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Nunez v. BAE Systems San Diego Ship Repair Inc.

United States District Court, S.D. California

November 14, 2017

EDUARDO NUNEZ, individually and on behalf of others similarly situated, Plaintiff,
v.
BAE SYSTEMS SAN DIEGO SHIP REPAIR INC., a California Corporation; and DOES 1 through 50 inclusive, Defendants.

          ORDER (1) GRANTING FINAL SETTLEMENT MOTION; (2) GRANTING MOTION FOR ATTORNEY'S FEES; AND (3) GRANTING MOTION TO SUBSTITUTE PARTY (ECF NOS. 37, 46, 47)

          Hon. Janis L. Sammartino, United States District Judge.

         Presently before the Court is Class Counsel's and Defendant BAE Systems San Diego Ship Repair, Inc.'s (collectively, the “Parties”) Joint Motion for Final Approval of Class Action Settlement (“Final Settlement Mot.”). (ECF No. 46.) Because the Settlement is fundamentally fair, reasonable, and adequate, the Court GRANTS the Parties' Final Settlement Motion. Also before the Court is Class Counsel's Motion for Attorney's Fees, Costs, and Incentive Fees (“Fee Mot.”). (ECF No. 47.) Given that the attorney's fees are set at the Ninth Circuit benchmark, and that the remaining fees and costs are reasonable, the Court GRANTS Class Counsel's Fee Motion. Finally, the Parties seek to replace the sole named Plaintiff Eduardo Nunez with another Class Member, arguing that by objecting to the Final Settlement, Nunez has a conflict of interest with the Class and can no longer serve as an adequate Class Representative. (Joint Motion for Substitution of Class Representative in Place of Eduardo Nunez (“Mot. to Substitute”). (ECF No. 37.) The Court GRANTS the Parties' Motion to Substitute and substitutes Plaintiff Bryan De Anda as the sole named Plaintiff.

         BACKGROUND

         Plaintiff Eduardo Nunez filed a class action suit seeking compensation on behalf of all non-exempt employees of Defendant BAE Systems San Diego Ship Repair Inc. (“BAE SDSR”) for unpaid wages and penalties, as well as other violations of California law. (Final Settlement Mot. 7, [1] ECF No. 46-1; see also generally Second Am. Compl. (“SAC”), ECF No. 11.) Defendant BAE SDSR is an international defense, aerospace, and security company that maintains a single shipyard in San Diego Bay, where it works on virtually all types of government and commercial vessels (e.g., the U.S. Navy fleet). (SAC ¶ 14.) The proposed class includes all non-exempt employees at BAE SDSR who worked at any time during the period May 27, 2012 through October 13, 2016 (collectively, “Class, ” “Settlement Class, ” or “Class Members”). (Final Settlement Mot. 7.)

         Plaintiff's Second Amended Complaint asserts seven claims for relief under various provisions of California law:

1. Failure to Pay Straight-Time & Overtime Wages
2. Violation of the Unfair Competition Law (Cal. Bus. & Prof. Code §§ 17200, et seq.)
3. Failure to Provide Accurate Wage Statements
4. Failure to Provide Rest Periods
5. Failure to Reimburse Employees for Business Expenses
6. Failure to Provide All Compensation Owed Upon Termination of Employment
7. Violation of the Private Attorney General Act

(See generally SAC.) Among other claims, Plaintiff alleges that because there would typically be 100 BAE SDSR workers waiting in line to pass through a checkpoint before they could break their shift for lunch, Plaintiff and other workers were not provided with a full 30-minute meal break due to the time spent waiting in line. (Id. ¶ 10.) Thus, Plaintiff argues Defendant failed to provide Plaintiff and other workers with a duty-free 30-minute meal period and failed to pay the Class its wages for their time spent, for example, disembarking from the ship, returning tools, and waiting in the security line. (Id.) Plaintiff additionally alleges that Defendant improperly forced him and others to purchase clothes and shoes from Defendant and that Defendant did not provide reimbursements for these purchases. (Id.) As a result of this, and other, fraudulent behavior, Plaintiff alleges the wage statements that Defendant provided were inaccurate. (Id. ¶ 11.) In sum, Plaintiff alleges that the Class Members are “similarly situated persons who are presently employed or were formerly employed as non-exempt employees of Defendant BAE SDSR in San Diego, California who: 1) were not paid straight-time wages for all work time; 2) were not paid premium overtime wages for all work performed in excess of eight hours in one workday or over forty hours in one workweek; 3) were not provided with duty-free meal 30-minute meal breaks; and/or, 4) were not provided accurate itemized wage statements.” (Id. ¶ 12.)

         The Parties entered into extensive pre-suit negotiations for the purpose of settling their disputes, such as (1) voluntary exchange of information, including BAE SDSR's employment policies, sworn declarations from putative class members, and thousands of electronic records containing class member data (e.g., individualized rates of pay, employment dates, time records, and badge swipe data); and (2) a full-day mediation in San Francisco with Mr. Anthony (“Antonio”) Piazza, Esq., of Mediated Negotiations. (Final Settlement Mot. 9-12; Prelim. Settlement Mot. 10, ECF No. 15-1.) The mediation was successful and resulted in a non-reversionary settlement of $2.9 million, (Final Settlement Mot. 11-12), though Defendant BAE SDSR maintains its complete denial of wrongdoing, (e.g., Prelim. Settlement Mot. 9 n.1).

         On February 13, 2017, the Court issued an Order (1) conditionally certifying the settlement class action; (2) preliminarily approving the proposed settlement; (3) approving the notice to be sent to the Class; and (4) setting a final approval hearing date. (“Prelim. Settlement Order, ” ECF No. 18.) On March 15, 2017, the Court-appointed Settlement Administrator mailed the Class Notice to 1, 970 Settlement Class Members. (Final Settlement Mot. 6.) Settlement Class Members were advised that they could object to or opt-out of the Settlement by no later than May 15, 2017. (Id.) Relevant to the pending motions, the Notice contained the following language for those interested in objecting to the proposed settlement:

As long as you do not ‘opt out' from the settlement, you have the right to object to the settlement. To do so, you must send to the Court, the attorneys for the parties whose addresses are listed below, and the Claims Administrator whose address is above your objection in writing and the objection must be postmarked no later than May 15, 2017. The objection must state: (a) your full legal name, home address, telephone number, last four digits of your social security number (for identity verification purposes); (b) the words ‘Notice of Objection' or ‘Formal Objection;' (c) in clear and concise terms, the legal and factual arguments supporting the objection; and (d) a list identifying the witness(es) you as the objector may call to testify at the Fairness Hearing, as well as true and correct copies of any exhibit(s) you intend to offer. Your objection should be directed to the Hon. Janis L. Sammartino, United States District Court - Southern District of California, 221 West Broadway, Suite 4135, San Diego, California 92101 and must reference case number 3:16-cv-02162-JLS-NLS.

(Id. at 21 (citing Decl. of Abigail Schwartz on Behalf of Rust Consulting, Inc. in Support of Mot. for Final Approval (“Schwartz Decl.”) ¶ 8, Ex. A (“Notice”), at 4, ECF No. 46-5 (emphasis added by the Parties)).) Only one Class Member opted out, and six Class Members attempted[2] to file objections. (Id.)

         On May 2, 2017, Plaintiff Nunez and Defendant BAE SDSR filed a Joint Motion to Reset the Final Approval Hearing to June 15, 2017, instead of the original date of July 27, 2017, given the lengthy delay between the opt-out and objection deadline and the date of the Final Approval Hearing. (ECF No. 19.) On May 4, 2017, the Court granted the Joint Motion, instructing Plaintiff and Defendant to immediately contact Class Members who timely object to the Settlement or who otherwise noticed their intent to appear at the Final Approval Hearing and apprise them of the new date. (ECF No. 20.)

         Then, on May 12, 2017, the Court received a contested motion to substitute attorney filed by Plaintiff Nunez. (ECF No. 24). Four days later the Court received a notice of Plaintiff Nunez's objection to the Settlement. (ECF No. 27). Given these developments, the Court vacated the newly reset Final Fairness Hearing Date and ordered all parties to appear for a status conference set for May 25, 2017. (ECF No. 35.) At the status conference, the Court granted Nunez's motion to substitute attorneys from the law firm Hewgill & Cobb to represent him in his individual capacity as an objector to the Settlement (not as new Class Counsel), and also requested briefing on the question of whether Nunez could continue to serve as the sole named Class Representative given his eleventh-hour objections to the Settlement. (ECF No. 36.) Briefing was completed on June 12, 2017, (ECF No. 40), and the Court took all arguments under submission to be considered together with any motion for final approval of the settlement. (ECF No. 41.) The Court also reset the date for the Final Approval Hearing to the original date of July 27, 2017. (Id.) The Court held a final fairness hearing on November 7, 2017.

         After considering some of the arguments raised in the Class Members' objections, addressed more thoroughly below, the Court ordered supplemental notice to the Class to address certain issues. (ECF Nos. 57, 59.) The Court also granted the Class a new opportunity to opt-out of the Settlement, as well as a limited opportunity to file new objections to the Settlement and Class Counsel's Motion for Attorney's Fees. (Id.)

         On October 24, 2017, the Parties (Class Members and Defendant) filed a Supplemental Memorandum in Support of the Joint Motion for Final Approval of Class Action Settlement. (ECF No. 60.) The Supplemental Memorandum states that on August 15, 2017 the Court-appointed Settlement Administrator mailed supplemental notice to 1, 968 class members-two class members had opted out prior to the mailing. (Id. at 2.) In response to the supplemental notice, no class members opted out and no new objections were filed or provided to counsel or the claims administrator. (Id. at 3.)

         The Parties now present to the Court Joint Motions for an Order: (1) reaffirming the Court's certification of the Settlement Class; (2) granting final approval of the Settlement Agreement; (3) approving of and awarding attorney's fees, costs, and a Class Representative service award; and (4) removing Nunez as named Class Representative and substituting De Anda in his place. The Parties have also filed a supplemental brief addressing the responses from Class Members after the supplemental notice.

         SETTLEMENT TERMS

         The Parties have submitted a comprehensive settlement document with approximately twenty-three pages of substantive terms. (Prelim. Settlement Mot. Ex. 1, Joint Stipulation of Settlement and Release (“Settlement Agreement”) 31-60, ECF No. 15-1.) The Settlement provides monetary relief, but no programmatic relief, [3] in exchange for a defined release of liability. At the time of signing and preliminary approval of this Settlement Agreement, Plaintiff Eduardo Nunez, as Class Representative, supported the Settlement Agreement.[4] (Id. at 54.)

         BAE SDSR stands to pay a Maximum Settlement Amount of $2.9 million. (Final Settlement Mot. 7.) BAE SDSR will automatically make Settlement payments to Class Members (unless they have chosen to opt out) based on the following formula:

After deducting from the Maximum Settlement Amount the Court-approved attorneys' fees and costs for Class Counsel, a payment for the Settlement Administrator's fees and expenses, payment to the State of California Labor and Workforce Development Agency (“LWDA”), the employer's portion of FICA, FUTA, and all other state and federal payroll taxes on the “wage” portion of the Settlement payments to Class Members, an additional flat amount of $250.00 for each employee separated from employment during the Covered Period (“Wait Time Penalties”), and a Court-approved service payment to the Class Representative(s), the entirety of the remaining funds (the “Net Settlement Amount”) shall automatically be distributed to the payment-eligible Settlement Class Members. See Settlement Agreement, ¶¶ 11, 31b (ECF No. 15-1).
Payment-eligible Class Members will receive a payment based on each person's number of compensable work-weeks, which shall be all weeks worked as a non-exempt employee by the Payment-Eligible Class Members since May 12, 2012 (“Compensable Work Weeks”). The dollars per Compensable Work Week will be calculated by dividing the total Compensable Work Weeks for the entire Settlement Class into the Net Settlement Amount. That amount (in dollars per week) will be multiplied by the number of Compensable Work Weeks for each payment-eligible Class Member. Id. ¶ 31b.

(Id.) The check will escheat to the State of California or any other State having jurisdiction over the Class Member's assets if the Class Member fails to cash his or her check within 120 days after it is mailed. (Id. at 8.)

         RULE 23 SETTLEMENT CLASS CERTIFICATION

         Before granting final approval of a class action settlement agreement, the Court must first determine whether the proposed class can be certified. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997) (indicating that a district court must apply “undiluted, even heightened, attention [to class certification] in the settlement context” in order to protect absentees). In the present case, the Court previously provisionally certified the Settlement Class for purposes of settlement only. (Prelim. Settlement Order 16.) While the Parties now question Plaintiff Nunez's ability to serve as an adequate Class Representative, nothing has changed to affect the propriety of certification of the Settlement Class as a whole. Accordingly, the Court's analysis here is largely the same as in its Preliminary Settlement Order, with the addition of a more detailed discussion of Nunez's ability to serve as an adequate representative under Federal Rule of Civil Procedure 23(a)(4).

         Class actions are governed by Federal Rule of Civil Procedure 23. In order to certify a class, each of the four requirements of Rule 23(a) must first be met. Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001). Rule 23(a) allows a class to be certified only 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.

         Next, in addition to Rule 23(a)'s requirements, the proposed class must satisfy the requirements of one of the subdivisions of Rule 23(b). Zinser, 253 F.3d at 1186. Here, Plaintiff seeks to certify the Settlement Class under subdivision Rule 23(b)(3), which permits certification if “questions of law or fact common to class members predominate over any questions affecting only individual members, ” and “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3). The Court addresses each of these requirements in turn.

         I. Rule 23(a)(1): Numerosity

         Federal Rule of Civil Procedure 23(a)(1) requires that a class must be “so numerous that joinder of all members is impracticable.” “[C]ourts generally find that the numerosity factor is satisfied if the class comprises 40 or more members and will find that it has not been satisfied when the class comprises 21 or fewer.” Celano v. Marriott Int'l, Inc., 242 F.R.D. 544, 549 (N.D. Cal. 2007).

         Here, the proposed Settlement Class consists of approximately 1, 968 individuals, [5]all of who are identifiable from BAE SDSR's data. (Final Settlement Mot. 6.) Accordingly, joinder of all members would be impracticable for purposes of Rule 23(a)(1), and the numerosity requirement is therefore satisfied.

         II. Rule 23(a)(2): Commonality

         Federal Rule of Civil Procedure 23(a)(2) requires that there be “questions of law or fact common to the class.” Commonality requires that “the class members ‘have suffered the same injury.'” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349-50 (2011) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)). “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.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998).

         Here, the Parties have carefully defined the Settlement Class to encompass all BAE SDSR employees adversely affected by the allegedly fraudulent policies and practices set forth above. (See generally SAC.) All common questions thus revolve around whether the alleged fraudulent policies and practices in fact were fraudulent and impacted the class members. Accordingly, it is appropriate for these issues to be adjudicated on a class-wide basis, and Rule 23(a)(2) is satisfied.

         III. Rule 23(a)(3): Typicality To satisfy Federal Rule of Civil Procedure 23(a)(3), Plaintiff's claims must be typical of the claims of the Class. The typicality requirement is “permissive” and requires only that Plaintiff's claims “are reasonably coextensive with those of 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) (quoting Schwartz v. Harp, 108 F.R.D. 279, 282 (C.D. Cal. 1985)). “[C]lass certification should not be granted if ‘there is a danger that absent class members will suffer if their representative is preoccupied with defenses unique to it.'” Id. (citation omitted).

         Here, Plaintiff Nunez is a BAE SDSR employee whose claims allegedly arise out of the same underlying BAE SDSR policies and practices as those pertaining to the proposed Settlement Class. (See SAC; Prelim. Settlement Mot. 17-18.) Accordingly, Plaintiff's claims are typical of the claims of the members of the proposed Settlement Class, thus satisfying Rule 23(a)(3).

         IV. Rule 23(a)(4): Adequacy

         Federal Rule of Civil Procedure 23(a)(4) requires that the named representatives fairly and adequately protect the interests of the class. “To satisfy constitutional due process concerns, absent class members must be afforded adequate representation before entry of judgment which binds them.” Hanlon, 150 F.3d at 1020 (citing Hansberry v. Lee, 311 U.S. 32, 42-43 (1940)). To determine legal adequacy, the Court 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?” Id.

         The Court previously found that there was no reason to believe either Class Counsel or Plaintiff Nunez, the sole named representative, had any conflicts of interest with the Class or would not vigorously prosecute the action on their behalf. (Prelim. Settlement Order 7.) But that was before Nunez objected to the Settlement, which, at the May 25, 2017 Status Conference, Class Counsel and Defendant argued put Nunez in direct conflict with the best interests of the Class. The Parties briefed the issue, seeking to remove Nunez and replace him with Mr. De Anda, and Nunez opposed the motion. (See ECF Nos. 37, 38, 40.)

         This scenario appears to be one of first impression in the Ninth Circuit, and seems to raise two distinct questions. First, before anything can happen with this Settlement, the Court must determine whether Nunez can serve as an adequate Class Representative under Rule 23(a)(4). This is a prerequisite to certifying the Class for the present settlement purposes. Second, if the Court determines that Nunez can adequately serve the Class and also determines that the Settlement is fair, reasonable, and adequate, the Court must further determine whether Nunez can continue to serve as an adequate Class Representative, given that his continued objections to the Settlement at that point would put the Class's recovery under the Settlement, which the Court would have determined to be in their best interests, in jeopardy. The question thus becomes whether Nunez would at that point have a conflict of interest with the Class such that he could no longer serve as an adequate representative on their behalf. Given the different procedural postures of these questions, the Court reserves its discussion of the second question until later. See infra “MOTION TO SUBSTITUTE CLASS REPRESENTATIVE” (pp. 38-42) [hereinafter Class Rep. Discussion]. For now, the Court considers whether Nunez is an adequate representative for class certification purposes.

         In the Ninth Circuit, “‘[e]xamination of potential conflicts of interest has long been an important prerequisite to class certification” and “is especially critical when the . . . class settlement is tendered along with a motion for class certification.” In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 942 (9th Cir. 2015) (citing Hanlon, 150 F.3d at 1020). However, “‘[o]nly conflicts that are fundamental to the suit and that go to the heart of the litigation prevent a plaintiff from meeting the Rule 23(a)(4) adequacy requirement.'” Id. (quoting 1 William B. Rubenstein et al., Newberg on Class Actions § 3.58 (5th ed. 2011)). “A conflict is fundamental when it goes to the specific issues in controversy.” Id.

         The Parties argue Nunez has a conflict of interest with the Class, and thus can no longer adequately represent them, because (1) he objects to the final approval of the Settlement, (see generally Mot. to Substitute), and (2) he has undermined his own credibility and thus is an unsuitable Class Representative, (Mot. to Substitute Reply 6-7, ECF No. 40).

         The Court rejects the Parties' first argument-namely, that by virtue of objecting to the Settlement Nunez is automatically conflicted out of representing the Class. Of course, the nature of the objections implicate distinct considerations and may reveal a conflict. But the mere act of objecting itself is insufficient, since those objections may instead reveal deficiencies in the Settlement to the benefit of the class; such an objection would be in concert-not in conflict-with the best interests of the class. Indeed, as the Sixth Circuit recently opined in a similar scenario in Olden v. Gardner,

[a]lthough we ultimately conclude that the district court did not abuse its discretion in replacing the original class representatives, this is a close question in this case and we may well have made a different decision if we were the trial judges. Replacing class representatives for objecting to a proposed settlement appears inconsistent with the theory of class representatives. Class representatives are expected to protect the interests of the class. See Fed. R. Civ. P. 23(a)(4). This requires that the class representatives exercise some oversight of the class counsel so as to avoid simply turning the conduct of the case over to the class counsel. See Bovee v. Coopers & Lybrand, 216 F.R.D. 596, 615 (S.D. Ohio 2003). Oversight from the class representatives is particularly important in the context of settlements. See In re Cal. Micro Devices Sec. Litig., 168 F.R.D. 257, 262 (N.D. Cal. 1996) (risk of unfair settlement is greater when negotiations are carried out “without meaningful oversight by class representative”). These principles suggest that class representatives should not be removed from their positions as class representatives simply because they have attempted to fulfill their duty to protect the interests of the class.

294 F. App'x 210, 220 (6th Cir. 2008).

         Of course, in Gardner the Sixth Circuit ultimately concluded that the district court did not abuse its discretion in replacing the class representatives for objecting to the settlement. And the Parties cite the district court's underlying decision in Gardner, among others, to bolster their argument that objecting to a class settlement puts a representative in conflict with the class. But, as Nunez points out, those motions were granted after the respective district courts granted final approval of the settlement agreements. (Mot. to Substitute Opp'n 11-12, ECF No. 38.) In other words, the crux of those decisions was that because the Court found the settlements fair, reasonable, and adequate, the objecting-representatives' continued objections to the settlement put them in direct conflict with the class as a whole, which now had impending judicially approved relief absent further protestation. Thus, while certainly relevant to the present case, the Court considers these cases below, in the later-presented procedural posture, infra Class Rep. Discussion, when discussing the Parties' Motion to Substitute Class Representative. At this juncture, the Court concludes that the mere act of a class representative objecting to a settlement is insufficient, on its own, to demonstrate that the representative has a conflict of interest with the class.

         That said, as discussed, the substance of those objections may reveal a conflict of interest with the Class. And although the Court later addresses the substance and procedural deficiencies of these objections, the Parties argue that one objection in particular makes Nunez an inadequate representative even at this procedural step: that is, that Nunez has undermined his own credibility and thus can no longer serve as class representative. (Mot. to Substitute Reply 6-7.) Specifically, the Parties point to Nunez's first objection, that he “did not attend the settlement conference held on September 16, 2016, nor did [he] know it was occurring beforehand.” (Notice of Objection filed by Eduardo Nunez (“Nunez Objs.”) ¶ 1, ECF No. 27 (emphasis added).) However, Nunez later backtracked and admitted that Mr. Dychter called him and said “[g]ood news, I got a date for the mediation.” (Decl. of Plaintiff Eduardo Nunez in Support of his Opposition to the Joint Mot. to Substitute New Class Representative (“Nunez Substitute Opp'n Decl.”) ¶ 34, ECF No. 38-3.) But Nunez still declares that Mr. Dychter “did not tell [him] the date of the mediation.” (Id.)

         These are, at some level, inconsistent statements: Nunez first says he had no idea a mediation was occurring, and later reveals that he had notice of the mediation, just not a specific date. And the Parties are right that “[t]he honesty and credibility of a class representative is a relevant consideration when performing the adequacy inquiry ‘because an untrustworthy plaintiff could reduce the likelihood of prevailing on the class claims.'” Harris v. Vector Mktg. Corp., 753 F.Supp.2d 996, 1015 (N.D. Cal. 2010); see also In re Computer Memories Sec. Litig., 111 F.R.D. 675, 682 (N.D. Cal. 1986) (“[I]t is self-evident that a Court must be concerned with the integrity of individuals it designates as representatives for a large class of plaintiffs.”).

         But “[c]redibility problems do not automatically render a proposed class representative inadequate.” Harris, 753 F.Supp.2d at 1015 (internal quotation marks omitted). “‘Only when attacks on the credibility of the representative party are so sharp as to jeopardize the interests of absent class members should such attacks render a putative class representative inadequate.'” Id. (quoting Lapin v. Goldman Sachs & Co., 254 F.R.D. 168, 177 (S.D.N.Y. 2008)). Here, the Court finds that this single inconsistency in Nunez's testimony, while somewhat disquieting, is not “so sharp as to jeopardize the interests of absent class members.” Id. After all, Nunez at least sticks to his story that he did not know what day the mediation would take place. Moreover, the remainder of his declaration demonstrates that he was at some level engaged with the litigation by, for example, contacting Mr. Dychter for updates on the case. (See, e.g., Nunez Substitute Opp'n Decl. ¶¶ 28-44.) Accordingly, the Court finds that Nunez is an adequate representative for class certification purposes.

         In sum, there is no reason to believe that the named representative and Class Counsel have any conflict of interest with the proposed Settlement Class members. There is also no reason to believe that the named representative and Class Counsel have thus far failed to vigorously investigate and litigate this case. Plaintiff has retained competent Class Counsel, who have conducted extensive investigation, research, and informal discovery in this case. (See generally Final Settlement Mot.) Furthermore, Class Counsel have significant class action litigation experience, are knowledgeable about the applicable law, and will continue to commit their resources to further the interests of the Class. (Id. at 19.) Accordingly, the named representative and Class Counsel adequately represent the proposed Settlement Class members, and Rule 23(a)(4)'s adequacy requirement is met.

         V. Rule 23(b)(3)

         Federal Rule of Civil Procedure 23(b)(3) permits certification if “questions of law or fact common to class members predominate over any questions affecting only individual members, ” and “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.”

         A. Predominance

         “The Rule 23(b)(3) predominance inquiry tests whether the proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., 521 U.S. at 623. “Rule 23(b)(3) focuses on the relationship between the common and individual issues.” Hanlon, 150 F.3d at 1022.

         Here, the common issues of whether Defendant's policies and practices failed to, for example, compensate Class Members for all time worked, provide an opportunity for compliant meal and rest periods, and provide accurate wage statements predominate over the individual issues such as length of employment and particularized grievances. (See, e.g., Prelim. Settlement Mot. 19-20.) Further, for purposes of settlement, Class Members are not required to prove any evidentiary or factual issues that could arise in litigation. Accordingly, the predominance requirement of Rule 23(b)(3) is satisfied.

         B. Superiority

         The final requirement for certification pursuant to Federal Rule of Civil Procedure 23(b)(3) is “that a class action [be] superior to other available methods for fairly and efficiently adjudicating the controversy.” The superiority inquiry requires the Court to consider the four factors listed in Rule 23(b)(3):

(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 ...

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