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Fernando Rodriguez, and Guadalupe Hererra, On Behalf of Themselves and All Others Similarly Situated v. D.M. Camp & Sons

May 15, 2013

FERNANDO RODRIGUEZ, AND GUADALUPE HERERRA, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
PLAINTIFFS,
v.
D.M. CAMP & SONS,
DEFENDANTS.



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

FINDINGS AND RECOMMENDATIONS GRANTING PLAINTIFFS' MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT (Doc. 52)

Fernando Rodriguez and Guadalupe Herrera ("Plaintiffs") request final approval of a class settlement. (Doc. 52). Specifically, Plaintiffs seek: (1) certification of the settlement class; (2) final approval of the settlement; (3) awards to class representatives in the amount of $10,000 each; (4) attorney's fees in the amount of $202,500 to class counsel; (5) an award of costs in the amount of $15,000 to class counsel; (6) payment to the settlement administrator in the amount of $23,000; (7) payment of $15,000 to the California Labor Workforce Development Agency; (8) approval of the method for distribution of funds; and (9) entry of judgment. (Doc. 52 at 2). Defendant D.M. Camp & Sons ("Defendant") has not opposed the motion, and no objections were filed by class members.

The Court determined the matter was suitable for decision without oral argument and took the matter under submission pursuant to Local Rule 230(g). (Doc. 59). For the following reasons, the Court recommends Plaintiffs' motion for final approval of class settlement be GRANTED.

FACTUAL AND PROCEDURAL HISTORY

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 Vineyards 4 of California; Guimarra Vineyards Corp.; El Rancho Farms; Castlerock; and FAL, Inc.*fn1 See Doe v. 5 D.M. Camp & Sons, 624 F.Supp.2d 1153 (E.D. Cal. 2008). Plaintiffs alleged that they were former and 6 current employees of the defendants. Id. at 1156.

Defendants in the Doe action, including D.M. Camp & Sons, filed motions to dismiss the operative complaint, which were granted by the Court on March 31, 2008. Likewise, the Court granted 9 motions to sever the action, and the Court directed 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 coving a period well in excess of one year." (Doc. 54 at 9).

Thereafter, Plaintiffs filed a motion for preliminary approval of class settlement on November 2, 2012. 3 (Doc. 37). The Court held a hearing on December 6, 2012 (Doc. 44), after which preliminary approval 4 of the class settlement was granted. (Doc. 45). 5

Due to difficulties in preparing the necessary class data, the parties requested a continuation of 6 applicable deadlines and continuation of the Final Approval and Fairness Hearing. (Doc. 47). The 7 parties reported Defendant discovered "a large number of class members with very small (1 or 2 pay 8 period) claims" while gathering the class data, and estimated there were "approximately 900 class 9 member[s] with de minimus claims" that had not been identified previously. (Id. at 2., n.1.) Therefore, the Court extended the applicable deadlines, and ordered the Settlement Administrator to mail the approved Class Notice Packet on or before March 11, 2011. (Doc. 48 at 2). In addition, the Court ordered class members to submit claim forms or file any objections to the Settlement Agreement no later than April 24, 2013. (Id. at 2).

On March 1, 2013, the parties notified the Court that Defendant was "unable to produce current addresses and social security numbers for a substantial minority of the Class Members -- particularly those with short work histories with Defendant due to their labor being secured through farm labor contractors." (Doc. 49 at 2). Plaintiffs proposed running broadcasts on a Spanish-language station in an effort to increase claim rates. (Id.) The Court approved this proposal on March 4, 2013. (Doc. 50).

In compliance with the deadlines set forth by the Court, Plaintiffs filed their motion for final approval of the class settlement and supporting documents on May 1, 2012. (Docs. 52-58).

SETTLEMENT TERMS

Pursuant to the proposed settlement ("the Settlement"), the parties agreed to a gross settlement amount of $675,000. (Settlement § III.A, Doc. 53-1 at 5). Defendant agreed to fund the settlement by January 15, 2013 (Doc. 53-1 at 11), and Plaintiffs report the amount has been paid. (Doc. 54 at 7).

I. Payment Terms

The settlement fund covers payments to qualified class members with additional compensation to class representatives. (Settlement § III.B.1, Doc. 53-1 at 5). Also, the Settlement provides for attorneys' fees and expenses, as well as payments to the settlement administrator and the California Labor & Workforce Development Agency. (Settlement § III.B; Doc. 53-1 at 5-6). Specifically, the 2 Settlement provides: 3

* 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. 54 at 7). After these payments are made, the remaining money ("Net Settlement 9 Fund") will be distributed as settlement shares. (Id. at § III.D; Doc. 53-1 at 6).

To receive a share from the Net Settlement Fund, a class member was required to submit a timely and valid claim form. (Settlement §§ I.B, III.D; Doc. 53-1 at 6). Settlement shares will be calculated with 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 Members during the Class Period (with the division rounded to four decimal places) (c) multiplied by the value of the Net Settlement Fund." Id. Thus, the amount an individual receives depended upon the number of class members who submitted timely and valid claim forms. According to the parties, 171 valid claims were made, and if the Settlement is approved, the average claim will be "approximately $2,204.68 per worker." (Doc. 54 at 12, 26).

The entire Net Settlement Fund will be distributed, but if any checks are not cashed, that money will be distributed to a charity of Defendant's choice. (Doc. 54 at 7). Payments will not be made to individuals who elected to exclude themselves from the class or failed to submit a timely and valid claim. Id. at 10.

II. Releases

The Settlement provides that Plaintiffs and class members, other than those who elect not to participate in the Settlement, shall release Defendant from the claims arising in the class period at the 2 time final judgment is entered. The release for class members provides: 3

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. 53-1 at 13-14). 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.

Defendant mutually releases 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; Doc. 53-1 at 14).

III. Objections and Opt-Out Procedure

Any class member who wished had an opportunity to object or elect not to participate in the Settlement. The Notice of Proposed Settlement ("the Notice") explained the procedures to "claim a share of the settlement, comment in favor of the settlement, object to the settlement, or elect not to participate in the settlement." (Doc. 41-2 at 2-3). In addition, the Notice explained the release of claims by class members pursuant to the Settlement. (Id. at 6-7).

IV. Service of the Notice Packets and Responses Received

On January 1, 2013, the Settlement Administrator, Simpluris, Inc. ("Simpluris") received the Court-approved Notice Packet, which included the Notice, Claim Form, and Exclusion Form. (Butler Decl. ¶ 5; Doc. 55 at 3). Mary Butler, case manager for Simpluris, reports that Notice Packets were mailed to 1,132 class members identified by Defendant on March 11, 2013. (Id. ¶ 8). Notice Packets were not mailed to 590 class members because addresses and Social Security numbers were not 2 available. (Id.) Also, four individuals who contacted Simpluris should have been included in the 3 class, and they received Notice Packets from Simpluris. (Id. ¶ 10). 4

The United States Postal Service returned 381 Notice Packets as undeliverable. (Butler Decl. ¶ 10). Simpluris attempted to locate current addresses for these individuals, and re-mailed 197 of the 6 Notice Packets. (Id.) After the additional searches for correct addresses, 178 Notice Packets remained 7 undeliverable. (Id.) On April 10, 2013, Simpluris mailed a reminder to the 1,044 class members who 8 had not submitted a Claim Form or an Exclusion Form. (Id. ¶ 11; Doc. 55-2 at 3). 9

Ultimately, Simpluris received a total of 171 claim forms from a total of 1,136 class members with addresses. (Butler Decl.¶ 12). According to Ms. Butler, the claims received "represent 15.05 % of the entire Settlement Class that contained addresses." (Id.). Only one individual completed a valid request for exclusion, and no objections to the Settlement were filed. (Id. ¶¶ 14-15).

APPROVAL OF A CLASS SETTLEMENT

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). 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. Certification of a Class for Settlement*fn4

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 2 Contractor utilized on land owned by Defendant and as regular non-exempt grape worker agricultural 3 employees between 2001 and 2006." (Doc. 53-1 at 1). 4

Parties seeking class certification bear the burden of demonstrating the elements of Rule 23(a) 5 are satisfied, and "must affirmatively demonstrate . . . compliance with the Rule." Wal-Mart Stores, 6 Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011); Doninger v. Pacific Northwest Bell, Inc., 563 F.2d 1304, 7 1308 (9th Cir. 1977). If an action meets the prerequisites of Rule 23(a), the Court must consider 8 whether the class is maintainable under Rule 23(b). Narouz v. Charter Communs., LLC, 591 F.3d 9 1261, 1266 (9th Cir. 2010). Plaintiffs argue class certification should be granted because "[e]very requirement of Rule 23 is satisfied with respect to this proposed settlement class." (Doc. 54 at 20-21).

A. Rule 23(a) Requirements

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) (citation omitted). 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." EEOC, 446 U.S. at 330. Although there is no specific numerical threshold, joining more than one hundred plaintiffs is impracticable. See Jordan v. county of Los Angeles, 669 F.2d 1311, 1319 & n.10 (9th Cir. 1982) (finding the numerosity requirement was "satisfied solely on the basis of the number of ascertained class members" and identifying cases in which courts certified classes with fewer than 100 members), vacated on other grounds, 469 U.S. 810 (1982). Plaintiffs assert "class Notice Packets were mailed to 1,132 class members." Id. at 13 (citing Butler Decl. ¶ 11). Joinder of this many individuals would be impractical, and as such the numerosity requirement is satisfied. 2

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 5 pro-vision of law," but "claims must depend upon a common contention." Dukes, 131 S. Ct. at 2551. 6

In this case, for purposes of settlement, the parties agree the following common questions of fact and 7 law exist: 8

* whether Defendant failed to provide farm workers with required meal periods;

* whether Defendant failed to pay farm workers [sic] wages for meal periods during which they remained on duty;

* whether Defendant authorized and permitted the farm workers to take required rest periods;

* whether Defendant failed to pay farm workers an additional hour of wages for missed meal periods and rest breaks;

* whether Defendant failed to pay all legally required minimum wages and overtime compensation;

* whether hourly production workers are owed waiting time penalties because Defendant allegedly willfully failed to pay them additional wages for missed meal periods and rest breaks, and for meal periods taken during which they remained on duty, upon the termination of their employment; and

* whether Defendant's business practices violated Business and Professions Code section 17200 et seq.

(Doc. 42 at 11-12). Based upon the stipulation of the parties that these questions are shared by prospective class members, the Court finds this sufficient to satisfy the commonality requirement.

3. Typicality

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). A claim or defense is not required to be identical, but rather "reasonably co-extensive" 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); see also Kayes v. Pac. 2 Lumber Co., 51 F.3d 1449, 1463 (9th Cir. 1995). 3

In the operative complaint, Plaintiffs allege they were employed by Defendant during the 4 relevant time period. (Doc. 1 at 2-3). The parties agreed Plaintiffs "were paid under the same pay 5 practices as every other class member." (Doc. 42 at 12). Plaintiffs contend they have "claims similar 6 and typical of the rest of the Class since they suffered similar injuries and have the same interest in 7 ...


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