Tyrus Collins et al v. Cargill Meat Logistic Solutions Inc et al
Filing
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MEMORANDUM DECISION Re Unopposed Motion For Final Approval of Class Action Settlement 46 and for Attorney's Fees and Costs 47 , signed by Judge Oliver W. Wanger on 6/28/2011. ((1) The Settlement Class is CERTIFIED;(2) The Class Settlement is APPROVED; (3) The payment of $82,500 in attorneys fees (31.7% of the Maximum Settlement Value and $7,500 in costs is APPROVED);(4) The payment of $4,000 enhancement to each of the named Plaintiffs, Tyrus Collins and James Greer, is APPROVED; (5) The payment of $10,000 to the Settlement Administrator is APPROVED.)(Gaumnitz, R)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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TYRUS COLLLINS and JAMES GREER, on
behalf of themselves and others
similarly situated,
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Plaintiffs,
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v.
MEMORANDUM DECISION RE
UNOPPOSED MOTION FOR FINAL
APPROVAL OF CLASS ACTION
SETTLEMENT (DOC. 46) AND FOR
ATTORNEYS’ FEES AND COSTS
(DOC. 47)
CARGILL MEAT SOLUTIONS
CORPORATION, a Kansas corporation;
and DOES 1 through 50, inclusive,
Defendants.
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1:10-cv-00500 OWW MJS
I. INTRODUCTION
This is a wage-and-hour class action brought on behalf of
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meat workers employed by Cargill Meat Solutions Corp., in Fresno
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County, California.
Declaration of Anthony J. Orshansky
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(“Orshansky Decl.”), Doc. 48 ¶ 5; see also Second Amended Class
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Action Complaint (“SAC”), Doc. 32, filed Dec. 17, 2010.
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action is brought on behalf of Plaintiffs and approximately 239
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current and former employees of Defendants’ from August 1, 2008
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to March 7, 2011 for alleged violations of state wage-and-hour
The
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laws.
Orshansky Decl. at ¶ 16.
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The parties have entered into a Joint Stipulation of
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Settlement Agreement.
Orshansky Decl. at ¶ 11.
A March 7, 2011
memorandum decision: (1) conditionally certified a Settlement
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Class; (2) appointed Class Counsel; (3) appointed Class
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Representatives; (4) appointed a Settlement Administrator; (5)
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preliminarily approved the Class Settlement; (6) approved the
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class Notice and related materials for distribution; (7) directed
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the mailing, by first-class mail, of the Notice Packet by March
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25, 2011; and (8) scheduled a final approval hearing for June 27,
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2011.
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approval of the settlement, Doc. 44, along with supporting
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declarations, Docs. 48-48-1.
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approval of their request for attorneys’ fees and costs, Doc. 45,
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Doc. 41.
Plaintiffs have filed a motion for final
Plaintiffs have also moved for
and filed a supporting declaration, Doc. 48.
No objections to
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approval have been received.
See Declaration of Amanda J. Myette
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(“Myette Decl.”), Doc. 48-1 ¶ 15.
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II. BACKGROUND
Plaintiffs allege Defendants failed to reimburse Employees
for expenses they necessarily incurred in the performance of
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their job duties; failed to provide legally required rest
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periods; failed to pay premium pay for each day on which
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requisite rest periods were not provided or were deficiently
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provided; failed to pay out wages twice per calendar month;
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failed to provide accurate itemized wage statements; and
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willfully failed to pay all wages due upon termination or
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separation of employment.
Plaintiffs sought to certify a class
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composed of themselves and similarly situated individuals, and
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sought declaratory relief and recovery of unreimbursed business
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expenditures, back wages, interest, penalties, attorneys’ fees,
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and costs.
See SAC.
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Both prior and subsequent to the complaint being filed,
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Plaintiffs conducted substantial discovery and non-discovery
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investigation regarding class certification and the merits of
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their claims.
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Plaintiffs propounded written discovery requesting documents and
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information relating to Defendant’s employment policies and
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practices; pay and time records; Class Members’ wages, paychecks,
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Oshansky Decl. ¶ 7.
After suit was filed,
wage statements, and termination wages; Defendant’s policies and
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practices relating to reimbursement for work-related expenses;
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Defendant’s policies and practices relating to safety equipment
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and devices required; and other matters relating to certification
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issues.
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devoted substantial time and resources to meeting and conferring
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with opposing counsel regarding discovery; negotiating a
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protective order; reviewing the documentation provided by
Id. at ¶ 9.
Prior to mediation, Class Counsel also
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Defendant; doing follow-up research on relevant legal and
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procedural questions; preparing damage models; and developing
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settlement and negotiation strategies.
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Id. at ¶ 10.
III. SUMMARY OF THE SETTLEMENT
The case was resolved with the aid of a mediator, Michael
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Loeb, Esq.
The Settlement covers approximately 239 current and
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former meat workers employed by Defendant in California (“Class
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Members”) from August 1, 2008 to March 7, 2011 (“Covered
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Period”).
Settlement Agreement (“Settlement”), Doc. 38-1, §
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9(c); see also Oshansky Decl. ¶ 16.
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A.
Settlement Payment.
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Under the Settlement, Defendant will make payments totaling
approximately $260,000.00, which will be paid out within 15
business days following the final approval of the settlement.
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See Settlement §§ 9, 11.
This sum will cover:
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settlement awards to be paid to Class Members who timely
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submit valid claims (paid out of the Net Settlement Fund of
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$150,000.00);
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•
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a $2,000 payment to the California Labor and Workforce
Development Agency for the amount in penalties due to it
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under Labor Code § 2699, et seq.
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(no more than $10,000);
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the Settlement Administrator’s reasonable fees and expenses
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(subject to court approval) payments to Plaintiffs, in
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addition to their Settlement Awards, of $4,000 each in
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compensation of their services as Class Representatives;
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(also subject to court approval) payments to Class Counsel
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of $82,500, for their reasonable attorneys’ fees, as well as
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actual litigation costs, up to $7,500.
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See Settlement, §§ 9, 11.
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Settlement Fund to Defendant.
There will be no reversion of the Net
Id. at § 9(a).
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B.
Payment of Settlement Awards.
The Net Settlement Fund (“NSF”) of $150,000 will be
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completely separate from any other payments the Defendant makes.
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Oshansky Decl. ¶ 12.
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who timely submit valid claims (“Qualified Claimants”), based
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It will be distributed to all Class Members
upon the following allocation formula:
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Each Qualified Claimant shall receive a payment based on the
number of weeks that he or she worked during the Covered
Period, which shall be from August 1, 2008 through
preliminary approval. Each Qualified Claimant will be
entitled to a provisional share of the settlement calculated
by (1) taking the Qualified Claimant’s number of workweeks,
(2) dividing that number by the total number of workweeks of
all Qualified Claimants, and (3) multiplying the resulting
number by the NSF. For purposes of this calculation, the
number of employee’s “Workweeks” shall be calculated by (1)
subtracting the employee’s first workday during the Covered
Period from his or her last workday of the Covered Period,
(2) dividing that number of days by 7, and then (3) rounding
to the nearest integer.
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Settlement, § 9(c).
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Members with the “Notice of Pendency of Class Action, Proposed
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Settlement, Your Rights, and Options for you to Consider”
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A Claim Form, which was mailed to Class
(“Notice”), included for each Class Member the number of weeks
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worked during the Class Period and the Class Member’s estimated
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Settlement Amount.
See Claim Form, Doc. 38-3.
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For tax purposes, one-quarter (1/4) of each settlement
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amount awarded will be deemed wages, one-half (1/2) will be
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characterized as expense reimbursement, and one-quarter (1/4)
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will be treated as penalties and interest.
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will be subject to applicable tax withholding and reporting.
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Settlement, § 9(e).
Settlement Awards
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The formula relies upon objective evidence of the number of
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weeks worked during the Class Period, provided by the Defendant.
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Settlement, § 17.
Class Members could also review and confirm
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this information, and the Claim Form permitted Class Members to
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challenge the number of weeks worked.
See Claim Form, § 2(B).
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C.
Distribution of Unclaimed Funds and Uncashed Checks.
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The Settlement is structured so as to distribute the
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entirety of the NSF, regardless of whether or not every member of
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the class files a valid claim form.
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funds.
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after one hundred and eighty (180) calendar days shall revert to
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the California Uncashed Check Fund in the name of the Qualified
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See Settlement, § 9(c).
Claimant.
There will be no unclaimed
Checks that remain uncashed
Settlement, § 18.
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D.
Scope of the Release.
The Settlement provides that all Class Members, other than
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those who elect not to participate in the Settlement, shall have
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released the “Released Parties” from the “Covered Claims.”
The
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Notice contains the following release:
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Upon the final approval by the Court of the settlement, each
Class member who does not opt out of the settlement, shall,
for the period of time extending from August 1, 2008 to
[preliminary approval], fully release and forever discharge
Defendant and its respective present and former officers,
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directors, employees, shareholders, agents, trustees,
representatives, attorneys, insures, parent companies,
subsidiaries, divisions, affiliates, predecessors,
successors, assigns, and any individual or entity that could
be jointly liable with Defendant (the foregoing are
collectively referred to hereafter as the “Releasees”) from
any and all acclaims, causes of action, damages, wages,
benefits, expenses, penalties, debts, liabilities, demands,
obligations, attorney’s fees, costs, and any other form of
relief or remedy at law or in equity, of whatever kind or
nature, asserted by the Covered Claims based on the facts
alleged in the Second Amended Complaint (“Complaint”) filed
in the Lawsuit.
“Covered Claims” means any and all claims, demands,
rights liabilities, and/or causes of actions arising out of
the facts alleged in the Complaint for: (1) violation of
Labor Code § 2802(a); (2) rest-period violations, Labor Code
§ 226.7; (3) violation of Labor Code § 204; (4) violation of
Labor code § 226(a); (5) penalties pursuant to Labor Code §
203; (6) penalties under California Labor Code §2609 et
seq.; (7) any penalties that could have been brought based
on the violations alleged in the Complaint, and (8)
violation of Business & Professions Code §17200, et seq.
based on the foregoing alleged violations.
Claim Form, § 4. Furthermore:
Representative Plaintiffs additionally expressly waive any
and all rights they have under Section 1542 of the Civil
Code of the State of California, which provides:
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“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.”
Notwithstanding the provision of Section 1542, and for the
purpose of implementing a complete release and discharge,
Representative Plaintiffs expressly acknowledge the this
Settlement Agreement is intended to include in its effect,
without limitation, claims and causes of action which they
do not know of or suspect to exist in their favor at the
time of execution hereof and that his agreement contemplates
the extinguishment of all such claims and causes of action.
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Settlement, § 10(c).
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representative class members.
The § 1542 release does not extend to non-
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E.
Objections and Opt-Out Process.
Any Class Member who so wishes may object or elect not to
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participate in the Settlement. Settlement, §§ 19, 20.
The Notice
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fully explains the objection and opt-out procedures. See Notice,
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§ VI; see also “Exclusion Form”, Doc 38-4.
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F.
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Class Representative Payments; Class Counsel Attorneys’ Fees
Payment and Class Counsel Litigation Expenses Payment.
The settlement also permits Plaintiffs and their counsel to
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seek by separate motion:
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• payments to Plaintiffs, in addition to their Settlement
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Awards, of $4,000 each in compensation of their
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services as Class Representatives; and
• payments to Class Counsel of $82,500, for their
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reasonable attorneys’ fees, as well as litigation
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costs, up to $7,500.
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See Settlement, §§ 11(a), (b).
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III. DISCUSSION
A.
Certification of a Class for Settlement.
As the Class has only been conditionally certified, final
certification is required and is governed by Federal Rule of
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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 pertinent
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part that “[o]ne or more members of a class may sue or be sued as
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representative parties on behalf of all.”
As a threshold matter,
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in order to certify a class, a court must be satisfied that
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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.
1981)(citing Fed. R. Civ. P. 23(a)).
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a.
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Numerosity.
Here, the proposed class is comprised of all individuals who
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have been employed by Defendant in their Fresno Grind Facility
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from August 1, 2008 to March 7, 2011.
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239 Class Members.
There are approximately
Courts have routinely found the numerosity
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requirement satisfied when the class comprises 40 or more
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members.
Ansari v. New York Univ., 179 F.R.D. 112, 114 (S.D.N.Y.
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1998).
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members would serve only to impose financial burdens and clog the
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court’s docket.
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Here, the joinder of approximately 239 individual current and
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Numerosity is also satisfied where joining all Class
In re Intel Secs. Litig., 89 F.R.D. at 112.
former employees would only further clog this court’s already
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overburdened docket.
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b.
Common Questions of Fact and Law.
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Commonality exists when there is either a common legal issue
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stemming from divergent factual predicates or a common nucleus of
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facts resulting in divergent legal theories.
Hanlon v. Chrysler
Corp., 150 F.3d 1011, 1019 (9th Cir. 1998).
It does not require
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that all questions of law or fact be common to every single
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member of the class.
To satisfy the commonality requirement,
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plaintiffs 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. 2007);
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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 violated California Labor Code
(“CLC”) § 2802 by failing to reimburse Employees for
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necessary expenditures incurred in the course of their
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employment;
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•
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Whether Defendant violated CLC § 226.7 and the
applicable IWC Wage Orders, by failing to provide
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Employees with rest periods for every four consecutive
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hours of work without paying them one hour of wages at
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their regular rates of pay for each day that requisite
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rest periods were not provided or were deficiently
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provided;
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•
Whether Defendant violated CLC § 204 by failing to pay
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Employees all wages due at least twice per calendar
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month;
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•
Whether Defendant violated CLC § 226(a) by not
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providing employees accurate itemized wage statements;
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•
Whether Defendant violated CLC §§ 201-203 by failing to
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pay wages and compensation due and owing at the time of
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termination;
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•
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Whether Defendant violated California Business &
Professions Code § 17200 et seq. based on the above;
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and,
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are entitled to equitable relief pursuant to § 17200.
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Whether Plaintiffs and members of the proposed class
Every Class Member was paid under the same pay practices as
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every other class members.
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satisfied.
The commonality requirement is
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c.
Typicality.
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Typicality is satisfied if the representatives’ claims arise
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from the same course of conduct as the class claims and are based
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on the same legal theory.
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51 F.3d 1449, 1463 (9th Cir. 1995)(claims are typical where named
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See, e.g., Kayes v. Pac. Lumber Co.,
plaintiffs have the same claims as other members of the class and
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are not subject to unique defenses).
Because every class member
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was paid under the same pay practices as every other class
member, the Class Representatives’ claims are typical of those of
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the other Class Members.
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satisfied.
The typicality requirement is
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d.
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Fair and Adequate Representation.
The final Rule 23(a) requirement is that the class
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representative fairly and adequately protect the interests of the
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class.
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issue requires that two questions be addressed: (a) do the named
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Fed. R. Civ. P. 23(a)(4).
“The proper resolution of this
plaintiffs and their counsel have any conflicts of interest with
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other class members and (b) will the named plaintiffs and their
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counsel prosecute the action vigorously on behalf of the class?”
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In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 462 (9th Cir.
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2000).
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Both requirements are satisfied here.
Class counsel,
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Anthony J. Orshansky, Esq., of the law firm Orshansky & Yeremian,
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LLP, has significant experience litigating class actions, serving
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as class counsel, and representing plaintiffs in wage and hour
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litigation.
See Orshansky Decl. at ¶ 2.
Class counsel has no
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conflicts with the class, id. at ¶ 18, and has devoted a
significant amount of time to the lawsuit, id. at ¶ 35.
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 recovery.
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The Class
Although they will each receive an additional $4,000, this amount
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is reasonable compensation for the time and expense they devoted
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to pursuing this case, as well as for the inherent risk involved
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in their doing so.
See id. at ¶¶ 42-49.
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2.
Certification of a Class under Rule 23(b)(3).
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Once the threshold requirements of Rule 23(a) are satisfied,
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a class may be certified only if the class action satisfies the
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requirements of Rule 23(b)(1), (b)(2), and/or (b)(3).
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parties agree for purposes of the Settlement only that
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Here, the
certification of the Class is appropriate under Rule 23(b)(3)
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because “questions of law or fact common to the members of the
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class predominate over any questions affecting only individual
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members, and ... a class action is superior to other available
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methods for the fair adjudication of the controversy.”
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Civ. P. 23(b)(3).
Fed. R.
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B.
The Terms of the Preliminary Approval Have Been Satisfied.
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The March 7, 2011 preliminary approval of the Settlement and
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conditional certification of the Class ordered that the Class be
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sent notice of the Settlement, approved the form of notice
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proposed by the parties, approved the forms of claims for
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settlement share and election not to participate, and set the
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hearing for final approval.
Doc. 41.
The Settlement
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Administrator, Rust Consulting, Inc. (“Rust”), has carried out
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this Court’s order to the extent possible.
See generally
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Declaration of Amanda J. Myette, Doc. 40.
On March 25, 2011,
Class Notices were mailed to all 239 Class Members.
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Id. at ¶ 9.
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The U.S. Postal Service returned 23 Class Notices as
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undeliverable.
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the Claim Form deadline, but Rust performed address traces on the
Id. at ¶ 10.
Two of these were returned after
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21 undeliverable Class Notices that were returned before the
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deadline.
Id.
The traces yielded 17 updated addresses and Class
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Notices were promptly mailed to those Class Members via First-
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Class mail.
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undeliverable.
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because the administrator was unable to find a deliverable
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address.
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Of these 17 re-mailings, 3 were returned as
Id.
Id.
Nine Class Notices remained undeliverable
On April 19, 2011, the Settlement Administrator
mailed a reminder to class members who had not yet submitted a
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Claim Form or an Exclusion Form to do so by the May 9, 2011
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deadline.
Id. at ¶ 13.
Despite these difficulties, 167 Claim Forms (~70%) were
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received and accepted by the Settlement Administrator.
Id. at ¶
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11.
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possible claimed work weeks.
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figures represent a strongly positive response for a wage-and-
These Claim Forms also account for 88.15% of the total
Id.
According to Plaintiffs, these
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hour class-action-settlement.
Oshansky Decl., at ¶ 17.
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Additionally, zero individuals submitted Exclusion Forms, and no
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class member has submitted an objection to the Settlement.
Myette Decl., at ¶¶ 14, 15.
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C.
Approval of the Settlement.
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“The court must approve any settlement ... of the claims ...
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of a certified class.”
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settlement may be approved only after a hearing and on finding
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that it is fair, reasonable, and adequate.
Fed. R. Civ. P. 23(e)(1)(A).
A
Fed. R. Civ. P.
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23(e)(1)(C).
Such approval is required to make sure that any
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settlement reached is consistent with plaintiffs’ fiduciary
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obligations to the class.
See Ficalora v. Lockheed Cal. Co., 751
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F.2d 995, 996 (9th Cir. 1985).
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for the absent class members who will be bound by the settlement,
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and therefore must independently determine the fairness of any
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settlement.
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Id.
The court also serves as guardian
However, the district court’s role in intruding
upon what is otherwise a private consensual agreement is limited
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to the extent necessary to reach a reasoned judgment that the
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agreement is not the product of fraud or collusion between the
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negotiating parties, and that the settlement, taken as a whole,
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is fair, reasonable, and adequate to all concerned.
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Alshuler, 92 F.3d 1503, 1506 (9th Cir. 1996).
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settlement hearing is not to be turned into a trial or rehearsal
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for trial on the merits.
FDIC v.
Therefore, the
Officers for Justice v. Civil Service
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Com., 688 F.2d 615, 625 (9th Cir. 1982).
Ultimately, the
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district court's determination is nothing more than an amalgam of
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delicate balancing, gross approximations, and rough justice.
Id.
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In determining whether a settlement agreement is fair,
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adequate, and reasonable to all concerned, a district court may
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consider some or all of the following factors: (1) the strength
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of the Plaintiff's case (2) the risk, expense, complexity, and
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likely duration of further litigation; (3) the risk of
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maintaining class action status throughout the trial; (4) the
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amount offered in settlement; (5) the extent of discovery
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completed; (6) the stage of the proceedings; (7) the views and
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experience of counsel; (8) any opposition by class members; (9)
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the presence of a governmental participant.
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Alaska Pshp., 151 F.3d 1234,1242 (9th Cir. 1998).
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factors is not exclusive and the court may balance and weigh
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different factors depending on the circumstances of each case.
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Linney v. Cellular
This list of
Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1376 (9th Cir.
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1993).
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1.
The Relative Strengths of the Parties’ Cases Supports
Approval of the Settlement.
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Defendants contest liability in this action and disputed
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Class Counsel at every step.
Oshansky Decl., at ¶ 6.
If the
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litigation proceeds, Plaintiffs would face significant risks.
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For example, one of the primary issues in this case revolves
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around the reimbursement for steel-toe footwear.
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whether or not an employer must reimburse purchases required for
However,
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operational safety absent a regulation in the industry is not
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settled law.
Compare Appeal of: Kaiser Steel Corp. Steel Mfg.,
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1981 WL 140491 (Mar. 5, 1981), *3 (California Occupational Health
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and Safety Appeals Board held that regulation required employer
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to pay for safety shoes); with In re Newman Flange & Fitting Co.,
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Co. 07-R2D4-2581, 2009 CA-OSHA App. Bd. Lexis 101 (Cal-OSHA)
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App., Sept. 30, 2009) (holding that employer was not required to
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pay for safety shoes).
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Another major issue in this case involves the provision of
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rest breaks.
Whether rest break claims result in individual
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inquiries predominating, thus frustrating class certification,
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under California law is currently before the California Supreme
9
Court (see Brinkley v. Public Storage, Inc., 198 P.3d 1087, 87
10
Cal.Rptr 674 (Jan. 14, 2009) (review granted) and Brinker
11
Restaurant Corp. v. Superior Court, 196 P.3d 216, 85 Cal. Rptr.
12
388 (Oct. 22, 2008) (review granted).
A defense ruling in
13
Brinker would impair Plaintiff’s ability to proceed on these
14
15
causes of action.
See Brown v. Federal Express, 249 FRD 580, 585
16
(C.D. Cal. 2008) (denying class certification of employees
17
alleging employers denied them meal breaks and rest breaks, and
18
failed to pay additional one hour of pay to employees who missed
19
meal breaks).
20
In light of these risks, the significant recovery is fair,
21
reasonable, and adequate, and is in the best interest of the
22
Settlement Class in light of all known facts and circumstances.
23
24
2.
The Settlement Amount is Fair and Reasonable.
25
26
27
The Settlement provides for a payment of about $260,000.00
by Defendants.
The average payment to Class Members is $898.20.
28
17
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1
Myette Decl., at ¶ 11.
2
to each Claimant on the basis of the number of weeks actively
3
worked by each Claimant during the Class Period.
All Settlement shares will be distributed
Settlement, §
4
9(c).
5
The Class Representative Payments and the Class Counsel
6
7
8
9
Attorneys’ Fees Payment are appropriate, and are separately
approved below.
Finally, the expected Settlement Administrator’s fees and
10
costs of approximately $10,000 are reasonable in light of the
11
amount of work achieved.
See Myette Decl., Doc 48-1.
12
13
3.
The Release is Appropriate.
14
As part of the Settlement, Class Members release the
15
16
following claims: “any and all Covered Claims [listed in the
17
Complaint] in addition to any claims relating to or arising from
18
their employment with Defendant, whether known or unknown, that
19
could have asserted in the Complaint.”
20
These released claims appropriately track the breadth of
21
Plaintiffs’ allegations in the action and the settlement does not
Settlement, § 10(c).
22
release unrelated claims that class members may have against
23
defendants.
24
25
26
27
28
4.
The Settlement Was the Project of Informed, Arm’s
Length Negotiations.
The Settlement was reached after informed, arm’s length
negotiations between the parties. See Oshansky Decl., at ¶¶ 10,
18
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1
11.
2
the Defendant’s expenses, equipment, and reimbursement policies
3
as well as time records for Class Members.
Plaintiffs’ counsel had access to documents including all of
Id. at ¶ 10.
4
Plaintiffs’ counsel reviewed and analyzed all these materials.
5
Id.
Counsel was also informed by lengthy interviews with the
6
7
8
Representative Plaintiffs.
Id. at ¶ 7.
In addition, there is no
evidence of collusion.
9
5.
Reaction of the Class Members.
10
“The reactions of the members of a class to a proposed
11
settlement is a proper consideration for the trial court.”
12
13
Vasquez v. Coast Valley Roofing, 266 F.R.D. 482 (E.D. Cal. 2010)
14
(citing 5 Moore’s Fed. Practice § 23.85[2][d]).
15
Representative’s opinion of the settlement are especially
16
important as “[t]he representatives' views may be important in
17
shaping the agreement and will usually be presented at the
18
Class
fairness hearing; they may be entitled to special weight because
19
the representatives may have a better understanding of the case
20
21
22
23
than most members of the class.”
Manual for Complex Litigation,
Third, § 30.44 (1995).
Here, the Class Members strongly support the settlement as
24
evidenced by the relatively high response rate and the absence of
25
any Requests for Exclusion.
26
See Oshansky Decl., at ¶¶ 16, 17.
Each of the Class Representatives and their attorneys have
27
extensive understanding of the merits of this settlement having
28
19
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1
participated extensively in the strategy, formulation, filing,
2
litigation and negotiation process.
3
been no objections to the Settlement by Class Members or any
See id. at ¶ 44.
There have
4
other members of the public.
5
The settlement is fair and reasonable.
6
7
D.
Class Counsel’s Requested Fees and Costs.
8
9
By separate motion, Plaintiffs’ counsel also requests
approval of payments for attorneys’ fees and costs in the amount
10
of $82,500 and $7,500, respectively.
Courts have long recognized
11
the “common fund” or “common benefit” doctrine, under which
12
13
attorneys who create a common fund or benefit for a group of
14
persons may be awarded their fees and costs to be paid out of the
15
fund.
16
1998).
17
persons other than himself or his client is entitled to a
18
Hanlon v. Chrysler Corp., 150 F.3d 1011, 1029 (9th Cir.
“[A] lawyer who recovers a common fund for the benefit of
reasonable attorney's fee from the fund as a whole.”
Staton v.
19
Boeing Co., 327 F.3d 938, 972 (9th Cir. 2003) (quoting Boeing Co.
20
21
v. Van Gemert, 444 U.S. 472, 478 (1980)).
Awarding a percentage
22
of the common fund is particularly appropriate “‘when each member
23
of a certified class has an undisputed and mathematically
24
ascertainable claim to part of a lump-sum judgment recovered on
25
his behalf.’”
26
Id. (quoting Boeing Co., 444 U.S. at 478-79).
Here, where the Settlement requires lump sum allocations to
27
each Settlement Class and applies distribution formulas pursuant
28
20
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1
to which each Class Member who submits a valid claim will receive
2
a mathematically ascertainable payment, application of the
3
percentage of common fund doctrine is appropriate.
4
The typical range of acceptable attorneys' fees in the Ninth
5
Circuit is 20% to 33 1/3% of the total settlement value, with 25%
6
7
considered the benchmark.
Powers v. Eichen, 229 F.3d 1249, 1256
8
(9th Cir. 2000); Hanlon, 150 F.3d at 1029; Staton, 327 F.3d at
9
952. However, the exact percentage varies depending on the facts
10
of the case, and in “most common fund cases, the award exceeds
11
that benchmark.”
12
Knight v. Red Door Salons, Inc., 2009 WL 248367
(N.D. Cal. 2009); see also In re Activision Sec. Litig., 723 F.
13
Supp. 1373, 1377-78 (N.D. Cal. 1989) (“nearly all common fund
14
15
16
awards range around 30%”).
Class Counsel seeks an attorney’s fee award of $82,500, or
17
31.7% of the total Settlement amount.
When assessing whether the
18
percentage requested is reasonable, courts look to factors such
19
as: (a) the results achieved; (b) the risk of litigation; (c) the
20
skill required, (d) the quality of work; (e) the contingent
21
nature of the fee and the financial burden; and (f) the awards
22
made in similar cases.
Vizcaino v. Microsoft Corp., 290 F.3d
23
24
25
1043, 1047 (9th Cir.2002); Six Mexican Workers v. Arizona Citrus
Growers, 904 F.2d 1301 (9th Cir.1990).
26
1.
The Results Achieved.
27
The individual claims in this case concerned defendants’
28
21
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1
failure to reimburse Class Members for required safety footwear;
2
failure to provide proper rest periods; failure to pay Employees
3
all wages due at least twice per calendar month; and failure to
4
pay all wages due upon termination or separation of employment.
5
Such claims would not ordinarily produce large recoveries per
6
7
claimant.
Here, the NSF of $150,000 will provide the 167
8
Qualified Claimants with an average recovery of approximately
9
$898.20 per claimant.
Myette Decl., at ¶ 11.
10
2.
The Risks Involved.
11
There were significant risks in pursuing this case.
One of
12
13
the primary issues involved in this case has to do with
14
reimbursement for safety footwear, an unsettled are of the law.
15
Another major issue was the timely provision of rest periods – an
16
issue that is currently before the California Supreme Court in
17
the Brinker and Brinkley cases.
18
It is unknown what the outcome
of the Supreme Court’s decision will be, but an adverse decision
19
could be prejudicial to the recovery in this case.
20
21
The Defendants also posed serious defenses to the claims.
22
And defense counsel demonstrated that they were competent in
23
defense of their client.
24
25
26
Plaintiffs’ Counsel invested $76,171.50 in lodestar time and
$10,000 in costs in litigating this case with no guarantee of
recovery.
27
28
3.
The Skill Required.
22
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1
This case required specialized skills in litigating cutting-
2
edge legal theories surrounding expense-reimbursement and rest
3
periods.
Oshansky Decl., at ¶ 26.
Additionally, the case
4
required extensive review and analysis of time records and
5
information regarding Class Members’ job duties in order to
6
7
determine what violations of rest break and reimbursement law
8
actually occurred.
Id. at ¶ 26.
Class Counsel has extensive
9
experience in class action wage and hour litigation of this
10
nature.
See id. at ¶ 2.
11
12
13
14
4.
The Contingent Nature of the Fee and the Financial
Burden.
This case was conducted on a contingent fee basis against a
well-represented Defendant.
Counsel has received no money from
15
plaintiffs or any other source to litigate this case.
See id.,
16
17
at ¶ 27.
The plaintiffs are all low-wage workers who could never
18
meaningfully contribute to any such expenses.
19
counsel accepted the entire risk of litigation and chose to
20
forego other meritorious, potentially fee-generating cases in
21
order to vigorously litigate this cause.
22
successful in effectuating a $260,000 settlement.
Id.
Plaintiffs’
Class Counsel was
23
24
5.
Awards in Similar Cases.
25
The requested fee is comparable to similar wage and hour
26
cases litigated in the Central Valley.
27
has awarded the following fees:
28
23
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For example, this court
1
•
2
3
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. 1:02-CV05624
4
AWI LJO;
5
6
•
1:01-cv-05729 AWI LJO;
7
8
31.25% in Baganha v. California Milk Transport, Case No.
•
9
33.3% in Randall Willis et al. v. Cal Western Transport, and
Earl Baron et al. v. Cal Western Transport, Coordinated Case
10
No. 1:00-cv-05695 AWI LJO;
11
12
•
Case No. 1:08-cv-01122 LJO GSA;
13
14
33.3% in Benitez, et al. v. Jeff Wilbur and Lisa Wilbur,
•
33.3% in Chavez, at al. v. Petrissans, Case No. 1:08-cv-
15
00122 LJO GSA.
16
In light of the overall success, skill employed, the
17
substantial legal risks associated with Plaintiffs’ claims, the
18
financial risks borne by Plaintiffs’ Counsel, and similar awards
19
20
made in similar cases, under a percentage-of-fund approach the
21
requested attorney’s fee award of 31.7% of the total amount
22
created by the settlement (or $82,500) is reasonable under the
23
circumstances.
24
25
26
6.
Lodestar Cross-Check.
Calculation of the lodestar amount may be used as a cross-
27
check to assess the reasonableness of the percentage award.
28
Fernandez v. Victoria Secret Stores, 2008 WL 8150856 (C.D. Cal
24
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1
2008); Vizacaino v. Microsoft Corp., 290 F.3d 1043, 1050-51 (9th
2
Cir. 2002).
3
by multiplying the number of hours reasonably expended on the
First, the court must calculate the lodestar amount
4
litigation by a reasonable hourly rate.
Cunningham v. County of
5
Los Angeles, 879 F.2d 481 (9th Cir. 1988).
Next, the court may
6
7
increase or reduce the presumptively reasonable lodestar fee.
8
Quesada v. Thomason, 850 F.2d 537, 539 (9th Cir. 1998) (citing
9
City of Riverside v. Rivera, 477 U.S. 561 (1986)).
10
11
12
The billing records of Class Counsel Orshansky & Yeremian
LLP reveal the following hours billed (both completed and to be
completed) by three lawyers:
13
14
15
16
17
18
19
20
NAME
Orshansky & Yeremian LLP
Anthony J. Orshansky
David H. Yeremian
Justin Kachadoorian
Anthony J. Orshansky (future)
David H. Yeremian (future)
Total
HOURS
59.2
58.5
49.7
3.0
3.0
173.4
RATE
$520
$450
$325
$520
$450
TOTAL
$30,784.00
$26,325.00
$16,152.50
$1,560.00
$1,350.00
$76,171.50
See Orshansky Decl., at ¶ 35.
The number of hours billed in this case is reasonable under
21
the circumstances.
22
preparation for mediation, there were also unique, cutting-edge
23
issues of law to investigate.
In addition to considerable discovery and
Similar cases have reached
24
settlement with over 200 billed hours of attorney time.
See
25
Alvarado v. Nederend, 1:08-cv-01099 OWW DLB (wage and hour class
26
27
28
action involving unsettled issues related to meal and rest breaks
with approximately 150 class members reached settlement after
25
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1
2
3
Class Counsel expended over 300 hours).
Likewise, the hourly rates presented by counsel are also
reasonable.
Though prevailing hourly rates in the Eastern
4
District of California are in the $400/hour range, Class
5
Counsels’ rates appear to fall within the reasonable rates of the
6
7
Laffey Matrix.
The Laffy Matrix is a widely recognized
8
compilation of attorney and paralegal rate data used in the
9
District of Columbia, frequently used in fee awards cases.
10
Laffey Matrix reflects a paralegal rate of $161, a 1-3 year
11
lawyer rate of $294, a 4-7 year lawyer rate of $361, an 8-10 year
12
The
lawyer rate of $522, an 11-19 year lawyer rate of $589, and a 20+
13
year lawyer rate of $709.
The district court in Fernandex v.
14
15
Victoria Secret Stores, LLC, 2008 WL 8150856, *15 (C.D. Cal. July
16
21, 2008), increased the Laffey Matrix amounts by the difference
17
between the cost of living increase provided to Judicial branch
18
employees in the Washington D.C. area and that provided to
19
employees in the Los Angeles area.
That difference is 2.94
20
percent as of the 2011 pay tables.
Taking the 11-19 years out
21
bracket as an example, the adjusted Laffey Rate for a 11-19 year
22
lawyer is $606 ($589 * 1.0294).
Mr. Orshansky’s rate of $520 is
23
24
lower than the adjusted Laffey Matrix for an attorney with equal
25
years in practice.
The $450 billed by Mr. Yeremian is about 15%
26
lower than the 8-10 year attorney rate of $537.
27
Kachedoorian’s rate of $325 is also about 15% lower than the 4-7
28
26
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Finally, Mr.
1
year attorney rate of $371.
2
Class Counsels’ hourly rate and resulting fees of $76,171.50 are
3
reasonable.
The lodestar cross-check shows that
The Court does not intend this finding to have any
4
precedential effect, as the fee scale is higher than rates
5
prevailing in the Central Valley.
6
7
The amount requested by Class Counsel of $82,500.00 is
8
greater than its lodestar amount of $76,171.50.
9
adjustments to increase or decrease the lodestar amount are
10
sometimes appropriate to justify use of a “lodestar multiplier.”
11
Clark v. City of Los Angeles, 803 F.2d 987, 991 (9th Cir. 1986);
12
However,
see also Fischel v. Equitable Life Assur. Society of U.S., 307
13
F.3d 997, 1008 (9th Cir. 2002).
“It is an established practice
14
15
in the private legal market to reward attorneys for taking the
16
risk of non-payment by paying them a premium over their normal
17
hourly rates for winning contingency cases.”
18
at 1008 (citing In re Washington Public Power Supply System
19
Securities Litig. v. Continental Ins. Co., 19 F.3d 1291, 1299
20
(9th Cir. 2002)).
Fischel, 307 F.3d
Generally, a district court has discretion to
21
apply a multiplier to the attorney’s fees calculation to
22
compensate for the risk of nonpayment.
Fischel, 307 F.3d at
23
24
1008; see also In re Coordinated Pretrial Proceedings in
25
Petroleum Products Antitrust Litig. v. Exxon Corp., 109 F.3d 602
26
(9th Cir. 1997).
27
The “lodestar multiplier” is calculated by dividing the
28
27
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1
percentage fee award by the lodestar calculation.
2
F.3d at 1008.
3
dividing $82,500.00 by $76,171.50.
Fischel, 307
Here, the multiplier of 1.08 is calculated by
To determine whether the
4
lodestar multiplier is reasonable the following factors may be
5
considered: (1) the amount involved and the results obtained, (2)
6
7
the novelty and difficulty of the questions involved, (3) the
8
skill requisite to perform the legal service properly, (4) the
9
preclusion of other employment by the attorney due to acceptance
10
of the case, (5) the customary fee, (6) whether the fee is fixed
11
or contingent, (7) time limitations imposed by the client or the
12
circumstances, (8) the amount involved and the results obtained
13
(9) the experience, reputation, and ability of the attorneys,
14
15
(10) the ‘undesirability’ of the case, (11) the nature and length
16
of the professional relationship with the client, and (12) awards
17
in similar cases.
18
526 F.2d 6 (9th Cir. 1975)).
19
20
Id. (citing Kerr v. Screen Extras Guild, Inc.,
First, Class Counsel achieved a good result and generated a
significant benefit for the class amounting to the Net Settlement
21
Fund of $150,000 for the benefit of a class of approximately 239
22
members.
Based on the claims rate, the 167 Class Members who
23
24
25
26
27
submitted claims will receive the entirety of the NSF, an average
of $898.20.
See Myette Decl., at ¶ 11.
Second, Plaintiff’s safety footwear reimbursement claims
presented arguable questions for Class Counsel in light of the
28
28
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1
competing precedent proffered by both parties.
2
Plaintiff’s rest break claims raise doubts as California’s rest
3
break law is currently in flux with Brinker currently pending
Similarly,
4
before the California Supreme Court.
5
Third, Class Counsel competently performed.
Class Counsel
6
7
avoided protracted litigation by conducting significant
8
investigation of the class claims, and efficiently communicating
9
and exchanging information with Defense counsel so that the
10
parties could successfully mediate the case.
11
this case, Class Counsel investigated the potential claims and
12
In preparation for
class members; comprehensively reviewed many pages of documents;
13
interviewed the named Plaintiffs; and conducted substantial
14
15
discovery into Defendant’s policies regarding rest periods,
16
expense reimbursement, and safety requirements.
17
Orshansky Decl.,
at ¶ 28.
18
Lastly, Class Counsel undertook considerable financial risks
19
in this litigation by accepting this case on a contingency basis.
20
Orshansky Decl., at ¶ 27.
There was no guarantee they would
21
recoup their fees or costs.
Id.
Class Counsel has not received
22
any payment for their time or their expenses, which they began
23
24
incurring over a year ago. Id.
Additionally, Class Counsel had
25
to forego other work in order to maintain this case. Id.
26
Finally, the requested amount, 31.7% of the total settlement, was
27
less than the 40% contingency percentage that Plaintiffs agreed
28
29
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1
Class Counsel could receive.
2
3
Id. at ¶ 30.
Based on the overall success, the skill with which the case
was prosecuted, the substantial legal risks associated with
4
Plaintiffs’ claims, and the financial risks borne by Plaintiffs’
5
Counsel, Plaintiff’s request for a multiplier of 1.08 of its
6
7
lodestar is reasonable.
See, e.g. Steiner v. Am. Broadcasting
8
Co., Inc., 248 Fed. Appx. 780, 783 (9th Cir. 2007)(approving
9
multiplier of 6.85 and citing cases with comparable or higher
10
multipliers); Vizcaino, 290 F.3d at 1051 (finding no abuse of
11
discretion in awarding a multiplier of 3.65).
12
13
14
E.
Class Counsel’s Request for Costs.
Class Counsel incurred out-of-pocket costs totaling
15
approximately $6,737.19.
16
filing fees, costs related to the service of process, mediation
17
fees, courier and attorney-service costs for court filings, copy
18
The bulk of the incurred costs included
and printing charges for documents, and parking and postage
19
charges.
Orshansky Decl., at ¶¶ 40, 41.
Such costs are
20
21
routinely reimbursed in these types of cases.
See, In re United
22
Energy Corp. Sec. Litig., 1989 WL 73211, at *6 (C.D. Cal. 1989)
23
(quoting Newberg, Attorney Fee Awards, § 2.19 (1987)); see e.g.
24
Vasquez, 266 F.R.D. at 493 (Class Counsel litigation expenses
25
payment of approximately $9,000 was fair and reasonable in
26
similar case).
27
Here, the actual costs incurred are less than the estimated
28
30
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1
$7,500, which was included in the Class Notice and to which no
2
Class Member objected.
3
is reasonable.
Plaintiff’s request, which is $6,737.19,
4
5
6
F.
Class Representative Enhancement.
Pursuant to the Settlement, Plaintiff seeks an enhancement
7
in the amount of $4,000 to the named Plaintiffs Tyrus Collins and
8
James Greer.
9
Orshansky Decl., at ¶ 47.
This payment is intended
to recognize the time and efforts that the named Plaintiffs spent
10
on behalf of the Class Members.
Id. at ¶¶ 44-46.
11
“Courts routinely approve incentive awards to compensate
12
13
named plaintiffs for the services they provide and the risks they
14
incurred during the course of the class action litigation.”
15
Ingram v. The Coca-Cola Company, 200 F.R.D. 685, 694 (N.D. Ga.
16
2001) (internal quotations and citations omitted).
17
the Court approved service awards of $300,000 to each named
18
In Coca-Cola,
plaintiff in recognition of the services they provided to the
19
class by responding to discovery, participating in the mediation
20
21
process, and taking the risk of stepping forward on behalf of the
22
class. Coca-Cola, 200 F.R.D. at 694; see, e.g., Van Vranken v.
23
Atl. Richfield Co., 901 F. Supp. 294, 299 (N.D. Cal. 1995)
24
(approving $50,000 participation award to plaintiffs); Glass v.
25
UBS Financial Services, Inc., 2007 WL 221862, at *17 (N.D. Cal.
26
Jan. 26, 2007) (approving $25,000 enhancement to each named
27
plaintiff).
28
31
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1
In this case, among other things, the named Plaintiffs: (1)
2
provided significant assistance to Class Counsel; (2) endured
3
lengthy interviews; (3) provided documents and information; (4)
4
helped analyze documents produced by defendants; (5) and
5
participated in the mediation, which was a full day session
6
7
requiring very careful consideration, evaluation and approval of
8
the terms of the Settlement Agreement on behalf of the Class.
9
See Orshansky Decl., at ¶44.
10
files a civil action, Plaintiffs undertook the financial risk
11
that, in the event of a judgment in favor of Defendant in this
12
Moreover, as with any plaintiff who
action, they could have been personally responsible for the costs
13
awarded in favor of the Defendant.
See, e.g., Whiteway v. Fed Ex
14
15
16
17
18
Kinkos Office & Print Services, Inc., No. C 08-2320 SBA, 2007 WL
4531783, at **2-4 (N.D. Cal. Dec. 17, 2007).
G.
Claims Administrator Fee.
The Class Notice provided that the Claims Administrator
19
would receive a fee of up to $10,000.
Plaintiffs request that
20
21
the full amount of $10,000 be approved as Rust’s fee.
The
22
Declaration of Amanda J. Myette, a Project Manager at Rust,
23
explains the tasks undertaken by Rust to accomplish notifying the
24
Class of the settlement and administering its terms.
25
estimates administration costs of $10,000, taking into
26
Ms. Myette
consideration both costs incurred to date and those anticipated
27
to be incurred in the future.
This request is substantially
28
32
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1
lower than previous administrator fees awarded in this District.
2
See Vasquez, 266 F.R.D.at 483-84 ($25,000 administrator fee
3
awarded in wage and hour case involving 177 potential class
4
members).
5
6
IV. CONCLUSION
7
For all the reasons set forth above:
8
(1) The Settlement Class is CERTIFIED;
9
(2) The Class Settlement is APPROVED;
10
(3) The payment of $82,500 in attorney’s fees (31.7% of the
11
Maximum Settlement Value and $7,500 in costs is APPROVED;
12
13
14
15
16
(4) The payment of $4,000 enhancement to each of the named
Plaintiffs, Tyrus Collins and James Greer, is APPROVED;
(5) The payment of $10,000 to the Settlement Administrator
is APPROVED.
17
18
IT IS SO ORDERED.
19
Dated: June 28, 2011
20
21
/s/ Oliver W. Wanger
United States District Judge
22
23
24
25
26
27
28
33
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