Alvarado et al v. Nederend et al
Filing
73
MEMORANDUM DECISION Re Unopposed Motion For Final Approval of Class Action Settlement 59 , signed by Judge Oliver W. Wanger on 5/17/2011. ((1) The Settlement Class is CERTIFIED; (2) The Class Settlement is APPROVED; (3) The payment of $165,5 23 in attorneys fees and $10,827.70 in costs is APPROVED; (4) They payment of a $7,500 enhancement to the named Plaintiffs Octavio Alvarado, Pablo Martinez, Omar Gomez,Daniel Gomez, and Jose de Jesus Garcia is APPROVED; (5) The payment of $15,000 to the SettlementAdministrator is APPROVED. Plaintiffs shall submit a form of order consistent with this decision within five (5) days following electronic service. )(Gaumnitz, R)
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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
OCTAVIO ALVARADO, PABLO
MARTINEZ, OMAR GOMEZ, DANIEL
GOMEZ, JOSE DE JESUS GARCIA,
on behalf of themselves and
all other similarly situated
individuals,
v.
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15
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MEMORANDUM DECISION RE
UNOPPOSED MOTION FOR FINAL
APPROVAL OF CLASS ACTION
SETTLEMENT (DOC. 59)
Plaintiffs,
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1:08-cv-01099 OWW DLB
REX NEDEREND AND SHERI
NEDEREND (dba “Northstar
Dairy,” “Wildwood Farms,”
“Freeway Associates”),
Defendants.
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I. INTRODUCTION
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This is a wage-and-hour class action brought on
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behalf of Dairy workers employed by Rex and Sheri
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Nederend in, or around, Tulare and/or Kern County,
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California.
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2; see also Second Amended Class Action Complaint
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Declaration of Stan S. Mallison, Doc. 60, ¶
(“SAC”), Doc. 27, filed Jan. 19, 2010.
The action is
brought on behalf of Plaintiffs and approximately 150
current and former non-exempt employees of Defendants for
alleged violations of federal and state wage-and-hour
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laws.
Id.
The parties have entered into a Joint Stipulation of
Settlement.
A January 11, 2011 memorandum decision: (1)
conditionally certified a Settlement Class; (2)
preliminarily approved the Class Settlement; (3)
appointed Class Representatives and Class Counsel; (4)
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approved class notice and related materials; (5)
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appointed a settlement administrator; and (6) scheduled a
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final approval hearing for April 4, 2011.
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stipulation, the final approval hearing was continued to
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Doc. 51.
By
May 2, 2011, Doc. 55, and again to May 16, 2011, Doc. 58.
Supplemental notice of the revised hearing date was
mailed to all class members.
Declaration of Michael Bui,
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Doc. 66 at ¶ 9.
Plaintiffs have filed a motion for final
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approval of the settlement, Doc. 56, along with numerous
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supporting declarations, Docs. 60-66.
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approval have been received.
No objections to
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II. BACKGROUND
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Plaintiffs allege that Defendants failed to pay
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overtime and minimum wages; failed to pay wages due at
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termination of employment; failed to provide all legally
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required meal periods and rest breaks; and failed to
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provide accurate, itemized employee wage statements.
Plaintiffs sought to certify a class composed of
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themselves and similarly situated individuals and to
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recover back wages, interest, penalties, and attorneys’
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fees and costs from Defendants.
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See SAC.
After the complaint was filed, Plaintiffs conducted
substantial discovery and non-discovery investigation
regarding class certification and the merits of their
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claims.
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Plaintiffs served an extensive set of document requests,
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demanding all of the critical payroll and timekeeping
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information at issue in this case, as well as the names
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Mallison Decl. at ¶ 34.
Among other discovery,
and contact information for Defendants’ former and
current employees.
After meeting and conferring
regarding these issues, Defendants produced the core
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payroll and timekeeping information.
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Defendants’ timekeeping system is both computer and
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“paper-based,” consisting of paper time records for the
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earlier part of the time period and a database for the
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later part of the time period.
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Id. at ¶ 34.
Id. at ¶ 35.
This
required Plaintiffs’ counsel to employ both database
experts to analyze the data as well as to copy and review
tens of thousands of pages of documents.
Id.
Much of
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the document and data review took place with Plaintiffs
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and other witnesses, who guided counsel through time and
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payroll records.
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Id.
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III. SUMMARY OF THE SETTLEMENT.
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The case was resolved with the aid of a mediator’s
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proposal drafted by Mediator former District Court Judge
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Raul Ramirez.
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The Settlement Agreement
covers approximately 150 current and former Dairy
employees who worked for Defendants from July 30, 2004 to
September 7, 2010.
Mallison Decl., Ex. 1, Doc. 47-1,
Settlement Agreement (“Settlement”) § I.N.
A.
Gross Settlement Payment.
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Pursuant to the Settlement, Defendants will make
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Id. at ¶ 37.
Gross Settlement Payments totaling between $480,000.00
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and $498,588.37 by November 8, 2011, depending on the
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date of complete payment.
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March 9, 2011, Defendant has deposited $496,569.86 with
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the Settlement Administrator.
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14.
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•
Mallison Decl. at ¶ 38.
As of
Bui Decl., Doc. 66, at ¶
This total sum will cover:
Settlement Shares to be paid to Class Members who
submit valid claims;
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any payroll withholding on the Settlement Shares;
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•
a $10,000 payment to the California Labor and
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Workforce Development Agency for its share of the
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settlement of civil penalties;
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•
the Settlement Administrator’s reasonable fees and
expenses (no more than $15,000);
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•
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(subject to court approval) payments to Plaintiffs,
in addition to their Settlement Shares, of $7,500
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each in compensation of their services as Class
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Representatives; and
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(also subject to court approval) payments to Class
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Counsel of no more than 33.33% of the gross
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settlement amount for their reasonable attorneys’
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fees, as well as $10,000 in expenses incurred in
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investigating and prosecuting the case, preparing for
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and negotiating at the mediation, documenting the
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Settlement, securing approval of the Settlement, and
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related tasks.
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Settlement, § III.A - C.
There will be no reversion of
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the Gross Settlement Payment to Defendants.
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Decl. at ¶ 39.
Mallison
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B.
Payment of Settlement Shares.
After the other amounts are deducted, the Gross
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Settlement Amount (then called the “Net Settlement
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Amount”) will be distributed as Settlement Shares to all
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Class Members who submit valid claims, see Settlement §
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III, based upon the following allocation formula:
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The Settlement Share for each Claimant will be
based on (a) that Claimant’s total number of
Months of Employment during the Class Period (b)
divided by the aggregate number of Months of
Employment of all Participating Class Members
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during the Class Period (with the division rounded
to four decimal places) (c) multiplied by the
value of the Net Settlement Amount.
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Settlement § III.D.1.
This formula relies upon objective
evidence of the term of employment, which Class Members
can easily review and confirm.
Mallison Decl. at ¶ 40.
In addition, this information is readily available from
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Defendants’ records, and the Settlement Administrator can
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apply the formula in a fair and transparent manner.
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The parties estimate that, if all amounts sought under
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the Settlement are awarded, a Class Member’s average
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Settlement Share will average approximately $2,000 per
employee.
C.
Id.
Distribution of Unclaimed Funds and Uncashed Checks.
In the event that not all Class Members submit
claims, the residue will be redistributed to those Class
Members who do submit valid claims.
III.D.3.
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Settlement, §
The settlement agreement provides that in the
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Id. 1
Plaintiffs’ counsel considered other, more complicated
methods, but determined that although these methods have some merit,
they were not without controversy and would likely lead to a myriad
of objections. Mallison Decl. at ¶ 41. Plaintiffs’ counsel
represents that the formula employed in the Settlement is commonly
used in wage-and-hour cases, and is appropriate in this case, where
most workers experience the same working conditions and have similar
claims that roughly correlate with the number of hours that they
have worked. Id. Further, Plaintiffs’ counsel maintains that,
although their might be marginally better theoretical methods for
calculating allocations amongst class members, the costs of
obtaining and processing the information necessary and to make such
calculations (especially given Defendants’ reliance upon a paper
based payroll system for part of the class period) would likely
outweigh any benefits of using a more complex calculation method.
Id.
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event that checks issued to Class Members are not cashed,
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these monies will be donated to California Rural Legal
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Assistance, Id., § III.F.10, a public interest
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organizations that serves low-income workers in the same
geographical area as the class.
D.
Scope of the Release.
The scope of the release by all Participating Class
Members (all Class Members other than those who elect not
to participate in the Settlement) tracks the scope of
Plaintiffs’ allegations:
As of the date of the Judgment, all
Participating Class Members hereby fully and
finally release Defendants, and its parents,
predecessors, successors, subsidiaries,
affiliates, and trusts, and all of its
employees, officers, agents, attorneys,
stockholders, fiduciaries, other service
providers, and assigns, from any and all claims,
known and unknown, for or related to all claims
based on or arising from the allegations that
they were or are improperly compensated under
federal, California, or local law (the “Class’s
Released Claims”). The Class’s Released Claims
include all such claims for alleged unpaid
wages, including overtime compensation, missed
meal-period and rest-break wages or penalties,
and interest; related penalties, including, but
not limited to, recordkeeping penalties, paystub penalties, minimum-wage penalties, missed
meal-period and rest-break penalties, and
waiting-time penalties; and costs and attorneys’
fees and expenses.
Settlement, § III.G.2.
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E.
Objections and Opt-Out Process
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Any Class Member who so wishes may object to or
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comment on the Settlement; or may elect not to
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participate in the Settlement.
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The Class Notice fully
explains the objection/comment and opt-in procedures.
Settlement, § III.F.4, Exh. C.
The Class Notice, as with
all forms, has been provided to the Class Members in
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English and Spanish.
A small number of notices have been
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returned based upon contact information that is no longer
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correct, and the Settlement Administrator is attempting
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to locate those individuals.
Doc. 56.
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Class Representative Payments; Class Counsel
Attorneys’ Fees Payment and Class Counsel Litigation
Expenses Payment.
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By a motion to be filed prior to the Final Approval
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F.
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Hearing, Plaintiffs and their counsel will seek (and
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Defendants have agreed not to oppose):
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•
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Payments of $7,500 each, in addition to their
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Settlement Shares, in compensation for their
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services as Class Representatives; and
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awards to Plaintiffs of Class Representative
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awards to Class Counsel of a Class Counsel
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Attorneys’ Fees Payment of not more than 33.33% of
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the Gross Settlement Amount and a Class Counsel
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Litigation Expenses Payment of not more than
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$10,000.
Settlement, § III.B.1-2.
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IV. DISCUSSION
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A.
Certification of a Class for Settlement.
As the Class has only been conditionally certified,
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final certification is required and is governed by
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Federal Rule of Civil Procedure Rule 23.
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1.
Rule 23(a) Requirements.
Federal Rule of Civil Procedure 23(a) states in
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pertinent part that “[o]ne or more members of a class may
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sue or be sued as representative parties on behalf of
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all.”
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class, a court must be satisfied that
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As a threshold matter, in order to certify a
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(1) the class is so numerous that joinder of all
members is impracticable (the "numerosity"
requirement); (2) there are questions of law or
fact common to the class (the "commonality"
requirement); (3) the claims or defenses of
representative parties are typical of the claims
or defenses of the class (the "typicality"
requirement); and (4) the representative parties
will fairly and adequately protect the interests
of the class (the "adequacy of representation"
requirement).
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In re Intel Secs. Litig., 89 F.R.D. 104, 112 (N.D. Cal.
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1981)(citing Fed. R. Civ. P. 23(a)).
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a.
Numerosity.
Here, the proposed class is comprised of all
individuals who have been employed by defendants in
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California as non-exempt Dairy workers during the period
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July 30, 2004 through September 7, 2010.
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approximately 150 Class Members.
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There are
Courts have routinely
found the numerosity requirement satisfied when the class
comprises 40 or more members.
Ansari v. New York Univ.,
179 F.R.D. 112, 114 (S.D.N.Y. 1998).
Numerosity is also
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satisfied where joining all Class members would serve
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only to impose financial burdens and clog the court’s
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docket.
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Here, the joinder of approximately 150 individual former
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In re Intel Secs. Litig., 89 F.R.D. at 112.
employees would only further clog this court’s already
overburdened docket.
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b.
Commmon Questions of Fact and Law.
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Commonality exists when there is either a common
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legal issue stemming from divergent factual predicates or
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a common nucleus of facts resulting in divergent legal
theories.
Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019
(9th Cir. 1998).
Here, the parties agree that potential
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Class Members advance claims that raise common questions
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of both law and fact, including:
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•
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Whether Northstar authorized and permitted the Dairy
workers to take required rest periods;
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Whether Northstar failed to pay Dairy workers an
additional hour of wages for missed meal periods and
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rest breaks;
•
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minimum wages and overtime compensation to hourly
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production workers;
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Whether Northstar failed to pay all legally required
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Whether hourly production workers are owed waiting
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time penalties because Northstar allegedly willfuly
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failed to pay them additional wages for missed meal
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periods and rest breaks, and for meal periods taken
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during which they remained on duty, upon the
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termination of their employment; and
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Whether Northstar’s business practices violated
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Business and Professions Code section 17200 et seq.
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Every class member was paid under the same pay
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practices as every other class member.
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The Commonality
requirement is satisfied.
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c.
Typicality.
Typicality is satisfied if the representatives’
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claims arise from the same course of conduct as the class
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claims and are based on the same legal theory.
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Kayes v. Pac. Lumber Co., 51 F.3d 1449, 1463 (9th Cir.
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1995)(claims are typical where named plaintiffs have the
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See e.g.,
same claims as other members of the class and are not
subject to unique defenses).
Because every class member
was paid under the same pay practices as every other
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class member, the representatives’ claims are typical of
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those of the other class members.
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d.
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Fair & Adequate Representation.
The final Rule 23(a) requirement is that the class
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representative fairly and adequately protect the
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interests of the class.
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First, the representative’s attorney must be “qualified,
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This requirement has two parts.
experienced, and able to conduct the litigation.”
In re
United Energy Corp. Solar Power Modules Tax Shelter Inv.
Secs. Litig., 122 F.R.D. 251, 257 (C.D. Cal. 1998).
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Second, the suit must not be “collusive” and the named
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Plaintiff’s interests must not be “antagonistic to the
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class.”
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Id.
All requirements are satisfied here.
Proposed class
counsel, Stan S. Mallison, Esq., of the law firm Mallison
& Martinez, is highly experienced in labor class action
litigation for more than 15 years.
5-6.
Mallison Decl. at ¶¶
He is highly qualified.
In addition, the Class Representatives’ interests are
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completely aligned with those of the class.
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Representatives’ interest is in maximizing their
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recovery.
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Each
Although they will receive an additional
$7,500, this appears to be reasonable to compensate them
for the time and expense he devoted to pursuing this
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case.
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41-45.
See Declarations of Class Representatives, Docs.
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2.
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Once the threshold requirements of Rule 23(a) are
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satisfied, a class may be certified only if the class
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action satisfies the requirements of Rule 23(b)(1),
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(b)(2), and/or (b)(3).
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Certification of a Class under Rule 23(b)(3).
Here, the parties agree for
purposes of the Settlement only that certification of the
Class is appropriate under Rule 23(b)(3) because
“questions of law or fact common to the members of the
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class predominate over any questions affecting only
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individual members, and ... a class action is superior to
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other available methods for the fair adjudication of the
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controversy.”
Fed. R. Civ. P. 23(b)(3).
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B.
The Terms of the Preliminary Approval Have Been
Satisfied.
The January 27, 2011 preliminary approval of the
Settlement and conditional certification of the Class
ordered that the Class be sent notice of the Settlement,
approved the form of notice proposed by the parties,
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approved the forms of claims for settlement share and
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election not to participate, and set the hearing for
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final approval.
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Simpluris, has carried out this Court’s order to the
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Doc. 53.
The claims administrator,
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extent possible.
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On March 1, 2011 class Notice Packets were mailed to all
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125 class members with a known address.
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See generally Bui Declaration, Doc. 66.
Id. at ¶7.
The
U.S. Postal Service returned 51 Notice Packets to the
Settlement Administrator.
Id. ¶ 10.
Best efforts to
trace these individuals and/or find their updated
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addresses were conducted by use of “Accurint” a reputable
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research tool owned by Lexis-Nexis and remailed 53 class
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notice packets.
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Simpluris did not obtain any claims from these 53
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mailings.
Id.
Id.
However, despite best efforts,
On March 23, 2011, Simpluris also mailed
out 111 reminder notices to class members who had not yet
responding to the initial notice.
Id. at ¶ 8.
Despite these difficulties, 56 claims (40.57%) were
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received and accepted by the Claims Administrator.
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11.
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high for the type of workforce at issue in this case.
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Doc. 70 at 8.
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Id. ¶
According to Plaintiffs, this figure is extremely
No claims have been rejected.
Doc. 66, at ¶ 11.
not to participate.
Bui Decl.,
Zero individuals submitted elections
Id. at ¶ 12.
As of May 5, 2011, no
class member has submitted an objection to the
Settlement.
C.
Id. at ¶ 13.
Approval of the Settlement.
“The court must approve any settlement ... of the
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claims ... of a certified class.”
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23(e)(1)(A).
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hearing and on finding that it is fair, reasonable, and
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adequate.
Fed. R. Civ. P.
A settlement may be approved only after a
Fed. R. Civ. P. 23(e)(1)(C).
Such approval is
required to make sure that any settlement reached is
consistent with plaintiffs’ fiduciary obligations to the
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class.
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996 (9th Cir. 1985). The court also serves as guardian
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for the absent class members who will be bound by the
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settlement, and therefore must independently determine
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See Ficalora v. Lockheed Cal. Co., 751 F.2d 995,
the fairness of any settlement.
Id.
However, the
district court’s role in intruding upon what is otherwise
a private consensual agreement is limited to the extent
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necessary to reach a reasoned judgment that the agreement
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is not the product of fraud or collusion between the
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negotiating parties, and that the settlement, taken as a
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whole, is fair, reasonable, and adequate to all
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concerned.
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Cir. 1996).
FDIC v. Alshuler, 92 F.3d 1503, 1506 (9th
Therefore, the settlement hearing is not to
be turned into a trial or rehearsal for trial on the
merits.
Officers for Justice v. Civil Service Com., 688
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F.2d 615, 625 (9th Cir. 1982).
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court's determination is nothing more than an amalgam of
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delicate balancing, gross approximations, and rough
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Ultimately, the district
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justice.
Id.
In determining whether a settlement agreement is
fair, adequate, and reasonable to all concerned, a
district court may consider some or all of the following
factors: (1) the strength of the Plaintiff's case (2) the
risk, expense, complexity, and likely duration of further
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litigation; (3) the risk of maintaining class action
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status throughout the trial; (4) the amount offered in
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settlement; (5) the extent of discovery completed; (6)
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the stage of the proceedings; (7) the views and
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experience of counsel; (8) any opposition by class
members; (9) the presence of a governmental participant.
Linney v. Cellular Alaska Pshp., 151 F.3d 1234,1242 (9th
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Cir. 1998).
This list of factors is not exclusive and
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the court may balance and weigh different factors
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depending on the circumstances of each case.
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Tucson Elec. Power Co., 8 F.3d 1370, 1376 (9th Cir.
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1993).
Torrisi v.
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1.
The Relative Strengths of the Parties’ Cases
Supports Approval of the Settlement.
Defendants contest liability in this action and are
prepared to vigorously defend against these claims if the
action is not settled.
Mallison Decl. at ¶ 48.
If the
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litigation proceeds, Plaintiffs would face significant
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risks.
Id.
For example, the primary cause of action in
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this case revolves around the provision of meal periods.
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However, the meaning of an employer’s obligation to
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provide meal periods under California law is currently
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before the California Supreme Court (see Brinker
Restaurant Corp. v. Superior Court (Hohnbaum), 165 Cal.
App. 4th 25 (2008) (review granted)).
A defense ruling
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in Brinker could impair Plaintiffs’ ability to proceed on
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these causes of action.
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Even if Plaintiffs were to prevail, they would be
required to expend considerable additional time and
resources potentially outweighing any additional recovery
obtained through successful litigation.
In addition,
continued litigation would clearly delay payment to the
Class.
See Mallison Decl. at ¶ 48.
In light of these risks, the significant recovery is
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fair, reasonable, and adequate and is in the best
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interest of the Settlement Class in light of all known
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facts and circumstances.
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2.
The Settlement Amount is Fair and Reasonable.
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The Settlement provides for a payment of almost
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$500,000.00 by Defendants, which is substantial given the
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relatively small size of the class (approximately 150
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members, with approximately 40 full time employees at any
given time) and the limited nature of the alleged
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violations at issue.
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nearly $4,000 per employee.
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Settlement Shares to be paid under the Settlement are
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The average settlement share is
Mallison Decl. at ¶ 40.
All
determined by the number of months each Class Member
worked in a Covered Position.
Id.
The Class Representative Payments and the Class
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Counsel Attorneys’ Fees Payment are appropriate, and are
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separately approved below.
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Finally, the expected Settlement Administrator’s fees
and costs of approximately $15,000 are less than similar
wage-and-hour settlements of this type and size.
Mallison Decl. at ¶ 39.
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3.
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As part of the Settlement, Class Members will be
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The Release Is Appropriate.
deemed to have released all claims “based on or arising
from the allegations that they were or are improperly
compensated under federal, California, or local law.”
Settlement, § III.
These released claims appropriately
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track the breadth of Plaintiffs’ allegations in the
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action and the settlement does not release unrelated
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claims that class members may have against defendants.
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4.
The Settlement Was the Project of Informed,
Arm’s Length Negotiations.
The Settlement was reached after informed, arm’s
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length negotiations between the parties.
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conducted extensive investigation and discovery allowing
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them to assess the strengths and weaknesses of the case.
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Both parties
As such, the Settlement is the product of non-collusive
negotiations.
See Mallison Decl. at ¶¶ 35-54.
Plaintiffs’ counsel had access to thousands of pages of
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documents and the full database of timekeeping entries
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for the relevant time period, which Plaintiffs’ expert
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and Plaintiffs’ counsel reviewed prior to and during the
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negotiations.
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Counsel was also informed by numerous
interviews with witnesses to the allegations.
Decl. at ¶ 36.
Mallison
In addition, there is no evidence of
collusion.
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5.
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“The reactions of the members of a class to a
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19
20
21
Reaction of the Class Members.
proposed settlement is a proper consideration for the
trial court.”
Vasquez v. Coast Valley Roofing, 266
F.R.D. 482 (E.D. Cal. 2010) (citing 5 Moore’s Fed.
22
Practice § 23.85[2][d]).
23
of the settlement are especially important as “[t]he
24
representatives' views may be important in shaping the
25
agreement and will usually be presented at the fairness
26
27
28
Class Representative’s opinion
hearing; they may be entitled to special weight because
the representatives may have a better understanding of
19
1
the case than most members of the class.”
2
Complex Litigation, Third, § 30.44 (1995).
3
4
5
6
7
Manual for
Here, the Class Representatives strongly support the
settlement.
See Declaration of Octavio Alvarado, Doc.
65, at ¶ 5; Declaration of Daniel Gomez, Doc. 63, at ¶ 5;
Declaration of Pablo Martinez, Doc. 61, at ¶ 5;
8
Declaration of Omar Gomez, Doc. 62, at ¶ 5; Declaration
9
of Jesus Garcia, Doc. 64, at ¶ 5.
10
Representatives and their attorneys have extensive
11
understanding of the merits of this settlement having
12
13
14
15
Each of these Class
participated extensively in the strategy, formulation,
filing, litigation and negotiation process.
See Alvarado
Decl. at ¶¶ 3-4; Martinez Decl. at ¶¶ 3-4; O. Gomez Decl.
16
at ¶¶ 3-4; D. Gomez Decl. at ¶¶ 3-4; Garcia Decl. at ¶¶
17
3-4.
18
Class Members or any other members of the public.
19
There have been no objections to the settlement by
The settlement is fair and reasonable.
20
21
D.
Class Counsel’s Requested Fees and Costs.
22
Courts have long recognized the “common fund” or
23
“common benefit” doctrine, under which attorneys who
24
create a common fund or benefit for a group of persons
25
may be awarded their fees and costs to be paid out of the
26
27
28
fund.
Hanlon v. Chrysler Corp., 150 F.3d 1011, 1029 (9th
Cir. 1998).
“[A] lawyer who recovers a common fund for
20
1
the benefit of persons other than himself or his client
2
is entitled to a reasonable attorney's fee from the fund
3
as a whole.”
4
5
6
7
Staton v. Boeing Co., 327 F.3d 938, 972
(9th Cir. 2003) (quoting Boeing Co. v. Van Gemert, 444
U.S. 472, 478 (1980)).
Awarding a percentage of the
common fund is particularly appropriate “‘when each
8
member of a certified class has an undisputed and
9
mathematically ascertainable claim to part of a lump-sum
10
judgment recovered on his behalf.’”
11
Co., 444 U.S. at 478-79).
12
13
14
15
Id. (quoting Boeing
Here, where the Settlement requires lump sum
allocations to each Settlement Class and applies
distribution formulas pursuant to which each Class Member
16
who submits a valid claim will receive a mathematically
17
ascertainable payment, application of the percentage of
18
common fund doctrine appropriate.
19
acceptable attorneys' fees in the Ninth Circuit is 20% to
20
33 1/3% of the total settlement value, with 25%
21
22
23
24
considered the benchmark.
The typical range of
Powers v. Eichen, 229 F.3d
1249, 1256 (9th Cir. 2000); Hanlon, 150 F.3d at 1029;
Staton, 327 F.3d at 952.
However, the exact percentage
25
varies depending on the facts of the case, and in “most
26
common fund cases, the award exceeds that benchmark.”
27
Knight v. Red Door Salons, Inc., 2009 WL 248367 (N.D.
28
21
1
Cal. 2009); see also In re Activision Sec. Litig., 723 F.
2
Supp. 1373, 1377-78 (N.D. Cal. 1989) (“nearly all common
3
fund awards range around 30%”).
4
5
6
7
Class Counsel seeks an attorney’s fee award of
$165,523, or 33 1/3% of the Settlement amount.
This is
significantly less than Class Counsel's asserted lodestar
8
of $198,593.75. 2
9
requested is reasonable, courts look to factors such as:
10
(a) the results achieved; (b) the risk of litigation; (c)
11
the skill required, (d) the quality of work; (e) the
12
13
14
15
When assessing whether the percentage
contingent nature of the fee and the financial burden;
and (f) the awards made in similar cases.
Vizcaino v.
Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir.2002); Six
16
Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301
17
(9th Cir.1990).
18
1.
19
The Results Achieved.
2
20
21
22
23
24
25
26
27
28
The district court has reviewed the billing records of Plaintiffs'
counsel, submitted as attachments to the Declaration of Stan
Mallison. Doc. 60. These records reveal that Stan Mallison, a
partner who bills at $595 per hour spent approximately 176 hours on
this case; Hector Martinez, a partner who also bills at $595 per
hour spent approximately 85 hours on this case; Marco Palau, an
associate who bills at $450 per hour spent approximately 7 hours on
the case; Jessica Juarez, an associate who bills at $325 per hour,
spent approximately 37.5 hours on the case, and Joseph Sutton,
another associate who bills at $325 per hour, spent approximately
2.5 hours on the case. See id. at ¶ 57. The billed lodestar is
reasonable, given that this case involved considerable
investigation, the filing of a fairly complex, thirty-six page
complaint, the litigation of a motion to dismiss followed by the
filing of an amended complaint, and the subsequent settlement of a
putative class action, requiring preliminary approval, notice, and
final approval. Moreover, the settlement only provides for partial
recovery of the total lodestar.
22
1
The individual claims in the case concerned
2
defendants’ failure to pay class members for portions of
3
days on an intermittent basis and failure to provide
4
5
6
7
proper rest and meal periods.
Such claims would not
ordinarily produce large recoveries per claimant.
Here,
the recovery of nearly $500,000 will provide the 56
8
claimant employees with a net recovery of over $4,000 per
9
employee.
10
11
12
2.
Mallison Decl ¶ 40.
This is substantial.
The Risks Involved.
There were significant risks in pursuing this case.
13
One of the primary issues involved in this case has to do
14
with the timely provision of rest and meal periods – an
15
issue that is currently before the California Supreme
16
Court in the Brinker and Brinkley cases. It is unknown
17
what the outcome of the Supreme Court’s decision will be,
18
19
20
21
but it is possible that decision could seriously damage
the recovery in this case.
The Defendants also posed serious defenses to the
22
claims. And defense counsel demonstrated that they were
23
very able in defense of their client.
24
25
26
Plaintiffs’ Counsel invested $198,593.75 in lodestar
and $10,827.70 in costs in litigating this case with no
guarantee or recovery.
27
28
23
1
3.
2
This case required specialized skills in finding and
The Skill Required.
3
contacting largely Spanish speaking workers, and in
4
litigating cutting-edge legal theories surrounding rest
5
6
7
8
and meal periods and issues of proof in light of the
limited recording keeping by Defendant.
In addition to
the large number of witness interviews, the case also
9
involved an intensive use and extrapolation from the
10
existing records.
11
experienced in class action wage and hour litigation of
12
this nature.
Class Counsel has extensive
See Mallison Decl. at ¶¶3-17.
13
14
4.
Quality of the Work.
15
Counsel thoroughly investigated the case, researching
16
numerous potential claims to find those that could be
17
developed and litigated.
18
sophisticated legal claims were advanced, based on, among
19
20
21
22
23
24
Eventually, several
other things, clock-rounding and on-duty meal period
theories, despite the lack of clear caselaw on point.
5.
The Contingent Nature of the Fee and the
Financial Burden
This case was conducted on a contingent fee basis
25
against a well-represented Defendant.
26
received no money from plaintiffs or any other source to
27
litigate this case.
28
Counsel has
The plaintiffs are all low-wage
24
1
workers who could never meaningfully contribute to any
2
such expenses.
3
risk of litigation.
4
5
6
7
significant liability exposure such that it was willing
to pay nearly $500,000 to settle Plaintiff’s claims.
6.
9
11
12
13
hour cases litigated in the Central Valley. For example,
this court has awarded the following fees:
•
18
•
30% in Vasquez v. Aartman, E.D. Cal. Case No. 1:02CV05624 AWI LJO;
•
31.25% in Baganha v. California Milk Transport, Case
No. 1:01-cv-05729 AWI LJO;
19
20
33.3% in Vasquez v. Coast Valley Roofing, 266 F.R.D.
482 (E.D. Cal. 2010), Case No. 1:07-cv-00227 OWW DLB;
16
17
Awards in Similar Cases.
The requested fee is in line with similar wage and
14
15
Despite such challenges, Class
Counsel were able to persuade Defendant that it faced
8
10
Plaintiffs’ counsel accepted the entire
•
33.3% in Randall Willis et al. v. Cal Western
21
Transport, and Earl Baron et al. v. Cal Western
22
Transport, Coordinated Case No. 1:00-cv-05695 AWI
23
LJO;
24
25
•
Wilbur, Case No. 1:08-cv-01122 LJO GSA;
26
27
28
33.3% in Benitez, et al. v. Jeff Wilbur and Lisa
•
33.3% in Chavez, at al. v. Petrissans, Case No. 1:08cv-00122 LJO GSA;
25
1
2
In light of the overall success, the skill with which the
3
case was prosecuted, the substantial legal risks
4
5
6
7
associated with Plaintiffs’ claims, the financial risks
borne by Plaintiffs’ Counsel, and similar awards made in
similar cases, the requested attorney’s fee award of 33
8
1/3% of the total recovery (or $165,523) is reasonable
9
under the circumstances.
10
11
12
E.
Class Counsel’s Request for Costs.
Class Counsel incurred out-of-pocket costs totaling
13
$10,827.70, and expect to incur modest additional in
14
costs related to the final approval of the Settlement.
15
See Settlement Agreement III.B.1. The bulk of the
16
incurred costs included filing fees, mediator fees (of
17
$5,367.50), ground transportation, copy charges, computer
18
19
20
21
research, and database expert fees.
Mallison Decl. ¶ 58.
Id.; see also
Such costs are routinely reimbursed
in these types of cases.
See, In re United Energy Corp.
22
Sec. Litig., 1989 WL 73211, at *6 (C.D. Cal. 1989)
23
(quoting Newberg, Attorney Fee Awards, § 2.19 (1987));
24
see e.g. Vasquez, 266 F.R.D. at 493 (Class Counsel
25
litigation expenses payment of approximately $9,000 was
26
27
28
fair and reasonable in similar case).
Here, the actual costs incurred are greater than the
26
1
estimated $10,000, which was included in the Class Notice
2
and to which no Class Member objected.
3
request, which is capped at $10,000 is reasonable.
Plaintiffs
4
5
F.
Class Representative Enhancement.
Pursuant to the Settlement, Plaintiff seeks an
6
7
enhancement in the amount of $7,500 to the named
8
Plaintiffs Octavio Alvarado, Pablo Martinez, Omar Gomez,
9
10
11
12
Daniel Gomez, and Jose de Jesus Garcia.
45.
Mallison Decl. ¶
This payment is intended to recognize the time and
efforts that the named Plaintiffs spent on behalf of the
13
Class Members. Id.; see also Declarations of Octavio
14
Alvarado, Pablo Martinez, Omar Gomez, Daniel Gomez, and
15
Jose de Jesus Garcia, Docs. 61-65.
16
17
18
19
20
21
“Courts routinely approve incentive awards to
compensate named plaintiffs for the services they provide
and the risks they incurred during the course of the
class action litigation.”
Ingram v. The Coca-Cola
Company, 200 F.R.D. 685, 694 (N.D. Ga. 2001) (internal
22
quotations and citations omitted).
23
Court approved service awards of $300,000 to each named
24
plaintiff in recognition of the services they provided to
25
the class by responding to discovery, participating in
26
27
28
In Coca-Cola, the
the mediation process, and taking the risk of stepping
forward on behalf of the class.
27
Coca-Cola, 200 F.R.D. at
1
694; see, e.g., Van Vranken v. Atl. Richfield Co., 901 F.
2
Supp. 294, 299 (N.D. Cal. 1995) (approving $50,000
3
participation award to plaintiffs); Glass v. UBS
4
5
6
7
8
Financial Services, Inc., 2007 WL 221862, at *17 (N.D.
Cal. Jan. 26, 2007) (approving $25,000 enhancement to
each named plaintiff).
In this case, among other things, the named
9
Plaintiff: (1) travelled from Bakersfield to Sacramento
10
for mediation sessions (2) assisted Counsel in
11
investigating and substantiating the claims alleged in
12
13
14
15
this action; (3) assisted in the preparation of the
complaint in this action; (4) produced evidentiary
documents to Counsel; and (5) assisted in the settlement
16
of this litigation.
17
Octavio Alvarado, Pablo Martinez, Omar Gomez,
18
DanielGomez, and Jose de Jesus Garcia, Docs. 61-65.
19
Moreover, as with any plaintiff who files a civil action,
20
Plaintiffs undertook the financial risk that, in the
21
22
23
24
See Mallison Decl.; Declarations of
event of a judgment in favor of Defendant in this action,
they could have been personally responsible for the costs
awarded in favor of the Defendant.
See, e.g., Whiteway
25
v. Fed Ex Kinkos Office & Print Services, Inc., No. C 08-
26
2320 SBA, 2007 WL 4531783, at **2-4 (N.D. Cal. Dec. 17,
27
2007).
28
28
1
2
G.
Claims Administrator Fee.
The Class Notice provided that the Claims
3
Administrator would receive a few of up to $15,000.
4
Plaintiffs request that the full amount of $15,000 be
5
6
7
8
approved as Simpluris’ fee.
Doc. 70 at 25-26.
The
Declaration of Michael Bui, a Case Manager at Simpluris,
explains the tasks undertaken by Simpluris to accomplish
9
notify the Class of the settlement and administer its
10
terms.
11
$15,000, taking into consideration both costs incurred to
12
date and those anticipated to be incurred in the future.
13
14
15
16
Mr. Bui estimates administration costs of
This request is substantially lower than previous
administrator fees awarded in this District.
See
Vasquez, 266 F.R.D.at 483-84 ($25,000 administrator fee
17
awarded in wage and hour case involving 177 potential
18
class members).
19
20
21
22
V. CONCLUSION
For all the reasons set forth above:
(1) The Settlement Class is CERTIFIED;
23
(2) The Class Settlement is APPROVED;
24
(3) The payment of $165,523 in attorney’s fees and
25
26
27
28
$10,827.70 in costs is APPROVED;
(4) They payment of a $7,500 enhancement to the named
Plaintiffs Octavio Alvarado, Pablo Martinez, Omar Gomez,
29
1
2
3
4
5
6
7
8
9
10
Daniel Gomez, and Jose de Jesus Garcia is APPROVED;
(5) The payment of $15,000 to the Settlement
Administrator is APPROVED.
Plaintiffs shall submit a form of order consistent
with this decision within five (5) days following
electronic service.
SO ORDERED
Dated: May 17, 2011
/s/ Oliver W. Wanger
United States District Judge
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
30
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