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Shaun Setareh (SBN 204514) 

shaun@setarehlaw.com

Thomas Segal (SBN 222791) 

thomas@setarehlaw.com

SETAREH LAW GROUP 

9454 Wilshire Boulevard, Ste. 907 

Beverly Hills, California 90212 

Tel: (310) 888-7771 

Fax: (310) 888-0109 

MARCUS CHISM, on behalf of himself, all 

others similarly situated, 

Plaintiffs, 

v. 

PEPSICO, INC., a North Carolina 

Corporation; FRITO-LAY, INC., a 

Delaware Corporation; FIRST 

ADVANTAGE BACKGROUND 

SERVICES CORP., a Florida Corporation; 

and DOES 1 to 100, Inclusive, 

Defendants. 

Case No. 3:17-cv-00152-VC 

NOTICE OF MOTION AND MOTION FOR 

FINAL APPROVAL OF CLASS ACTION 

SETTLEMENT; AWARD OF ATTORNEY 

FEES AND EXPENSES; CLASS 

REPRESENTATIVE SERVICE AWARD; 

AWARD OF SETTLEMENT 

ADMINISTRATOR EXPENSES; 

MEMORANDUM OF POINTS AND 

AUTHORITIES; DECLARATION OF 

SHAUN SETAREH 

Date: 

Time: 

Courtroom: 

Judge: 

HearinM Information 

September 6, 2018 

10:00am 

4, 17th Floor 

Vince Chhabria 

Submitted Under Separate Cover 

1. Declaration of Shaun Setareh; 

2. Declaration of Marcus Chism; 

3. Declaration of Orlando Castillejos 

4. [Proposed] Order 

Attorneys for Plaintiff, 

MARCUS CHISM 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

Chism v.Pepsico, Inc. et al. Notice of Motion and Motion for Final Approval 

of Class Action Settlement 

Case 3:17-cv-00152-VC Document 95 Filed 07/09/18 Page 1 of 32
NOTICE OF MOTION AND MOTION 

TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: 

PLEASE TAKE NOTICE that, on September 6, 2018 at 10:00a.m., in Courtroom 4 of 

the above-captioned Court, located at 450 Golden Gate Avenue, San Francisco, California 

94012, the Honorable Vince Chhabria presiding, Plaintiff Marcus Chism ("Plaintiff'), on behalf 

of himself and all others similarly situated, will, and hereby does, move this Court to: 

(1) Grant final approval of the Settlement; 

(2) Award attorney fees in the amount of $800,000; 

(3) Award litigation expenses in the amount of $25,308.53; 

(4) Award a class representative service payment in the amount of $5,000; 

(5) Approve settlement administration expenses in the amount of $110,000. 

Respectfully submitted, 

Dated: July 9, 2018 SETAREH LAW GROUP 

BY /s/ Shaun Setareh 

Shaun Setareh 

Attorneys for Plaintiff 

MARCUS CHISM 

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Case 3:17-cv-00152-VC Document 95 Filed 07/09/18 Page 2 of 32
TABLE OF CONTENTS 

I. INTRODUCTION 1 

II. STATEMENT OF FACTS AND PROCEDURAL HISTORY 2 

A. Overview of the Litigation 2 

B. Summary of Relevant Law 2 

1. The Fair Credit Reporting Act ("FCRA") 2 

2. The Ninth Circuit's Landmark Syed Decision 3 

3. The Investigative Consumer Reporting Agencies Act 4 

C. The Disclosure Forms at Issue 4 

D. Plaintiffs Investigation and Discovery 4 

E. Major Law and Motion Filings in Case 5 

F. The Parties Engaged in Arm's-Length Settlement Negotiation 5 

G. Material Terms of the Proposed Class Action Settlement 5 

1. The Proposed Settlement Class 6 

2. The Settlement Benefits ...6 

3. A Narrow Release 7 

4. A Consumer-Friendly Settlement Payment Distribution Process 7 

5. No Reversion to Defendant .8 

H. Notice to the Settlement Class and the Class Response .8 

III. ARGUMENT 8 

A. The Court Should Grant Final Approval of the Class Settlement ...8 

1. The Standard for Final Approval Has Been Met 8 

2. The Settlement Is Reasonable In Light of the Strengths and 

Weaknesses of Plaintiffs Case 8 

3. The Risk, Expense and Complexity of the Case, Favor Approval 

of the Settlement .11

4. The Risk of Maintaining Class Status Through Trial Favors 

Approval of the Settlement 13 

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Case 3:17-cv-00152-VC Document 95 Filed 07/09/18 Page 3 of 32
5. The Amount Offered in Settlement Supports Approval 14 

6. The Settlement Was Finalized After a Thorough Investigation.... 16 

7. The Views of Experienced Counsel Should Be Accorded Substantial 

Weight 16 

8. The Presence or Absence of a Governmental Participant ...17 

9. The Reaction of the Class is Overwhelmingly Positive 17 

B. Conditional Class Certification Is Appropriate for Settlement 

Purposes ..17 

C. The Court Should Award The Requested Attorney Fees, Expenses, 

Settlement Administrator Expenses and Class Representative Service 

Award 17 

1. The Requested Fee Award Is Reasonable 17 

a) Applicable Law Regarding Attorneys' Fees 17 

i) The Court Should Award Attorneys' Fees in 

the Amount of One Third of the Common Fund ...20

ii) A Lodestar Analysis Also Supports The Requested Fee ...21 

2. Plaintiffs Litigation Expenses Should be Reimbursed .23 

3. The Settlement Administrator's Expenses Should Be Approved 24 

4. The Court Should Approve An Incentive Award in The Amount 

of $5,000 24 

W. CONCLUSION 24 

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TABLE OF AUTHORITIES 

Cases 

Bahry v. Montage Marketing LLC 

2011 WL 181408 *4 (D. Nev. 2011) 13 

Barbosa v. Cargill Meat Solutions, Inc. 

297 F.R.D. 34, 454 (E.D Cal/ 2013) 20, 21 

Beaver v. Tarsadia Hotels 

No. 11-cv-01842-GPC-KSC, 2017 WL 4310707, 

at *13 (S.D. Cal. Sept. 28, 2017) 21 

Bellinghausen v. Tractor Supply Co. 

306 F.R.D. 245, 264 (N.D. Cal. 2014) .22 

Boyd v. Bechtel Corp., 

(N.D. Cal. 1979) 485 F. Supp. 610, 624 20 

Burden v. SelectQuote Ins. Servs. 

No. C 10-5966 LB, 2013 WL 3988771, at *4 (N.D. Cal. Aug. 2, 2013) 19 

Cotter v. Lyft, Inc. 

193 F.Supp.3d 1030, 1035 (N.D. Cal. 2016) 20 

Deaver v. Compass Bank 

No. 13-cv-222-JSC, 2015 WL 8526982, at *11 (N.D. Cal. Dec. 11, 2015) 20 

Demmings v. KKW Trucking, Inc. 

2017 WL 1170856 at *10 (D. Or. Mar. 29, 2017) 10, 11 

Di Giacomo v. Plains All Am. Pipeline 

Nos. 99-4137 & 99-4212, 2001 WL 34633373, at *10-11 

(S.D. Fla. Dec. 19, 2001) 23 

Eisen v. Porsche Cars North American, Inc. 

(C.D. Cal. Jan. 30, 2014) Case No. 11- 09405, 2014 U.S. Dist. LEXIS 

14301, 2014 WL 439006, at *13 16, 17 

Epic Systems Corporation v. Lewis 

138 S.Ct. 612 (May 21, 2018) .1 

Espinoza v. Bluemercury, Inc. 

2017 WL 10799553 *3 (N.D. Cal. 2017)(J. Tigar) 14 

Feist v. Petco Animal Supplies, Inc. 

2018 WL 2933485 (S.D. Cal. 2018) .15 

Garcia v. Comcast Cable Comunications Management LLC 

2017 WL 1210044 *2 (N.D. Cal. 2017) 12 

Graham v. DaimlerChrysler Corp. 

34 Cal. 4th 553, 580 (2004) 21 

Holloway v. Best Buy Co., 

C-05-5056-PJH (MEJ) (N.D. Cal.) .22 

Hopkins v. Stryker Sales Corp., No. 11-CV-02786- LHK, 2013 WL 496358, 

at *5 (N.D. Cal. Feb. 6, 2013) .22 

In re Apple Inc. Secs. Litig., 

No. 5:06-CV-05208, 2011 U.S. Dist. LEXIS 52685, at *16 

(N.D. Cal. May 17, 2011) 22 

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In re Aremissoft Corp. Sec. Litig. 

210 F.R.D. 109, 134-35 (D.N.J. 2002) .23 

In re Bluetooth Headset Prods. Liab. Litig. 

654 F.3d 935, 941 (9th Cir. 2011.) 17, 18 

In re Conseco Life Ins. Co. Life Trend Ins. Mktg. & Sales Practice Litig. 

No. C 10-02124 SI, 2014 WL 186375, at *2 (N.D. Cal. Jan. 16, 2014) 22 

In re Heritage Bond Litig. 

No. 02-ML-1475-DT(RCX), 2005 WL 1594389, at *15 

(C.D. Cal. June 10, 2005) 18 

In re HP Laser Printer Litig., 

2011 WL 3861703 at 5-6 (C.D. Cal. filed Aug. 31, 2011) 22 

In re Pac. Enters. Sec. Litig. 

(9th Cir. 1995) 47 F.3d 373, 378 16 

In re Portal Software Inc. Sec. Litig. 

(N.D. Cal. Nov. 26, 2007) No. C-03-5138 VRW, 2007 U.S. Dist. LEXIS 

88886, *3 13 

In re TFT-LCD (Flat Panel) Antitrust Litig., 

2013 WL 1365900, at *9 ...22 

In re Toys 'R' Us-Del., Inc. FACTA Litig., 

(C.D. Cal. 2014) 295 F.R.D. 438, 451, 453-54 .11 

In re Uber FCRA Litigation 

2018 WL 2047362 (N.D. Cal. May 2, 2018) 15 

In re Washington Pub. Power Supply Sys. Sec. Litig., 

19 F.3d at 1299 21 

Jabbari v. Wells Fargo & Company 

2017 WL 5157608 *1 (N.D. Cal. 2017)(J. Chhabria) 14 

Johnson v. General Mills, Inc., 

2013 WL 3213832 *6 (C.D. Cal. 2013.) 23 

Kearney v. American Honda Motor Am. 

2013 U.S. Dist. LEXIS 91636 *24 22 

Lane v. Facebook, Inc. 

(N.D. Cal. Mar. 17, 2010) No. 08-3845-RS, 2010 U.S. Dist. 

LEXIS 24762, *4 .....12 

Lee v. JPMorgan Chase & Co., 

Case No. 13-cv-511- JLS, 2015 WL 12711659, at *8-9 

(C.D. Cal. Apr. 28, 2015) 20 

Leland v. Lagos Stanford Junior University 

2017 WL 113302 *4 (N.D. Cal. 2017.) ..15 

Lewis v. Southwest Airlines 

2018 WL 400775 *4 (N.D. Tex. January 11, 2018) .....11 

Linney v. Cellular Alaska Partnership 

(9th Cir. 1998)151 F. 3d1234, 1239, 1242 16 

Long v Tommy Hilfiger U.S.A. 

(3d Cir. 2012) 671 F.3d 371 10 

Maley v. Del Global Techs. Corp. 

186 F. Supp. 2d 358, 369 (S.D.N.Y. 2002) 23 

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Case 3:17-cv-00152-VC Document 95 Filed 07/09/18 Page 6 of 32
Manuel v. Wells Fargo Bank 

N.A., 3:14-cv-00238, ECF No. 95 at 24 (E.D. Va Aug. 19, 2015).... 13 

Mathein v. Pier 1 Imports (U.S.) Inc. 

2018 WL 1993727 *8 (E.D. Cal. April 27, 2018) 17 

Marquez v. Bank of America 

2018 WL 1948864 *5 (N.D. Cal. 2018) 10 

Milbourne v. JRK Residential Am., LLC 

No. 3:12CV861, 2014 WL 5529731 (E.D. Va. Oct. 31, 2014) 13, 14 

Miller v. CEVA Logistics USA Inc. 

2015 WL 729638, *7 (N.D. Cal. 2015) 14 

Milliron v. T-Mobile USA, Inc. 

423 F. App'x 131, 135 (3d Cir. 2011) 22, 23 

Morris v. Ernst & Young 

834 F.3d 975 (9th Cir. 2016) 1 

Morse v. ServiceMaster Global Holdings, Inc. 

2012 WL 4755035 *5 (N.D. Cal. 2012) ..12 

Nat'l Rural Telecommunications Coop. v. DIRECTV, Inc. 

(C.D. Cal. 2004) 221 F.R.D. 523, 525-527 9 

Nyulassy v. Lockheed Martin Corp. 

120 Cal.App.4th 1267, 1282 (2004) 12, 13 

Officers for Justice v. Civil Serv. Comm 'n 

(9th Cir. 1982) 688 F.2d 615, 625 9 

Paul, Johnson, Alston & Hunt v. Graulty 

886 F.2d 268, 271 (9th Cir. 1989) .18 

Perfect 10 v. Giganews Inc., 

2015 U.S. Dist. LEXIS 54063 (C.D. Cal. 2015) 22 

Pierce v. County of Orange 

905 F. Supp. 2d 1017, 1036 & n.16 (C.D. Cal. 2012) 22 

Poinsignon v. Imperva, Inc. 

2018 WL 1709942 *4 (N.D. Cal. April 4, 2018) 10 

Pokorny 

2013 WL 3790896, at *2 22 

Ramirez v. Trans Union, LLC 

(N.D. Cal. 2014) 301 F.R.D. 408, 417-418 15 

Reardon v. ClosetMaid 

2011 WL 1628041, *6 (W.D. Penn. April 27, 2011) ..13 

Robins v. Spokeo, Inc. 

(2016) 742 F.3d 409 ..11 

Rodriguez v. West Publishing Corp. 

(9th Cir. 2000) 563 F.3d 948 .12, 14 

Rohm v. Thumbtack Inc. 

2017 WL 4642409 (N.D. Cal. October 17, 2017) 15 

Rutti, 

2012 WL 3151077 at 11 22 

Safeco Ins. Co. of Am. v.Burr 

(2007) 551 U.S. 47, 57-59 .9 

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Shlahtichman v 1-800 Contacts, Inc. 

(7th Cir. 2010) 615 F.3d 794 10 

Smith v. CheckAmerica, Inc. 

2017 WL 3610592 (C.D. Cal. July 18, 2017) .15 

Sobel v. Hertz Corp. 

No. 306-CV-00545-LRH-RAM, 2014 WL 5063397, at *10 

(D. Nev. Oct. 9, 2014) 23 

Spokeo Inc. v. Roberts, 

136 S.Ct. 1540 (2016) .10 

Staton v. Boeing Co. 

327 F.3d 938, 967 (9th Cir. 2003.) 18 

Stuart v. RadioShack Corp. 

No. C-07-4499, 2010 U.S. Dist. LEXIS 92067, at *16 

(N.D. Cal. Aug. 9, 2010) 22 

Syed v. M-I LLC 

(E.D. Cal. Oct. 22, 2014) No. 1:14-742-WBS, 2014 U.S. Dist. LEXIS 

150748, **8- 10 3, 10 

Torres v. Pet Extreme 

(E.D. Cal. Jan. 15, 2015) No. 13-01778-110, 2015 U.S. Dist. LEXIS 5136, 

*13 ...12 

Trs. Of the Constr. Indus and Laborers Health and Welfare Trust v. 

Redland Ins. Co., 460 F.3d 1253, 1258 (9th Cir. 2006.) 23 

Vasquez v. Coast Valley Roofing, Inc. 

(E.D. Cal. 2010) 266 F.R.D. 482, 489 13 

Vizcaino v. Microsoft Corp. 

290 F.3d 1043, 1050 (9th Cir. 2002) 18 

Wang v. Chinese Daily News, Inc., 

2008 U.S. Dist. LEXIS 123824 at 8-9 (C.D. Cal. filed Oct. 3, 2008) .22 

Woods v. Caremark, LLC 

2016 WL 6908108 (W.D. Mo. 2016) 11 

Willes v State Farm Fire & Cas. Co. 

(9th Cir. 2008) 512 F.3d 565, 566 9, 10 

Wisely v. Amazon.com, Inc. 

709 Fed.Appx. 862 *864 (9th Cir. 2017) .12 

Statutes 

15 U.S.C. §§ 1681 1-4, 7, 9, 10, 15 

California Civil Code § 1786 4, 7, 14 

Fed. R. Civ. P. 23 8, 14 

ICRAA California Civil Code § 1786 et seq. 4 

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MEMORANDUM OF POINTS AND AUTHORITIES 

I. INTRODUCTION 

This lawsuit asserts that Frito-Lay violated the Fair Credit Reporting Act ("FCRA") and 

related California law claims. Plaintiff alleges that Frito-Lay failed to provide applicants with a 

stand-alone document that consists solely of the disclosure, as required under State and Federal 

law. Instead, Plaintiff alleges that the disclosure forms used included impermissible extraneous 

information. 

This Court granted preliminary approval to the settlement of this action on May 14, 

2018. ECF No. 94. Notice has gone out to the class by First Class Mail and email. The 

settlement website allows class members to object and opt out online To date there are zero 

objections and only three requests for exclusion. 

The settlement provides substantial relief in the form of a $2 4 million common fund 

representing statutory penalties to all Settlement Class Members. Class Members will not need 

to make claims but will be mailed checks directly. No money will revert to Defendant. Instead, 

after a second distribution to people who cashed their checks any residue from uncashed checks 

will go to a cy pres recipient which is proposed to be United Way. 

In an FCRA case, a prevailing plaintiff will receive statutory damages of between $100 

and $1,000. 15 U.S.C. § 1681n(a)(1)(A.) The settlement amount of $2,400,000 is a good result 

for the class. The gross settlement amount of $62.87 and net settlement payment of at least $40 

per class member compares favorably to recent FCRA settlements. 

The settlement is an excellent result. It was obtained in the face of a pending motion to 

compel arbitration. The risk of that motion was underscored by the U.S. Supreme Court's 

subsequent decision in Epic Systems Corporation v. Lewis, 138 S.Ct. 612 (May 21, 2018). That 

decision reversed the Ninth Circuit's holding in Morris v. Ernst & Young, 834 F.3d 975 (9th

Cir. 2016) (which had held that class action waivers in employment agreements are invalid 

under the National Labor Relations Act). Further, the underlying legal claims under the FCRA 

involve substantial risk because of the uncertain and evolving legal landscape regarding such 

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claims. Class counsel has obtained a certain recovery for the class in face of great risk and 

uncertainty. 

Accordingly, the Court should grant final approval to the settlement and also should 

award the requested attorney fees, expenses, class representative service award and settlement 

administrator expenses. 

II. STATEMENT OF FACTS AND PROCEDURAL HISTORY 

A. Overview of the Litigation 

On January 12, 2017 Plaintiff filed this case alleging violations of the Fair Credit 

Reporting Act ("FCRA"), the California Investigative Consumer Reporting Agencies Act and 

the California Consumer Reporting Agencies Act. The action alleges that Defendants conduct 

pre-employment background checks without complying with the requirements of those statutes, 

including the requirement of 15 U.S.C. § 1681b (b) (2)(A) that the background check be 

disclosed in a document that "consists solely of the disclosure." 

B. Summary of Relevant Law 

1. The Fair Credit Reporting Act ("FCRA") 

The Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 168 lb(b), requires employers to 

use certain documents and to follow specified policies and practices when they use "consumer 

reports" to assess the qualifications of prospective and current employees. 

Pursuant to section 168 lb of the FCRA, no person can obtain a consumer report for 

employment purposes without providing a "clear and conspicuous disclosure . . .in a document 

that consists solely of the disclosure." 15 U.S.C. § 1681b(b)(2)(A)(i.) The person obtaining the 

consumer report must also obtain the consumer's written authorization which can be done as 

part of the disclosure form. 15 U.S.C. § 1681b(b)(2)(A)(ii.) A plaintiff may be entitled to 

statutory and punitive damages when a defendant has willfully violated the provisions of the 

FCRA. 15 U.S.C. § 1681n(a)(1)(A): "any person who willfully fails to comply with any 

requirement imposed under this subchapter with respect to any consumer is liable to that 

consumer in an amount equal to the sum of . . . damages of not less than $100 and not more than 

$1000 . . . such amount of punitive damages as the court may allow." 

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2. The Ninth Circuit's Landmark Syed Decision 

In 2017, the Ninth Circuit issued a major decision on the issue of violation of the standalone disclosure requirement of the FCRA. Syed v. M-I, LLC, 853 F.3d 492 (9th Cir. 2017.) In 

Syed, the FCRA disclosure contained a term purporting to waive any liability of the employer 

related to the background check. Id. at 498. The Ninth Circuit held that under the plain language 

of the FCRA that the required disclosure must be in "a document that consists solely of the 

disclosure," the inclusion of the liability release was impermissible: "We must begin with the 

text of the statute. Where congressional intent has been expressed in reasonably plain terms, that 

language must ordinarily be regarded as conclusive . . . . The ordinary meaning of 'solely' is 

`[a]lone; singly' or entirely exclusively." Id. at 500. The Ninth Circuit also held that due to the 

clarity of the statutory language requiring that the disclosure be in a document consisting 

"solely" of the disclosure, "a prospective employer's violation of the FCRA is "willful" when 

the employer includes terms in addition to the disclosure." Id. at 496. 

While Syed involved a liability release, its holding is broader. Syed broadly analyzed 

the "solely" requirement governing the disclosure apart from any release language: 

"It is our duty to give effect, if possible, to every clause and word of a statute." 

United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 99 L.Ed. 615 

(1955) (internal quotation marks omitted). M-I's interpretation fails to give 

effect to the term "solely," violating the precept that "statutes should not be 

construed to make surplusage of any provision." Wilshire Westwood Assocs. v. 

All. Richfield Corp., 881 F.2d 801, 804 (9th Cir. 1989) (alterations and internal 

quotation marks omitted). That other FCRA provisions mandating disclosure 

omit the term "solely" is further evidence that Congress intended that term to 

carry meaning in 15 U.S.C. § 1681b(b)(2)(4)(i). See 15 U.S.C. §§ 1681d, 

1681s-3. 

Syed, 853 F.3d at 501 (emphasis added). 

Put in simplest terms, "solely" means just what it appears to mean and, in Plaintiff's 

view, no implied exceptions to the "solely" requirement should be judicially added to the one 

express exception allowing the authorization to accompany the correct disclosure. The FCRA 

expressly states that the sole additional element that may be included with the disclosure is an 

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authorization, "which authorization may be made on the document referred to in clause (i). . . ." 

15 U.S.C.A. § 1681b(b)(2)(A)(ii). 

3. The Investigative Consumer Reporting Agencies Act 

Plaintiff also asserts a cause of action under California's Investigative Consumer 

Reporting Agencies Act. (ICRAA California Civil Code § 1786 et seq.) Under the ICRAA, an 

"'investigative consumer report' means a report in which information on a consumer's 

character, general reputation, personal characteristics or mode of living is obtained through any 

means." California Civil Code § 1786.2(c.) When an employer obtains an investigative 

consumer report, the employer must provide "a clear and conspicuous disclosure in writing to 

the consumer at any time before the report is procured or caused to be made in a document that 

consists solely of the disclosure." California Civil Code § 1786.16(2)(B.) 

C. The Disclosure Forms at Issue 

The disclosure forms at issue and why Plaintiff believes they violate the standalone 

disclosure requirement were discussed at length in the motion for preliminary approval. ECF 

No. 88 at 5:5-8:8. Generally, the forms contain various types of extraneous information 

including information about state law rights, a certification that the information on the 

background questionnaire is correct, and a certification that the employment applicant 

understands the disclosure form. Additionally, the online disclosure form contained hyperlinks 

to various Frito-Lay marketing web pages such as "Our Snacks", "Recipes" and "Where to 

Buy." 

D. Plaintiff's Investigation and Discovery 

Prior to and throughout the action, Plaintiff and his counsel thoroughly investigated his 

claims. Specifically, Plaintiff propounded Interrogatories and Requests for Production of 

Documents. (Setareh Decl. ¶ 6). 

As part of the investigation, Plaintiff's counsel reviewed documents produced by FritoLay in order to confirm which forms were used and by whom during the class period. 

Plaintiffs counsel also reviewed Frito-Lay's background check policies. (Setareh Decl. ¶ 4.) 

Because this case turns on Frito Lay's legal defense that Frito-Lay's noncompliance was 

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purportedly not "willful" under the FCRA, Plaintiffs counsel thoroughly analyzed the evolving, 

and often conflicting case law governing FCRA class actions. All of this review and 

investigation allowed Plaintiff's counsel to structure a settlement that provides benefits directly 

to the persons who were required to use the allegedly unlawful forms. (Setareh Decl. ¶ 5.) 

E. Major Law and Motion Filings in Case 

On September 26, 2017, Defendant Frito-Lay filed a motion to compel arbitration. (ECF 

No. 71.) In an order dated October 17, 2017, this Court directed Plaintiff in opposing the motion 

to address the applicability of Morris v. Ernst & Young, 834 F.3d 975 (9th Cir. 2016). On 

October 24, 2017, Plaintiff filed an Opposition arguing that the motion was barred by Morris, 

that the arbitration provision at issue could not be applied retroactively (and that the alleged 

violations occurred before the provision was effective), that the provision was unconscionable, 

and that Defendant had waived the right to compel arbitration. (ECF No. 28.) Defendant filed a 

Reply Brief on November 14, 2017. (ECF No. 81). 

On September 26, 2017, Defendant Frito-Lay filed a motion to transfer this case to the 

Eastern District of Texas because Frito-Lay is headquartered in Plano Texas. (ECF No. 72.) 

Plaintiff filed an Opposition on October 24, 2017 arguing that Defendants have multiple 

operations in California including the Bay Area and that the interest of justice did not support 

transfer. (ECF No. 79.) Defendant filed a Reply Brief on November 14, 2017. (ECF No. 80.) 

On April 12, 2018 Plaintiff filed a Motion for Preliminary Approval of the settlement. 

(ECF No. 88.) On April 25, 2018 this Court entered an Order with recommended enhancements 

to the notice process that the Court wanted the parties to address at the hearing, including email 

notice and submission of objections and requests for exclusion online (ECF No. 89). The 

parties agreed to those enhancements. (ECF No. 93-1.) The Court granted preliminary approval 

on May 14, 2018. (ECF No. 94.) 

F. The Parties Engaged in Arm's-Length Settlement Negotiations 

The proposed Settlement was the culmination of protracted discussions between the 

parties following a thorough analysis of the pertinent facts and law at issue. Following formal 

discovery, informal discovery and arm's-length negotiations, the parties reached a settlement in 

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principle on a class basis. The parties held two mediation sessions with mediator Michael 

Dickstein. The first was an all-day in person mediation in San Francisco on September 12, 

2017. The second was an all-day mediation which the parties participated in by videoconference on November 16, 2017. (Setareh Dec1.¶¶ 7-8.) 

Between the first and second mediations, Defendant filed a motion to compel arbitration 

and a motion to transfer venue. ECF Nos. 71 and 72. Plaintiff opposed the motions. ECF Nos. 

78 and 79. Defendant filed reply briefs on November 14, 2017, two days before the second 

mediation. The second mediation session resulted in a mediator's proposal which the parties 

accepted. 

G. Material Terms of the Proposed Class Action Settlement 

1. The Proposed Settlement Class 

The Settlement Class consists of "all applicants for employment in the United States 

who applied for a job with Frito-Lay North America, Inc. and on whom background checks 

were conducted during the Covered Periods; [excluding] individuals who were members of a 

separate class in a prior background check class action, Roe v. Frito-Lay, Inc., 4:14-cv-00751-

HSG (N.D. Ca.)" (Settlement Agreement ¶ 1(C.) 'The "Covered Periods" i.e. the class periods 

are: "(a) for [Frito-Lay] frontline non-exempt positions, the period from January 12, 2015 

through November 7, 2016, and (b) for [Frito-Lay] salaried/ exempt positions, the period from 

January 12, 2015 through December 15, 2016." (Settlement Agreement ¶ 1(K.)) The total 

number of class members is 38,174. (Declaration of Orlando Castillejos ("Castillejos Decl.") ¶ 

2.) 

2. The Settlement Benefits 

Under the Settlement, all Class Members who do not opt out will receive an Individual 

Settlement Payment of at least $40 with a second distribution of the residue from uncashed 

checks. (Settlement Agreement ¶ 3(K)(c.) 

//

// 

1

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3. A Narrow Release 

Pursuant to the Settlement Agreement, Class Members release their claims as follows: 

[A]ll claims alleged in the Complaint and any known or unknown claims that were 

or could have been alleged based on the specific facts alleged in the Plaintiffs' 

Complaint (collectively, the "Released Claims"). This includes claims for (1) 

Violation of 15 U.S.C.§§ 1681b(b)(2)(A) (Fair Credit Reporting Act); (2) Violation 

of 15 U.S.C. §§ 1681d(a)(1) and 1681g(c) (Fair Credit Reporting Act); (3) Violation 

of California Civil Code § 1786 et seq. (Investigative Consumer Reporting Agencies 

Act); (4) Violation of California Civil Code § 1785 et seq. (Consumer Credit 

Reporting Agencies Act); (5) Violation of 15 U.S.C. §1681b(b)(1)(A) (Fair Credit 

Reporting Act). Released Claims as defined herein include any claims that were or 

could have been alleged based on the facts and/or legal theories addressed in the 

Complaint and/or related to the current Action, including ones under the Fair 

Credit Reporting Act and any state law analogues, including but not limited to 

background check or consumer report disclosure notices and forms, the procurement 

and use of any background check or consumer reports obtained by FLI, and adverse 

action notification (including but not limited to any claims under the Fair Credit 

Reporting Act, the California Consumer Credit Reporting Agencies Act, the 

California Investigative Consumer Reporting Agencies Act, California Business & 

Professions Code section 17200, or any comparable provision of federal, state or 

local law alleging or arising out of adverse employment action), whether such 

basis is known or unknown at the time the release is approved by the Court. The 

period of the Released Claims shall extend to the limits of the Covered Periods. 

The res judicata effect of the Final Order and Judgment will be the same as that of 

the Released Claims. 

(Settlement Agreement ¶ 1(Y.)) 

This release is narrowly and appropriately tailored to the allegations asserted by Plaintiff 

in this Complaint. 

4. A Consumer-Friendly Settlement Payment Distribution Process 

The parties have negotiated a mailing procedure to minimize the burden to Settlement 

Class Members. Class Members will not have to submit a claim form in order to receive 

payment. Instead, the Individual Settlement Payments will be mailed by First Class Mail to the 

Settlement Class Members. (Settlement Agreement 'Irlf 3(K)(6), 3(L)(2)(b.)) Settlement Class 

Members will have 120 days to cash their settlement check. (Id.) The residue from uncashed 

checks will then be re-mailed to Settlement Class Members who cashed the first checks 

distributed. (Settlement Agreement ¶ 3(L)(2)(d)). Settlement Class Members who receive a 

second check will have 120 days to cash it. (Id.) 

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5. No Reversion to Defendant 

Of the $2,400,000 common fund, no money will revert to the Defendant. Instead, there 

will be two distributions as set forth above, any remaining residue from uncashed checks will go 

to United Way or another cy pres recipient to be approved by the Court. (Settlement Agreement 

¶ 3(L)(2)(e))• 

H. Notice to the Settlement Class and the Class Response 

The settlement administrator sent notice by mail and email to the Settlement Class on 

June 7, 2018. (Castillejos Declaration 'IrIf 5-6). The settlement administrator also established a 

case website where Settlement Class members can submit objections and requests for exclusion. 

(Id. ¶ 3). As of the date of this filing, there are three requests for exclusion and zero objections. 

(Id. 'Irlf 9-10). 

III. ARGUMENT 

A. The Court Should Grant Final Approval of the Class Settlement 

1. The Standard for Final Approval Has Been Met 

In order to grant final approval of a class action settlement, the district court must 

determine that it is "fair, reasonable, and adequate." Fed. R. Civ. P. 23(e)(3). In making that 

determination, the district court looks at the following factors: 

(1) the strength of the plaintiff's case; (2) the risk, expense, complexity, and likely 

duration of further litigation; (3) the risk of maintaining class action status 

throughout the trial; (4) the amount offered in the settlement; (6) the experienced 

and views of counsel; (7) the presence of a governmental participant; and (8) the 

reaction of the class members to the proposed settlement. 

Cotter v. Lyft, Inc., 193 F.Supp.3d 1030, 1035 (N.D. Cal. 2016). 

As set forth below, all of these factors favor approval, except the seventh factor (presence 

of a governmental participant) which is neutral. 

2. The Settlement Is Reasonable In Light of the Strengths and 

Weaknesses of Plaintiff's Case 

"An important consideration in judging the reasonableness of a settlement is the strength 

of the plaintiffs' case on the merits balanced against the amount offered in the settlement." Nat'l 

Rural Telecommunications Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 525-26 (C.D. Cal. 2004). 

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In assessing the strength of the plaintiffs case and the probability for success, "the district 

court's determination is nothing more than an amalgam of delicate balancing, gross 

approximations, and rough justice." Officers for Justice v. Civil Serv. Comm'n, 688 F.2d 615, 

625 (9th Cir. 1982) (internal quotation omitted). There is "no single formula" to be applied, but 

the court may presume that the parties' counsel and the mediator arrived at a reasonable range 

of settlement by considering Plaintiffs likelihood of recovery. Rodriguez v. West Pub. Corp., 

563 F.3d 948, 965 (9th Cir. 2009). 

Here, Plaintiff alleges that Frito-Lay used employment application forms that included 

both the disclosure form and extraneous information in the same document. Plaintiff contends 

that Frito-Lay's' use of this document in employment applications facially violates the FCRA, 

which provides, in relevant part: 

Except as provided in subparagraph (B), a person may not procure a 

consumer report, or cause a consumer report to be procured, for 

employment purposes with respect to any consumer, unless—(i) a clear 

and conspicuous disclosure has been made in writing to the consumer at 

any time before the report is procured or caused to be procured, in a 

document that consists solely of the disclosure, that a consumer report 

may be obtained for employment purposes; and (ii) that consumer has 

authorized in writing (which authorization may be made on the document 

referred to in clause (i)) the procurement of the report by that person. 

15 U.S.C. §1681b(b)(2)(A)(i) (emphasis added). 

However, the analysis does not end there. Plaintiff must also prove that the violation 

was "willful" under 15 U.S.C. § 1681n(a). In Safeco Ins. Co. of Am. v. Burr, 551 U .S. 47, 57-59 

(2007), the United States Supreme Court explained that "willful" applies not only to 

"knowingly" violating the FCRA, but to actions that constitute a "reckless disregard of statutory 

duty." See also Willes v State Farm Fire & Cas. Co., 512 F.3d 565, 566 (9th Cir. 2008) 

(applying the "reckless disregard" standard). Although Safeco clarified that a plaintiff need not 

establish that defendant "knowingly and intentionally" committed the violations, the Court left 

room for defendants to claim "reasonable construction" or even "careless construction" of the 

Act as a defense. See, e.g., Shlahtichman v 1-800 Contacts, Inc., 615 F.3d 794 (7th Cir. 2010) 

(holding that a defendant was not liable for statutory damages because the violation arose from 

a "reasonable construction" that the truncation requirement of § 1681 c(g) was inapplicable to 

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email receipts); Long v Tommy Hilfiger U.S.A., 671 F.3d 371(3d Cir. 2012) (holding that 

defendant were not liable under the FCRA because their practice was merely a "careless 

interpretation" of the law and is not a "willful" violation). 

Plaintiff believes that this case is strong on the merits in light of Syed v. M-I, LLC, 853 

F.3d 492 (9th Cir. 2017) which held that the inclusion of a liability release or other extraneous 

information in an FCRA disclosure form is a willful violation of the FCRA. But this remains a 

highly uncertain area of the law and the application of Syed by district courts has been 

inconsistent. For example, a recent decision from the Northern District of California interpreted

the holding of Syed in an extremely limited manner suggesting that it applies only where the 

disclosure contains "a broad release of liability for all violations of the FCRA [which has ] the 

clear, unambiguous and explicit language necessary to effectuate a waiver of all liability." 

Marquez v. Bank of America, 2018 WL 1948864 *5 (N.D. Cal. 2018). The disclosure forms at 

issue here do not contain a Syed type liability release, meaning that under Marquez the claims 

would not be viable. 

By contrast, another recent decision of the Northern District of California agrees with 

the position asserted by Plaintiff in this case that any extraneous information (not just a Syed 

type liability release) constitutes a willful violation of the FCRA. Poinsignon v. Imperva, Inc ., 

2018 WL 1709942 *4 (N.D. Cal. April 4, 2018): "The purpose of the solely requirement . . . is 

to focus the consumer's attention. . . . To permit in the same disclosure document an 

authorization loaded up with other fine print dilutes the force and clarity of the disclosure 

mandated by the statute." If Poinsignon rather than Marquez is followed, Plaintiff and the class 

would likely prevail on the merits in this case.2

It remains unclear what the impact of the Supreme Court's decision in Spokeo Inc. v. 

Roberts, 136 S.Ct. 1540 (2016) is on cases alleging violation of the FCRA's stand alone 

disclosure requirement. Federal district courts are divided on the impact of Spokeo on FCRA 

2

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URL link to a privacy policy, an acknowledgment of another document (a summary of rights under 

FCRA), and an assertion that protected health information could be obtained by way of worker's 

compensation documents." Poinsignon supra at *3. 

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background check claims. See Demmings v. KKW Trucking, Inc., 2017 WL 1170856 at *10 (D. 

Or. Mar. 29, 2017) (discussing split in authority). Some courts have dismissed cases for lack of 

Article III standing rather than remanding those cases to state court. See e.g., Woods v. 

Caremark, LLC, 2016 WL 6908108 (W.D. Mo. 2016). 

Also as discussed at more length below Frito-Lay had filed a motion to compel 

individual arbitration which if granted, would have effectively been the death knell for the class 

claims. Further Frito-Lay also had filed a motion to transfer venue to the Eastern District of 

Texas. A change of venue would have had a deleterious effect on the merits of the claims 

because the Syed decision would no longer be binding making it more likely that a court would 

find that any violation was not willful. See e.g., Lewis v. Southwest Airlines, 2018 WL 400775 

*4 (N.D. Tex. January 11, 2018) (fmding that extraneous information on form violated FCRA 

but granting summary judgment on grounds of willfulness). 

In light of the challenges Plaintiff faces moving forward, the proposed Settlement 

represents a fair and adequate resolution of these claims. 

3. The Risk, Expense and Complexity of the Case Favor Approval of the 

Settlement 

While this case is not factually complex, the uncertain legal landscape creates a 

substantial risk of proceeding to certification and beyond. Even if Plaintiff were to prevail in 

certification, the costs for both parties would mount, and Plaintiff would face "substantial risk 

of incurring the expense of a trial without any recovery," given that Frito-Lay would argue that 

class members incurred no actual damages. Toys 'IV Us FACTA Litig., 295 F.R.D. at 451. On 

the other hand, Frito-Lay faces catastrophic liability if Plaintiff prevails entirely. This type of 

"all-or-nothing prospect weighs in favor of approval." Id. at 452. 

Furthermore, only recently was there substantial litigation on the FCRA, and litigants 

face a greater chance of changes in case law or statutory enactments that will eliminate liability. 

See Torres v. Pet Extreme, 2015 U.S. Dist. LEXIS 5136, at *14 (E.D. Cal. 2015) (describing an 

FCRA amendment in 2008 that insulated merchants from liability on printed expiration date on 

a receipt). Plaintiff thus faces additional "risk that an opinion could issue changing the legal 

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landscape in this relatively new area of statutory law," which favors settlement. Id. And even if 

Plaintiff were to succeed in certifying the class, the "risk that a class action may be decertified 

at any time generally weighs in favor of settlement." Lane v. Facebook, Inc., No. 08-3845-RS, 

2010 U.S. Dist. LEXIS 24762, *4 (N.D. Cal. Mar. 17, 2010) (citing Rodriguez v. West 

Publishing Corp., 563 F.3d 948, 966 (9th Cir. 2009)). 

This case also involved additional risk because of Frito-Lay's pending motion to compel 

arbitration. Plaintiff argued that the motion was barred by the decision of the Ninth Circuit in 

Morris v. Ernst & Young, 834 F.3d 975 (9th Cir. 2016). However, that decision was reversed by 

the U.S. Supreme Court in Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 (May 21, 2018). 

Plaintiff made other arguments as well. Plaintiff argued that the arbitration agreement cannot be 

applied retroactively and that because the background check was done before the arbitration 

agreement was executed it would be an impermissible retroactive application. ECF No. 78 at 

13:18-14:18. See Morse v. ServiceMaster Global Holdings, Inc., 2012 WL 4755035 *5 (N.D. 

Cal. 2012)(holding that language of arbitration agreement must be "retroactive on its face). 

However Frito-Lay argued that there is retroactive language because the agreement applies to 

claims "you may now . . . have against the Company." ECF No. 81 at 3:1-2. 

Plaintiff also argued that the arbitration provision was procedurally and substantively 

unconscionable with multiple substantively unconscionable features including an effectively 

unilateral attorney fee provision (unilateral because it applies to frivolous claims and not 

frivolous defenses), internal predispute resolution provisions that operate to shorten the statute 

of limitations , and the ability for the defendant to obtain its attorney fees for moving to compel 

arbitration. Id. at 7:19-10:27. While Plaintiff believes these arguments are strong, such 

unconscionability arguments have met with mixed success in court. E.g., Wisely v. Amazon.com, 

Inc., 709 Fed.Appx. 862 *864 (9th Cir. 2017)(rejecting argument that unilateral attorney fee 

provision in arbitration provision was unconscionable); Garcia v. Comcast Cable 

Comunications Management LLC, 2017 WL 1210044 *2 (N.D. Cal. 2017)(rejecting argument 

that predispute resolution procedures improperly shortened statute of limitations). But see 

Nyulassy v. Lockheed Martin Corp., 120 Cal.App.4th 1267, 1282 (2004)(internal dispute 

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resolution procedures were substantively unconscionable); Bahry v. Montage Marketing LLC, 

2011 WL 181408 *4 (D. Nev. 2011) (one-sided attorney fee provision substantively 

unconscionable). 

In fact, Plaintiffs counsel has had multiple class action cases that were effectively ended 

because there was an arbitration agreement and the case was sent to single plaintiff arbitration. 

(Setareh Decl. ¶ 22). And, as discussed below, even if the Court denied the motion because it 

found, for example, that the provision was unconscionable, differing state laws on enforceability 

of contracts would present an impediment to certification of a nationwide class. 

Ultimately, in considering the risks of litigation, "a court may consider the vagaries of 

litigation of immediate recovery by way of compromise to the mere possibility of relief, after 

protracted and expensive litigation." Vasquez v. Coast Valley Roofing, Inc., 266 F.R.D. 482, 489 

(E.D. Cal. 2010). Here, the Settlement delivers immediate recovery for all Settlement Class 

Members and avoids the risks and expenses of protracted litigation, including potential 

interlocutory appeals and an appeal after a trial. This factor supports approving the Settlement. 

See In re Portal Software Inc. Sec. Litig., No. C-03-5138 VRW, 2007 U.S. Dist. LEXIS 88886, 

*3 (N.D. Cal. Nov. 26, 2007) (recognizing that the inherent risks of proceeding to... trial and 

appeal also support the settlement). 

4. The Risk of Maintaining Class Status Through Trial Favors Approval of the 

Settlement 

Plaintiff believes that it is highly likely that a class would have been certified in the case 

at least as to the federal nationwide FCRA claims. At least three district court decisions have 

certified such claims. Manuel v. Wells Fargo Bank, N.A., 3:14-cv-00238, ECF No. 95 at 24 

(E.D. Va Aug. 19, 2015) ("the legality of the forms is of such a nature that it is capable of class 

wide resolution and satisfie[s] the commonality requirement") (internal quotation omitted); 

Reardon v. ClosetMaid, 2011 WL 1628041, *6 (W.D. Penn. April 27, 2011) ("Here, there are 

numerous questions of law or fact common to the class. These include, but are not limited to, 

whether the forms used by [defendant] to obtain consent to procure a consumer report from the 

class member violated the FCRA."); Milbourne v. JRK Residential Am., LLC, No. 3:12CV861, 

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2014 WL 5529731 (E.D. Va. Oct. 31, 2014). 

However, the issue of arbitration would have been an impediment to class certification. 

Even assuming that the motion to compel arbitration would be denied, Frito-Lay could later 

argue that differing state laws about arbitration (such as contract formation or 

unconscionability) preclude certification. See Jabbari v. Wells Fargo & Company, 2017 WL 

5157608 *1 (N.D. Cal. 2017)(J. Chhabria): "Although the Court has doubts about Wells Fargo's 

continued ability to enforce its adhesive arbitration agreements and class waivers . . . FCRA 

plaintiffs would face significant risk at the class certification stage even after denial of a motion 

to compel." 

As to the California law background check claims, it is likely that class certification 

would have been denied because the California statute expressly prohibits class actions for 

statutory damages. Cal. Civ. Code § 1786.50(a)(1); see Espinoza v. Bluemercury, Inc., 2017 

WL 10799553 *3 (N.D. Cal. 2017)(J. Tigar)(holding that in federal court in a Rule 23 class 

action this state law limitation applies). Of course, all California class members have claims 

under the federal statute. 

As there is some risk that class status would not have been maintained in the case, 

particularly in light of the arbitration agreement, this factor supports certification. 

5. The Amount Offered in Settlement Supports Approval 

Defendant is paying a total settlement amount of $2,400,000. The Ninth Circuit has held 

that the reasonableness of a settlement should be evaluated in relation to the potential 

compensatory damages, not including any penalties that might be awarded. Rodriguez v. West 

Publishing Corp., 563 F.3d 948, 964 (9th Cir. 2009); see also Miller v. CEVA Logistics USA 

Inc., 2015 WL 729638, *7 (N.D. Cal. 2015) (accepting settlement valuation based on damages 

exclusive of interest and penalties). The class members have relatively small amounts of money 

at stake, as the FCRA's damages provision limits recovery to between $100 and $1,000 or 

actual damages, whichever is greater. With 38,174 class members, the potential FCRA statutory 

damages are between $3,817,400 to $38,174,000. 

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A recent decision from the Northern District used the $100 per violation penalty as the 

comparator for determining the fairness of an FCRA settlement. Leland v. Lagos Stanford 

Junior University, 2017 WL 113302 *4 (N.D. Cal. 2017.) 

It is reasonable to assume in this case that any jury award would be closer to $100 per 

violation than to $1000. Plaintiffs counsel is not aware of any standalone disclosure case that 

has gone to trial and resulted in a jury verdict. A 2017 jury verdict from the Northern District 

illustrates the type of case where a verdict close to the maximum $1000 per violation would be 

likely. Ramirez v. Trans Union LLC, 2017 WL 5153280 (N.D. Cal. 2017) (Order Denying 

Motion for New Trial). In Ramirez supra at *5 the jury awarded statutory damages of $984.22 

per class member where the defendant violated 15 U.S.C. § 1681e(b) (which requires credit 

reporting agencies to use "reasonable procedures to ensure maximum possible accurancy") by 

falsely identifying the class members as being on the federal government list of "terrorists, drug 

traffickers and others with whom Americans are prohibited from doing business." 

Here, the $2,400,000 non-reversionary settlement amount is 62.87% of the amount that 

would be awarded if the jury awarded a $100 penalty per violation. The gross settlement 

amount per class member is $62.87. This compares favorably to recent FCRA settlements in 

stand-alone disclosure cases. The highest gross settlement amount per class member that 

Plaintiff was able to find on Westlaw (searching California federal district courts in the last 

year) was $147.22 per class member in Smith v. CheckAmerica, Inc.., 2017 WL 3610592 (C.D. 

Cal. July 18,2017) ($400,000 settlement fund, 2717 class members). The next highest was 

$32.10 per class member in Feist v. Petco Animal Supplies, Inc., 2018 WL 2933485 (S.D. Cal. 

2018)($1,200,000 settlement fund, 37,279 class members). The next highest was $7.31 per class 

member in In re Uber FCRA Litigation, 2018 WL 2047362 (N.D. Cal. May 2, 2018) ($7.5 

million settlement fund, 1,025,954 class members). The lowest was $3.30 per class member in 

Rohm v. Thumbtack Inc., 2017 WL 4642409 (N.D. Cal. October 17, 2017) ($225,000 settlement 

fund, 66,676 class members). Plaintiff's counsel has also been involved in two other FCRA 

settlements in this district where preliminary or final approval has been granted. In BurnthorneMartinez v. Sephora USA, Inc., Case No. 4:16-cv-02843 the gross settlement amount was 

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of Class Action Settlement 

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$65.60 per class member. In Garza v. Brinderson Constructors Inc., Case No. 15-cv- 05742 the 

gross settlement amount was $117.02 per class member. (Setareh Decl. I 18-19). 

6. The Settlement Was Finalized After a Thorough Investigation 

Courts may also consider the extent of discovery and the current stage of the litigation to 

evaluate whether parties have sufficient information to make an informed decision to settle the 

action. See Linney v. Cellular Alaska Partnership, (9th Cir. 1998), 151 F.3d at 1239. A 

settlement negotiated at an earlier stage in litigation will not be denied so long as sufficient 

investigation has been conducted. See Eisen v. Porsche Cars North American, Inc., Case No. 

11- 09405, 2014 U.S. Dist. LEXIS 14301, 2014 WL 439006, at *13 (C.D. Cal. Jan. 30, 2014) 

(finding that counsel had "ample information and opportunity to assess the strengths and 

weaknesses of their claims" despite "discovery [being] limited because the parties decided to 

pursue settlement discussions early on."). 

Plaintiff engaged in extensive investigation and discovery. (See Setareh Decl I 2-6.) 

Based on this discovery and on their independent investigation and evaluation, Plaintiffs 

counsel is of the opinion that this Settlement for the consideration and on the terms set forth in 

the Settlement Agreement is fair, reasonable, and adequate, and is in the best interest of the 

Settlement Class in light of all known facts and circumstances, including the risk of significant 

delay and uncertainty associated with litigation of this type, as well as the various defenses 

asserted by Frito-Lay. 

7. The Views of Experienced Counsel Should Be Accorded Substantial Weight 

The fact that sophisticated parties with experienced counsel have agreed to settle their 

dispute should be given considerable weight by courts, since "parties represented by competent 

counsel are better positioned than courts to produce a settlement that fairly reflects each party's 

expected outcome in the litigation." In re Pac. Enters. Sec. Litig., 47 F.3d 373, 378 (9th Cir. 

1995). 

Plaintiff was represented by experienced class action counsel possessing significant 

experience in class action matters including significant experience in Fair Credit Reporting Act 

cases involving allegations that the defendant employer failed to provide a legally compliant 

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stand-alone disclosure. (See Setareh Decl. 'IrIf 17-21.) Likewise, Frito-Lay's counsel Ogletree 

Deakins is a nationally recognized defense fn-m. Thus, the parties' recommendation to approve 

this Settlement should "be given great weight." Eisen v. Porsche, 2014 WL 439006, at *5 

(crediting the experience and views of counsel in approving a settlement resolving automotive 

defect allegations). 

8. The Presence or Absence of a Governmental Participant 

There is no governmental participant in this case. Therefore, this factor is neutral. E.g., 

Mathein v. Pier 1 Imports (U.S.) Inc., 2018 WL 1993727 *8 (E.D. Cal. April 27, 2018): 

"Because there are no separate governmental participants involved in the action, this factor is 

neutral in the court's analysis of the settlement agreement." 

9. The Reaction of the Class is Overwhelmingly Positive 

As of the date of this filing, there are no objections to the settlement and only three 

requests for exclusion. Therefore, the reaction of the class is overwhelmingly positive. This 

factor supports approval. 

B. Conditional Class Certification Is Appropriate for Settlement 

Purposes 

On May 14, 2018 the Court granted conditional certification of the settlement class. No 

intervening case law or events provide a basis for disturbing that conclusion. 

C. The Court Should Award The Requested Attorney Fees, Expenses, 

Settlement Administrator Expenses and Class Representative Service Award 

1. The Requested Fee Award Is Reasonable 

a) Applicable Law Regarding Attorneys' Fees 

District courts may award attorneys' fees and costs to a prevailing plaintiff where "(1) 

fee shifting is expressly authorized by the governing statutes; (2) the [defendant] acted in bad 

faith or willfully violated a court order; or (3) the successful litigants have created a common 

fund for recovery or extended substantial benefit to the class." In re Bluetooth Headset Prods. 

Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011.) In the class action context, courts generally 

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of Class Action Settlement 

Case 3:17-cv-00152-VC Document 95 Filed 07/09/18 Page 25 of 32
award attorneys' fees and costs pursuant to the common fund or statutory fee-shifting 

methodologies. In re Bluetooth, 654 F.3d at 941. 

Where there is a common fund, "the primary basis of the fee award remains the 

percentage method." Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1050 (9th Cir. 2002); In re 

Bluetooth, 654 F.3d at 942. The Ninth Circuit has consistently awarded attorneys' fees under 

the common fund method, because "a lawyer who recovers a common fund for the benefit of 

persons other than himself or his client is entitled to a reasonable attorney's fee from the fund as 

a whole." Staton v. Boeing Co., 327 F.3d 938, 967 (9th Cir. 2003.) "The common fund doctrine 

is properly applied, however, only if (1) the class of beneficiaries is sufficiently identifiable, (2) 

the benefits can be accurately traced, and (3) the fee can be shifted with some exactitude to 

those benefiting." Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 271 (9th Cir. 1989). 

These requirements are met where "each member of a certified class has an undisputed and 

mathematically ascertainable claim to part of a lumpsum [settlement] recovered on his behalf." 

Id. 

The Ninth Circuit has set a benchmark of 25% of the common fund. Courts award more 

than the benchmark when justified, considering the following factors: (1) the results achieved; 

(2) the risk of litigation; (3) any non-monetary benefits produced by the settlement; (4) the 

range of fee awards in common fund cases of comparable size; and (5) the financial burden 

assumed by Class Counsel, including contingent risk. See Vizcaino, 290 F.3d at 1048-50. In the 

settlement approval context, the reaction of settlement class members to the requested fee 

should also be considered. In re Heritage Bond Litig., No. 02-ML-1475-DT(RCX), 2005 WL 

1594389, at *15 (C.D. Cal. June 10, 2005) ("absence of objections from the class is also a factor 

in determining the proper fee award"). Although the "usual range" of common fund awards is 

20-30%, court regularly award 33.3% or more for cases like this one. Vizcaino, 290 F.3d at 

1047-50. 

While not required, courts may "cross-check" the percentage of the common fund 

against the lodestar to ensure reasonableness of the fee award. Vizcaino, 290 F.3d at 1050 ("The 

district court applied the lodestar method as a cross-check of the percentage method. 

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Calculation of the lodestar, which measures the lawyers' investment of time in the litigation, 

provides a check on the reasonableness of the percentage award."). The lodestar figure is 

determined by multiplying the number of hours reasonably expended on the litigation by hourly 

rates. In re Bluetooth, 654 F.3d at 941. The lodestar figure is only the starting point for 

determining an appropriate fee. Id.; Staton, 327 F.3d at 965; City of Burlington v. Dague, 505 

U.S. 557, 562 (1992). A court may reduce or enhance the lodestar figure based on several 

"reasonableness" factors, including the following: (1) the quality of the representation; (2) the 

benefit obtained for the class; (3) the complexity and novelty of the issues presented; and (4) the 

risk of non-payment. In re Bluetooth, 654 F.3d at 942. The proposed settlement herein creates a 

common fund of $2,400,000. Each settlement class member who cashes the check mailed to 

them will receive an ascertainable, pro-rata share of the settlement fund. The residue from 

uncashed checks will be distributed in a second distribution to class members who cashed the 

first check. Any additional money left over will go to a cy pres recipient which is proposed to 

be the United Way. No money will revert to Frito-Lay. Thus, the common fund doctrine 

enables the Court to determine a reasonable fee with "some exactitude." Paul, 886 F.2d at 271 

(internal citation omitted). 

Plaintiff seeks a common fund award of $800,000, which amounts to one-third of the 

$2,400,000 Settlement Fund. As discussed below, this upward adjustment of the benchmark 

recovery is well supported by the factors set forth by the Ninth Circuit, including: (1) the results 

achieved; (2) the risk of continued litigation; (3) whether there are benefits to the class beyond 

the creation of a common fund; (4) the range of fee awards in common fund cases of 

comparable size; (5) and the financial burden assumed by class counsel, including contingent 

risk; (6) the reaction of the settlement class; and (7) a lodestar crosscheck. See Vizcaino, 290 

F.3d at 1048-50; Burden v. SelectQuote Ins. Servs., No. C 10-5966 LB, 2013 WL 3988771, at 

*4 (N.D. Cal. Aug. 2, 2013). 

I/

/I 

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i) The Court Should Award Attorneys' Fees in the Amount of One Third of the 

Common Fund 

The Vizcaino factors support an award in the amount of one third of the common fund. 

First the results achieved are excellent comparing favorably to other recent FCRA cases in the 

Northern District. The gross settlement amount is $62.87 per class member. Class members will 

not have to submit a claim form but will be mailed checks directly. By contrast, Rohm v. 

Thumbtack, Inc., 2017 WL 4642409 (N.D. Cal. 2017)(granting final approval) involved a 

claims made settlement (albeit a non-reversionary one) where 66,676 class members shared in a 

$225,000 settlement or a gross recovery of $3.30 per class member. Similarly, In re Uber FCRA 

Litigation, 2017 WL 2806698 (N.D. Cal. 2017) (granting preliminary approval) involved a 

claims made settlement (also non-reversionary) where 1,025,954 class members shared in a $7.5 

million settlement or a gross recovery of $7.31 per class member. 

Second the risks of the litigation, including the high uncertainty regarding the law 

concerning the FCRA, the risk that if Frito-Lay's conduct was found not to be willful class 

members would recover nothing, and the substantial risks posed by the motion to compel 

arbitration and the motion to transfer venue support an upward adjustment. See Deaver v. 

Compass Bank, No. 13-cv-222-JSC, 2015 WL 8526982, at *11 (N.D. Cal. Dec. 11, 2015) 

(awarding 33% of common fund and concluding that "[Oven the significant challenges 

Plaintiff would have faced in maintaining this litigation through class certification and trial, the 

results achieved in this case are very favorable."); Boyd v. Bank of Am. Corp., No. SACV 13-

0561-DOC, 2014 WL 6473804, at *9 (C.D. Cal. Nov. 18, 2014) (awarding one third of common 

fund based on significant risk of continued litigation where settlement provided only 36% of 

potential damages.) 

Third, fee awards in cases of comparable size also support an upward adjustment of the 

benchmark. For example, in the following cases a one third fee was awarded. Deaver, 2015 WL 

8526982, at *11 (awarding one-third of $500,000 common fund); Lee v. JPMorgan Chase & 

Co.,. Case No. 13-cv-511- JLS, 2015 WL 12711659, at *8-9 (C.D. Cal. Apr. 28, 2015) 

(awarding 33% of $2.4 million common fund); Burden, 2013 WL 3988771, at *5 (33% of 

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Chism v. Pepsico, Inc. et al. Notice of Motion and Motion for Final Approval 

of Class Action Settlement 

Case 3:17-cv-00152-VC Document 95 Filed 07/09/18 Page 28 of 32
$750,000 common fund); Barbosa v. Cargill Meat Solutions, Inc., 297 F.R.D. 34, 454 (E.D 

Cal/ 2013) (awarding 33% of $1,290,000 common fund). 

Fourth, the contingent nature of the litigation supports the requested fee. -It is an 

established practice in the private legal market to reward attorneys for taking the risk of nonpayment by paying them a premium over their normal hourly rates for winning contingency 

cases." In re Washington Pub. Power Supply Sys. Sec. Litig., 19 F.3d at 1299. By undertaking a 

class action on a contingency fee basis, counsel not only must turn away other income 

generating opportunities but must take on the risk of never receiving compensation at all. 

Beaver v. Tarsadia Hotels, No. 11-cv-01842-GPC-KSC, 2017 WL 4310707, at *13 (S.D. Cal. 

Sept. 28, 2017). A contingent fee must be higher than a fee for the same legal services paid as 

they are performed because it "compensates the lawyer not only for the legal services he renders 

but for the loan of those services." Id. (quoting Graham v. DaimlerChrysler Corp., 34 Cal. 4th 

553, 580 (2004)). Here, Class Counsel represented Plaintiff and the Settlement Class on a 

contingency fee basis, with no guarantee of payment. (Setareh Decl. ¶ 25). 

Fifth, the reaction of the Settlement Class supports the requested fee. To dates there are 

no objections and only three requests for exclusion. In re Heritage Bond Litig., 2005 WL 

1594389, at *15 ("absence of objections from the class is also a factor in determining the proper 

fee award"). 

ii) A Lodestar Analysis Also Supports The Requested Fee 

Class Counsel's lodestar as of July 5, 2018 is $396,112.50. (Setareh Decl. ¶ 24). The 

hours and hourly rates of the timekeepers on this case are as follows: 

Attorney Bar Date Hourly Rate Hours Lodestar 

Shaun Setareh 1999 $750 251.25 $188,437.50 

Thomas Segal 2002 $650 242.25 $159,412.50 

Farrah Grant 2013 $450 96.50 $43,425 

William Pao 2003 $450 10.75 $4,837.50 

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The above rates are within the range of rates approved by courts in Northern and 

Southern California for complex class actions, including wage-and-hour actions. See, e.g., Wang 

v. Chinese Daily News, Inc., 2008 U.S. Dist. LEXIS 123824 at 8-9 (C.D. Cal. filed Oct. 3, 

2008) (in a wage-and-hour action, approving 2008 rates of up to $800 per hour), vacated on 

other grounds, 132 S. Ct. 74 (2011); Rutti, 2012 WL 3151077 at 11 (in a wage-and-hour action, 

approving 2012 rates of up to $750 per hour); Pierce v. County of Orange, 905 F. Supp. 2d 

1017, 1036 & n.16 (C.D. Cal. 2012) (approving 2012 rates of up to $850 per hour); In re HP 

Laser Printer Litig., 2011 WL 3861703 at 5-6 (C.D. Cal. filed Aug. 31, 2011) (approving rates 

of up to $800 per hour); Perfect 10 v. Giganews Inc., 2015 U.S. Dist. LEXIS 54063 (C.D. Cal. 

2015) (approving 2015 rates of $750 for an 18 year attorney, $640 for a 12 year attorney, and 

$640 for a 7 year attorney, and $505 for a 3 year attorney); Stuart v. RadioShack Corp., No. C07-4499, 2010 U.S. Dist. LEXIS 92067, at *16 (N.D. Cal. Aug. 9, 2010) (finding rates ranging 

between $600 and $1,000 reasonable); In re Apple Inc. Secs. Litig., No. 5:06-CV-05208, 2011 

U.S. Dist. LEXIS 52685, at *16 (N.D. Cal. May 17, 2011) (approving hourly rate of $836); In 

re TFT-LCD (Flat Panel) Antitrust Litig., 2013 WL 1365900, at *9 (approving hourly rates up 

to $1000); In re Conseco Life Ins. Co. Life Trend Ins. Mktg. & Sales Practice Litig., No. C 10-

02124 SI, 2014 WL 186375, at *2 (N.D. Cal. Jan. 16, 2014) (approving hourly rates up to 

$850); Kearney v. American Honda Motor Am. 2013 U.S. Dist. LEXIS 91636 *24 (approving 

hourly rates of $650-$800 for senior attorneys in consumer class action); Holloway v. Best Buy 

Co., C-05-5056-PJH (MEJ) (N.D. Cal.) (approving 2011 partner rates of $825 to $700 an hour). 

The requested $800,000 fee is only a 2.02 multiplier over the lodestar amount. This is at 

the low end of the multiplier range typically applied by district courts. See, e.g., Bellinghausen 

v. Tractor Supply Co. 306 F.R.D. 245, 264 (N.D. Cal. 2014) (54 percent of lodestar multipliers 

fall within the 1.5 to 3.0 range, and 83 percent of multipliers fell within the 1.0 to 4.0 range); 

Hopkins v. Stryker Sales Corp., No. 11-CV-02786- LHK, 2013 WL 496358, at *5 (N.D. Cal. 

Feb. 6, 2013) (multiplier of 2.86); In re TFT-LCD (Flat Panel) Antitrust Litig., 2013 WL 

1365900, at *8 (multipliers ranging on average between 2.4 — 2.6); Pokorny, 2013 WL 

3790896, at *2 (multiplier of 2.2); see also Milliron v. T-Mobile USA, Inc., 423 F. App'x 131, 

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135 (3d Cir. 2011) (approving district court's use of 2.2 multiplier); Di Giacomo v. Plains All 

Am. Pipeline, Nos. 99-4137 & 99-4212, 2001 WL 34633373, at *10-11 (S.D. Fla. Dec. 19, 

2001) (5.3 multiplier); Maley v. Del Global Techs. Corp., 186 F. Supp. 2d 358, 369 (S.D.N.Y. 

2002) (4.65 multiplier); In re Aremissoft Corp. Sec. Litig., 210 F.R.D. 109, 134-35 (D.N.J. 

2002) (4.3 multiplier); Sobel v. Hertz Corp., No. 306-CV-00545-LRH-RAM, 2014 WL 

5063397, at *10 (D. Nev. Oct. 9, 2014) (multiplier of 2.0). 

The various Bluetooth factors support application of a positive multiplier in this case. 

Here, Class Counsel are highly experienced class action litigators and prevailed against a 

nationally recognized high caliber defense firm. The results obtained for the class are excellent 

particularly in light of the risks in the case including the substantial risk posed by the motion to 

compel arbitration. Finally, the contingent nature of the action supports an upward adjustment. 

Therefore, the requested attorneys' fees of $800,000 should be awarded. 

2. Plaintiff's Litigation Expenses Should be Reimbursed 

Defendant has agreed to pay Class Counsel's litigation expenses in an amount not to 

exceed $35,000 as part of the settlement out of the Settlement Amount. (Settlement Agreement 

¶ L(4)). Prevailing parties may recover as part of statutory attorney fees "litigation expenses 

when it is the prevailing practice in the given community for lawyers to bill those costs 

separately from their hourly rates." Trs. Of the Constr. Indus and Laborers Health and Welfare 

Trust v. Redland Ins. Co., 460 F.3d 1253, 1258 (9th Cir. 2006.) In California, attorneys are 

reimbursed for out of pocket expenses such as "1) meals, hotels, and transportation; 2) 

photocopies; 3) postage; 4) filing fees; 5) messenger and overnight delivery; and 6) online legal 

research." Johnson v. General Mills, Inc., 2013 WL 3213832 *6 (C.D. Cal. 2013.) Here, 

Plaintiff has incurred $24,408.53 in litigation expenses including mediator fees, travel, postage, 

Westlaw legal research, mileage and parking, PACER, photocopying, and court filing fees and 

estimates an additional $900 in expenses for travel to the final approval hearing. (Setareh Decl. 

¶ 26.) As agreed, Plaintiff seeks an award of $25,308.53 (Plaintiff will submit a declaration if 

the actual costs are different). 

II 

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3. The Settlement Administrator's Expenses Should Be Approved 

The charges for the Settlement Administrator KCC. are estimated to be $110,000. 

(Castillejos Decl. ¶ 11). These costs are reasonable and should be approved. (Setareh Decl. ¶ 

27). 

4. The Court Should Approve An Incentive Award in The Amount of $5,000 

Plaintiff requests an incentive award of $5,000. Plaintiff has assisted with the 

prosecution of the case including providing counsel information about Defendants' policies and 

practices, assisting counsel in preparing for the mediation, attending the mediation and 

reviewing settlement and other case documents. (Declaration of Marcus Chism ("Chism 

Decl.") ¶ 7.) He undertook to prosecute the case despite the risk of a cost judgment against him, 

and despite the potential risk that prospective employers would hold it against him. (Chism 

Decl. ¶ 8.)3 The requested incentive award is reasonable and should be approved. 

IV. CONCLUSION 

The parties have negotiated a fair and reasonable settlement. Accordingly, Plaintiff 

moves the Court to grant final approval, award the requested attorney fees and litigation 

expenses, settlement administrator expenses and incentive award. 

Respectfully submitted, 

SETAREH LAW GROUP 

Dated: July 9, 2018 BY /s/ Shaun Setareh 

SHAUN SETAREH 

Attorneys for Plaintiff 

MARCUS CHISM 

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