Bond v. Ferguson Enterprises, Inc.
Filing
59
MEMORANDUM DECISION re: Unopposed 41 Motion for Final Approval of Class Action Settlement and 48 Motion for Attorneys' Fees and Cost signed by Judge Oliver W. Wanger on 6/29/2011. (Proposed Order Consistent with Decision Deadline: 7/7/2011) (Figueroa, O)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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LEE BOND, and RICHARD JAMES,
1:09-cv-1662 OWW MJS
Plaintiff,
MEMORANDUM DECISION RE
UNOPPOSED MOTION FOR FINAL
APPROVAL OF CLASS ACTION
SETTLEMENT (DOC. 41) AND
FOR ATTORNEYS’ FEES AND
COSTS (DOC. 48)
v.
FERGUSON ENTERPRISES, INC.,
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 truck drivers employed by Ferguson Enterprises
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Inc., in Kern County, California. Declaration of Craig
Ackermann, Doc. 44 ¶ 12; see also First Amended Complaint
filed July 30, 2010. The action is brought on behalf of
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Plaintiffs and approximately 553 current and former
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employees of Defendants’ from July 17, 2005 for alleged
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violations of state wage-and-hour laws. Id.
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The parties have entered into a Joint Stipulation of
Settlement Agreement. See Ackermann Decl., Doc. 30 at Ex.
1. A January 25, 2011 memorandum decision: (1)
conditionally certified a Settlement Class; (2)
preliminarily approved the Class Settlement; (3) Class
Counsel; (4) appointed Class Representatives; (5)
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appointed a settlement administrator, (6) approved the
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class Notice and related materials for distribution; and
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(7) required plaintiffs to submit a form of order
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consistent with the decision within five (5) days
following electronic service. Doc. 35. Plaintiffs have
filed a motion for final approval of the settlement,
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Docs. 41-42, along with numerous supporting declarations,
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Docs. 43-46. Plaintiffs have also moved for approval of
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their request for attorneys’ fees and costs, Docs. 48-49,
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and filed the supporting declaration of Melissa M.
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Harnett, Doc. 50. No objections to approval have been
received.
II. BACKGROUND
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Plaintiffs allege that Defendants failed to provide
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timely off-duty meal periods; failed to pay for missed,
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on-duty and untimely meal periods; failed to provide
accurate itemized wage statements; and failed to pay all
wages due upon termination or separation of employment.
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Plaintiffs sought to certify a class composed of
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themselves and similarly situated individuals, and sought
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declaratory relief and recovery of back wages, interest,
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penalties, attorneys’ fees, and costs. See First Amended
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Complaint (“FAC”), Doc. 21-1.
From November 2009 through the day of the settlement,
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the Plaintiffs conducted substantial formal and informal
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discovery concerning the Defendant’s policy and
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practices. Harnett Decl., Doc. 43 at ¶ 42. Among other
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discovery, Plaintiffs served document requests seeking
information on the size of the Class and identity of each
of the Class members, and on Defendant’s meal break
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policies, including the persons responsible for
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developing, implementing and monitoring Defendant’s meal
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break policies. Id. at ¶ 45. Defendants produced a
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variety of responsive documents including all of its meal
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and rest period policies and several other categories of
responsive documents, but objected to most of the class
discovery on the grounds that it violated the Class
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Members’ rights to privacy, and was premature and
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irrelevant to a ruling on a class certification. Harnett
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Decl., Doc. 31 at ¶ 46. Plaintiff’s counsel reviewed the
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information amassed during discovery including: analysis
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of thousands of documents produced by Defendant,
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including time records and payroll data for 34 class
members and Defendant’s employment records; (2) analysis
of Defendant’s legal arguments; (3) obtaining more than
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thirty sworn declarations from former and current truck
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drivers of Defendant; (4) taking the Rule 30(b)(6)
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deposition of Defendant’s corporate representative; (5)
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analysis of class-wide violation rates on the automatic
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deduction and meal break claims on the basis of a sample
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of thirty-four (34) class members; (6) analysis of class-
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wide violations and damages on derivative claims; and (7)
research of the applicable law with respect to
Plaintiffs’ claims. Id. at ¶ 4.
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III. SUMMARY OF THE SETTLEMENT
The case was resolved with the aid of a mediator, Gig
Kyraicou. The Settlement covers approximately 553 current
and former truck drivers employed by Defendant in
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California from July 17, 2005 to the date the court
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enters an Order of Preliminary Approval (“Class Period”),
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excluding new truck drivers hired after November 3, 2010
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and 46 truck drivers who previously signed severance
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release agreements prior to the filing of the lawsuit
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(“Class Members”). See Settlement, Doc. 30-1, Exhibit 1,
§ 6. There will be no reversion of the Gross Settlement
Amount to Defendant; see also Declaration of Craig J.
Ackermannn, Doc. 30 at ¶ 48.
A.
Gross Settlement Amount.
Under
$2,250,000
the
Settlement,
(“Gross
Defendant
Settlement
will cover:
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will
Amount”).
This
pay
up
total
to
sum
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settlement
awards
to
be
paid
to
Class
Members
who
timely submit valid claims (“Settlement Awards”);
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•
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any payroll withholding on the Settlement Awards;
•
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the Settlement Administrator’s reasonable fees and
expenses (no more than $18,000);
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•
(subject to court approval) payments to Plaintiffs,
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in addition to their Settlement Awards, of $11,250
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each in compensation of their services as Class
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Representatives;
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•
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and (also subject to court approval) payments to
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Class Counsel of no more than 30% of the Gross
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Settlement Amount, or $675,000, for their reasonable
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attorneys’ fees, as well as litigation costs, up to
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$10,000.
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See Settlement, § 6. There will be no reversion of the
Gross Settlement Amount to Defendant.
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B.
Payment of Settlement Awards.
After the other amounts are deducted, the balance of
the Gross Settlement Amount, approximately $1,524,500
(the “Net Settlement Amount”) will be distributed to all
Class Members who timely submit valid claims
(“Claimants”), based upon the following allocation
formula:
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The dollar amount payable to each member of the Class
will be calculated by taking the “Potential Gross
Individual Settlement Proceeds”, i.e., the “Net
Settlement Amount” (estimated to be slightly more
than $1,500,000) divided by the total number of weeks
worked by all members of the Class during the Class
Period, and then multiplied by the total number of
weeks worked by each individual member of the
Settlement Class.
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Settlement, § 7(a). A Claim Form, which will be mailed to
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Class Members with the Notice of Proposed Class Action
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Settlement and Fairness Hearing (“Notice”), will include
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for each Class Member the number of weeks actively worked
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during the Class Period and the Class Member’s estimated
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Settlement Amount. Ackermannn Decl., Doc. 31 at ¶ 52.
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For tax purposes, one-third (1/3) of each Settlement
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Award will be deemed wages and two-thirds (2/3) will be
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treated as penalties and interest. Settlement Awards will
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be subject to applicable tax withholding and reporting.
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Settlement, § 7(c).
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The formula relies upon objective evidence of the
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number of weeks worked during the Class Period. Class
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Members can review and confirm this information, and the
Claim Form permits Class Members to challenge the number
of weeks worked. Settlement, § 7(e).
C.
Distribution of Unclaimed Funds and Uncashed Checks.
If less than 60% of the Gross Settlement Amount is
claimed and distributed to all Claimants, then each
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Claimant’s Settlement Award will be proportionately
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increased, up to a maximum of 1.5 times their original
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Settlement Award, until the total individual Settlement
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Awards equals 60% of the Net Settlement Amount. If the
combined total of all Claimants’ Settlement Awards at 1.5
times the original amount is still less than 60% of the
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Gross Settlement Amount, the balance of the funds will be
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paid to a 501(c)(3) nonprofit organization, to be agreed
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upon by the parties and approved by the court.
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Settlement, § 6(a).
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D.
Scope of the Release.
The Settlement provides that all Class Members other
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than those who elect not to participate in the Settlement
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shall have released the “Released Parties” from the
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“Released Claims.” The Notice contains the following
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release:
For purposes of this Notice and the Settlement
Agreement, the “Released Claims” of the Settlement
Class are defined as: All claims, demands, rights,
liabilities, and causes of action, whether brought
directly, representatively, or in any capacity, that
were or could have been asserted in the Lawsuit based
upon the facts alleged therein, whether in tort,
contract, statute, rule, ordinance, order,
regulation, or otherwise, including state, federal,
and local laws, whether for economic damages, noneconomic damages, restitution, penalties, punitive
damages, wages, premium payments, liquidated damages,
attorneys’ fees, or any other type of recovery
thereon, arising out of any act, omission,
transaction, or event that occurred or is alleged to
have occurred up to the date of this Agreement.
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Claims specifically included in this release without
limitation are those for alleged failure to provide
meal or rest breaks, alleged failure to pay for all
hours worked based on the application of an
“automatic lunch deduction” (including claims for
unpaid overtime, whether known or unknown, arising
during the Class Period for the Class Members based
on the claims reasonably related to those alleged in
the Lawsuit), alleged failure to provide accurate
itemized wage statements, alleged failure to provide
timely pay upon termination, alleged unfair
competition by means of the foregoing, and any other
claims arising out of alleged failure to pay wages or
penalties or for any other claims asserted in the
Lawsuit. This release shall be in addition to, and
not in lieu of, any release previously executed by
any member of the Settlement Class.
With respect to the Released Claims, Plaintiffs and
the members of the Settlement Class stipulate and
agree that, upon the effective date of the
settlement, all of them shall be deemed to have, and
by operation of the Final Judgment shall have,
expressly waived and relinquished, to the fullest
extent permitted by law, the provisions, rights and
benefits of Section 1542 of the California Civil
Code, or any other similar provision under federal or
state law that purports to limit the scope of a
general release. Section 1542 provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR
HER MUST HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR.
Settlement Class Members shall fully and finally
release and discharge Ferguson, and each of their
past, present, or future officers, directors, owners,
shareholders, employees, agents, principals, heirs,
representatives, accountants, auditors, attorneys,
consultants, insurers, and reinsurers, and their
respective successors and predecessors in interest,
subsidiaries, affiliates, parents, and each of their
company-sponsored employee benefit plans, and all of
their respective officers, directors, employees,
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administrators, fiduciaries, trustees, and agents
(“Released Parties”), from the Released Claims.
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See Notice, Doc. 30, Ex. 1-A, § 5.
E.
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Any Class Member who so wishes may object or elect
not to participate in the Settlement. The Notice fully
explains the objection and opt-out procedures. See
Notice, § 3.
F.
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Objections and Opt-Out Process
Class Representative Payments; Class Counsel
Attorneys’ Fees Payment and Class Counsel Litigation
Expenses Payment.
The settlement also permits Plaintiffs and their
counsel to seek by separate motion:
• payments to Plaintiffs, in addition to their
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Settlement Awards, of $11,250 each in
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compensation of their services as Class
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Representatives; and
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• payments to Class Counsel of no more than 30% of
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the Gross Settlement Amount, or $675,000, for
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their reasonable attorneys’ fees, as well as
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litigation costs, up to $10,000.
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See Settlement, § 6(b), (d).
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//
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//
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//
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III. DISCUSSION
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.
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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.” As a threshold matter, in order to certify a class,
a court must be satisfied that
(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).
In re Intel Secs. Litig., 89 F.R.D. 104, 112 (N.D. Cal.
1981)(citing Fed. R. Civ. P. 23(a)).
a.
Numerosity.
Here, the proposed class is comprised of all
individuals who have been employed by Defendant in
California as truck drivers from July 17, 2005 to January
25, 2011, excluding new truck drivers from November 3,
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2010 and 46 drivers who previously signed severance
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release agreements prior to the filing of this lawsuit.
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There are approximately 553 Class Members. Courts have
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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).
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Numerosity is also satisfied where joining all Class
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members would serve only to impose financial burdens and
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clog the court’s docket. In re Intel Secs. Litig., 89
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F.R.D. at 112. Here, the joinder of approximately 553
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individual former employees would only further clog this
court’s already overburdened docket.
b.
Common 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). It does not require that all questions
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of law or fact be common to every single member of the
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class. To satisfy the commonality requirement, plaintiffs
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need only point to a single issue common to the class.
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Dukes v. Wal-Mart, Inc., 509 F.3d 1168, 1177 (9th Cir.
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2007); Slaven v. BP Am., Inc., 190 F.R.D. 649, 655 (C.D.
Cal. 2000).
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Here, Class Members share the following legal and
factual questions:
•
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Whether Defendant automatically deducted thirty
minutes worth of working time on the basis of
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the unverified assumption that truck drivers
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always took a half-hour, off-duty meal break and
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in lieu of keeping contemporaneous or accurate
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meal break records;
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•
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drivers for missed or untimely meal breaks with
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an extra hour of premium pay;
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Whether Defendant failed to compensate truck
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Whether Defendant failed to implement a
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systematic daily method of relieving Class
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Members of their duties for meal breaks;
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all wages due at termination; and
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Whether Defendant failed to pay former employees
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Whether the above practices violate the Labor
Code and Wage Orders.
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Every Class Member was paid under the same pay
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practices as every other class members. The commonality
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requirement is satisfied.
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c.
Typicality.
Typicality is satisfied if the representatives’
claims arise from the same course of conduct as the class
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claims and are based on the same legal theory. See, e.g.,
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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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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 Class Representatives’ claims are
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typical of those of the other Class Members. The
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typicality requirement is satisfied.
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d.
Fair and 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. Fed. R. Civ. P. 23(a)(4). “The
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proper resolution of this issue requires that two
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questions be addressed: (a) do the named plaintiffs and
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their counsel have any conflicts of interest with other
class members and (b) will the named plaintiffs and their
counsel prosecute the action vigorously on behalf of the
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class?” In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454,
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462 (9th Cir. 2000).
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Both requirements are satisfied here. Class counsel,
Craig J. Ackermann, Esq., of Ackermann & Tilajef, P.C.,
and Melissa M. Harnett, Esq., of Wassermand, Comden,
Casselmand & Esensten, L.L.P, have significant experience
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litigating class actions, serving as class counsel,
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representing plaintiffs in wage and hour litigation. See
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Harnett Decl., Doc. 31, ¶¶13-32. Ackermann Decl., Doc.
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30, ¶¶70-71. Class counsel have no conflicts with the
class, Harnett Decl., Doc. 31, ¶¶ 5, 7, and have devoted
a significant amount of time to the lawsuit, Ackermann
Decl., Doc. 30, ¶ 72; Harnett Decl., Doc. 31, ¶ 11.
In addition, the Class Representatives’ interests are
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completely aligned with those of the class. The Class
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Representatives’ interest is in maximizing their
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recovery. Although they will each receive an additional
$11,250, this amount is reasonable compensation for their
time and expense they devoted to pursuing this case. See
Harnett Decl., Doc. 31, ¶ 9.
2.
Certification of a Class under Rule 23(b)(3).
Once the threshold requirements of Rule 23(a) are
satisfied, a class may be certified only if the class
action satisfies the requirements of Rule 23(b)(1),
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(b)(2), and/or (b)(3). Here, the parties agree for
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purposes of the Settlement only that certification of the
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Class is appropriate under Rule 23(b)(3) because
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“questions of law or fact common to the members of the
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class predominate over any questions affecting only
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 25, 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. Doc. 35. The Settlement Administrator,
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Simpluris, has carried out the preliminary approval order
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to the extent possible. See generally Bui Declaration,
Doc. 40. On February 14, 2011, Class Notice Packets were
mailed to class members to all five hundred and fifty-two
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(552) Class Members. Id. at ¶ 7. On March 11, 2011, the
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Settlement Administrator mailed a reminder to class
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members who had not yet submitted a Claim form or an Opt
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Out and to do so by the March 21, 2011 deadline. Bui
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Decl., Doc. 40, at ¶ 8. By April 21, 2011, one hundred
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and sixteen (116) Class Notice Packets were returned by
U.S. Postal Service as undeliverable. Id. at ¶ 12. The
Settlement Administrator remailed two-hundred and ninety-
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two (292) Class Notice Packets to either a newfound
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address, a forwarding address provided by the U.S. Postal
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Service, or to an address at the request of the Class
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Member. Id. Despite the Settlement Administrator’s best
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efforts, fifty-nine (59) Class Notice Packets remain
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undeliverable because the administrator was unable to
find a deliverable address. Id.
Despite these difficulties, three-hundred and forty-
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two (342)(61.96%) claim forms were received and accepted
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by the Settlement Administrator. Id. at ¶ 14. As of the
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filing of this Order, the Settlement Administrator
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received a total of four late claims. The parties agreed
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that the four untimely claims and one deficient claim
would be treated as valid. Therefore, there were a total
of 347 valid claims ultimately made amounting to
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approximately 63% of Settlement Class. As of April 22,
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2011, the Settlement Administrator has received one (1)
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deficient Claim Form because they did not sign their
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form; two (2) untimely Claim Forms; and fifteen (15) opt-
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outs. Id. at ¶¶ 17-19. Additionally, no class member has
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submitted to an objection to the Settlement. Id. at ¶ 21.
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C.
Approval of the Settlement.
“The court must approve any settlement ... of the
claims ... of a certified class.” Fed. R. Civ. P.
23(e)(1)(A). A settlement may be approved only after a
hearing and on finding that it is fair, reasonable, and
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adequate. Fed. R. Civ. P. 23(e)(1)(C). Such approval is
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required to make sure that any settlement reached is
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consistent with plaintiffs’ fiduciary obligations to the
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class. See Ficalora v. Lockheed Cal. Co., 751 F.2d 995,
996 (9th Cir. 1985). The court also serves as guardian
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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the fairness of any settlement. Id. However, the district
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court’s role in intruding upon what is otherwise a
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private consensual agreement is limited to the extent
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necessary to reach a reasoned judgment that the agreement
is not the product of fraud or collusion between the
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. FDIC v. Alshuler, 92 F.3d 1503, 1506 (9th Cir.
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1996). Therefore, the settlement hearing is not to be
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turned into a trial or rehearsal for trial on the merits.
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Officers for Justice v. Civil Service Com., 688 F.2d 615,
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625 (9th Cir. 1982). Ultimately, the district court's
determination is nothing more than an amalgam of delicate
balancing, gross approximations, and rough justice. Id.
In determining whether a settlement agreement is
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fair, adequate, and reasonable to all concerned, a
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district court may consider some or all of the following
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factors: (1) the strength of the Plaintiff's case (2) the
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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
settlement; (5) the extent of discovery completed; (6)
the stage of the proceedings; (7) the views and
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experience of counsel; (8) any opposition by class
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members; (9) the presence of a governmental participant.
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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 the
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court may balance and weigh different factors depending
on the circumstances of each case. Torrisi v. Tucson
Elec. Power Co., 8 F.3d 1370, 1376 (9th Cir. 1993).
1.
The Relative Strengths of the Parties’ Cases
Supports Approval of the Settlement.
If the litigation proceeds, Plaintiffs would face
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significant risks. Ackermann Decl. at ¶¶ 66-9. For
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example, the primary issue in this case revolves around
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the provision of meal periods. However, the meaning of an
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employer’s obligation to provide meal periods under
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California law is currently before the California Supreme
Court (see Brinkley v. Public Storage, Inc., 198 P.3d
1087, 87 Cal.Rptr 674 (Jan. 14, 2009) (review granted)
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and Brinker Restaurant Corp. v. Superior Court, 196 P.3d
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216, 85 Cal.Rptr 388 (Oct. 22, 2008)(review granted). A
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defense ruling in Brinker could impair Plaintiff’s
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ability to proceed on these causes of action.
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Plaintiffs also face the risk that the class may not
be certified. The issue of whether missed meal break
claims for truckers may be certified is currently pending
before the California Supreme Court in Brinker. If the
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Court adopts the Brinker standard, then class
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certification of Plaintiffs’ missed meal break claims
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would be more difficult. See Brown v. Federal Express,
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249 FRD 580, 585 (C.D. Cal. 2008) (denying class
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certification of employees alleging employers denied them
meal breaks and rest breaks, and failed to pay additional
one hour of pay to employees who missed meal breaks.)
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.
20
21
2.
The Settlement Amount is Fair and Reasonable.
22
The Settlement provides for a payment of up to
23
$2,250,000 by Defendants. The average settlement share is
24
$2,776.34
25
71. All Settlement shares will be distributed to each
26
27
28
per employee. Ackermann Decl., Doc. 44 at ¶
Claimant on the basis of the number of weeks actively
worked by each Claimant during the Class Period. Harnett
19
1
Decl., Doc. 43 at ¶ 60.
2
The Class Representative Payments and the Class
3
Counsel Attorneys’ Fees Payment are appropriate, and are
4
5
6
7
8
9
10
11
12
separately approved below.
Finally, the expected Settlement Administrator’s fees
and costs of approximately $18,000 are reasonable in
light of the amount of work achieved. Id. at ¶ 64.
3.
The Release is Appropriate.
As part of the Settlement, Class Members release the
following claims: “all wage and hour related claims,
13
demands, rights, liabilities and causes of action,
14
whether brought directly, representatively, derivatively,
15
or in any capacity that were or could have been asserted
16
in the Lawsuit based upon the facts alleged therein”
17
18
19
20
21
“arising out of any act, omission, transaction, or event
affecting wage and hour related rights that occurred or
is alleged to have occurred up to the date of this
Agreement.” See Ackermann Decl., Doc. 44 at Exhibit A.
22
These released claims appropriately track the breadth of
23
Plaintiffs’ allegations in the action and the settlement
24
does not release unrelated claims that class members may
25
have against defendants.
26
27
28
20
1
2
3
4
4.
The Settlement Was the Product of Informed,
Arm’s Length Negotiations.
The Settlement was reached after informed, arm’s
length negotiations between the parties. See Ackermann
5
Decl., Doc. 44 at ¶¶ 63-4. Plaintiffs’ counsel had access
6
to documents including all of the Defendant’s meal and
7
rest period policies, their database of timekeeping
8
entries, and names and addresses of members of the class.
9
10
11
12
Id. at ¶¶ 27, 31. Plaintiffs’ counsel reviewed and
analyzed thousands of pages of material. Id. at ¶ 31.
Counsel was also informed by numerous interviews with
13
witnesses to the allegations. Id. at ¶ 32, 34. In
14
addition, there is no evidence of collusion.
15
16
17
18
5.
Reaction of the Class Members.
“The reactions of the members of a class to a
proposed settlement is a proper consideration for the
19
trial court.” Vasquez v. Coast Valley Roofing, 266 F.R.D.
20
482 (E.D. Cal. 2010) (citing 5 Moore’s Fed. Practice §
21
23.85[2][d]). Class Representative’s opinion of the
22
settlement are especially important as “[t]he
23
representatives' views may be important in shaping the
24
25
26
27
28
agreement and will usually be presented at the fairness
hearing; they may be entitled to special weight because
the representatives may have a better understanding of
the case than most members of the class.” Manual for
21
1
Complex Litigation, Third, § 30.44 (1995).
2
3
4
5
6
7
Here, the Class Representatives strongly support the
settlement. See Declaration of Lee Bond, Doc. 45, at ¶ 89; Declaration of James Burkhart, Doc. 46, at ¶ 8-9. Each
of these Class Representatives and their attorneys have
extensive understanding of the merits of this settlement
8
having participated extensively in the strategy,
9
formulation, filing, litigation and negotiation process.
10
See Bond Decl. at ¶ 3-8; Burkhart Decl. at ¶ 3-8. There
11
have been no objections to the Settlement by Class
12
Members or any other members of the public.
13
The settlement is fair and reasonable.
14
15
D.
Class Counsel’s Requested Fees and Costs.
16
By separate motion, Plaintiffs’ counsel also requests
17
approval of payments for attorneys’ fees and costs in the
18
19
20
21
amount of $675,000 and $10,000, respectively.
Courts
have long recognized the “common fund” or “common
benefit” doctrine, under which attorneys who create a
22
common fund or benefit for a group of persons may be
23
awarded their fees and costs to be paid out of the fund.
24
Hanlon v. Chrysler Corp., 150 F.3d 1011, 1029 (9th Cir.
25
1998). “[A] lawyer who recovers a common fund for the
26
27
28
benefit of persons other than himself or his client is
entitled to a reasonable attorney's fee from the fund as
22
1
a whole.” Staton v. Boeing Co., 327 F.3d 938, 972 (9th
2
Cir. 2003) (quoting Boeing Co. v. Van Gemert, 444 U.S.
3
472, 478 (1980)). Awarding a percentage of the common
4
5
6
7
fund is particularly appropriate “‘when each member of a
certified class has an undisputed and mathematically
ascertainable claim to part of a lump-sum judgment
8
recovered on his behalf.’” Id. (quoting Boeing Co., 444
9
U.S. at 478-79).
10
Here, where the Settlement requires lump sum
11
allocations to each Settlement Class and applies
12
13
14
15
16
17
distribution formulas pursuant to which each Class Member
who submits a valid claim will receive a mathematically
ascertainable payment, application of the percentage of
common fund doctrine is appropriate.
The typical range of acceptable attorneys' fees in
18
the Ninth Circuit is 20% to 33 1/3% of the total
19
settlement value, with 25% considered the benchmark.
20
Powers v. Eichen, 229 F.3d 1249, 1256 (9th Cir. 2000);
21
22
23
24
Hanlon, 150 F.3d at 1029; Staton, 327 F.3d at 952.
However, the exact percentage varies depending on the
facts of the case, and in “most common fund cases, the
25
award exceeds that benchmark.” Knight v. Red Door Salons,
26
Inc., 2009 WL 248367 (N.D. Cal. 2009); see also In re
27
Activision Sec. Litig., 723 F. Supp. 1373, 1377-78 (N.D.
28
23
1
Cal. 1989) (“nearly all common fund awards range around
2
30%”).
3
4
5
6
7
Class Counsel seeks an attorney’s fee award of
$675,000, or thirty percent (30%), of the Maximum
Settlement Value. When assessing whether the percentage
requested is reasonable, courts look to factors such as:
8
(a) the results achieved; (b) the risk of litigation; (c)
9
the skill required, (d) the quality of work; (e) the
10
contingent nature of the fee and the financial burden;
11
and (f) the awards made in similar cases. Vizcaino v.
12
13
14
15
Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir.2002); Six
Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301
(9th Cir.1990).
16
1.
17
The individual claims in this case concerned
18
19
20
21
The Results Achieved.
defendants’ failure to pay class members for missed, onduty and untimely meal periods; unpaid wages on days when
no off-duty meal break was taken; failure to pay all
22
wages due upon termination or separation of employment;
23
and failure to provide proper rest and meal periods. Such
24
claims would not ordinarily produce large recoveries per
25
claimant. Here, the recovery of up to $2,250,000 will
26
27
28
provide the 347 claimants with an average recover of
approximately $2,776.34 per claimant. Ackermann Decl.,
24
1
Doc. 44 at ¶ 71.
2
3
4
2.
The Risks Involved.
There was some risk in pursuing this case. One of the
5
primary issues involved in this case has to do with the
6
timely provision of rest and meal periods – an issue that
7
is currently before the California Supreme Court in the
8
Brinker and Brinkley cases. It is unknown what the
9
10
11
12
13
outcome of the Supreme Court’s decision will be an
adverse decision that could be prejudicial to the
recovery in this case.
The Defendants also posed serious defenses to the
14
claims. And defense counsel demonstrated that they were
15
competent in defense of their client.
16
17
18
Plaintiffs’ Counsel invested $587,315, in lodestar
time and $10,000 in costs in litigating this case with no
guarantee of recovery.
19
20
3.
The Skill Required.
21
This is a garden-variety wage and hour class action,
22
focused primarily on meal breaks, which required more
23
accounting analysis than actual legal resources.
24
25
26
27
28
The
case required locating and contacting over 500 members of
the class, communicating with over 250 class members to
ensure they received appropriate forms, obtaining new
contact information for some members of the class,
25
1
directing the work of the settlement administrator and
2
litigating cutting-edge legal theories surrounding rest
3
and meal periods. Harnett Decl., Doc. 43 at ¶ 87. This is
4
5
6
7
8
entirely administrative work that could be accomplished
by paralegals. Class Counsel has extensive experience in
class action wage and hour litigation of this nature. See
id. at ¶¶ 5-28; Ackermann Decl., Doc. 44 at ¶¶ 4-11.
9
10
4.
The Contingent Nature of the Fee and the
Financial Burden.
11
This case was conducted on a contingent fee basis
12
against a well-represented Defendant. Counsel has
13
received no money from plaintiffs or any other source to
14
15
16
17
litigate this case. See Ackermann Decl. Doc., 43 at ¶¶
78-89. The plaintiffs are all low-wage workers who could
not meaningfully contribute to any such expenses.
18
Plaintiffs’ counsel accepted this risk. Class Counsel was
19
effective in effectuating a $2,250,000 settlement.
20
5.
21
The requested fee is comparable to similar wage and
22
23
24
25
hour cases litigated in the Central Valley. For example,
this court has awarded the following fees:
•
26
27
28
Awards in Similar Cases.
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;
•
30% in Vasquez v. Aartman, E.D. Cal. Case No. 1:0226
1
2
CV05624 AWI LJO;
•
3
31.25% in Baganha v. California Milk Transport, Case
No. 1:01-cv-05729 AWI LJO;
4
5
•
33.3% in Randall Willis et al. v. Cal Western
6
Transport, and Earl Baron et al. v. Cal Western
7
Transport, Coordinated Case No. 1:00-cv-05695 AWI
8
LJO;
9
•
10
Wilbur, Case No. 1:08-cv-01122 LJO GSA;
11
12
13
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.
14
Based on the overall success, skill employed, legal
15
risks associated with Plaintiffs’ claims, the financial
16
risks borne by Plaintiffs’ Counsel, and similar awards
17
made in similar cases, under a percentage-of-fund
18
19
20
21
approach the requested attorney’s fee award of 30% of the
total recovery (or $675,000) is reasonable under the
circumstances.
22
6.
23
Calculation of the lodestar amount may be used as a
24
25
26
27
28
Lodestar Cross-Check.
cross-check to assess the reasonableness of the
percentage award. Fernandez v. Victoria Secret Stores,
2008 WL 8150856 (C.D. Cal 2008); Vizacaino v. Microsoft
Corp., 290 F.3d 1043, 1050-51 (9th Cir. 2002). First, the
27
1
court must calculate the lodestar amount by multiplying
2
the number of hours reasonably expended on the litigation
3
by a reasonable hourly rate. Cunningham v. County of Los
4
5
6
7
Angeles, 879 F.2d 481 (9th Cir. 1988). Next, the court
may increase or reduce the presumptively reasonable
lodestar fee. Quesada v. Thomason, 850 F.2d 537, 539 (9th
8
Cir. 1998) (citing City of Riverside v. Rivera, 477 U.S.
9
561 (1986)).
10
The billing records of Class Counsel Wasserman,
11
Comden, Casselman & Esensten, L.L.P and Ackermann &
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Tilajef, P.C. reveal the following hours billed by
thirteen lawyers and three paralegals:
NAME
Wasserman, Comden, Casselman &
Esensten, L.L.P.
Steven Wasserman, partner
Melissa Harnett, partner
Cathy Garcia, partner
Jesse Levin, associate
Gregory Scarlett, senior
associate
Jordan Esensten, associate
Alan Juvan, paralegal
Andreas Nielsen, paralegal
Dale Gordon, paralegal
Susan House, paralegal
Ackermann & Tilajef, P.C.
Craig Ackermann, partner
Tatiana Hernandez, associate
Barry Goldstein, consultant
Rachelle Tsarovsky, associate
Charlie Stein, associate
Pablo Orozco, associate
Devin Coyle, associate
Akiva Feinstein, legal assistant
Rosie Salinas, paralegal
Jonathan Melmed
Total
28
HOURS
RATE
TOTAL
1.6
109.2
52.4
229.2
21.5
$750
$670
$600
$290
$500
$1,200.00
$73,164.00
$31,440.00
$66,468.00
$10,750.00
8
181.4
90.9
78.6
9
$290
$180
$180
$180
$180
$2,320.00
$32,652.00
$16,362.00
$14,148.00
$1,620.00
123.5
355.12
16.2
70.9
49.49
236.33
7.7
152.6
96.3
40
1929.94
$550
$325
$725
$325
$225
$225
$225
$175
$150
$150
$67,925
$115,414
$17,617.50
$23,043.50
$11,135.25
$53,174.25
$1,732.50
$26,705
$14,445
$6,000
$587,316.00
1
See Memorandum in Support of Plaintiff’s Motion for
2
Attorney’s Fees and Costs, Doc. 49 at 11.
3
4
5
6
7
The number of hours billed in this case will not be
approved. Although considerable discovery took place and
preparation for mediation was required, similar cases
have reached settlement with fewer than 500 billed hours
8
of attorney time.
9
01099 OWW DLB (wage and hour class action involving
10
unsettled issues related to meal and rest breaks with
11
approximately 150 class members reached settlement after
12
13
14
15
16
See Alvarado v. Nederend, 1:08-cv-
Class Counsel expended fewer than 350 hours). No two
cases have the exact same litigation requirements, but
nothing in the record justifies more than five times the
effort expended in Alvarado.
Likewise, the hourly rates presented by counsel are
17
18
higher than normally permitted under federal law. 1
19
Prevailing hourly rates in the Eastern District of
20
California are in the $400/hour range. One more general
21
22
23
24
way to examine the reasonableness of hourly rates is to
compare them to the Laffey Matrix, a widely recognized
compilation of attorney and paralegal rate data used in
25
1
26
27
28
These hourly rates were apparently approved without a written
decision in Padilla et al v. Young’s Market Company, LLC, 2:09-cv08730 DMG RC (C.D. Cal. 2010) and separately in state court in
Williams v. BioTab Nutraceuticals, Inc., et al., LASC Case No. BC
414808 (2011). These cases have no precedential value, especially
in a different District, where prevailing rates are lower.
29
1
the District of Columbia, frequently used in fee awards
2
cases. The Laffey Matrix reflects a paralegal rate of
3
$161, a 1-3 year lawyer rate of $294, a 4-7 year lawyer
4
5
6
7
rate of $361, an 8-10 year lawyer rate of $522, an 11-19
year lawyer rate of $589, and a 20+ year lawyer rate of
$709. The district court in Fernandez v. Victoria Secret
8
Stores, LLC, 2008 WL 8150856, *15, increased the Laffey
9
Matrix amounts by the difference between the cost of
10
living increase provided to Judicial branch employees in
11
the Washington D.C. area and that provided to employees
12
13
14
15
in the Los Angeles area. That difference is 2.94 percent
as of the 2011 pay tables. Taking the top bracket as an
example, the adjusted Laffey Rate for a 20+ year lawyer
16
is $729 ($709 * 1.0294). Mr. Wasserman’s rate of $750 is
17
slightly higher than the adjudged Laffey Matrix for an
18
attorney with 20+ years in practice. The $670 billed by
19
Ms. Harnett is approximately 10 percent higher than the
20
11-19 year attorney rate of $606. Severalpo other
21
22
23
24
employees of Wasserman, Comden, Casselman & Esensten,
L.L.P. appear to be billing at similarly inflated rates.
The hourly rates billed by Ackermann & Tilajef, P.C. seem
25
more reasonable, although the $175/hour rate for a “legal
26
assistant” is unjustified.
27
28
Because the lodestar is being used here as a cross30
1
check, the court may use a “rough calculation of the
2
lodestar,” Fernandez, 2008 WL 8150856, it is appropriate
3
to roughly haircut the lodestar. The hourly rates of the
4
5
6
7
Wasserman, Comden, Casselman & Esensten, L.L.P. are least
10% over the appropriate Laffey Matrix levels, and are
reasonably subject to a 10% haircut on that basis.
8
Ackermann & Tilajef, P.C.’s rate billed for their legal
9
assistant will be lowered to $100. This results in the
10
following recalculation of the lodestar.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
NAME
Wasserman, Comden, Casselman
& Esensten, L.L.P.
Steven Wasserman, partner
Melissa Harnett, partner
Cathy Garcia, partner
Jesse Levin, associate
Gregory Scarlett, senior
associate
Jordan Esensten, associate
Alan Juvan, paralegal
Andreas Nielsen, paralegal
Dale Gordon, paralegal
Susan House, paralegal
Ackermann & Tilajef, P.C.
Craig Ackermann, partner
Tatiana Hernandez, associate
Barry Goldstein, consultant
Rachelle Tsarovsky,
associate
Charlie Stein, associate
Pablo Orozco, associate
Devin Coyle, associate
Akiva Feinstein, legal
assistant
Rosie Salinas, paralegal
Jonathan Melmed
Total
HOURS
RATE
ADJUSTED
RATE
TOTAL
1.6
109.2
52.4
229.2
21.5
$750
$670
$600
$290
$500
$675
$603
$540
$261
$1,080
$65,848
$28,296
$59,821
8
181.4
90.9
78.6
9
$290
$180
$180
$180
$180
$450
$261
$162
$162
$162
$162
$9,675
$2,088
$29,387
$14,726
$12,733
$1,458
123.5
355.12
16.2
70.9
$550
$325
$725
$325
$550
$325
$725
$325
$67,925
$115,414
$17,617.50
$23,043.50
49.49
236.33
7.7
152.6
$225
$225
$225
$175
$225
$225
$225
$100
$11,135.25
$53,174.25
$1,732.50
$15,260.00
96.3
40
1929.94
$150
$150
$150
$150
$14,445.00
$6,000.00
$550,859.00
The lodestar with adjusted hourly rates is
$550,859.00. In addition, the hours billed are excessive
31
1
and are reasonably subject to a 30% haircut, resulting in
2
a total lodestar of $385,601.00
3
4
5
6
7
The amount requested by Class Counsel of $675,000.00
is greater than its lodestar amount of $385,601.00.
However, adjustments to increase or decrease the lodestar
amount are sometimes appropriate to justify use of a
8
“lodestar multiplier.” Clark v. City of Los Angeles, 803
9
F.2d 987, 991 (9th Cir. 1986); see also Fischel v.
10
Equitable Life Assur. Society of U.S., 307 F.3d 997, 1008
11
(9th Cir. 2002). “It is an established practice in the
12
13
14
15
private legal market to reward attorneys for taking the
risk of non-payment by paying them a premium over their
normal hourly rates for winning contingency cases.”
16
Fischel, 307 F.3d at 1008 (citing In re Washington Public
17
Power Supply System Securities Litig. v. Continental Ins.
18
Co., 19 F.3d 1291, 1299 (9th Cir. 2002)). Generally, a
19
district court has discretion to apply a multiplier to
20
the attorney’s fees calculation to compensate for the
21
22
23
24
25
26
27
28
risk of nonpayment. Fischel, 307 F.3d at 1008; see also
In re Coordinated Pretrial Proceedings in Petroleum
Products Antitrust Litig. v. Exxon Corp., 109 F.3d 602
(9th Cir. 1997).
The “lodestar multiplier” is calculated by dividing
the percentage fee award by the lodestar calculation.
32
1
Fischel, 307 F.3d at 1008. Here, the multiplier of 1.75
2
is calculated by dividing $675,000.00 by $385,601.00. To
3
determine whether the lodestar multiplier is reasonable
4
5
6
7
the following factors may be considered: (1) the amount
involved and the results obtained, (2) the novelty and
difficulty of the questions involved, (3) the skill
8
requisite to perform the legal service properly, (4) the
9
preclusion of other employment by the attorney due to
10
acceptance of the case, (5) the customary fee, (6)
11
whether the fee is fixed or contingent, (7) time
12
13
14
15
limitations imposed by the client or the circumstances,
(8) the amount involved and the results obtained (9) the
experience, reputation, and ability of the attorneys,
16
(10) the ‘undesirability’ of the case, (11) the nature
17
and length of the professional relationship with the
18
client, and (12) awards in similar cases. Id. (citing
19
Kerr v. Screen Extras Guild, Inc., 526 F.2d 6 (9th Cir.
20
1975)).
21
22
23
24
First, Class Counsel achieved a good result and
generated a significant benefit for the class amounting
to the Maximum Settlement Amount of $2,250,000 for the
25
benefit of a class of approximately 553 members. Based on
26
the claims rate, the 342 Class Members who submitted
27
claims will receive $963,391.58 in the aggregate, an
28
33
1
2
3
4
5
6
7
average of $2,776.34. See Bui Decl., Doc. 40.
Second, Plaintiff’s meal break claims presented
arguable questions for Class Counsel because California’s
meal break law is currently in flux with Brinker
currently pending before the California Supreme Court.
Third, Class Counsel competently performed. Class
8
Counsel avoided protracted litigation by conducting
9
significant investigation of the class claims, and
10
efficiently communicating and exchanging information with
11
Defense counsel so that the parties could successfully
12
13
14
15
mediate the case. In preparation for this case, Class
Counsel investigated the potential claims and class
members; comprehensively reviewed thousands of pages of
16
documents; interviewed a number of current and former
17
drivers of the Defendant; and deposed Defendant’s
18
corporate representative about a number of important
19
topics. See Ackermann Decl., Doc. 44 at ¶ 36; Harnett
20
Decl., Doc. 43 at ¶ 55.
21
22
23
24
Lastly, Class Counsel undertook considerable
financial risks in this litigation by accepting this case
on a contingency basis. Harnett Decl., Doc. 43 at ¶ 92.
25
There was no guarantee they would recoup their fees or
26
costs. Id. Class Counsel has not received any payment for
27
their time or their expenses, which they began incurring
28
34
1
over two years ago. Id. Additionally, Class Counsel had
2
to forego other work in order to maintain this case. Id.
3
4
5
6
7
Based on the overall success, the skill with which
the case was prosecuted, the substantial legal risks
associated with Plaintiffs’ claims, and the financial
risks borne by Plaintiffs’ Counsel, Plaintiff’s request
8
for a multiplier of 1.75 of its lodestar is reasonable.
9
See, e.g. Steiner v. Am. Broadcasting Co., Inc., 248 Fed.
10
Appx. 780, 783 (9th Cir. 2007)(approving multiplier of
11
6.85 and citing cases with comparable or higher
12
13
14
15
16
17
18
19
20
21
multipliers); Vizcaino, 290 F.3d at 1051 (finding no
abuse of discretion in awarding a multiplier of 3.65).
E.
Class Counsel’s Request for Costs.
Class Counsel incurred out-of-pocket costs totaling
approximately $11,364.46. The bulk of the incurred costs
included payment to court reporters for depositions,
mediation costs, legal research, and in-house copies of
documents. See Acerkmen Decl., Doc. 44 at Exhibit 13.
22
Such costs are routinely reimbursed in these types of
23
cases. See, In re United Energy Corp. Sec. Litig., 1989
24
WL 73211, at *6 (C.D. Cal. 1989) (quoting Newberg,
25
Attorney Fee Awards, § 2.19 (1987)); see e.g. Vasquez,
26
27
28
266 F.R.D. at 493 (Class Counsel litigation expenses
payment of approximately $9,000 was fair and reasonable
35
1
in similar case).
2
3
4
5
6
7
8
9
10
11
12
Here, the actual costs incurred are greater than the
estimated $10,000, which was included in the Class Notice
and to which no Class Member objected. Plaintiff’s
request, which is capped at $10,000 is reasonable.
F.
Class Representative Enhancement.
Pursuant to the Settlement, Plaintiff seeks an
enhancement in the amount of $11,250 to the named
Plaintiffs Lee Bond and Richard James Burkhart. Ackermann
Decl., Doc. 44 at ¶ 47. This payment is intended to
13
recognize the time and efforts that the named Plaintiffs
14
spent on behalf of the Class Members. Id.; see also
15
Declarations of Lee Bond and Richard James Burkhart,
16
Docs. 45-46.
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18
19
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“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
22
Company, 200 F.R.D. 685, 694 (N.D. Ga. 2001) (internal
23
quotations and citations omitted). In Coca-Cola, the
24
Court approved service awards of $300,000 to each named
25
plaintiff in recognition of the services they provided to
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27
28
the class by responding to discovery, participating in
the mediation process, and taking the risk of stepping
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1
forward on behalf of the class. Coca-Cola, 200 F.R.D. at
2
694; see, e.g., Van Vranken v. Atl. Richfield Co., 901 F.
3
Supp. 294, 299 (N.D. Cal. 1995) (approving $50,000
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5
6
7
8
9
participation award to plaintiffs); Glass v. UBS
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
10
Plaintiffs: (1) provided significant assistance to Class
11
Counsel; (2) endured lengthy interviews; (3) provided
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13
14
15
written declarations; (4) searched for and produced
relevant documents; (5) and prepared and evaluated the
case for mediation, which was a full day session
16
requiring very careful consideration, evaluation and
17
approval of the terms of the Settlement Agreement on
18
behalf of the Class. See Declarations of Lee Bond and
19
Richard James Burkhart, Docs. 45-46. Moreover, as with
20
any plaintiff who files a civil action, Plaintiffs
21
22
23
24
undertook the financial risk that, in the event of a
judgment in favor of Defendant in this action, they could
have been personally responsible for the costs awarded in
25
favor of the Defendant. See, e.g., Whiteway v. Fed Ex
26
Kinkos Office & Print Services, Inc., No. C 08-2320 SBA,
27
2007 WL 4531783, at **2-4 (N.D. Cal. Dec. 17, 2007).
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37
1
2
3
4
G.
Claims Administrator Fee.
The Class Notice provided that the Claims
5
Administrator would receive a few of up to $18,000
6
Plaintiffs request that the full amount of $18,000 be
7
approved as Simpluris’ fee. Doc. 41. The Declaration of
8
Michael Bui, a Case Manager at Simpluris, explains the
9
10
11
12
tasks undertaken by Simpluris to accomplish notify the
Class of the settlement and administer its terms. Mr. Bui
estimates administration costs of $18,000, taking into
13
consideration both costs incurred to date and those
14
anticipated to be incurred in the future. This request is
15
substantially lower than previous administrator fees
16
awarded in this District. See Vasquez, 266 F.R.D.at 483-
17
84 ($25,000 administrator fee awarded in wage and hour
18
case involving 177 potential class members).
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IV. CONCLUSION
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21
For all the reasons set forth above:
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(1) The Settlement Class is CERTIFIED;
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(2) The Class Settlement is APPROVED;
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25
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28
(3) The payment of $675,000 in attorney’s fees (30%
of the Maximum Settlement Value) and $10,000 in costs is
APPROVED;
(4) The enhancement payment of $11,250 to each of the
38
1
named Plaintiffs, Lee Bond and Richard James Burkhart, is
2
APPROVED;
3
4
5
6
7
8
9
10
11
(5) The payment of $18,000 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: June 29, 2011
/s/ Oliver W. Wanger
United States District Judge
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