United States District Court, S.D. California
RICK FRIERI, on behalf of himself and all others similarly situated, and on behalf of the general public, Plaintiff,
SYSCO CORPORATION; SYSCO SAN DIEGO, INC.; and DOES 1-100, Defendants.
ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION
SETTLEMENT (ECF NO. 76)
Janis L. Sammartino United States District Judge.
before the Court is Plaintiff's Motion for Preliminary
Approval of Class Action Settlement (“Mot., ” ECF
No. 76). Defendants have filed a Notice of Non-Opposition to
Plaintiff's Motion (ECF No. 77). Because the settlement
is fundamentally fair, reasonable, and adequate, the Court
GRANTS Plaintiff's Motion.
Factual and Procedural Background
April 11, 2016, Plaintiff filed a putative class action suit
alleging violations of California's Labor and Business
and Professions Codes on behalf of non-exempt truck drivers
working for Defendants Sysco Corporation and Sysco San Diego,
Inc. Mot. at 10.Defendants own and operate trucks, other
industrial vehicles, and industrial work sites in California.
First Amended Complaint (“FAC”) ¶ 2, ECF No.
15. The Settlement Class includes “all non-exempt,
hourly truck workers, truck drivers, or similar job
designations who are presently or formerly employed by
[Defendants] within the state of California.”
Id. ¶ 1.
alleges four claims for relief under various provisions of
1. Failure to pay for all hours worked, violating California
Labor Code § 218, FAC ¶¶ 74-86;
2. Failure to authorize and permit rest periods every four
hours, violating California Labor Code § 226.7, FAC
3. Failure to pay all wages due at the time of termination
from employment, violating California Labor Code §§
201-203, FAC ¶¶ 102-11; and
4. Unfair competition violations of California Business &
Professions Code §§ 17200 et seq., FAC
Plaintiff alleges that Defendants required Settlement Class
Members to stay within eyesight of trucks, answer calls,
respond to messages, and stay out of residential areas, even
during their meal breaks. Mot. at 14-15. Because these
requirements effectively controlled and commanded the
Settlement Class Members during these meal break periods,
Defendants did not provide a “duty free meal
period” to the Settlement Class Members as required by
California law, triggering additional compensation
requirements. Id. Plaintiff also contends that
Defendant Sysco San Diego, Inc.'s collective bargaining
agreement, which sets forth Defendant Sysco San Diego
Inc.'s rest period policy, does not provide for adequate
rest periods under California law. Id. at 17.
deny all these allegations and have asserted several
affirmative defenses in response to Plaintiff's claims.
See generally ECF No. 16.
Parties conducted extensive discovery and litigation over
three years related to this matter. Mot. at 13-14. On
December 19, 2018, the Parties attended a full-day mediation,
which resulted in the proposed settlement agreement currently
before the Court in this Motion. Id. at 18. In the
unopposed Motion, Plaintiff requests an Order: (1)
conditionally certifying the proposed Settlement Class, as
defined below; (2) preliminarily approving the proposed
settlement of $800, 000; (3) approving Plaintiff Rick Frieri
as Class Representative; (4) appointing Plaintiff's
counsel, the Mara Law Firm, PC, as class counsel; (5)
approving ILYM Group, Inc. as the settlement administrator;
(6) approving the proposed notice and directing distribution
of the notice and related documents; and (7) setting a
schedule for Final Approval. Mot. 19-22; 36.
has submitted a comprehensive settlement document with
approximately twenty pages in terms, Joint Stipulation and
Settlement Agreement (“Agreement”), Ex. 1, ECF
No. 76-2, and a six-page proposed class notice, Notice of
Class Action Settlement (“Notice”), Ex. A, ECF
76-2. The settlement provides monetary relief but no
agrees to pay a maximum Gross Settlement Amount of $800, 000.
Mot. at 11. From this amount will be deducted: (1) payments
to Participating Class Members; (2) settlement administration
costs; (3) awards of attorneys' fees and costs; (4) the
class representative enhanced payment; and (5) employee and
employer payroll taxes on the portion of the settlement
payments to Participating Class Members deemed as wages.
Id. The Settlement Administrator will pay each
Participating Class Member their share of the net settlement
amount, calculated as follows:
Each Participating Class Member will receive a proportionate
share of the Net Settlement Amount that is equal to (i) the
number of weeks he or she worked for Defendant in California
during the Class Period based on the Class data provided by
Defendant, divided by (ii) the total number of weeks worked
by all Participating Class Members based on the same Class
data, which is then multiplied by the Net Settlement Amount.
One day worked in a given week for Defendant during the Class
Period will be credited as a week for purposes of this
calculation. Therefore, the value of each Class Member's
Individual Settlement Share ties directly to the amount of
weeks that he or she worked for Defendant in California.
Each putative class member's gross settlement award will
be apportioned as follows: 50% wages, 25% interest, and 25%
penalties. The amounts paid as wages shall be subject to all
tax withholdings customarily made from an employee's
wages and all other authorized and required withholdings and
shall be reported by W-2 forms. Payment of all amounts will
be made subject to backup withholding unless a duly executed
W-9 form is received from the payee(s). The amounts paid as
penalties and interest shall be subject to all authorized and
required withholdings other than the tax withholdings
customarily made from employees' wages and shall be
reported by IRS 1099 forms. Both the employer and employee
share of payroll tax withholdings shall be from each
persons' Individual Settlement Share.
Agreement ¶¶ III.F.1-2. If any settlement checks
remain uncashed 180 days after issuance, the amount will be
paid to the California State Controller Unclaimed Property
Fund in accordance with California Unclaimed Property Law.
Id. ¶ III.I.10.
Rule 23 Settlement Class Certification
granting preliminary approval of a class action settlement
agreement, the Court must first determine whether the
proposed Settlement Class can be certified. Amchem Prods.
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” to protect absentees).
actions are governed by Federal Rule of Civil Procedure 23.
To certify a class, Plaintiff must meet the four requirements
of Rule 23(a). See Senne v. Kan. City Royals Baseball
Corp., 934 F.3d 918, 927 (9th Cir. 2019). Rule 23(a)
allows class certification only if:
(1) the class is so numerous that joinder of all members is
(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). “[A] proposed class must also
meet the requirements of one or more of the ‘three
different types of classes' set forth in Rule
23(b).” Senne, 934 F.3d. At 927 (quoting
Leyva v. Medline Indus., Inc., 716 F.3d 510, 512
(9th Cir. 2013)). Here, Plaintiff seeks to certify the
Settlement Class under subdivision Rule 23(b)(3), which
permits certification if (1) “questions of law or fact
common to class members predominate over any questions
affecting only individual class members, ” and (2)
“a class action is superior to other available methods
for fairly and efficiently adjudicating the
Court addresses each of these requirements in turn.
Rule 23(a)(1): Numerosity
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.'” Abdeljalil v. Gen. Elec. Capital
Corp., 306 F.R.D. 303, 308 (S.D. Cal. 2015) (quoting
Celano v. Marriott Int'l, Inc., 242 F.R.D. 544,
549 (N.D. Cal. 2007)). Here, the proposed Settlement Class
consists of approximately 232 members. Mot. at 26.
Accordingly, joinder of all members would be impracticable
for purposes of Rule 23(a)(1), and the numerosity requirement
Rule 23(a)(2): Commonality
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 common injury may arise out of
“shared legal issues with divergent factual predicates
[or] a common core of salient facts coupled with disparate
legal remedies.” Hanlon v. Chrysler Corp., 150
F.3d 1011, 1019 (9th Cir. 1998), overruled on other
grounds by Dukes, 564 U.S. 338 (alteration in original).
Plaintiff has defined the Settlement Class to encompass the
employees impacted by the allegedly illegal policies of
Defendants. See Mot. at 27. Critically,
Plaintiff's allegations center on the common questions of
“whether Defendant Sysco San Diego's uniform
policies deprived the Class of compliant rest periods and
whether Defendant Sysco San Diego's uniform policies
resulted in a failure to pay all wages owed to Settlement
Class Members, ” which courts have held to be
sufficient to establish commonality. Id. (citing
Dilts v. Penske Logistics, LLC, 267 F.R.D. 625, 633
(S.D. Cal. 2010)) (additional citations omitted). All common
questions revolve around whether Defendants' policies
potentially harmed every member of the Settlement Class.
Accordingly, it is appropriate for these issues to be
adjudicated on a class-wide basis and Rule 23(a)(2) is
Rule 23(a)(3): Typicality
satisfy Federal Rule of Civil Procedure 23(a)(3), the named
representative's claims must be typical of the claims of
the Class. “Under the Rule's permissive standards,
representative claims are ‘typical' if they are
reasonably coextensive with those of absent class members;
they need not be substantially identical.” Parsons
v. Ryan, 754 F.3d 657, 685 (9th Cir. 2014). 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. Dataprods. Corp., 976 F.2d
497, 508 (9th Cir. 1992). “A court should not certify a
class if ‘there is a danger that ...