`Case 2:17-cv-01785-TLN-EFB Document 27 Filed 06/01/20 Page 1 of 21
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`UNITED STATES DISTRICT COURT
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`EASTERN DISTRICT OF CALIFORNIA
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`DEBI MISHRA, individually and on behalf of
`all those similarly situated,
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`Case No. 2:17-cv-01785-TLN-EFB
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`Plaintiff,
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`v.
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`COGNIZANT TECHNOLOGY SOLUTIONS
`U.S. CORPORATION; COGNIZANT
`TECHNOLOGY SOLUTIONS
`CORPORATION,
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`Defendants.
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`ORDER GRANTING PROVISIONAL
`CERTIFICATION OF CLASS ACTION;
`PRELIMINARY APPROVAL OF
`SETTLEMENT; SETTING HEARING
`FOR FINAL APPROVAL;
`ASSOCIATED APPOINTMENTS
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`The matter is before the Court on Plaintiff Debi Mishra’s (“Plaintiff”) motion for
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`preliminary approval of class action settlement reached with Defendants Cognizant Technology
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`Solutions U.S. Corporation and Cognizant Technology Solutions Corporation (collectively,
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`“Defendants”). (ECF No. 20.) The motion is not opposed. After careful examination of the
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`motion, the AMENDED Settlement Agreement, AMENDED notices, and all related filings, and
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`for the reasons set forth below, the motion is hereby GRANTED.
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`///
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`///
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`Case 2:17-cv-01785-TLN-EFB Document 27 Filed 06/01/20 Page 2 of 21
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`I.
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`FACTUAL AND PROCEDURAL BACKGROUND
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`Defendants are an information technology services company providing consulting services
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`to a wide variety of businesses. One service Defendants provide is Quality Engineering &
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`Assurance (“QE&A”), which includes quality assurance testing for their clients. The employees
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`at issue in this lawsuit are or were part of Defendants’ QE&A “Testing” group.
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`a. Plaintiff’s Claims
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`During the relevant time period, Cognizant Technology Solutions U.S. Corporation
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`employed Plaintiff as a Testing Analyst performing quality assurance testing services onsite at
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`Defendants’ client, Blue Shield of California. Plaintiff worked in that capacity until he resigned
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`effective September 4, 2015. Plaintiff contends that following a 2012 reclassification, Defendants
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`allegedly underpaid overtime to Class Members by failing to include certain amounts when
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`calculating the regular rate of pay. Specifically, Plaintiff alleges that on August 16, 2012,
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`Plaintiff received a letter providing notice that the terms and conditions of his employment had
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`changed. Defendants therein informed Plaintiff that his “position has been classified as overtime-
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`eligible.” Plaintiff contends the letter went on to explain that his duties and compensation would
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`essentially remain the same, but he would now be paid based on “several components,” including
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`base pay, a cost of living adjustment, and overtime, plus a “bonus.” This bonus was referred to as
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`a “Tru Up” payment. Plaintiff’s overtime would be paid at $32.27 per hour. Plaintiff contends
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`his annual base income at 40 hours of work per week was set at $39,663.65 plus a cost of living
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`adjustment of $5,500, amounting to an annual wage of $45,163.65. At 52 weeks per year,
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`Plaintiff’s annual wage-salary was $21.71 per hour. Multiplying this by 1.5 would result in an
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`overtime rate of $32.57, which is the overtime rate Plaintiff contends is stated in Defendants’
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`notice letter.
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`Plaintiff also alleges, however, that the letter indicated Plaintiff was guaranteed to earn
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`“no less than $62,100,” and that the bonus would be added to keep his annual income at this level.
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`Plaintiff contends — and Defendants deny — that if the total income were used to calculate the
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`Unless otherwise noted, the following facts are taken, often verbatim, from Plaintiff’s
`Memorandum of Points and Authorities filed in support of the instant Motion. (ECF No. 20-1.)
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`overtime rate, as Plaintiff contends is required, then Plaintiff’s overtime rate should have been
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`$44.78. Based on this theory, Plaintiff contends that every time Plaintiff put in an hour of
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`overtime, he was allegedly underpaid by $12.21. The Tru Up program ended May 21, 2016.
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`As part of their investigations related to this action, Plaintiff’s counsel retained an expert
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`forensic economist, Jeffrey S. Petersen, Ph.D., to review and analyze Class data. (ECF No. 20-1
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`at 13.) Among other things, Plaintiff’s counsel worked with Dr. Petersen to calculate the
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`potential maximum losses under Plaintiff’s various theories of recovery. (ECF No. 20-1 at 13.)
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`The total potential damages according to calculations by Dr. Petersen is $11,219,891. (ECF No.
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`20-1 at 13.) As described in more detail below, Defendants reject this analysis, deny that Plaintiff
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`and/or the Class Members are owed any additional wages, and, among other defenses, contend
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`that Plaintiff and the Class Members did not actually work overtime hours and instead merely
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`recorded overtime as a means of obtaining faster and more evenly spread pay. (ECF No. 20-1 at
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`13–14.)
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`b. Defendants Deny Plaintiff’s Claims
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`Defendants deny Plaintiffs’ allegations and have asserted numerous defenses. Defendants
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`contend Class Members rarely, if ever, worked overtime. Defendants contend that overtime work
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`was not necessary because they had an offshore team that worked through the off hours.
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`Defendants claim that following the shift from salaried to nonexempt hourly wages plus Tru Up
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`payments, putative Class Members recorded overtime hours that they did not actually work in
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`order to receive compensation sooner and more evenly across pay periods (i.e., by earning
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`overtime that would be paid out each pay period, rather than receiving only base hourly wages in
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`one pay period followed by a Tru Up payment every four weeks). Defendants contend a
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`comparison of Class Members’ time records before and after Defendants ceased offering Tru Up
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`payments (i.e., May 21, 2016) proves this. Defendants also contend the putative Class Members
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`fell within the FLSA’s computer exemption and therefore would not be entitled to overtime
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`damages under the FLSA.
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`Further, Defendants contend that individualized issues as to both liability and damages
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`would overwhelm common questions, precluding class certification. Defendants argue this is
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`particularly true given that putative Class Members worked exclusively offsite at more than 180
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`different Cognizant clients and for more than 1,110 different client projects.
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`c. Procedural History
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`Plaintiff filed the original Complaint on August 25, 2017, asserting claims under the
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`FLSA, the California Labor Code, and California’s Unfair Competition Law (Cal. Bus. and Prof.
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`Code §17200). (ECF No. 1.) On November 3, 2017, Cognizant filed a Motion to Dismiss/Strike.
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`(ECF No. 8.)
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`On January 31, 2018, in response to the Motion, Plaintiff filed a First Amended
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`Complaint (ECF No. 14), alleging five causes of action: (1) failure to pay overtime wages under
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`the FLSA; (2) failure to pay overtime wages under the California Labor Code; (3) failure to
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`timely pay wages (California Labor Code § 204); (4) violation of California Business and
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`Professions Code § 17200 (unlawful business practices); and (5) violation of § 17200 (unfair
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`business practices). By way of the FAC, Plaintiff seeks to represent a national FLSA class and a
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`California subclass (together referred to as “the Class” or “Class Members”) of current and
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`former employees who were eligible to receive Tru Up payments, as follows:
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`• The National FLSA Class: All current and past employees of named Defendants,
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`DOES 1 to 10, and each of them who participated in or were paid income subject
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`to the Tru Up program alleged herein within the time period of the relevant
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`statute(s) of limitation.
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`• The California Class: Those class members who performed work for Defendants,
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`DOES 1 to 10, and each of them such that the sub-class members’ work was
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`regulated by the California Labor Code (e.g. resided in and worked in California,
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`or otherwise performed non-trivial amounts of work in California).
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`(ECF No. 14, ¶ 29(a)-(b).)
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`The Parties mediated the case before the Honorable William Cahill (Ret.). In advance of
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`mediation, Defendants produced Plaintiff’s personnel file and data reflecting putative Class
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`Members’ wage statements and total daily work hours recorded, a payroll legend, as well as
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`information concerning the number of putative Class Members eligible to receive Tru Up
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`payments during the relevant time period, number of workweeks, and number of putative Class
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`Members who resigned or were terminated. Plaintiff provided documents relating to his
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`employment, including annual compensation letters, wage statements, and timesheets. (ECF No.
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`20-2, Watson Decl., ¶ 9-10.)
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`On May 29, 2018, the Parties participated in a full day of private mediation before Retired
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`Judge Cahill but did not reach a resolution. Judge Cahill issued a mediator’s proposal on May 30,
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`2018. After negotiations and a series of counteroffers, the Parties reached an agreement on June
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`8, 2018. Over the next several months, the Parties extensively negotiated, drafted, and executed a
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`long-form Settlement Agreement that was put before the Court for preliminary approval. (ECF
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`No. 20-3.)
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`After a thorough review of the proposed settlement and applicable law, the Court issued a
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`Minute Order (ECF No. 25) expressing concern regarding the proposed mechanism for having
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`potential claimants opt into the FLSA components of the proposed settlement. The Court ordered
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`the Parties to submit written briefs containing legal support for their proposed opt-in process, or
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`in the alternative, invited the Parties to submit an amended settlement agreement correcting the
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`apparent deficiency. (ECF No. 25.) On May 11, 2020, the Parties filed a Response to the Court’s
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`Minute Order, attaching an Amended Settlement Agreement, amended Notices, an amended
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`FLSA opt-in form, and amended proposed orders. (ECF No. 26.) The Amended Settlement
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`Agreement is presently before the Court for preliminary approval.
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`II.
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`SUMMARY OF PROPOSED SETTLEMENT
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`The Court has reviewed the terms of the proposed amended settlement as set forth in the
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`Amended Settlement Agreement and Stipulation.2 (ECF No. 26-1.) A summary of those terms is
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`set forth below.
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`The Court understands the Amended Settlement Agreement and Stipulation, along with
`the amended Class Notices and any related documents, supersede the original documents
`submitted to the Court on December 11, 2018 (ECF No. 20.). Any reference to “the Agreement”
`or “Notice” hereafter is to the amended documents submitted May 11, 2020 (ECF No. 26).
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`a. Material Terms of the Proposed Agreement
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`This Order incorporates by reference the definitions in the Amended Settlement
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`Agreement, and all terms defined therein shall have the same meaning as set forth therein.
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`Defendants have agreed to pay a total Maximum Settlement Amount of $5,726,000, the entire
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`sum of which will be paid by Defendants. There is no reversion of money back to Defendants
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`under any circumstance. This sum includes payments to Class Members, a Fee and Expense
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`Award, an Enhancement Payment to Plaintiff, Administration Costs, and amounts for taxes.
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`Attorney fees and expenses are to be set by the Court in a subsequent motion. There is no
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`clear sailing provision. The Agreement provides for up to a 25% Fee Award for Class Counsel,
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`and up to $45,000 in Expenses. Further, under the Agreement Plaintiff Debi Mishra will receive
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`an Enhancement Payment of up to $10,000 as approved by the Court. The Agreement also
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`proposes that ILYM Group, Inc. (“ILYM”) be appointed as Settlement Administrator.
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`The Class Members are to receive the balance of the Maximum Settlement Amount after
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`deducting Administration Costs, the Fee and Expense Award, the Enhancement Payment, and
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`taxes. The Net Settlement Amount is estimated to be roughly $4,209,500. This is 73.5% of the
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`gross recovery. The “Net Settlement Amount” will be divided among Class Members as set out
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`in the proposed Agreement. (See ECF No. 26-1, ¶ 42.) The Net Settlement Amount will be
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`allocated 97.2% to the California Class Fund and 2.8% to the FLSA Class Fund. Of the
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`California Class Fund, 69.2% is allocated to the California Award and 30.8% is allocated to the
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`FLSA Award. Each of these awards will be distributed to Settlement Class Members on a
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`proportional basis based on the number of California and/or FLSA Class Member Individual
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`Workweeks each Class Member worked.
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`The purported California Class consists of current or former employees of Defendants in
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`California who were eligible to receive Tru Up payments at any time during the California Class
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`Period. The purported FLSA Class consists of current or former employees of Defendants (either
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`in California or outside California) who were eligible to receive Tru Up payments at any time
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`during the FLSA Class Period. Members of the California Class may also be members of the
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`FLSA Class and vice versa depending on when the Class Member worked. To the degree any
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`California Class Members opt out, their California awards are not claimed and will serve to
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`increase payment to the other Class Members. For this reason, the Settlement Agreement
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`includes a provision that if 10% or more of potential California Class Members opt out,
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`Defendants may opt to back out of the Settlement prior to final approval. An analogous process
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`is applied to distribute the FLSA Fund among FLSA Class Members. Further, in any order
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`granting final approval to the Settlement, the FLSA Class Members will be narrowed to only
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`those members who timely opt into the Settlement.
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`If any funds are not distributed (for example, because a check could not be delivered after
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`multiple attempts over a period of 360 days), then the funds will be sent to the applicable state
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`unclaimed property fund unless the Class Member resides in California, in which case such funds
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`will go to the Department of Industrial Relations Unpaid Wage Fund.
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`b. Notice, Objections, and Opt-Outs
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`The Parties have agreed on the form of the Notices to be mailed to the Class Members,
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`which, with the Change of Address Form, are collectively referred to as the “Notice Packet.”
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`ILYM will provide notice to Class Members as provided in the Agreement using contact
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`information provided by Defendants and updated by the Settlement Administrator using skip
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`tracing. More specifically, Defendants will provide the Settlement Administrator with each Class
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`Member’s full name; last known mailing address and telephone number; last known e-mail
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`address (if available); beginning and ending dates of employment; Social Security number; the
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`number of California Class Individual Workweeks that each individual worked; and the number
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`of FLSA Class Member Individual Workweeks that each individual worked (the “Class Member
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`List”) within fifteen (15) business days after Preliminary Approval. The Settlement
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`Administrator shall mail a copy of the Notice Packet within ten (10) business days after receiving
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`the Class Member List spreadsheet.
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`The Notice Packets will include either the California Notice or the FLSA Notice, as well
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`as the Change of Address Form and the FLSA Claim Form. The Notices provide all necessary
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`information, including the terms of the proposed Settlement, how to opt in or out, and how to
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`object. The Notice Packet will also explain how a Class Member may dispute his or her ILYM-
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`calculated number of Individual Workweeks. Class Members may dispute their calculated
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`Individual Workweeks by sending certain documentation to the Settlement Administrator.
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`Class Members will have 30 days to object to the Settlement, measured from the date of
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`mailing the Notice Packet. Class Members may also exclude themselves from the California
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`Class by submitting an Exclusion Letter within 30 days of mailing of the Notice Packet. Class
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`Members opt into the FLSA Class by filing out an Opt In Form provided with the Notice Packet
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`and mailing it to the Claims Administrator, or by completing an online form. Potential FLSA
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`Class Members have 60 days from the mailing date of the Notice Packet to opt in. All California
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`Settlement Class Members will be entitled to their share of the California Class Fund unless they
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`affirmatively decide not to receive it by filing a timely Exclusion Letter. Class Members will
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`receive funds via check by default. They may use a website to request direct deposit instead.
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`The California subclass releases any and all claims under the wage and hour laws and
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`regulations of the state of California that were or could have been asserted based on the conduct
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`alleged in the First Amended Complaint or in any complaints in this action preceding said First
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`Amended Complaint. The FLSA Class releases any and all claims that were asserted in the First
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`Amended Complaint or that could have been asserted based on the conduct alleged in the First
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`Amended Complaint, or in any complaints in this action preceding said First Amended
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`Complaint.
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`III.
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`PROVISIONAL CLASS CERTIFICATION
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`Traditional class action certification rules are applicable to the California Labor Code
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`claims and are set out at Federal Rule of Civil Procedure (hereafter, “Rule”) 23. More
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`specifically, for the Court to properly certify a class under Rule 23, a plaintiff must meet the
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`prerequisites of Rule 23(a) and at least one of the requirements of Rule 23(b). Fed. R. Civ. P. 23;
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`see also Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996). Rule 23(a)
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`requires the following:
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`(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
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`(4) the representative parties will fairly and adequately protect the
`interests of the class.
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`Fed. R. Civ. P. 23(a). These factors are known as “numerosity,” “commonality,” “typicality,”
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`and “adequacy,” respectively. Rule 23(b) requires a plaintiff to establish one of the following: (1)
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`that there is a risk of substantial prejudice from separate actions; (2) that declaratory or injunctive
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`relief benefitting the class as a whole would be appropriate; or (3) that common questions of law
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`or fact predominate and the class action is superior to other available methods of adjudication.
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`Fed. R. Civ. P. 23(b). Where the parties have entered into a settlement agreement before class
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`certification, district courts “must pay ‘undiluted, even heightened, attention’ to class certification
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`requirements....” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998) (quoting
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`Amchem Products, Inc. v. Windsor, 521 U.S. 591, 620 (1997)). Statutory authority for
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`aggregating FLSA claims is found at 29 U.S.C. § 216(b).
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`As detailed below, the Court preliminarily and conditionally approves the following
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`classes for settlement purposes only,3 subject to a final fairness hearing and certification of the
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`settlement class, under the Federal Rules of Civil Procedure, laws governing aggregation of
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`FLSA claims, and related case law:
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`The National FLSA Class: All current and past employees of named Defendants, DOES 1
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`to 10, and each of them who participated in or were paid income subject to the Tru Up
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`program alleged herein within the time period of the relevant statute(s) of limitation.
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`The California Class: Those class members who performed work for Defendants, DOES 1
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`to 10, and each of them such that the sub-class members’ work was regulated by the
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`California Labor Code (e.g. resided in and worked in California, or otherwise performed
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`non-trivial amounts of work in California).
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`a. Rule 23(a)
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`First, numerosity is met where the number of claimants is so numerous that joining them
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`all would be “impracticable.” Fed. R. Civ. P. 23(a)(1). Here, the combined California Class and
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`Pursuant to the Amended Settlement Agreement, Defendants have reserved their right to
`object to and oppose Rule 23 certification and FLSA collective action status in the event the
`Settlement is not finally approved for any reason.
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`FLSA Class include approximately 714 current and former employees. (ECF No. 20-1 at 22.)
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`Joining all Class Members would result in unwieldy court proceedings, would cause duplication
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`in disclosures and discovery, and would complicate routine communications. Given the total
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`number of 714 Class Members, numerosity is satisfied.
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`Second, a class has sufficient commonality “if there are questions of fact and law which
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`are common to the class.” Fed. R. Civ. P. 23(a)(2). “The class members must share a ‘common
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`contention . . . of such a nature that it is capable of classwide resolution –– which means that
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`determination of its truth or falsity will resolve an issue that is central to the validity of each one
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`of the claims in one stroke.’” Fraser v. Wal-Mart Stores, Inc., No. 2:13-CV-00520-TLN-DB,
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`2016 WL 6208367, at *4 (E.D. Cal. Oct. 24, 2016) (citing Wal-Mart Stores, Inc. v. Dukes, 564
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`U.S. 338, 350 (2011)). “The commonality requirement is generally satisfied where ‘the lawsuit
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`challenges a system-wide practice or policy that affects all of the putative class members.’” Id.,
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`(citing LaDuke v. Nelson, 762 F.2d 1318, 1332 (9th Cir. 1985)). Here, there are common
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`questions of fact and law arising from Class Members’ employment with Cognizant, such as the
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`manner in which Plaintiff and Class Members were compensated, whether Tru Up was lawful,
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`what amounts were required in calculating the regular rate of pay for purposes of overtime,
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`whether Cognizant properly calculated the regular rate of pay, whether Class Members
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`worked overtime, whether Class Members recorded all overtime worked, whether Cognizant paid
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`all overtime wages due, whether Cognizant engaged in unfair or unlawful business practices as
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`Plaintiff alleges, and whether Class Members were entitled to overtime or were exempt from
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`FLSA overtime requirements under the computer exemption. Therefore, the Court finds the
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`commonality requirement is met.
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`Third, “representative claims are ‘typical’ if they are reasonably co-extensive with those
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`of absent class members; they need not be substantially identical.” Hanlon., 150 F.3d at 1020.
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`“The typicality requirement is designed to align the interests of the class and the class
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`representatives so that the latter will work to benefit the entire class through the pursuit of their
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`own goals.” Barnes v. Am. Tobacco Co., 161 F.3d 127, 141 (3d Cir. 1998). Here, Plaintiff was a
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`non-exempt employee whose overtime hours were allegedly paid at less than 1.5 times the regular
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`Case 2:17-cv-01785-TLN-EFB Document 27 Filed 06/01/20 Page 11 of 21
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`rate of compensation. (ECF No. 20-1 at 23.) Plaintiff asserts the same claims on behalf of
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`himself and the Class Members. Accordingly, the Court finds Plaintiff’s claims are typical of the
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`class.
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`Fourth and finally, a named representative meets Rule 23’s adequacy requirement if he or
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`she and class counsel have no interests adverse to the interests of the proposed Class Members
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`and if they are committed to vigorously prosecuting the case on behalf of the class. Hanlon, 150
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`F.3d at 1020; Fraser, 2016 WL 6208367, at *4. Here, it appears Plaintiff and counsel have no
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`adverse interests to those of the Class Members. Indeed, Plaintiff seeks only the same relief as
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`the class — recovery of alleged underpaid overtime. Plaintiff’s counsel are experienced lawyers
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`with trial and class experience who have thus far devoted appropriate time and resources to the
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`case. (ECF No. 20-1 at 23.) The Court has no reason to believe Plaintiff and counsel will not
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`continue to devote appropriate resources to this action. Therefore, the adequacy prerequisite of
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`Rule 23(a) is met.
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`b. Rule 23(b)Predominance and Superiority
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`In addition to the Rule 23(a) requirements, certification requires that an action meet at
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`least one of the requirements set forth in Rule 23(b). Hanlon, 150 F.3d at 1022. Here, the Court
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`finds Rule 23(b)(3) is satisfied because (1) questions of law and fact common to the class
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`predominate over individual determinations and (2) a class action is a superior method to other
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`forms of adjudicating the matter.
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`Predominance is similar to the prerequisite of commonality, but requires the common
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`issues to outweigh individual issues. “When common questions present a significant aspect of the
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`case and they can be resolved for all members of the class in a single adjudication, there is clear
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`justification for handling the dispute on a representative rather than on an individual basis.”
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`Hanlon, 150 F.3d at 1022. Predominance tests “whether the proposed classes are sufficiently
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`cohesive to warrant adjudication by [class action] representation.” See Amchem v. Windsor,
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`521 U.S. 591, 623 (2012).
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`Here, the Class definition requires that all California Class Members were eligible to
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`receive Tru Up payments at any time during the California Class Period. (ECF No. 20-1 at 25.)
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`Case 2:17-cv-01785-TLN-EFB Document 27 Filed 06/01/20 Page 12 of 21
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`Plaintiff contends that all claims in this action arise from Defendants’ Tru Up compensation
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`policy under which Plaintiff alleges Defendants improperly calculated overtime compensation
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`and underpaid overtime to Plaintiff and Class Members. Because all Class Members allegedly
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`were underpaid overtime under Tru Up, the proposed Classes are sufficiently cohesive and a
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`“common nucleus of facts and potential legal remedies dominates this litigation.” Hanlon, 150
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`F.3d at 10225. As such, the first requirement of Rule 23(b)(3) is met.
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`A class action is superior to individual actions where class certification “promotes
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`consistency and efficiency of adjudication.” Fraser v. Wal-Mart Stores, Inc., No. 2:13-CV-
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`00520-TLN-DB, 2016 WL 6208367, at *6 (E.D. Cal. Oct. 24, 2016). Here, a single adjudication
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`provides a consistent result for all Class Members and for Defendants for a single course of
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`Defendants’ conduct. Because the central issues are similar and overlapping for each Class
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`Member, resolving them at once is far more efficient than flooding the court with 714 individual
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`lawsuits. Likewise, a class action is superior method for adjudicating the controversy, which
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`otherwise would involve relatively small individual damages claims that would be “uneconomic
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`for potential plaintiffs” since “litigation costs would dwarf potential recovery.” Hanlon, 150 F.3d
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`at 1022. Therefore, the requirements of FRCP 23(b)(3) are satisfied.
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`c. FLSA Standards for Collective Action Status
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`The FLSA allows employees to “litigate jointly if they (1) claim a violation of the FLSA,
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`(2) are ‘similarly situated,’ and (3) affirmatively opt in to the joint litigation, in writing.”
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`Campbell, et al. v. City of Los Angeles, 903 F.3d 1090, 1100 (9th Cir. 2018). The Ninth Circuit
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`has additionally provided: “Party plaintiffs are similarly situated, and may proceed in a collective,
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`to the extent they share a similar issue of law or fact material to the disposition of their FLSA
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`claims.” Id. at 1117. Determining whether putative class members are similarly situated “is
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`made using a fairly lenient standard, and typically results in ‘conditional certification’ of a
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`representative class. District courts have held that conditional certification requires only that
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`plaintiffs make substantial allegations that the putative class members were subject to a single
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`illegal policy, plan or decision.” Murillo v. Pac. Gas & Elec. Co., 266 F.R.D. 468, 471 (E.D. Cal.
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`2010) (citations omitted).
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`Case 2:17-cv-01785-TLN-EFB Document 27 Filed 06/01/20 Page 13 of 21
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`Here, the proposed Settlement meets the standard for approval of the collective FLSA
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`action. First, the FAC alleges that Class Members were denied overtime pay, a right which is
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`protected under the FLSA, 29 U.S.C. § 207(a)(1). Second, the Class Members were similarly
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`situated in that Plaintiff alleges the Tru Up program created a uniform and systemic manner of
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`underpayment of overtime such that all the Class Members share a similar issue of law and fact.
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`Third, the Amended Settlement provides for an appropriate opt-in process for FLSA Class
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`Members. (See Minute Order (ECF No. 25); Response to Minute Order (ECF No. 26).)
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`IV.
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`PRELIMINARY APPROVAL OF SETTLEMENT
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`a. Rule 23(e)
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`Rule 23(e) provides that "[a] class action shall not be dismissed or compromised without
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`the approval of the court . . . ." Fed. R. Civ. P. 23(e). The purpose of preliminary evaluation of
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`proposed class action settlements is to determine whether the settlement is within the "range of
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`reasonableness." 4 Newberg § 11.26. In reviewing a settlement, it is not a court's province to
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`"reach any ultimate conclusions on the contested issues of fact and law which underlie the merits
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`of the dispute. . . ." Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1291 (9th Cir. 1992).
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`Instead a court should weigh the following factors: the strength of plaintiff's case; the risk,
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`expense, complexity, and likely duration of further litigation; the stage of the proceedings; and
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`the value of the settlement offer. Collins v. Cargill Meat Solutions Corp., 274 F.R.D. 294, 301
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`(E.D. Cal. 2011). Given that some of these factors cannot be fully assessed until the court
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`conducts the final approval hearing, "a full fairness analysis is unnecessary at this stage." See
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`Tijero v. Aaron Bros., Inc., 301 F.R.D. 314, 324 (N.D. Cal. 2013) (citing Alberto v. GMRI, Inc.,
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`252 F.R.D. 652, 665 (E.D. Cal. 2008)).
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`Rather, Preliminary approval of a settlement and notice to the proposed class is
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`appropriate: "[i]f [1] the proposed settlement appears to be the product of serious, informed,
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`noncollusive negotiations, [2] has no obvious deficiencies, [3] does not improperly grant
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`preferential treatment to class representatives or segments of the class, and [4] falls withi