                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 19 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


SHIRLEY NICHOLS,                                 No.   16-56042

              Plaintiff-Appellant,               D.C. No.
                                                 2:16-cv-01215-DSF-MRW
 v.

CITIBANK, N.A., et al.,                          MEMORANDUM*

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                       Argued and Submitted March 5, 2018
                              Pasadena, California

Before: REINHARDT and NGUYEN, Circuit Judges, and SETTLE,** District
Judge.

      Plaintiff-Appellant Shirley Nichols (“Nichols”) appeals the district court’s

order granting summary judgment on her class action claims in favor of

Defendants-Appellees Citibank, N.A., Citigroup, Inc., and Citimortgage, Inc.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Benjamin H. Settle, United States District Judge for
the Western District of Washington, sitting by designation.
(collectively “Citibank”). Nichols argues that the district court erred in

determining that the class action settlement release in Raniere v. Citigroup Ins.,

No. 1:11-cv-2448-RWS (S.D.N.Y.), barred Nichols’s present claims. “We review

de novo a district court’s grant of summary judgment,” Fisher v. Kealoha, 855

F.3d 1067, 1069 (9th Cir. 2017) (citation omitted), and affirm.

      1. When assessing the valid scope of a class action settlement agreement,

we employ an “identical factual predicate” rule under which “a federal court may

release not only those claims alleged in the complaint, but also a claim based on

the identical factual predicate as that underlying the claims in the settled class

action.” Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 748 (9th Cir.

2006) (quotation marks omitted). Nichols argues that for a class action release to

be preclusive, “the claims must be ‘identical’ to be barred.” However, our

precedent states the opposite:

      A settlement agreement may preclude a party from bringing a related
      claim in the future “even though the claim was not presented and
      might not have been presentable in the class action,” but only where
      the released claim is “based on the identical factual predicate as that
      underlying the claims in the settled class action.”

Hesse v. Sprint Corp., 598 F.3d 581, 590 (9th Cir. 2010) (quoting Williams v.

Boeing Co., 517 F.3d 1120, 1133 (9th Cir. 2008); Class Plaintiffs v. City of Seattle,

955 F.2d 1268, 1287 (9th Cir. 1992)) (emphasis added). While a subsequent claim


                                           2
must be based on an identical factual predicate for a class action release to be

preclusive, there is no requirement that the claims be identical.

      2. Nichols fails to distinguish the factual predicates of her present claims

from the factual predicate of Raniere even though she focuses her present claims

narrowly on a specific method whereby Citibank miscalculated the base wages

used to compute the overtime wages owed to non-exempt employees. The

operative complaint for the class action in the Raniere settlement was predicated

on allegations of (1) unpaid wages due to the misclassification of non-exempt

employees, (2) inaccurate overtime calculations, once employees were properly

classified as non-exempt, that “routinely fell short of what is required under the

FLSA and applicable state laws,” and (3) inaccurate wage statements that “did not

accurately reflect all hours worked, including overtime.” That the underlying

factual predicate for the settlement release in Raniere encompassed overtime wage

claims beyond the misclassification of non-exempt employees is established by the

fact that Nichols had no such misclassification claim and still was paid $158.16 to

release her other wage claims. While Raniere covered a broader range of alleged

misconduct that included the misclassification of employees as exempt from

overtime, both the settlement in Raniere and Nichols’s present claims are

predicated on allegations that Citibank failed to pay and accurately disclose or


                                           3
compute wages for the purpose of calculating overtime payments to employees

properly classified as non-exempt. Accordingly, the Raniere settlement release

and Nichols’s present claims are based on the same factual predicate.

      AFFIRMED.




                                         4
