Bernal, et al, v. Express Messenger Systems, Inc., et al

The SAC alleges violations related to (1) minimum, overtime and double-time wages; (2) reporting time; (3) split-shift premiums; (4) vacation pay; (5) meal periods; (6) rest breaks; (7) accurate wage statements; (8) reimbursements; (9) payment of wages due; (10) final pay; (11) the production of employment records; (12) wage deductions; (13) unlawful agreements; as well as (14) violation of the unfair competition law (UCL); and (15) civil penalties pursuant to PAGA. Importantly, the UCL and PAGA claims are underpinned by the alleged wage-and-hour violations.

During the litigation, Plaintiffs sought and received extensive discovery. They also received substantial payroll and time records, as well as handbook and policy documents. Thereafter, on March 25, 2025, the parties engaged in a full-day, arms-length mediation with Kevin Barnes an experienced neutral. Following the mediation, the parties came to an agreement in principal. That settlement was memorialized in long form by November of 2025. Notice of the settlement was given to the LWDA on December 10, 2025. The parties successfully moved for Preliminary Approval of the Settlement before this Court on February 20, 2026.

As preliminary matter, this Court found the total settlement amount of $4,500,000.00 to be fair, reasonable, and adequate given the strength of the Plaintiff’s case and the risks involved in litigation. Adequate discovery and investigation had occurred, and there was no evidence of fraud or collusion. There are 31,162 class members and 20,098 PAGA aggrieved employees. (Polites Decl., ¶¶5-6 & 17.)

Notices were mailed on or about April 15, 2026. (Polites Decl., ¶7.) There were 4,578 notices returned; however, 3,567 were re-mailed after skip-tracing efforts. (Id., ¶¶8-9.) Thus, only 1,011 packets are considered undeliverable. (Id., ¶10.) As of the date of this motion, there was only one request for exclusion; no objections, and only one workweek dispute which was resolved. (Id., ¶¶11-13.) This Motion seeks final approval of the proposed settlement.

Statement of the Law

Settlement of a class action requires court approval. (Rules of Court, rule 3.769.) The moving party must demonstrate that the settlement is “fair, adequate and reasonable.” (Kullar v. Foot Locker Retail (2008) 168 Cal.App.4th 116, 126.) The court has “broad discretion in making this determination.” (In re Microsoft I-V Cases (2006) 135 Cal.App.4th 706, 723.)

Relevant factors may include “the strength of the plaintiffs’ case, the risk, expense, complexity and likely duration of further litigation, the risk of maintain class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction of the class members to the proposed settlement.” (Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801.) This list of factors “is not exhaustive and should be tailored to each case.” (Ibid.) The court may “engage in a balancing and weighing of factors depending on the circumstances of each case.” (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 245 overruled on other grounds.)

“Although the court gives regard to what is otherwise a private consensual agreement between the parties, the court must also evaluate the proposed settlement agreement with the purpose of protecting the rights of the absent class members who will be bound by the settlement.” (Wershba, supra, 91 Cal.App.4th at p. 245, quoting Dunk, supra, 48 Cal.App.4th at p. 1801.)

“The court must therefore scrutinize the proposed settlement agreement to the extent necessary to ‘reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.’” (Ibid., quoting Officers for Justice v. Civil Service Com’n (9th Cir. 1982) 688 F.2d 615, 625.)

The settlement is entitled to “a presumption of fairness . . . where: (1) the settlement is reached through arm’s-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.” (Kullar v. Foot Locker Retail (2008) 168 Cal.App.4th 116, 128, quoting Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1802.)

Summary of the Proposed Class Settlement

The proposed final settlement terms are largely in line with those approved preliminarily: Defendants will pay a gross, non-reversionary settlement amount of $4,500,000.00, from which will be deducted (1) $1,500,000.00 for Class Counsel’s attorneys’ fees (1/3rd2 of gross); (2) costs of $30,916.43; (3) Plaintiffs’ enhancement fees of $75,000.00 total (or $10,000 each for Plaintiffs Bernal, Noel, Martin, McNorton, Estrada, and Earnest; and $7,500 each for Plaintiffs Hernandez and Quintero); (4) claims administration fees of $89,650.00; and (5) PAGA penalties of $450,000.00 (of which $337,500, or 75%, will go to the LWDA and $112,500, or 25%, will go to the aggrieved employees).

This will leave a wage-and-hour only net settlement amount of a non-reversionary $2,354,433.57. This amount would be split by the class of 31,162 employees in proportionate shares determined by number of workweeks within the Settlement Class Period. The average per class member would be $75.55.

2 The movant sought $1,575,000, or 35% of the gross settlement. The Court would approve at the stated 1/3rd gross amount.

Since there are 20,098 aggrieved employees for PAGA purposes, the average PAGA payout is $5.60. (See also Polites Decl., ¶18.)

Tentative

The Court finds no evidence of fraud or collusion. Class Counsel are able, experienced, and wellqualified to represent the class. The representative is also well qualified to represent. The settlement was reached through an arms-length negotiation. The Court incorporates the reasons for the preliminary approval, issued on February 20, 2026, into its ruling by this reference and would:

1. Certify the Class for settlement.

2. Approve the settlement as fair and reasonable, finding that class members were given notice, advised of their rights and to object or exclude themselves.

3. Appoint Phillip Bernal, Truhill Noel, Khyell Martin, Damien McNorton, Gilbert Estrada, Wadie Earnest, Carmen Hernandez and Wendy Quintero as Class Representatives and approve their service award of $10,000 each for Plaintiffs Bernal, Noel, Martin, McNorton, Estrada, and Earnest and $7,500 each for Plaintiffs Hernandez and Quintero (totaling $75,000);

4. Appoint the variously named Plaintiffs’ counsel3 as Class Counsel for settlement purposes.

5. Approve administrative expenses as stated to ILYM Group, Inc. at $89,650.00.

6. Approve the attorneys’ fees as stated at $1,500,000.00, with costs of $30,916.43, for litigation of this action. When viewed in the light of rates appropriate to the region, the lodestar analysis generally supports attorneys’ fees in line with apportionment. (See, e.g., Hosseini Decl., ¶14 & Exhs. A-B; Markham Decl., ¶12 & Exh. 1; Kazandjian Decl., ¶¶17-19 & Exhs. 2-3; Haines Decl., ¶9.)

7. Direct the clerk to enter the Court’s order as final judgment.

8. Reserve continuing jurisdiction for the purposes of implementing, enforcing, or administering the Settlement or enforcing the terms of the Judgment.

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3 See signed Order

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