Flores et al v. The Computer Merchant, LTD.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
ERIKA FLORES and SARAH GARNER,
individuals, on behalf of themselves and
all others similarly situated,
Plaintiffs,
v.
THE COMPUTER MERCHANT, LTD.,
Defendant.
Case No.: 25-cv-00038-AJB-DEB
ORDER GRANTING PLAINTIFFS’
MOTION FOR PRELIMINARY
APPROVAL OF CLASS ACTION
SETTLEMENT
(Doc. No. 31)
Presently before the Court is Plaintiffs Erika Flores and Sarah Garner’s (“Plaintiffs”
or “Class Representatives”) unopposed1 motion for preliminary approval of class action
settlement. (Doc. No. 31.) The Court finds this matter suitable for determination on the
papers. See CivLR 7.1.d.1. For the reasons set forth below, the Court GRANTS Plaintiffs’
motion.
///
1 	Defendant The Computer Merchant, LTD. (“Defendant” or “TCM”) failed to file a response to the
instant motion. Reaching settlement and agreeing to the form of the proposed Preliminary Approval Order
does not obviate Defendant of its responsibility under the Civil Local Rules to file a response. See CivLR
7.1.f.3.a (requiring either an opposition or notice of non-opposition to be filed). Nonetheless, the Court
deems the instant motion unopposed. See CivLR 7.1.f.3.c.
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I. 	BACKGROUND
A. 	Factual Background
This putative class action centers around Plaintiffs’ allegations that Defendant, an
IT staffing company, failed to properly secure and safeguard the personal identifiable
information of former and current employees. (Doc. No. 31-1 at 6; Doc. No. 1, Complaint
(“Compl.”), at ¶¶ 1–3.) Plaintiffs allege that, due to Defendant’s failure, a third party gained
unauthorized access to Defendant’s computer network July 2024 (the “Data Incident”),
compromising the personal information of approximately 34,127 individuals, which then
was posted on the “dark web.”2 (Doc. No. 31-1 at 6; Compl. ¶¶ 4–5, 7.) Plaintiffs allege
claims for negligence, invasion of privacy, breach of implied contract, breach of fiduciary
duty, breach of confidence, and violations of the California Unfair Competition Law, the
California Customer Records Act, and the California Consumer Privacy Act (“CCPA”).
(See generally Compl.)
B. 	Procedural Background
Plaintiffs filed the complaint on January 8, 2025 (see Compl.), which Defendant
answered (Doc. No. 10). The parties attended two early neutral evaluation (“ENE”)
conferences with Magistrate Judge Daniel E. Butcher on August 12 and August 28, 2025.
(Doc. Nos. 20; 23). At the end of the second ENE, Judge Butcher provided the parties with
a mediator’s proposal (Doc. No. 31-1 at 7), after which the parties reached a settlement in
principle (see id.; see also Doc. No. 24). Over several months, the parties “worked
cooperatively and diligently” to draft the Settlement and Release (Doc. No. 31-3,
Settlement Agreement (“Settlement” or “Settlement Agreement”)), which the parties and
counsel executed in November 2025 (Id. At 32–35). Finally, on December 17, 2025,
Plaintiffs filed the instant motion (Doc. No. 31), for which no opposition was filed or
served on Plaintiffs’ counsel (see Doc. No. 33).
2 	Both Plaintiffs are former employees of Defendant whose personal information were taken in the
Data Incident and posted on the dark web. (Compl. ¶¶ 15, 17.)
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II. 	TERMS OF THE PROPOSED SETTLEMENT
The primary terms of the Settlement are provided below:
A. 	Settlement Benefits
Pursuant to the Settlement, Defendant will transfer $610,000 to an Escrow Account
to set up the Settlement Fund, which will be used to pay the monetary benefits to the
Settlement Class as detailed below, Settlement Administration Costs, Service Award
payments to each named Plaintiff, and attorneys’ fees and litigation costs. (Doc. No. 31-1
at 8.) Separate from the Settlement Fund, Defendant will pay for CyEx Financial Shield,
which Plaintiffs describe as “ a robust identity and financial monitoring service with $1
million of identity theft insurance, valued at $14.95 per month.” (Id.)
All Settlement Class Members may submit a Claim Form electing from the
following benefits: (1) compensation for Extraordinary Out-of-Pocket Losses up to a total
of $3,000 per Settlement Class Member; (2) compensation for Out-of-Pocket Losses up to
a total of $500 per Settlement Class Member or an Alternative Cash Payment, estimated to
be $40 per Claimant; (3) compensation at a rate of $20 per hour for up to five hours of Lost
Time spent monitoring accounts or otherwise dealing with issues related to the Data
Incident; and (4) for California Settlement Class Members, a CCPA Cash Payment,
estimated to be $75. (Doc. No. 31-1 at 8–9; Settlement ¶ 69.) All Class Members will be
provided with one year of CyEx Financial Shield without needing to submit a Claim Form,
the enrollment codes for which will be provided in the individualized Notice to each Class
Member. (Doc. No. 31-1 at 9; Settlement ¶ 70.)
If the total amount of Valid Claims for Extraordinary Out-of-Pocket Losses, Out-of-
Pocket Losses, Lost Time, Alternative Cash Payments, and CCPA Cash Payments
submitted by the Claim Form Deadline exceeds the amount of money available in the
Settlement Fund, the amount of each valid Claim will be reduced proportionally. (Doc. No.
31-1 at 10; Settlement ¶ 71.) To the extent any funds remain in the Settlement Fund from
uncashed checks ninety days after the Settlement Administrator completes the process for
stopping payment on any checks that remain uncashed, all remaining funds will be
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distributed to a cy pres recipient to be approved by the Court. (Settlement ¶ 103.)
To benefit from the Settlement, Settlement Class Members must complete and
submit 	a 	Claim 	Form 	to 	the 	Settlement 	Administrator, 	postmarked 	or 	submitted
electronically in accordance with the requirements for electronic submission of a Claim
Form, on or before the Claim Form Deadline, which is fifteen days before the Final
Approval Hearing. (Doc. No. 31-1 at 8; Settlement ¶ 17.)
B. 	Settlement Notice and Administration
The parties request that Simpluris, “an experienced and reputable national class
action administrator,” be appointed Settlement Administrator, to be paid out of the
Settlement Fund. (Doc. No. 31-1 at 12.)
No later than fourteen days after Preliminary Approval, Defendant will provide the
Class List to Class Counsel and the Settlement Administrator. (Settlement ¶ 80.) Within
thirty days of Preliminary Approval, Defendant will transfer $100,000 into the Escrow
Account to pay the Settlement Administrator Costs and the Settlement Administrator will
commence the Notice Program. (Id. ¶¶ 65, 81.)
The Settlement Administrator will notify Settlement Class Members by email, for
those of whom email addresses are available. (Doc. No. 31-1 at 10; see also Settlement
¶ 81.) If Defendant does not have record of a Settlement Class Member’s email address or
if the Email Notice bounces, the Settlement Administrator will mail Postcard Notice via
U.S. Mail to that Settlement Class Member’s mailing addresses, to the extent known or
determinable by database search. (Doc. No. 31-1 at 10; see also Settlement ¶¶ 87.) Notice
will also be published on the Settlement Website no later than one day prior to
implementing the Notice Program. (Doc. No. 31-1 at 10; see also Settlement ¶ 83.) The
Notice Program will be completed no later than forty-five days before the original date set
for the Final Approval Hearing. (Id. ¶ 88.)
In 	addition 	to 	executing 	the Notice 	Plan, 	the Settlement Administrator will
administer and make determinations regarding claim forms, process settlement payments,
make distributions, and provide other services necessary to implement the Settlement.
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(Doc. No. 31-1 at 12; see also Settlement ¶¶ 76–79.)
Plaintiffs estimate the Settlement Administration Costs to be $30,069.00. (Doc. No.
31-1 at 8.)
C. 	Objections and Opt-Out Procedure
Both the Email Notice and Postcard Notice will direct the Settlement Class to the
Long Form Notice for the opt-out and objection procedures. (Settlement ¶¶ 84–85.)
Anytime during the Opt-Out Period, which ends thirty days before the Final Approval
Hearing, individuals in the Class may opt out by mailing to the Settlement Administrator
a request to opt-out that includes their name, address, telephone number, email address,
statement requesting to be excluded, and a personal signature. (Id. ¶¶ 44, 84.)
Objections may be submitted on the Settlement Website or mailed to the Settlement
Administrator who will distribute them to counsel. (Id. ¶ 85.) The parties state that to be
considered by the Court, the objection must be submitted no later than ten days before the
Final Approval Hearing and include the objector’s full name, mailing address, telephone
number, email address, grounds for objection, legal support, number of times the objector
has objected in a class action settlement with the preceding five years, identity of counsel
for the objector, the number of times objector’s counsel has objected in a class action
settlement within the preceding five years, any agreements related to the objection, a list
of all persons the objector will call to testify at the Final Approval Hearing, and the
objector’s personal signature. (Id. ¶¶ 43, 86.)
D. 	Attorneys’ Fees, Costs, and Incentive Awards
In reaching the settlement, the parties did not discuss attorneys’ fees, costs, or
expenses. (Doc. No. 31-1 at 7; Declaration of Ben Travis (“Travis Decl.”), at ¶ 6.) The
Settlement provides for Class Counsel seeking up to 33.33% in attorneys’ fees, plus
reimbursement of costs, and service awards for each named Plaintiff of an amount not to
exceed $2,500. (Settlement ¶¶ 100–01.) However, the Settlement is not contingent upon
approval of these requests. (Id. ¶ 102.)
In the instant motion, Plaintiffs represent that Class Counsel will seek a service
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award of $2,500 for each named Plaintiff, reimbursement of litigation costs and expenses
in an undetermined amount, and 25% of the Settlement Fund for attorneys’ fees. (Doc. No.
31-1 at 11.)
E. 	Releases
In exchange for the benefits described above, Plaintiffs and Class Members will “be
forever barred from instituting, maintaining, or prosecuting, any and all liabilities, rights,
claims, actions, causes of action, demands, damages, costs, attorneys’ fees, losses and
remedies, whether known or unknown, asserted or unasserted, existing or potential,
suspected or unsuspected, liquidated or unliquidated, legal, statutory, or equitable, based
on contract, tort or any other theory, whether on behalf of themselves or others, that result
from, arise out of, are based upon, or relate to (1) the Data Incident; or (2) any of the alleged
violations of laws or regulations cited in the Complaint.” (Settlement ¶ 104.) Plaintiffs
Erika Flores and Sarah Garner are subject to an additional release that expressly waives
Section 1542 of the California Civil Code. (Id. ¶¶107.)
III. 	LEGAL STANDARD
A class action may only be settled with court approval. Fed. R. Civ. P. 23(e). “[I]n
the context of a case in which the parties reach a settlement agreement prior to class
certification, courts must peruse the proposed compromise to ratify both the propriety of
the certification and the fairness of the settlement.” In re Volkswagen “Clean Diesel”
Mktg., Sales Pracs., & Prod. Liab. Litig., 895 F.3d 597, 606 (9th Cir. 2018) (quoting Staton
v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003)); see also Saucillo v. Peck, 25 F.4th 1118,
1130 (9th Cir. 2022) (quoting Roes, 1–2 v. SFBSC Mgmt., LLC, 944 F.3d 1035, 1048 (9th
Cir. 2019) (“[W]here the parties negotiate a settlement agreement before the class has been
certified, settlement approval requires a higher standard of fairness and a more probing
inquiry than may normally be required under Rule 23(e).”) (internal punctuation omitted).
IV. 	CONDITIONAL CLASS CERTIFICATION
Before granting preliminary approval of settlement agreement in a putative class
action, the Court must first determine whether the proposed class can be certified. See
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Amchem 	Prod., Inc. v. Windsor, 521 	U.S. 591, 620–21 	(1997). “To 	obtain 	class
certification, a class plaintiff has the burden of showing that the requirements of Rule 23(a)
are met and that the class is maintainable pursuant to Rule 23(b).” Narouz v. Charter
Commc’ns, LLC, 591 F.3d 1261, 1266 (9th Cir. 2010) (citing Amchem, 521 U.S. at 613–
14). “When, as here, the parties have entered into a settlement agreement before the district
court certifies the class, reviewing courts ‘must pay undiluted, even heightened, attention
to class certification requirements.’” Staton, 327 F.3d at 952 (quoting Amchem, 521 U.S.
at 620).
A. 	Proposed Settlement Classes
Plaintiffs seek provisional certification of the putative Class under Federal Rule of
Civil Procedure 23(b)(3). The proposed settlement classes are defined as:
• 	“Settlement Class”: “[A]ll persons in the United States whose Private
Information was potentially compromised as a result of the Data Incident and
who were sent notice of the Data Incident.”3 (Id. ¶ 59.)
• 	“California Settlement Subclass”: “[T]hose individuals who are California
Settlement Class Members and are eligible to receive a CCPA Cash Payment
under the Settlement.” (Id. ¶ 12.)
“If subclasses are required because of conflicts between the various class members
and the inability of either class counsel or class representatives to adequately represent the
subclass, ‘each subclass must independently meet the requirements of Rule 23 for the
maintenance of a class action.’” Aldapa v. Fowler Packing Co., Inc., 323 F.R.D. 316, 326
(E.D. Cal. 2018) (quoting Betts v. Reliable Collection Agency, Ltd., 659 F.2d 1000, 1005
(9th Cir. 1981)). However, where a subclass is created as a “procedural innovation[] to
3 	“‘Private Information’ means Settlement Class Members’ sensitive information that may have
been exposed in the Data Incident, which may include names, Social Security numbers, dates of birth,
financial information, and health-related information.” (Settlement ¶ 50.) “‘Data Incident’ means the
alleged incident that is the subject of the Complaint in which unauthorized third parties purportedly gained
access to Settlement Class Members’ Private Information.” (Id. ¶ 25.)
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facilitate management of the class action” pursuant to Rule 23(d), then “it is unnecessary
to evaluate it under Rule 23(c)(4) for commonality, numerosity, typicality, and adequacy
of representation.” Am. Timber & Trading Co. v. First Nat. Bank of Oregon, 690 F.2d 781,
786–87, n.5 (9th Cir. 1982).
Here, the creation of a subclass is not due to conflicts or inadequate representation.
Rather, the subclass here appears to be crafted to aid in damage calculations because the
CCPA provides for statutory damages (see Doc. No. 31-1 at 21). See Am. Timber &
Trading Co., 690 F.2d at 786. As such, the Court views the subclass as a request for
permissive subclassing to facilitate management rather than compulsory to cure conflicts.
See 3 N EWBERG AND RUBENSTEIN ON CLASS A CTIONS § 7:29 (6th ed. 2024).
B. 	Rule 23(a) Factors
Pursuant to Rule 23(a), a representative party may sue on behalf of all members of
a class only if:
(1) 	the class is so numerous that joinder of all members is impracticable;
(2) 	there are questions of law or fact common to the class;
(3) 	the claims or defenses of the representative parties are typical of the
claims or defenses of the class; and
(4) 	the representative parties will fairly and adequately protect the interests
of the class.
Fed. R. Civ. P. 23(a). “The Rule’s four requirements—numerosity, commonality, typicality,
and 	adequate 	representation—‘effectively 	limit 	the 	class 	claims 	to 	those 	fairly
encompassed by the named plaintiff’s claims.’” Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
338, 349 (2011) (Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156 (1982)).
1. 	Numerosity
First, the numerosity requirement is satisfied where “joinder of all members is
impracticable.” Fed. R. Civ. P. 23(a)(1). “[I]mpracticability does not mean impossibility,
but only the difficulty or inconvenience of joining all members of the class.” Harris v.
Palm Springs Alpine Ests., Inc., 329 F.2d 909, 913–14 (9th Cir. 1964) (citation omitted).
“Although the Supreme Court has held that ‘the numerosity requirement imposes no
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absolute limitations,’ courts generally find this requirement satisfied when a class includes
at least forty members.” Pena v. Taylor Farms Pac., Inc., 305 F.R.D. 197, 213 (E.D. Cal.
2015) (first quoting Gen. Tel. Co. of Nw. v. E.E.O.C., 446 U.S. 318, 330 (1980), then citing
Rannis v. Recchia, 380 Fed. App’x 646, 651 (9th Cir. 2010)) (cleaned up).
Here, “Defendant estimates that there are approximately 34,127 individuals in the
Settlement Class.” (Doc. No. 31-1 at 14; Settlement ¶ 59.) The Court conditionally finds
the numerosity requirement has been met.
2. 	Commonality
Second, there must be “questions of law or fact common to the class.” Fed. R. Civ.
P. 23(a)(2). “Commonality requires the plaintiff to demonstrate that the class members
‘have suffered the same injury.’” Dukes, 564 U.S. at 349–50 (quoting Falcon, 457 U.S. at
148). “What matters to class certification is not the raising of common ‘questions’—even
in droves—but rather, the capacity of a class-wide proceeding to generate common answers
apt to drive the resolution of the litigation.” Id. at 350 (citation omitted) (emphasis in
original).
The extent of Plaintiffs’ explanation of commonality is, in whole: “[h]ere, the
Settlement Class involve the same questions of law and fact. This includes whether
Defendant was negligent by its alleged failure to properly secure and safeguard Class
members’ private information.” (Doc. No. 31-1 at 14.) However, turning to the Complaint,
Plaintiffs allege a number of common questions, including whether the Class’s personal
information was accessed and/or viewed by one or more unauthorized persons in the Data
Incident, when and how Defendant should have learned and actually learned of the Data
Incident, whether Defendant’s response to the Data Incident was adequate, whether
Defendant owed a duty to the Class to exercise due care in collecting, storing, safeguarding
and/or obtaining the Class’s personal information, and whether Defendant knew or should
have known that it did not employ reasonable measures to keep the Class’s personal
information secure and to prevent loss or misuse of that personal information. (Compl.
¶ 68.)
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District courts throughout this circuit have found that commonality is met when, as
here, the proposed class of plaintiffs asserts that a defendant’s cybersecurity and data
storage policies and procedures were inadequate and resulted in a specific data breach. See,
e.g., In re Anthem, Inc. Data Breach Litig. (“In re Anthem”), 327 F.R.D. 299, 308 (N.D.
Cal. 2018) (“All of Plaintiffs’ claims are premised on and dependent on the notion that
Anthem violated the law by failing to adequately secure the personal information in its data
warehouse.”); In re LinkedIn User Priv. Litig. (“In re LinkedIn”), 309 F.R.D. 573, 584
(N.D. Cal. 2015) (finding commonality met where the plaintiff alleged LinkedIn “made the
same security representations to each class member . . . and had the same security
deficiencies”); Bowdle v. King’s Seafood Co., LLC, No. SACV2101784CJCJDEX, 2022
WL 19235264, at *3 (C.D. Cal. Oct. 19, 2022) (“Because the data breach and the adequacy
of Defendant’s security environment are common causes of Plaintiff’s and the Class
Members’ alleged injuries, Plaintiff’s allegations give rise to common questions of law and
fact.”); In re Yahoo! Inc. Customer Data Sec. Breach Litig., No. 16-MD-02752-LHK, 2020
WL 4212811, at *3 (N.D. Cal. July 22, 2020), aff’d, No. 20-16633, 2022 WL 2304236 (9th
Cir. June 27, 2022); Sankar v. Cal. Northstate Univ., LLC, No. 2:24-CV-00473-DAD-JDP,
2025 WL 3539089, at *5–*6 (E.D. Cal. Dec. 10, 2025)
Although the instant motion provides very minimal analysis, considering the
common questions of fact and law alleged in both the motion and the Complaint, the Court
finds Plaintiffs have conditionally met the commonality requirement.
3. 	Typicality
Third, the claims or defenses of the class representative must be “typical of the
claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “[U]nder the rule’s permissive
standards, representative claims are ‘typical’ if they are reasonably coextensive with those
of absent class members; they need not be substantially identical.” Staton, 327 F.3d at 957
(quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998)); see also Hanon
v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (“The test of typicality is whether
other members have the same or similar injury, whether the action is based on conduct
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which is not unique to the named plaintiffs, and whether other class members have been
injured by the same course of conduct.”) (citation omitted). “The purpose of the typicality
requirement is to assure that the interest of the named representative aligns with the
interests of the class.” Hanon, 976 F.2d at 508.
Here, Plaintiffs’ claims are typical of the claims of the absent Class Members
because they arose from the same alleged conduct of Defendant, namely failure to properly
secure 	and 	safeguard 	the 	personal 	identifiable 	information 	of 	former 	and 	current
employees. (See Compl. ¶¶ 1–3; see also Doc. No. 31-1 at 15 (“Here, Plaintiffs’ claims
stem from Defendant’s uniform practices.”).) Plaintiffs and the other Class Members
suffered the same type of injury as a result of this alleged conduct: the unauthorized
disclosure 	of 	their 	personal 	information 	leaving 	the 	putative 	Class 	“in 	imminent,
immediate, and continuing increased risk of harm from identity theft and fraud[.]” (Compl.
¶¶ 4–5, 7, 56.) Plaintiffs’ claims are co-extensive with those of absent Class Members. (See
id. ¶¶ 14–17.) Plaintiffs have therefore conditionally satisfied the typicality prong.
4. 	Adequate Representation
Finally, Rule 23(a) requires that “the representative parties will fairly and adequately
protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “Serious conflicts of interest can
impair adequate representation by the named plaintiffs, yet leave absent class members
bound to the final judgment, thereby violating due process.” In re Volkswagen, 895 F.3d at
607 (quoting Hanlon, 150 F.3d at 1020). “To determine whether the representation meets
this standard, we ask two questions: (1) Do the representative plaintiffs and their counsel
have any conflicts of interest with other class members, and (2) will the representative
plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” Staton,
327 F.3d at 957. “Adequacy of representation also depends on the qualifications of
counsel.” Sali v. Corona Reg’l Med. Ctr., 909 F.3d 996, 1007 (9th Cir. 2018). Specifically,
“[t]he named representative’s attorney must be qualified, experienced, and generally
capable to conduct the litigation.” Id. (cleaned up).
///
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Plaintiffs contend that the adequacy of representation requirement is met here
because both Plaintiffs and their counsel (1) do not have any conflicts of interest with the
absent Settlement Class Members and (2) have vigorously prosecuted the action on behalf
of the Settlement Class. (Doc. No. 31-1 at 15; see also Travis Decl. ¶ 23.) Based on these
assertions, the Court is preliminarily satisfied that Plaintiffs’ interests align with those of
the proposed class and that Plaintiffs and their counsel have and will continue to vigorously
prosecute the action on behalf of the class.
Additionally, although the instant motion does not itself address the adequacy of
representation, the supporting declarations detail the qualifications of counsel. (Travis
Decl. ¶¶ 14–22; Doc. No. 31-8, Declaration of Joshua Swigart (“Swigart Decl.”).) Travis
attests, inter alia, that (1) he has extensive experience in civil litigation, concentrating on
complex class actions in consumer fraud, privacy, and wage-and-hour litigation, both in
federal and state court; (2) he has served as class counsel in several settled class actions
which provided millions of dollars in benefits to settlement classes; and (3) he is currently
serving as counsel in several privacy putative class actions. (Travis Decl. ¶¶ 15, 17–19.)
Additionally, Swigart is “well experienced in class actions and data breach litigations,” as
he practices “exclusively in the area of consumer rights litigation,” with extensive
experience in privacy related and data breach litigation. (Swigart Decl. ¶¶ 3, 5–6.) Based
on these representations, the Court is preliminarily satisfied that Plaintiffs’ counsel has no
conflict of interest, is experienced, and will continue to vigorously prosecute the action on
behalf of the putative class.
On record currently before the Court, the adequacy of representation requirement is
conditionally satisfied.
5. 	Conclusion
Accordingly, the Court finds Plaintiffs have sufficiently demonstrated each of the
four Rule 23(a) prerequisites to attain preliminary approval; however, Plaintiffs must
provide more fulsome analysis of these factors in a motion for final approval.
///
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C. 	Rule 23(b) Factors
“In 	addition 	to 	satisfying 	Rule 	23(a)’s 	prerequisites, 	parties 	seeking 	class
certification must show that the action is maintainable under Rule 23(b)(1), (2), or (3).
Amchem, 521 U.S. at 614. Relevant here, pursuant to Rule 23(b)(3), “[a] class action may
be maintained if Rule 23(a) is satisfied and if . . . the court finds that the questions of law
or fact common to class members predominate over any questions affecting only individual
members, and that a class action is superior to other available methods for fairly and
efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
1. 	Predominance
“The predominance inquiry asks whether the common, aggregation-enabling, issues
in the case are more prevalent or important than the non-common, aggregation-defeating,
individual issues.” Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31
F.4th 651, 664 (9th Cir. 2022) (quoting Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442,
453 (2016)). “When one or more of the central issues in the action are common to the class
and can be said to predominate, the action may be considered proper under Rule 23(b)(3)
even though other important matters will have to be tried separately, such as damages or
some affirmative defenses peculiar to some individual class members.” Tyson Foods, Inc.,
577 U.S. at 453 (citation omitted).
Plaintiffs argue that, because “all Settlement Class Members’ information was
allegedly disclosed due to the same Data Incident, resolving that central issue is suitable to
address on a class-wide basis; thus, common questions predominate.” (Doc. No. 31-1 at
16.)
As discussed supra, the many issues are common to all putative Class Members.
Specifically, Plaintiffs allege all Class Members’ personal information was subject to
Defendant’s uniform cybersecurity policies and procedures and exposed in the Data
Incident. As such, whether Defendant’s alleged conduct violated Plaintiffs’ rights is
capable of class-wide resolution. See, e.g., In re Anthem, 327 F.R.D. at 312 (finding that
“whether Anthem properly secured the stolen personal information” was “the precise type
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of predominant question that makes class-wide adjudication worthwhile”); In re LinkedIn,
309 F.R.D. at 585 (finding predominancy met because, inter alia, “whether LinkedIn failed
to protect its users’ PII with industry-standard protocols and technologies” could “be
resolved for all members of the proposed class in a single adjudication” and was “the
central focus of th[e] class action”).
Considering both the individual and common questions of fact and law at issue here,
the Court finds the predominance requirement is conditionally met.
2. 	Superiority
In determining whether “a class action is superior to other available methods for
fairly and efficiently adjudicating the controversy,” courts consider (1) the interest of class
members individually controlling the prosecution or defense of separate actions; (2) the
extent and nature of any litigation concerning the controversy already commenced by or
against members of the class; (3) the desirability of concentrating the litigation of the
claims in this particular forum; and (4) the manageability of the action as a class. Fed. R.
Civ. P. 23(b)(3); see also Zinser v. Accufix Rsch. Inst., Inc., 253 F.3d 1180, 1190 (9th Cir.),
as amended on denial of reh’g, 273 F.3d 1266 (9th Cir. 2001).
Plaintiffs argue that proceeding as a class action is superior because “counsel for
Plaintiffs are not aware of any other litigation arising out of the Data Incident pending in
other forums” and “courts routinely find that the interests of settlement class members in
data breach cases are aligned with certification of a settlement class, where an individual’s
potential recovery of alleged damages is low.” (Doc. No. 31-1 at 16–17.)
First, considering the 34,127 putative Class Members whose claims, based on the
record before the Court, would be for relatively modest damages which would make
pursuing the claim individually economically infeasible. See Zinser, 253 F.3d at 1190
(“Where damages suffered by each putative class member are not large, this [first] factor
weighs in favor of certifying a class action.”); see also In re Anthem, 327 F.R.D. at 316
(“Because individual damages [incurred by a data security breach] pale in comparison to
the costs of litigation, this factor points toward certification.”); Lopez v. NLP, LLC, No.
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2:24-CV-06403 CV (SKX), 2025 WL 4041932, at *7 (C.D. Cal. Dec. 4, 2025) (“For the
first factor, since this is a data breach case where individual recovery is likely to be much
lower than the costs of litigating ‘complex technical issues’ that could require ‘substantial
expert testimony,’ it is unlikely that any individual class member would bear the risks and
costs of litigating a separate action against Defendants.”). Second, neither party identifies,
nor is the Court independently aware of, any other pending litigation regarding the same
controversy. This factor weighs in favor of certification. Third, Plaintiff Flores was
employed by Defendant in this district, Defendant employes numerous individuals in this
district, 	including 	Plaintiff 	Flores 	(Compl. 	¶ 	13); 	however, 	Defendant 	itself 	is 	a
Massachusetts, who provides IT staffing services to companies across the United States
(id. ¶¶ 18–20). As such, this factor weighs neither in favor of nor against certification.
Finally, manageability need not be considered when considering certification in context of
settlement. See Amchem, 521 U.S. at 620,
Balancing the factors set forth in Rule 23(b)(3), the Court finds the superiority
requirement is conditionally met.
D. 	Conclusion
Because Plaintiffs have met each of the four requirements of Rule 23(a) and at least
one of the requirements of Rule 23(b), the Court certifies the Class for settlement purposes.
The Court appoints Plaintiffs Erika Flores and Sarah Garner as Class Representatives and
Swigart Law Group, APC, and Ben Travis Law, APC, as Class Counsel.
V. 	PRELIMINARY APPROVAL OF CLASS SETTLEMENT
Next, the Court must make a preliminary determination regarding whether the
proposed settlement and notice are “fair, reasonable, and adequate.” Fed. R. Civ. P.
23(e)(1), (2). “Under this standard, district courts can neither rubberstamp the settlement
nor unduly meddle in the parties’ affairs.” In re Cal. Pizza Kitchen Data Breach Litig. (“In
re CPK”), 129 F.4th 667, 674 (9th Cir. 2025).
Traditionally, courts in this circuit assess the fairness, reasonableness, and adequacy
of a proposed Rule 23 class settlement by balancing the following factors:
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(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 settlement; (5) the extent
of discovery completed and the stage of the proceedings; (6) the experience
and views of counsel; (7) the presence of a governmental participant; and
(8) the reaction of the class members of the proposed settlement.
Kim v. Allison, 8 F.4th 1170, 1178 (9th Cir. 2021). “The district court’s approval order
must show not only that ‘it has explored [these] factors comprehensively,’ but also that the
settlement is ‘not[] the product of collusion among the negotiating parties.’” In re Bluetooth
Headset Prod. Liab. Litig., 654 F.3d 935, 947 (9th Cir. 2011) (quoting In re Mego Fin.
Corp. Sec. Litig. (“In re Mego”), 213 F.3d 454, 458 (9th Cir. 2000), as amended (June 19,
2000)).
In 2018, Rule 23(e)(2) was amended to require courts to consider whether:
(A) 	the class representatives and class counsel have adequately represented
the class;
(B) 	the proposal was negotiated at arm’s length;
(C) 	the relief provided for the class is adequate, taking into account:
(i) 	the costs, risks, and delay of trial and appeal;
(ii) 	the effectiveness of any proposed method of distributing relief
to the class, including the method of processing class-member
claims;
(iii) 	the terms of any proposed award of attorney’s fees, including
timing of payment; and
(iv) 	any agreement required to be identified under Rule 23(e)(3); and
(D) the proposal treats class members equitably relative to each other.
Fed. R. Civ. P. 23(e)(2).
A. 	Rule 23(e)(2) Factors
The Court turns first to the Rule 23(e)(2) factors.
1. 	Adequacy of Relief
To determine the adequacy of the relief this Settlement provides Class Members, the
Court will consider the amount of recovery in relation to the strength of Plaintiffs’ case,
the risks and expenses likely engendered by continued litigation, the requested attorneys’
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fees, and the effectiveness of the proposed distribution method. See Fed. R. Civ. P.
23(e)(2)(C).
i. 	Amount of Recovery
“To evaluate the adequacy of the settlement amount, courts primarily consider
plaintiffs’ expected recovery against the value of the settlement offer.” In re Stable Rd.
Acquisition Corp., No. 2:21-CV-5744-JFW(SHKx), 2024 WL 3643393, at *8 (C.D. Cal.
Apr. 23, 2024). However, “[i]t is well-settled law that a cash settlement amounting to only
a fraction of the potential recovery does not per se render the settlement inadequate or
unfair.” In re Mego, 213 F.3d at 459 (quoting Officers for Just. v. Civ. Serv. Comm’n, 688
F.2d 615, 628 (9th Cir. 1982)); see also In re CPK, 129 F.4th at 678 (“[C]ourts do not have
a duty to maximize settlement value for class members.”).
Plaintiffs argue that, considering both monetary and non-monetary benefits to the
Class, the Settlement represents “significant recovery and potentially more than [the Class]
would be able to recover at trial.” (Doc. No. 31-1 at 20.) The average monetary recovery
per Class Members is estimated to be $17.87.4 (Id.) As context, Plaintiffs assert that
“[e]stimating the likely maximum recovery if Plaintiffs successfully certified a class and
prevailed on the merits is challenging, especially given that—to counsel’s knowledge—no
data breach class actions have reached a verdict.” (Id.) Additionally, Plaintiffs state that
there has been no evidence that any Class Member has suffered a loss as a result of the
Data Incident; however, the Settlement provides for reimbursement of demonstratable
losses, if any were to exist. (Id.) Finally, Plaintiffs point to the added value of providing
the Class with a one-year subscription to CyEx Financial Shield. (Id.)
Courts in this circuit have found that, because data-breach litigation is a relatively
new field, see In re Anthem, 327 F.R.D. at 317, it is difficult at this time to quantify possible
4 	It is unclear why the estimate provided in the instant motion is $17.87, but the Notice includes an
estimate of $40 for the Alternative Cash Payment and $75 for the CCPA Cash Payment. The parties must
be prepared to address the discrepancy at the Final Approval Hearing.
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exposure and thus maximum potential recovery at trial. See, e.g., Hashemi v. Bosley, Inc.,
No. CV 21-946 PSG (RAOX), 2022 WL 2155117, at *7 (C.D. Cal. Feb. 22, 2022) (“[I]t is
difficult to estimate Plaintiffs’ expected recovery were this case to proceed to trial given
the relative dearth of precedent and exemplar cases that have proceeded to trial.”); Bowdle,
2022 WL 19235264, at *7 (same).
However, in considering adequacy of pre-trial settlements, courts have routinely
approved modest settlements that are similar to or less than the recovery here. See, e.g.,
Lopez, 	2025 	WL 	4041932, 	at 	*12 	(finding 	that 	the 	plaintiffs’ 	case 	law 	survey
demonstrating a range of per class member recovery of $1.31 to $55.46 “comports with the
Court’s observations about other data breach settlements”) (collecting cases); Sankar, 2025
WL 3539089, at *11 (“The court observes that $20.62, the amount that the average putative
Class Member can expect to receive under the proposed settlement, is significant as
compared to other privacy class settlements.”) (collecting cases); Carter v. Vivendi
Ticketing US LLC, No. SACV2201981CJCDFMX, 2023 WL 8153712, at *5 (C.D. Cal.
Oct. 30, 2023) (“[O]ther courts have approved settlements in privacy and security cases
when each class member received just a few dollars or less.”) (collecting cases).
Comparing the monetary and non-monetary benefits here to those in other data
breach litigation settlements, the amount of recovery weighs in favor of a preliminary
finding of adequacy.
ii. 	Strength of Plaintiffs’ Case; Risk, Expense, Complexity, and
Likely Duration; and Risk of Maintaining Class Action
Status
When assessing “the costs, risks, and delay of trial and appeal[,]” Fed. R. Civ. P.
23(e)(2)(C)(i), courts in the Ninth Circuit evaluate “the strength of the plaintiffs’ case; the
risk, expense, complexity, and likely duration of further litigation; [and] the risk of
maintaining class action status throughout the trial[.]” Hanlon, 150 F.3d at 1026. However,
“the settlement or fairness hearing is not to be turned into a trial or rehearsal for trial on the
merits . . . for it is the very uncertainty of outcome in litigation and avoidance of wasteful
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and expensive litigation that induce consensual settlements.” Officers for Just., 688 F.2d at
628. “In most situations, unless the settlement is clearly inadequate, its acceptance and
approval are preferable to lengthy and expensive litigation with uncertain results.” Nat’l
Rural Telecomm. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 529 (C.D. Cal. 2004) (citation
omitted).
Plaintiffs 	argue 	that 	“[l]itigating 	data 	breach 	cases—even 	through 	class
certification—is costly and time consuming, particularly given the likelihood of protracted
and highly technical fact and expert discovery.” (Doc. No. 31-1 at 18.) Specifically, the
parties anticipate that, had the case not settled, there would have been extensive motion
practice, including Rule 12(c) challenges to the sufficiency of Plaintiffs’ allegations
regarding economic injury. (Id. at 18–19.) Additionally, resolving whether Defendant’s
security protocols were reasonable would require “complex, expensive, and unpredictable
technical discovery and expert evidence regarding Defendant’s cybersecurity measures.”
(Id. at 19.)
“Article III standing can be an uphill battle for data-breach plaintiffs, who must
allege a ‘concrete harm,’ not just an ‘asserted risk of future harm.’” In re CPK, 129 F.4th
at 678 (quoting TransUnion LLC v. Ramirez, 594 U.S. 413, 437 (2021)). Considering that
neither named Plaintiff alleges harm beyond personal information being posted to the dark
web, Plaintiffs’ argument regarding the risk of maintaining the action is well-taken. See id.
(“Here, the class’s standing rested on questionable footing—there is no evidence that any
CPK employee’s compromised data was misused[.]”). Additionally, because Defendant
“continues to deny each of the claims and contentions alleged in the Complaint” and “that
a class could or should be certified in the Action for litigation purposes,” (Settlement ¶¶ 6,
16, 106, 116–20), pursuing litigation on the merits would likely require complex discovery,
extensive motion practice, and carry a significant degree of risk.
Balancing the uncertainty and delay of continued litigation against the immediacy
and certainty of settlement, these factors weigh in favor of a preliminary finding of
adequacy. See, e.g., In re Anthem, 327 F.R.D. at 318 (“Taken together, these circumstances
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suggest that further litigation would have been costly and uncertain and would have
detrimentally delayed any potential relief for the Class. By contrast, the Settlement
provides 	the 	Class 	with 	timely, 	certain, 	and 	meaningful 	recovery.”); 	Carlin 	v.
DairyAmerica, Inc., 380 F. Supp. 3d 998, 1011 (E.D. Cal. 2019) (“It has been held proper
to take the bird in hand instead of a prospective flock in the bush.”).
iii. 	Proposed Award of Attorneys’ Fees and Litigation Costs
Pursuant to the Settlement, Class Counsel will request attorneys’ fees up to 25% of
the Settlement Fund and reimburse litigation costs and expenses incurred. (Doc. No. 31-1
at 11–12.)
As part of evaluating the settlement terms, the court must also consider “the terms
of any proposed award of attorney’s fees” to determine “whether the attorneys’ fees
arrangement shortchanges the class.” Briseño v. Henderson, 998 F.3d 1014, 1024 (9th Cir.
2021) (quoting in part Fed. R. Civ. Pro. 23(e)(2)(C)(iii)). Courts “must balance the
proposed award of attorney’s fees vis-à-vis the relief provided for the class in determining
whether the settlement is adequate for class members.” Id. (internal quotation marks
omitted).
“In a common fund case, such as this, the district court has the discretion to choose
between either the lodestar or the percentage-of-fund methods when calculating fees.”
Stanger v. China Elec. Motor, Inc., 812 F.3d 734, 738 (9th Cir. 2016). “Under the
percentage-of-fund method, the district court may award plaintiffs’ attorneys a percentage
of the common fund, so long as that percentage represents a reasonable fee.” Id. (citing
Powers v. Eichen, 229 F.3d 1249, 1256 (9th Cir. 2000)). “The benchmark percentage is
25%, but, similar to the lodestar, the benchmark percentage ‘can be adjusted upward or
downward, depending on the circumstances.’” In re Apple Inc. Device Performance Litig.,
50 F.4th 769, 784 (9th Cir. 2022) (quoting Kim, 8 F.4th at 1181); cf. Stanger, 812 F.3d at
738 (“Because there is a strong presumption that the lodestar amount represents a
reasonable fee, adjustments to the lodestar are the exception rather than the rule.”).
///
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The instant motion fails to provide any information regarding whether 25% of the
Settlement Fund is warranted for Class Counsel’s fees beyond the percentage being
presumptively reasonable. Additionally, the motion fails to provide any information
regarding the litigation expenses, including the amount currently incurred, an estimate of
what will be sought, or a maximum they will not exceed. Class Counsel is cautioned that
the requested attorneys’ fees and litigation costs will be closely scrutinized as part of any
future Rule 23(h) motion. See McKinney-Drobnis v. Oreshack, 16 F.4th 594, 610 (9th Cir.
2021) (“[T]he district court has a duty to scrutinize the agreement for signs that the fees
requested by counsel are unreasonably high.”). To that end, in their subsequent motion,
Class Counsel will be expected to provide:
(1) 	detailed explanation for the requested attorney fees addressing all the Ninth
Circuit’s applicable factors;
(2) 	documentation, such as billing records for all attorneys on the matter, to justify
the requested attorneys’ fees;
(3) 	declarations 	addressing 	reasonableness 	of 	each 	attorney’s 	hourly 	rate
considering prevailing rates for counsel of comparable experience, skill, and reputation in
the Southern District of California; and
(4) 	itemized records reflecting the requested litigation costs.
Due to the dearth of information provided at this time, and considering that Plaintiffs
and Class Counsel are to address the Court’s concerns at the final approval stage, this factor
weighs neither in favor nor against a finding of adequacy.
iv. 	Effectiveness of the Proposed Distribution Method
“[T]he goal of any distribution method is to get as much of the available damages
remedy to class members as possible and in as simple and expedient a manner as possible.”
4 NEWBERG ON CLASS A CTIONS § 13:53 (6th ed. 2024).
Here, the claims process is straightforward. The Class will receive notice explaining
they may be entitled to a Settlement Member Benefit and detailing how to submit a Claim
Form. (Settlement ¶ 89.) Claim Forms will be attached to the notice and may be submitted
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online through the Settlement Website or through U.S. Mail by sending them to the
Settlement Administrator at the address on the Claim Form. (Id. ¶ 90.)
To claim compensation for Extraordinary Out-of-Pocket Losses and Out-of-Pocket
Losses, Claimants must submit documentation of the actual losses incurred, such as
receipts demonstrating how much was lost or spent. (Doc. No. 31-7 at 3, 5–6.) To receive
compensation for Lost Time, Claimants must briefly explain what tasks were conducted
during the claimed time. (Id. at 3–4, 6.) To claim the Alternative Cash Payment and the
CCPA Cash Payment, Claimants need only check the appropriate box. (Id. at 6–7.) Finally,
Claimants are provided payment options of PayPal, Venmo, Zelle, Virtual Prepaid Card,
or Physical Check, from which they are prompted to select one. (Id. at 7.) The Settlement
Administrator will review each Claim Form to determine whether it is a Valid Claim. (See
Settlement ¶¶ 91–92.)
For the nonmonetary benefit of identity monitoring, a CyEx Financial Shield
enrollment code will be provided to each Settlement Class Member, regardless of Claim
Form submission, in the Email Notice and Postcard Notice. (Doc. No. 31-1 at 21;
Settlement ¶¶ 70, 93(c).) Enrollments will become active after final approval of the
Settlement. (Doc. No. 31-1 at 21; see also Doc. Nos. 31-4 at 3; 31-5 at 2.)
Payments will be sent “as soon as practicable” after Defendant transfers the
remaining Settlement Fund balance into the Escrow Account, which Defendant is to do no
later than 30 days after the Effective Date. (Settlement ¶¶ 65, 93(b).) Settlement Checks
will expire if not negotiated within ninety days of their date of issue. (Id. ¶ 94.)
Distribution, both in method and timeline, is reasonable and relatively efficient.
Thus, this factor weighs in favor of a preliminary finding of adequacy.
v. 	Conclusion
Considering the amount of recovery, the certainty that settlement brings, and the
distribution method’s efficiency, the Court finds the relief to be adequate, despite concerns
regarding the lack of information provided about attorneys’ fees, costs, and service awards.
As such, the Rule 23(e)(2)(C) factor preliminarily weighs in favor of approval.
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2. 	Adequate Representation
Second, the court considers whether “the class representatives and class counsel
have adequately represented the class[.]” Fed. R. Civ. P. 23(e)(2)(A). When analyzing the
adequacy of the representation, the court must address two questions: “(1) do the named
plaintiffs and their counsel have any conflicts of interest with other class members and
(2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of
the class?” Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1031 (9th Cir. 2012)
(citation omitted). “As to the latter question, the relevant inquiry is whether the plaintiffs
maintain a sufficient interest in, and nexus with, the class so as to ensure vigorous
representation.” In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 943 (9th Cir.
2015) (citation and internal punctation omitted).
As to the first question, based on the instant motion and declarations of Class
Counsel attached thereto, it does not appear that Plaintiffs or Class Counsel have any
interests that conflict with the Class, beyond Plaintiffs’ intent to seek service awards for
the representation of the Class. (Doc. No. 31-1 at 11, 21.)
Regarding the second question, as discussed supra § IV.B.4, Class Counsel have
extensive experience in class-action and employment litigation, including wage-and-hour
class actions, which indicates that they are well suited to vigorously represent Plaintiffs
and the Class. Additionally, there are no differences between Plaintiffs’ claims and that of
the Class, which indicates that Plaintiffs have sufficiently similar interest to vigorously
represent the Class. However, looking beyond the claims, Plaintiffs’ intent to seek a service
award provides an interest in this Settlement that is distinct from that of the Class.
Considering that the Settlement is not conditioned on Plaintiffs’ receipt a service
award (see Settlement ¶ 102), that the Settlement leaves the exact amount to the Court’s
discretion (see id. ¶¶ 56, 100, 102), and that the Court is not aware of an ex-ante agreement
between Plaintiff and Class Counsel regarding such award, the Court finds that Plaintiffs
and 	Class 	Counsel 	have 	preliminarily 	satisfied 	the 	adequacy 	requirement 	of 	Rule
23(e)(2)(A). See In re Online DVD-Rental, 779 F.3d at 943.
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3. 	Signs of Collusion
In reviewing the next Rule 23(e) factor, the Court must examine the Settlement for
indicia of collusion that would undermine a prima facie arm’s length negotiation. Signs of
collusion may include (a) disproportionate distributions of settlement funds to counsel; (b)
negotiation of attorneys’ fees separate from the class fund (“clear sailing provision”); or
(c) an arrangement for funds not awarded to revert to the defendants (“reverter provision”).
See Staton, 327 F.3d at 965. If multiple indicia of implicit collusion are present, the district
court has a heightened obligation to assure that fees are not unreasonably high. Id.
Here, the parties participated in two ENEs before both sides accepted Judge
Butcher’s mediator’s proposal. (Doc. No. 31-1 at 17; see also Doc. Nos. 20; 23; 24.) The
fact that the Settlement was reached with the assistance of experienced mediators suggests
that the settlement is fair and reasonable. See Bellinghausen v. Tractor Supply Co., 303
F.R.D. 611, 620 (N.D. Cal. 2014) (noting that discovery and the use of a mediator “support
the conclusion that the Plaintiff was appropriately informed in negotiating a settlement”);
Cabrales v. Bae Sys. San Diego Ship Repair, Inc., No. 21-CV-02122-AJB-DDL, 2024 WL
4994339, at *12 (S.D. Cal. Dec. 5, 2024) (“The use of a mediator on two separate occasions
to negotiate settlement and the exchange of discovery beforehand both support a
conclusion that Plaintiffs were appropriately informed in negotiating a settlement, and that
the settlement was not the result of collusion or bad faith by the parties or counsel.”); Lopez
v. Velocity Transp. LLC, No. 22-CV-1414-RSH-KSC, 2024 WL 4957565, at *6 (S.D. Cal.
Dec. 3, 2024) (finding a settlement to be the product of “serious, informed, non-collusive
negotiations” where it was reached through acceptance of a mediator’s proposal after full-
day 	negotiations 	and 	extensive 	discovery); 	Lusk 	v. 	Five 	Guys 	Enters. 	LLC, 	No.
117CV00762AWIEPG, 2022 WL 4791923, at *8 (E.D. Cal. Sept. 30, 2022) (“The Parties
did not reach an agreement directly at the conclusion of mediation, but they eventually
reached a settlement after informed, arm’s-length negotiations and with the help of the
mediator’s proposal to resolve the matter. In light of the above, the Court finds that this
factor weighs in favor of preliminary approval.”).
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Also, the parties did not identify any side agreements made in connection with the
settlement. See Fed. R. Civ. P. 23(e)(3). There is no clear sailing provision or reverter
provision. (See Doc. No. 31-1 at 17; Travis Decl. ¶ 10; Settlement ¶ 62.) Finally, in
reaching the settlement, the parties did not discuss attorneys’ fees, costs, or expenses. (Doc.
No. 31-1 at 7; Travis Decl. ¶ 6 (“The Parties never discussed attorneys’ fees and costs
associated with a settlement until after they reached agreement on the amount of the
settlement.”).) The Court preliminarily finds this factor weighs in favor of approval.
4. 	Equitable Treatment of Class Members
As to the fourth and final Rule 23(e)(2) factor, the Court examines whether “the
proposal treats class members equitably relative to each other.” Fed. R. Civ. P. 23(e)(2)(D).
This inquiry considers both (i) equity across sub-categories, or segments, of the class, and
(ii) equity between class representatives and unnamed class members.
As discussed supra, the Settlement Agreement treats the named Plaintiffs differently
from other Class Members by providing them with incentive awards in addition to their
settlement share. See supra § V.A.2. However, the named Plaintiffs are also subject to an
additional release as compared to the rest of the Class.
Considering calculation of monetary benefits, the Settlement expressly contemplates
providing Class Members with a share based either (1) on the amount of losses actually
incurred or (2) absent documentation of actual losses, a pro rata calculation. Although the
motion is absent discussion of this difference, the Court is preliminarily satisfied that the
difference in potential recovery takes appropriate account of Class Members’ individual
circumstances. In the motion for final approval, the parties must explicitly address and
justify the equity of the different share options.
B. 	Additional Ninth Circuit Factors
Although the amended Rule 23(e)(2) factors were not intended to replace the factors
developed by circuits, see Fed. R. Civ. P. 23(e)(2) advisory committee’s note to 2018
amendment, the instant motion only addresses the Rule 23(e)(2) factors. Regardless, the
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Court now turns to analyze the remaining factors traditionally considered by this circuit.5
See McKinney-Drobnis, 16 F.4th at 609 n.4 (“The amended Rule 23(e) did not ‘displace’
this court’s previous articulation of the relevant factors, and it is still appropriate for district
courts to consider these factors in their holistic assessment of settlement fairness.”).
1. 	Experience and Views of Counsel
“Parties represented by competent counsel are better positioned than courts to
produce a settlement that fairly reflects each party’s expected outcome in litigation.” In re
Pac. Enter. Sec. Litig., 47 F.3d 373, 378 (9th Cir. 1995). As such, “[g]reat weight is
accorded to the recommendation of counsel, who are most closely acquainted with the facts
of the underlying litigation.” Nat’l Rural Telecomm. Coop., 221 F.R.D. at 529 (citation and
internal quotation marks omitted).
Here, “[b]oth Parties are represented by experienced counsel and their mutual desire
to adopt the terms of the proposed settlement, while not conclusive, is entitled to great deal
of weight.” In re Immune Response Sec. Litig., 497 F. Supp. 2d 1166, 1174 (S.D. Cal.
2007); see also In re LinkedIn, 309 F.R.D. at 588 (“Class counsel has extensive experience
prosecuting and settling class actions, including in the field of consumer privacy.”). In
addition to being familiar with the present dispute, Class Counsel has significant expertise
in class action litigation, including data security. (See Travis Decl. ¶¶ 15, 17–19; Swigart
Decl. ¶¶ 3, 5–6.) This factor weighs in favor of approval.
2. 	Reaction of Class Members
“It is established that the absence of a large number of objections to a proposed class
action settlement raises a strong presumption that the terms of a proposed class settlement
action are favorable to the class members.” In re Omnivision Techs., Inc., 559 F. Supp. 2d
1036, 1043 (N.D. Cal. 2008) (quoting Nat’l Rural Telecomm. Coop., 221 F.R.D. at 529).
At this preliminary approval stage, Class Members have yet to receive notice of
5 	The parties’ motion for final approval must address all factors considered by the Ninth Circuit,
including those that precede the amended Rule 23(e)(2) factors.
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settlement. Accordingly, the Court will revisit this factor with the subsequent motion for
final approval of settlement.
3. 	Presence of a Government Actor
There is no government actor a party to the instant action; however, the Class Action
Fairness Act (“CAFA”), pursuant to which the Complaint was brought, requires that, “[n]ot
later than 10 days after a proposed settlement of a class action is filed in court, each
defendant that is participating in the proposed settlement shall serve upon the appropriate
State official of each State in which a class member resides and the appropriate Federal
official, a notice of the proposed settlement[.]” 28 U.S.C. § 1715(b). “Although CAFA
does not create an affirmative duty for either state or federal officials to take any action in
response to a class action settlement, CAFA presumes that, once put on notice, state or
federal officials will raise any concerns that they may have during the normal course of the
class action settlement procedures.” In re LinkedIn, 309 F.R.D. at 588–89.
Here, because the parties agreed that notice of the proposed settlement would be
provided to appropriate state and federal officials within 10 days for filing the instant
motion (Settlement ¶ 78(a)), the Court will revisit this factor with the subsequent motion
for final approval of settlement.
C. 	Cy Pres Recipient
“[C]y pres doctrine allows a court to distribute unclaimed or non-distributable
portions of a class action settlement fund to the ‘next best’ class of beneficiaries.” Lane v.
Facebook, Inc., 696 F.3d 811, 819 (9th Cir. 2012) (quoting Nachshin v. AOL, LLC, 663
F.3d 1034, 1036 (9th Cir. 2011)). “[A] district court should not approve a cy pres
distribution unless it bears a substantial nexus to the interests of the class members”
meaning that it “must account for the nature of the plaintiffs’ lawsuit, the objectives of the
underlying statutes, and the interests of the silent class members.” Id. at 821(cleaned up).
The Settlement Agreement contemplates the possibility of identifying a cy pres
recipient through subsequent Court involvement, if necessary. Specifically, “[i]f there is
any balance remaining in the Settlement Fund 90 days after the Settlement Administrator
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completes the process for stopping payment on any checks that remain uncashed, the
Parties will return to the Court seeking direction as to the disposition of these funds,
including the selection of a cy pres recipient, which shall be a 501(c)(3) selected by the
Parties (subject to Court approval).” (Settlement ¶ 73.)
However, the Court sees no reason for identification and approval of the cy pres
recipient to be deferred. Accordingly, in their motion for final approval, Plaintiffs are
directed to specify the proposed cy pres recipient and explain why the specified recipient
is appropriate.
D. 	Service Awards for Named Plaintiffs
Service awards, also called incentive awards, are designed to “compensate class
representatives for work done on behalf of the class, to make up for financial or reputational
risk undertaken in bringing the action, and, sometimes, to recognize their willingness to act
as a private attorney general.” Rodriguez v. West Publ’g Corp., 563 F.3d 948, 958–59 (9th
Cir. 2009); but see Staton, 327 F.3d at 975–78 (discussing conflicting interests for named
plaintiff receiving incentive award). Although “[i]ncentive awards are fairly typical in class
action cases,” they are discretionary, id. at 958, and “district courts must be vigilant in
scrutinizing all incentive awards to determine whether they destroy the adequacy of the
class representatives,” Radcliffe v. Experian Info. Sols. Inc., 715 F.3d 1157, 1164 (9th Cir.
2013). “[E]xcess incentive awards may put the class representative in a conflict with the
class and present a ‘considerable danger of individuals bringing cases as class actions
principally 	to 	increase their own 	leverage to 	attain 	a 	remunerative settlement 	for
themselves and then trading on that leverage in the course of negotiations.’” Rodriguez,
563 F.3d at 960 (quoting Staton, 327 F.3d at 977–78).
In deciding whether to approve an incentive award, courts consider factors including
“the number of named plaintiffs receiving incentive payments, the proportion of the
payments relative to the settlement amount, and the size of each payment.” In re Online
DVD-Rental, 779 F.3d at 947 (quoting Staton, 327 F.3d at 977); see also Ridgeway v. Wal-
Mart Stores Inc., 269 F. Supp. 3d 975, 1002 (N.D. Cal. 2017) (listing factors including risk
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to the representative, notoriety and personal difficulties encountered, amount of time and
effort spent, duration of litigation, and personal benefit).
Here, the Settlement proposes a $2,500 incentive award for each of the two named
Plaintiffs in this action. (Settlement ¶ 100.) In support of these awards, Plaintiffs state that
such awards are “fairly typical in class action cases” and are “appropriate here” considering
the time the Class Representatives have spent “developing the case and conferring with
counsel.” (Doc. No. 31-1 at 21.) Specifically, “Plaintiffs have actively participated in the
prosecution 	of 	this 	action 	by 	reviewing 	and 	approving 	the 	original 	Complaint;
communicating regularly with their counsel; attending the initial ENE and remaining on
standby for the continued ENE; weighing in on the proposed settlement; . . . generally
staying informed about the progress of the litigation and acting in the interests of the
proposed class[; and] put[ting] their names and reputations on the line for the sake of the
Settlement Class.” (Id. at 11.) Plaintiffs provide no declaration from either named Plaintiff
specifying the hours expended on tasks each Plaintiff completed in furtherance of this
litigation or detailing any specific risk each faced by prosecuting this action. Additionally,
the instant motion provides no case law supporting the reasonableness of the $5,000
cumulative incentive awards in relation to Settlement Fund and Settlement Class of this
size, despite concluding that the individual award amount of $2,500 “is consistent with
those approved in other consumer class action settlements.” (Id.)
Although Plaintiffs have provided little basis warranting approval of the incentive
awards at this time, the Court does not find this a reason to deny preliminary approval
considering that the Settlement leaves the exact amount to the Court’s discretion. (See
Settlement ¶¶ 56, 100, 102.) In the parties’ future motion for final approval and any
corresponding motion for award of fees that includes the service award, the parties must:
(1) address the legal and factual basis supporting the specific amount requested in
the service award that is individualized to each named Plaintiff; and
(2) provide a declaration from each named Plaintiff that, inter alia, estimates the
hours expended on tasks completed in furtherance of this litigation and detail any specific
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risk they faced by prosecuting this action.
E. 	Settlement Administration
To ultimately approve a class action settlement, a district court must ensure class
members were notified of the proceedings, had the opportunity to opt out or, for those who
remain in the settlement, object to any of the settlement’s terms, and were provided the
chance to appear at fairness hearing. Fed. R. Civ. P. 23(c)(2), (e)(1), (e)(5).
To 	effectuate these procedures, the parties 	have agreed 	to 	retain 	Simpluris.
(Settlement ¶ 76.) The Court approves and appoints Simpluris to administer notice and the
Settlement.
Additionally, the Settlement Agreement states the Settlement Administrator will be
paid for all costs of administration out of the Settlement Fund (Id. ¶ 66), which Plaintiffs
currently estimate at $30,069 (Doc. No. 31-1 at 8). Although concerned that the Settlement
neither sets a maximum of administration costs nor limits costs to those reasonably
incurred, the 	Court 	finds 	the 	estimated 	$30,069.00 	Settlement 	Administrator costs
preliminarily reasonable, subject to review of an itemized bill of costs actually incurred
and costs to still be incurred at the Final Approval Hearing. See, e.g., Hod v. Medtronic
MiniMed, Inc., No. 2:23-CV-07154-JLS-PVC, 2025 WL 2934516, at *6 (C.D. Cal. Sept.
18, 2025) (finding $24,968 in administration costs reasonable where notice was provided
to 54,475 class members in a data breach suit); Giroux v. Essex Prop. Tr., Inc., No. 16-CV-
01722-HSG, 2019 WL 1207301, at *6 (N.D. Cal. Mar. 14, 2019), amended, No. 16-CV-
01722-HSG, 	2019 	WL 	2106587 	(N.D. 	Cal. 	May 	14, 	2019) 	(finding 	$22,500 	in
administration costs reasonable where notice was provided to 2,500 of the defendant’s
current and former employees in a data breach suit).
F. 	Form and Method of Proposed Notice
Rules 23(c)(2)(B) and (e)(1) generally require that a Rule 23(b)(3) settlement class
should receive notice in a reasonable manner, and that the notice be “the best notice that is
practicable under the circumstances, including individual notice to all members who can
be identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B); see also Amchem, 521
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U.S. at 617. Regular mail, electronic mail, and other appropriate means should all be
considered. See Fed. R. Civ. P. 23(c)(2)(B). “Notice is satisfactory if it ‘generally describes
the terms of the settlement in sufficient detail to alert those with adverse viewpoints to
investigate and to come forward and be heard.’” Churchill Vill., L.L.C. v. Gen. Elec., 361
F.3d 566, 575 (9th Cir. 2004) (quoting Mendoza v. Tucson Sch. Dist. No. 1, 623 F.2d 1338,
1352 (9th Cir. 1980)). Additionally, as settlement was reached pre-certification, the notice
must also comply with Rule 23(c)(2). See Fed. R. Civ. P. 23(c)(B) (setting forth seven
requirements for notice of a class certified pursuant to Rule 23(b)(3)).
Here, Plaintiffs propose that notice to the Class be sent by email initially for those
of whom Defendant maintained email addresses. (Settlement ¶ 81.) For Class Members for
whom Defendant did not have an email address and for Class Members for whom the initial
Email Notice bounced, the Settlement Administrator will disseminate Postcard Notice via
U.S. Mail to the mailing addresses provided by Defendant. (Id.) To implement this
procedure, Defendant will provide the Class List, including names, email addresses, and
postal addresses of all members of the Class, to Class Counsel and the Settlement
Administrator no later than fourteen days after Preliminary Approval. (Id. ¶¶ 20, 80.) For
those individuals for whom both Email Notice and Postcard Notice was undeliverable, the
Settlement Administrator will run a database search and re-mail notice no later than forty-
five days before the Final Approval Hearing. (Id. ¶ 87.)
Having reviewed the proposed Class Notice Packet, the Court concludes the Notice
complies with Federal Rule of Civil Procedure 23. Accordingly, the Court approves the
Notice in plan, form, and content. Efficacy of notice will be revisited at the Final Approval
Hearing considering the final number of delivered notices as compared to the number of
undeliverable notices and considering the number of Claim Forms successfully submitted.
VI. 	CONCLUSION
For the reasons stated above, the Court enters the following orders:
1. 	Conditional Class Certification: The Court GRANTS Plaintiffs’ request for
conditional certification of the Settlement Classes and DEFINES the Settlement Classes
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as set forth supra § IV.A. The Court APPOINTS Plaintiffs Erika Flores and Sarah Garner
as Class Representatives and APPOINTS Swigart Law Group, APC, and Ben Travis Law,
APC, as Class Counsel.
2. 	Preliminary Approval of Settlement: The Court finds, on a preliminary
basis, that the proposed Class Settlement appears to be fair, adequate, and within the range
of reasonableness. Accordingly, the Court GRANTS Plaintiffs’ motion for preliminary
approval of class settlement (Doc No. 31.)
3. 	Notice of Settlement: The Court finds the proposed Notice (Doc. Nos. 31-4;
31-5; 31-6) to be consistent with the requirements of Rule 23 and due process to provide
the best practicable notice under the circumstances. Accordingly, the Court APPROVES
the proposed Notice.
4. 	Settlement 	Administration: 	The 	Court 	APPOINTS 	Simpluris 	as 	the
Settlement Administrator to supervise and administer the notice procedure in connection
with the Settlement as well as the processing of claims set forth in the Settlement
Agreement. The Court APPROVES the implementation schedule of the Notice Process
(see Doc. No. 31-1 at 26), except where dates are otherwise set by numbers 5 and 6 below.
5. 	Briefing Schedule: The motion for final approval of class action settlement
and motion for attorneys’ fees and costs must be filed and served on all parties no later than
May 18, 2026. Responses—including either an opposition or a notice of non-opposition
by Defendant (only with regard to any motion not filed jointly) and any Objections by
Settlement Class Members—must be filed and served on counsel for all parties no later
than May 26, 2025. Any reply by Plaintiffs must be filed and served on counsel for all
parties no later than June 2, 2026. Plaintiffs’ motions must also comply with the following:
The motion for final approval MUST:
• 	ADDRESS the concerns raised by the Court in the instant Order;
• 	ADDRESS when the CAFA Notice was served and upon whom it was served
and INCLUDE AND ADDRESS any objections or responses received from
the government officials;
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• 	ADDRESS 	the 	actual 	efficacy 	of 	the 	Notice 	Program 	by, 	inter 	alia,
identifying the number of Class Members who received Email Notice,
Postcard Notice in the first instance, Postcard Notice after a databased search,
and the number who never received notice successfully; and
• 	INCLUDE AND ADDRESS any Objections or responses received as of the
filing date.
In support of the fees, expenses, and incentive award motion, Class Counsel MUST:
• 	ADDRESS the concerns raised by the Court in the instant Order;
• 	PROVIDE documentation detailing the number of hours incurred by attorneys
in litigating this action, supported by detailed time records, as well as hourly
compensation to which those attorneys are reasonably entitled;
• 	PROVIDE documentation itemizing and supporting the reasonableness of
litigation expenses for which Class Counsel seeks reimbursement; and
• 	BE PREPARED to address any questions the Court may have regarding
attorneys’ fees, expenses, and incentive awards at the Final Approval Hearing.
6. 	Final Approval Hearing: The Court sets a Final Approval Hearing on
Thursday, July 9, 2026, at 10:00 AM in Courtroom 4A, of the Edward J. Schwartz United
States Courthouse, 221 W. Broadway, San Diego, CA 92101, to consider:
• 	Whether the proposed Class Settlement should be finally approved as fair,
reasonable, and adequate;6
• 	Whether 	Class 	Counsel’s 	requested 	attorneys’ 	fees 	and 	expenses 	are
reasonable;
6 	Considering the Claim Form and Objection Period deadlines are after briefing concludes, the Court
expects Class Counsel to be prepared to provide a final accounting of (1) the number of Claim Forms
received, (2) the number of Claim Forms rejected and for what reason, including if any were rejected
solely for being untimely, and (3) the number of Objections received in total, including any that were
untimely or did not comply with all the requirements detailed in the Settlement, and to provide a copy of
all Objections received after briefing closed to be admitted as a part of the record at the Final Approval
Hearing.
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• 	Whether Plaintiffs’ service awards are appropriate; and
• 	Whether the Settlement Administrator’s expenses are reasonable.
IT IS SO ORDERED.
Dated: February 18, 2026
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