NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 3 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMOTHY BELEW, on behalf of himself No. 15-56821
and all others similarly situated,
D.C. No.
Plaintiff-Appellee, 3:14-cv-01748-JAH-JLB
v.
MEMORANDUM*
BRINK'S, INCORPORATED, a Delaware
corporation,
Defendant-Appellee,
v.
DORIAN CERON,
Objector-Appellant.
TIMOTHY BELEW, on behalf of himself No. 16-56376
and all others similarly situated,
D.C. No.
Plaintiff-Appellee, 3:14-cv-01748-JAH-JLB
v.
BRINK'S, INCORPORATED, a Delaware
corporation,
Defendant-Appellee,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
v.
DORIAN CERON,
Objector-Appellant.
Appeals from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted November 13, 2017
Pasadena, California
Before: HAWKINS, GRABER, ** and PARKER,*** Circuit Judges.
Objector Dorian Ceron appeals from a judgment adopting the parties’ Joint
Stipulation, certifying a class for settlement purposes pursuant to Rule 23(b)(3), and
awarding attorneys’ fees and an incentive payment to Plaintiff Timothy Belew. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, vacate in part, and
remand with further instructions.
There was an abuse of discretion in approving the Joint Stipulation that
included an overbroad release of claims. See Hanlon v. Chrysler Corp., 150 F.3d
1011, 1026–27 (9th Cir. 1998) (stating the standard of review). A settlement
**
This appeal was argued before a panel that included Judge Kozinski, who
retired before a disposition could be filed. Judge Graber was randomly drawn as a
replacement. She has reviewed the record and considered the parties’ arguments
before concurring in this disposition.
***
The Honorable Barrington D. Parker, Jr., United States Circuit Judge for
the U.S. Court of Appeals for the Second Circuit, sitting by designation.
2
agreement is not fundamentally fair under Rule 23(e)(2) if it is “the product of
collusion among the negotiating parties.” In re Mego Fin. Corp. Sec. Litig., 213
F.3d 454, 458 (9th Cir. 2000) (citing Class Plaintiffs v. City of Seattle, 955 F.2d
1268, 1290 (9th Cir. 1992)). One indication of collusion is an overbroad release of
claims, wherein claims that are not within the “identical factual predicate” of the
claims alleged in the complaint are released. Hesse v. Sprint Corp., 598 F.3d 581,
590 (9th Cir. 2010). Under this test, the released claims must “arise from the same
common nucleus of operative fact” as those alleged in the complaint. Class
Plaintiffs, 955 F.2d at 1288.
Here, claims relating to meal and rest period violations, unpaid minimum
wages, unreimbursed expenditures, and other unpaid wages—claims that class
representative Belew did not possess—arise from factual predicates different from
claims alleging unpaid overtime wages. The operative complaint contains less than
two pages of factual allegations, all of which are specific to the practices employed
by Brink’s to calculate and pay overtime wages; these allegations fail to present a
related, let alone “identical,” factual predicate necessary to release claims involving
meal and rest period violations, unpaid minimum wages, unreimbursed
expenditures, and other unpaid wages. See, e.g., Hesse, 598 F.3d at 591 (noting that
“superficial similarity” is insufficient to meet the identical factual predicate test).
3
Ordinarily, a class settlement “must stand or fall in its entirety,” because we
lack the power to “rewrite agreements reached by parties.” Dennis v. Kellogg Co.,
697 F.3d 858, 868 (9th Cir. 2012) (internal quotation marks omitted). Here,
however, the non-overtime-related claims were considered by Brink’s to have zero
value, and the settlement contained no separate consideration for those claims. For
that reason, it is possible to excise the release of those claims from the Joint
Stipulation without “rewriting” anything.
Shorn of the release of the unrelated claims, the district court’s approval of
the Joint Stipulation seems entirely appropriate. Accordingly, we affirm the
approval of the Joint Stipulation, instruct the district court to sever claims involving
meal and rest period violations, unpaid minimum wages, unreimbursed
expenditures, and other unpaid wages from the Joint Stipulation’s release of claims,
and remand consistent with this disposition.
AFFIRMED in part, VACATED in part, and REMANDED for proceedings
consistent with the above instructions. Each party shall bear their own costs on
appeal.1
1
All pending motions, see Doc. 75, are denied as moot.
4