penalties; and costs and attorneys' fees and expenses.

(Settlement § III.G.2; Doc. 41-4 at 14-15). The release for Plaintiffs provides for "any and all claims arising from or related to the matters alleged in the Action." (Id. at § III.G.1). Thus, the release for class representatives encompasses more clans than the release of class members.

Defendants mutually release Plaintiffs and class members from "claims arising from or related to Defendant's employment during the time period November 17, 2001 to December 31, 2006 of Plaintiffs and Participating Class Members, including . . . all claims arising from or related to the matters alleged in the Action." (Settlement § III.G.3).

III. Objections and Opt-Out Procedure

Any class member who wishes may object or elect not to participate in the Settlement. The Notice of Proposed Settlement ("the Notice") explains the procedures to "claim a share of the 4 settlement, comment in favor of the settlement, object to the settlement, or elect not to participate in 5 the settlement." (Doc. 41-2 at 2-3). In addition, the Notice explains claims that are released as part of 6 the settlement. (Id. at 6-7). With the Notice, each class member will receive a claim form that sets 7 forth the dates of employment and an estimate of his or her settlement share. (Id. at 6). 8


I. Legal Standard

When parties reach a settlement agreement 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.

II. Conditional Certification of a Settlement Class

Class certification is governed by the Federal Rules of Civil Procedure, which provide 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 "nonexempt field workers who have been employed or jointly employed by Defendant and any Farm Labor Contractor utilized on land owned by Defendant and as regular non-exempt grape worker agricultural employees between 2001 and 2006." (Doc. 41-1 at 1). Plaintiffs seek conditional approval of the class for settlement pursuant to Fed. R. Civ. P. 23(c)(1), under which a 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. 42 at 11) (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) 2 are satisfied, and "must affirmatively demonstrate . . . compliance with the Rule." Wal-Mart Stores, 3 Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011); Doninger v. Pacific Northwest Bell, Inc., 563 F.2d 1304, 4 1308 (9th Cir. 1977). If an action meets the prerequisites of Rule 23(a), the Court must consider 5 whether the class is maintainable under one or more of the three alternatives set forth in Rule 23(b). 6

Narouz v. Charter Communs., LLC, 591 F.3d 1261, 1266 (9th Cir. 2010). 7

A. Rule 23(a) Requirements

The prerequisites of Rule 23(a) "effectively limit the class claims to those fairly encompassed 9 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:

(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

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.

1. Numerosity

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 no 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"). According to Plaintiffs, the class is comprised of "approximately 400 to 600 members." (Doc. 42 at 9). Therefore, the numerosity requirement is satisfied.

2. Commonality

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. 2 Ct. at 2551. In this case, for purposes of ...

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