Garnett v. ADT LLC

Filing 85

MEMORANDUM AND ORDER RE MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT signed by Senior Judge William B. Shubb on 04/18/16 ORDERING that the 80 Motion for Preliminary Approval of the Class Action Settlement is GRANTED; all discovery an d pretrial proceedings and deadlines are STAYED and SUSPENDED until further notice from the court, except for such actions as are necessary to implement the settlement agreement and this Order; the fairness hearing is SET for 6/27/2016 at 01:30 PM in Courtroom 5 (WBS) before Senior Judge William B. Shubb; defendant shall provide the claims administrator the necessary contact information for class members by 05/02/16 and the claims administrator shall mail notice by 05/09/16; class members shall file objections, requests for exclusion, and claim forms by 06/08/16; plaintiff shall file a motion for attorney's fees no later than 28 days prior to the final fairness hearing; the parties shall file briefs in support of the final approval of the settlement by 06/13/16. (Benson, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SHIRLEY GARNETT, on behalf of
herself and all others
similarly situated,

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MEMORANDUM AND ORDER RE: MOTION
FOR PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENT

Plaintiff,

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CIV. NO. 2:14-02851 WBS AC

v.
ADT, LLC, and DOES 1-50,
inclusive,

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Defendants.

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----oo0oo----

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Plaintiff Shirley Garnett brought this putative class

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action against defendant ADT LLC, asserting claims arising out of

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defendant’s alleged failure to reimburse for work-related vehicle

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expenses and failure to provide accurate wage statements as

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required by California law.

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plaintiff’s motion for preliminary approval of the class action

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settlement.

Presently before the court is

(Docket No. 80.)

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To avoid repetition, the court will refrain from

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reciting the factual and procedural background, which remains the

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same as in its October 6, 2015 Order granting plaintiff’s partial

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motion for summary judgment on plaintiff’s itemized wage

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statement claim and denying defendant’s cross-motion for summary

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judgment.

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I. Discussion

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(Oct. 6, 2015 Order (Docket No. 33).)

Rule 23(e) provides that “[t]he claims, issues, or
defenses of a certified class may be settled . . . only with the

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court’s approval.”

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involves a two-step process in which the Court first determines

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whether a proposed class action settlement deserves preliminary

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approval and then, after notice is given to class members,

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whether final approval is warranted.”

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Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 525 (C.D. Cal. 2004)

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(citing Manual for Complex Litig., Third, § 30.41 (1995)).

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Fed. R. Civ. P. 23(e).

“Approval under 23(e)

Nat’l Rural Telecomms.

The Ninth Circuit has declared a strong judicial policy

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favoring settlement of class actions.

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of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992).

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where, as here, “the parties reach a settlement agreement prior

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to class certification, courts must peruse the proposed

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compromise to ratify both [1] the propriety of the certification

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and [2] the fairness of the settlement.”

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327 F.3d 938, 952 (9th Cir. 2003).

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26

Class Plaintiffs v. City
Nevertheless,

Staton v. Boeing Co.,

A. Class Certification
A class action will be certified only if it meets the

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four prerequisites identified in Rule 23(a) and additionally fits

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within one of the three subdivisions of Rule 23(b).
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Fed. R. Civ.

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P. 23(a)-(b).

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determining whether the moving party has satisfied each Rule 23

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requirement, the court must conduct a rigorous inquiry before

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certifying a class.

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(1979); Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982).

Although a district court has discretion in

See Califano v. Yamasaki, 442 U.S. 682, 701

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1. Rule 23(a) Requirements

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Rule 23(a) restricts class actions to cases where:

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(1) the class is so numerous that joinder of all
members is impracticable; (2) there are questions of
law or fact common to the class; (3) the claims or
defenses of the representative parties are typical of
the claims or defenses of the class; and (4) the
representative parties will fairly and adequately
protect the interests of the class.

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Fed. R. Civ. P. 23(a).

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referred to as numerosity, commonality, typicality, and adequacy

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of representation.

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These requirements are more commonly

a. Numerosity
“A proposed class of at least forty members

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presumptively satisfies the numerosity requirement.”

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Pinkerton Gov’t Servs., 286 F.R.D. 450, 456 (C.D. Cal. 2012); see

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also, e.g., Collins v. Cargill Meat Solutions Corp., 274 F.R.D.

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294, 300 (E.D. Cal. 2011) (Wanger, J.) (“Courts have routinely

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found the numerosity requirement satisfied when the class

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comprises 40 or more members.”).

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proposed class will contain approximately 2,100 members.

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Pl.’s Mot. for Prelim. Approval of Class Settlement (“Pl.’s

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Mot.”) at 1 (Docket No. 80-1).)

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numerosity requirement.

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Avilez v.

Here, plaintiff estimates the
(See

This easily satisfies the

b. Commonality
Commonality requires that the class members’ claims
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“depend upon a common contention” that is “capable of classwide

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resolution--which means that determination of its truth or

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falsity will resolve an issue that is central to the validity of

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each one of the claims in one stroke.”

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Dukes, 131 S. Ct. 2541, 2550 (2011).

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and law need not be common to satisfy the rule,” and the

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“existence of shared legal issues with divergent factual

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predicates is sufficient, as is a common core of salient facts

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coupled with disparate legal remedies within the class.”

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v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998).

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Wal-Mart Stores, Inc. v.
“[A]ll questions of fact

Hanlon

The proposed class has two subclasses: the “Wage

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Statement Settlement Class” and the “Vehicle Expense

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Reimbursement Class.”

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Settlement Class includes all employees who worked as sales

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representatives for defendant from October 1, 2010 to the date

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this Order is signed.

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Stipulation and Agreement of Compromise and Settlement of Class

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Action (“Settlement Agreement”) ¶ 2.23 (Docket No. 81).)

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Vehicle Expense Reimbursement Class includes all employees who

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worked as sales representatives for defendant from October 1,

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2010 to the date this Order is signed and employees who worked

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for defendant as sales managers from July 1, 2013 to the date

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this Order is signed.

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comprised of individuals alleging, like the named plaintiff, that

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defendant failed to record their total hours worked on their wage

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statements and to reimburse them for all expenses incurred while

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driving their personal vehicles for work.

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of salient facts and legal contentions, the proposed class meets

(Pl.’s Mot. at 16.)

The Wage Statement

(Suppl. Workman Decl. Ex. A, Joint

(Id. ¶ 2.24.)

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The

The class would be

Due to the common core

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the commonality requirement.

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c. Typicality

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Typicality requires that the named plaintiff have

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claims “reasonably coextensive with those of absent class

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members,” but their claims do not have to be “substantially

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identical.”

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“is whether other members have the same or similar injury,

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whether the action is based on conduct which is not unique to the

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named plaintiffs, and whether other class members have been

Hanlon, 150 F.3d at 1020.

The test for typicality

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injured by the same course of conduct.”

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Corp., 976 F.2d 497, 508 (9th Cir. 1992) (citation omitted).

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Hanon v. Dataproducts

The putative class members allege a simple set of facts

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that is essentially identical to that alleged by the named

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plaintiff.

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allegedly injured by being inadequately reimbursed for driving

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their personal vehicles and unable to ascertain their total hours

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worked from their wage statements.

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worked for defendant for different amounts of time during the

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relevant period and, as a result, is owed different amounts,

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class members’ claims appear to be reasonably coextensive with

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those of the named plaintiff.

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amounts owed are taken into account by the settlement agreement,

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which allots payments based on the number of work weeks each

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class member was employed by defendant during the class period.

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(Pl.’s Mot. at 9.)

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typicality requirement.

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Both the class members and the named plaintiff were

While each class member

Moreover, the differences in the

The proposed class therefore meets the

d. Adequacy of Representation
To resolve the question of adequacy, the court must
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make two inquiries: “(1) do the named plaintiffs and their

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counsel have any conflicts of interest with other class members

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and (2) will the named plaintiffs and their counsel prosecute the

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action vigorously on behalf of the class?”

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1020.

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factors, including “the qualifications of counsel for the

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representatives, an absence of antagonism, a sharing of interests

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between representatives and absentees, and the unlikelihood that

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the suit is collusive.”

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Hanlon, 150 F.3d at

These questions involve consideration of a number of

Brown v. Ticor Title Ins., 982 F.2d 386,

390 (9th Cir. 1992).

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There do not appear to be any conflicts of interest.

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The named plaintiff’s interests are generally aligned with the

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putative class members.

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suffered a similar injury as the named plaintiff and the

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definition of the class is narrowly tailored.

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Products, Inc. v. Windsor, 521 U.S. 591, 625–26 (1997) (“[A]

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class representative must be part of the class and possess the

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same interest and suffer the same injury as the class members.”).

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As discussed above, the class members

See Amchem

While the provision of an incentive award raises the

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possibility that the named plaintiff’s interest in receiving that

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award will cause its interests to diverge from the class’s

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interest in a fair settlement, the Ninth Circuit has specifically

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approved the award of “reasonable incentive payments.”

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327 F.3d at 977–78.

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carefully the awards so that they do not undermine the adequacy

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of the class representatives.”

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Inc., 715 F.3d 1157, 1163 (9th Cir. 2013).

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have found that $5,000 incentive payments are reasonable.”

Staton,

The court, however, must “scrutinize

Radcliffe v. Experian Info. Sys.,

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“In general, courts

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Hopson v. Hanesbrands Inc., Civ. No. 08-0844 EDL, 2009 WL 928133,

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at *10 (N.D. Cal. Apr. 3, 2009) (citing In re Mego Fin. Corp.

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Sec. Litig., 213 F.3d 454, 463 (9th Cir. 2000); In re SmithKline

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Beckman Corp., 751 F. Supp. 525, 535 (E.D. Pa. 1990); Alberto v.

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GMRI, Inc., 252 F.R.D. 652, 669 (E.D. Cal. 2008)).

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In this case, the settlement agreement provides an

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incentive award of $7,500 to the named plaintiff.

(Pl.’s Mot. at

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9.)

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relatively high, it does not, on its face appear to create a

While the incentive award for the named plaintiff is

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conflict of interest given that it is proportionate to the

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settlement awards the class members stand to receive.

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settlement amount in this case is $2.7 million.

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$7,500 incentive award, $891,500 proposed attorney’s fees,

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$90,000 proposed costs, and $18,750 proposed Private Attorneys

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General Act allocation to be paid to the California Labor &

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Workforce Development Agency, the total available funds for class

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members is $1,692,250.

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claim forms, the average recovery per class member will be about

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$805.83 (not taking into account the number of work weeks each

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class member was employed).

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higher amount if all 2,100 class members do not submit claim

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forms.

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The gross

Subtracting the

Assuming all 2,100 class members submit

Class members could recover an even

In addition, plaintiff provides important justification

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for the incentive award by explaining that she has dedicated at

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least forty hours to this case--consulting with her attorney;

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traveling from Stockton to Sacramento for her deposition;

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assisting in answering document requests, interrogatories, and

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requests for admissions; searching for documents and requested
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information; and making herself available to answer any potential

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questions during the depositions and mediation sessions.

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(Garnett Decl. ¶ 10 (Docket No. 80-2).)

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preliminarily finds that the proposed incentive award does not

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render plaintiff an inadequate representative of the class.

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Accordingly, the court

In addition, the named plaintiff and her counsel seem

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to have vigorously prosecuted the action on behalf of the class.

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“Although there are no fixed standards by which ‘vigor’ can be

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assayed, considerations include competency of counsel and, in the

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context of a settlement-only class, an assessment of the

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rationale for not pursuing further litigation.”

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at 1021.

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discovery, participated in two full mediations, and fully briefed

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motions and cross-motions for summary judgment before deciding to

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settle.

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strengths and weaknesses of this case when she decided to accept

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the terms of the mediator’s proposed settlement agreement.

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(Pl.’s Mot. at 8.)

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Hanlon, 150 F.3d

The parties conducted a significant amount of

Plaintiff’s counsel was therefore informed about the

The court also finds no reason to doubt that

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plaintiff’s counsel is qualified to serve as class counsel and

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assess the value of the settlement.

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Workman, states that she and the Workman Law Firm have “extensive

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experience in wage and hour class action litigation.”

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Decl. ¶ 31 (Docket No. 80-3).)

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in employment law, particularly wage and hour enforcement on a

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class action basis, and has been lead counsel on a number of such

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cases.

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of conflicts of interest and the vigor of counsel’s

(Id.)

Plaintiff’s counsel, Robin

(Workman

Plaintiff’s counsel specializes

Accordingly, the court concludes that the absence

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representation satisfy Rule 23(a)’s adequacy assessment for the

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purpose of preliminary approval.

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2. Rule 23(b)

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Plaintiff seeks certification under Rule 23(b)(3),

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which provides that a class action may be maintained only if (1)

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“the court finds that questions of law or fact common to class

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members predominate over questions affecting only individual

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members” and (2) “that a class action is superior to other

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available methods for fairly and efficiently adjudicating the

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controversy.”

Fed. R. Civ. P. 23(b)(3).

“Because Rule 23(a)(3) already considers commonality,

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the focus of the Rule 23(b)(3) predominance inquiry is on the

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balance between individual and common issues.”

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Gas & Elec. Co., 266 F.R.D. 468, 476 (E.D. Cal. 2010) (citing

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Hanlon, 150 F.3d at 1022).

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to be similar, if not identical.

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in the total number of weeks worked by class members and whether

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they were employed as sales representatives or sales managers,

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there is no indication that those variations are “sufficiently

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substantive to predominate over the shared claims.”

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Accordingly, the court finds that common questions of law and

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fact predominate over the class members’ claims.

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Murillo v. Pac.

The class members’ contentions appear
Although there are differences

See id.

Rule 23(b)(3) also sets forth four non-exhaustive

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factors to consider in determining whether “a class action is

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superior to other available methods for fairly and efficiently

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adjudicating the controversy”:

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(A) the class members’ interests in individually
controlling the prosecution or defense of separate
actions; (B) the extent and nature of any litigation
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concerning the controversy already begun by or against
class members; (C) the desirability or undesirability
of concentrating the litigation of the claims in the
particular forum; and (D) the likely difficulties in
managing a class action.

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3
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Fed. R. Civ. P. 23(b) (3).

to certification, making factors (C) and (D) inapplicable.

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See

Murillo, 266 F.R.D. at 477 (citing Windsor, 521 U.S. at 620).

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The parties settled this action prior

The damage calculation experts hired by plaintiff
estimated that the range of potential recovery for this case
ranges anywhere from $2.5 million to $11.7 million--predicting
plaintiff’s wage statement claim is worth between $1 million and
$2.4 million, the standard roundtrip commute mileage claim $1.5
million, and the reimbursement rate claim between $0 and $7.8
million.

(Pl.’s Mot. at 13.)

Class members might have an

interest in individually controlling prosecution given that the
$2.7 million settlement is on the lower end of this range.
However, defendant strongly disputes the worth of plaintiff’s
reimbursement rate claim and, as will be discussed below, there
are significant risks associated with going to trial in this
case.

Moreover, the costs of individually pursuing this

litigation would be significant.

As a result, class members’

interest in pursuing individual suits is likely low.
The court is also unaware of any concurrent litigation
already begun by class members regarding the wage statements and
reimbursements provided by defendant.
hearing may reveal otherwise.

Objectors at the fairness

See Alberto, 252 F.R.D. at 664.

At this stage, the class action device appears to be the superior
method for adjudicating this controversy.

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3. Rule 23(c)(2) Notice Requirements

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If the court certifies a class under Rule 23(b)(3), it

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“must direct to class members the best notice that is practicable

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under the circumstances, including individual notice to all

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members who can be identified through reasonable effort.”

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R. Civ. P. 23(c)(2)(B).

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content of a proposed notice.

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651, 658 (N.D. Cal. 1997) (citing Eisen v. Carlisle & Jacquelin,

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417 U.S. 156, 172–77 (1974)).

Fed.

Rule 23(c)(2) governs both the form and
See Ravens v. Iftikar, 174 F.R.D.

Although that notice must be

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“reasonably certain to inform the absent members of the plaintiff

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class,” actual notice is not required.

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1449, 1454 (9th Cir. 1994) (citation omitted).

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Silber v. Mabon, 18 F.3d

The settlement agreement provides that the claims

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administrator, ILYM, will provide notice to the class via bulk

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first class mail.

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will provide the claims administrator with each class member’s

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name, last known address, social security number, and number of

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weeks worked.

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update the addresses using the National Change of Address

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Database and then mail to each class member the class notice, a

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claim form, and a claim form return envelope with prepaid

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postage.

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administrator will perform a skip trace procedure and, if a new

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address is secured, re-mail the notice.

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days before the claims deadline, the claims administrator will

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also mail a reminder postcard to those class members who have not

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yet responded.

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(Settlement Agreement ¶ 9.2.4.)

(Id. ¶ 9.2.1.)

Defendant

The claims administrator will

If notices are returned as undeliverable, the claims

(Id. ¶ 9.2.5.)

Fifteen

(Id. ¶ 10.1.)

The notice explains the proceedings; defines the scope
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of the class; informs the class member of the claim form

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requirement and the binding effect of the class action; describes

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the procedure for opting out and objecting; and provides the time

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and date of the fairness hearing.

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Notice.)

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page two of the notice entitled, “YOUR LEGAL RIGHTS AND OPTIONS

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IN THIS LAWSUIT.”

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or (2) ask to be excluded.

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states: “By doing nothing, you remain a member of the Settlement

(Settlement Agreement Ex. B,

The court is concerned, however, with the text box on

The box summarizes two options: (1) do nothing
(Id. at 2.)

The “do nothing” box

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Class.

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will be entitled to receive a settlement check.

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time, you give up the rights to sue ADT for certain claims under

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California law.”

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misleading because class members will not receive a settlement

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check if they “do nothing.”

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make clear that class members must submit a claim form in order

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to receive a settlement check, the content of the notice will

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satisfy Rule 23(c)(2)(B).

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Elec., 361 F.3d 566, 575 (9th Cir. 2004) (“Notice is satisfactory

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if it ‘generally describes the terms of the settlement in

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sufficient detail to alert those with adverse viewpoints to

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investigate and to come forward and be heard.’” (quoting Mendoza

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v. Tucson Sch. Dist. No. 1, 623 F.2d 1338, 1352 (9th Cir. 1980)).

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If the court grants final approval of the Settlement, you

(Id.)

At the same

The court finds this summary to be

Once this language is clarified to

See Churchill Vill., L.L.C. v. Gen.

The court is also satisfied with the claim form, which

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reports the number of weeks worked by the class member during the

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class period, based on defendant’s records, and provides an

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estimated settlement payment amount.

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at 1.)

(Settlement Agreement Ex. A

Class members who want to make a claim for a different
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settlement sum based on a different number of weeks worked may

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set forth the information he or she believes correct in the claim

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form, explain the basis for such belief, and submit supporting

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written documentation within seven days of the claim deadline.

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(Id. at 2.)

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The court is satisfied that this system is reasonably

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calculated to provide notice to class members and is the best

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form of notice available under the circumstances.

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B. Preliminary Settlement Approval

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After determining that the proposed class satisfies the

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requirements of Rule 23, the court must determine whether the

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terms of the parties’ settlement appear fair, adequate, and

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reasonable.

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1026.

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factors,” including:

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See Fed. R. Civ. P. 23(e)(2); Hanlon, 150 F.3d at

This process requires the court to “balance a number of

the strength of the plaintiff’s case; the risk,
expense, complexity, and likely duration of further
litigation; the risk of maintaining class action
status throughout the trial; the amount offered in
settlement; the extent of discovery completed and the
stage of the proceedings; the experience and views of
counsel; the presence of a governmental participant;
and the reaction of the class members to the proposed
settlement.

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22

Hanlon, 150 F.3d at 1026.

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considered until the final fairness hearing, so the court need

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only conduct a preliminary review at this time to resolve any

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“glaring deficiencies” in the settlement agreement before

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authorizing notice to class members.

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at *12 (citing Murillo, 266 F.R.D. at 478).

Many of these factors cannot be

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13

Ontiveros, 2014 WL 3057506,

1

At the preliminary stage, “the court need only

2

‘determine whether the proposed settlement is within the range of

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possible approval.’”

4

Gautreaux v. Pierce, 690 F.2d 616, 621 n.3 (7th Cir. 1982)).

5

This generally requires consideration of “whether the proposed

6

settlement discloses grounds to doubt its fairness or other

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obvious deficiencies, such as unduly preferential treatment of

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class representatives or segments of the class, or excessive

9

compensation of attorneys.”

Murillo, 266 F.R.D. at 479 (quoting

Id. (quoting W. v. Circle K Stores,

10

Inc., Civ. No. 04-0438 WBS GGH, 2006 WL 1652598, at *11-12 (E.D.

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Cal. June 13, 2006)).

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1. Negotiation of the Settlement Agreement

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Courts often begin by examining the process that led to

14

the settlement’s terms to ensure that the agreement is “the

15

result of vigorous, arms-length bargaining.”

16

2006 WL 1652598, at *11-12; In re Tableware Antitrust Litig., 484

17

F. Supp. 2d 1078, 1080 (N.D. Cal. 2007) (“[P]reliminary approval

18

of a settlement has both a procedural and a substantive

19

component.”).

See, e.g., West,

20

Plaintiff’s counsel states that the settlement was

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reached after formal and informal discovery, plaintiff’s own

22

independent investigation and evaluation, extensive motions

23

briefing, and two mediations.

24

declares that, in ultimately deciding to accept the mediator’s

25

proposal, she took into account the uncertain outcome and risks

26

of litigation and the uncertainty associated with class

27

certification.

28

Civ. No. 5:13-00398, 2014 WL 2967475, at *4 (N.D. Cal. June 25,

(Workman Decl. ¶ 21.)

She

(Id.); see La Fleur v. Med. Mgmt. Int’l, Inc.,

14

1

2014) (“Settlements reached with the help of a mediator are

2

likely non-collusive.”).

3

court finds no reason to doubt the parties’ representations that

4

the settlement was the result of vigorous, arms-length

5

bargaining.

In light of these considerations, the

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2. Amount Recovered and Distribution

7

In determining whether a settlement agreement is

8

substantively fair to the class, the court must balance the value

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of expected recovery against the value of the settlement offer.

10

See Tableware, 484 F. Supp. 2d at 1080.

11

consideration of the uncertainty class members would face if the

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case were litigated to trial.

13

*14.

14

This inquiry may involve

See Ontiveros, 2014 WL 3057506, at

As discussed above, the damage calculation experts

15

hired by plaintiff estimated that the range of potential recovery

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for this case is between $2.5 million and $11.7 million.

17

Mot. at 13.)

18

lower end, of this estimated value range.

19

notes that the settlement agreement requires class members to

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take the affirmative step of opting in to receive payment and

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opting out if they do not wish to be part of the settlement

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class.

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to be excluded will release defendant from their wage statement

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and reimbursement claims.

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some members of the class will opt into the judgment by default,

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thus releasing defendant, but get no recovery simply because they

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fail to timely return the claim form.

28

(Pl.’s

The $2.7 million settlement is within, but on the

(Id. ¶¶ 9.3.1.3, 9.6.)

Further, the court

Class members who do not request

(Id.)

Therefore, there is a risk that

While the settlement amount is on the low-end of the
15

1

expected recovery range and the agreement contains a potentially

2

unfair opt-in/opt-out requirement, there are many uncertainties

3

associated with pursuing litigation that justify this recovery.

4

Defendant contends that it reimbursed class members for all

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expenses incurred and plaintiff would not have been able to

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certify its reimbursement claims.

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there were risks of significant delay if defendant challenged

8

plaintiff’s motion for class certification or any final judgment

9

in favor of plaintiff.

(Pl.’s Mot. at 14.)

Further,

Defendant disagreed with this court’s

10

October 6, 2015 Order granting plaintiff partial summary judgment

11

on her wage statement claim, as was evidenced by defendant’s

12

unsuccessful motion for reconsideration and motion for

13

certification of the Order for interlocutory appeal, (Docket Nos.

14

48-49), and made clear it intended to appeal any final judgment

15

in plaintiff’s favor.

16

(Pl.’s Mot. at 14.)

In light of the uncertainties associated with pursuing

17

litigation, the court will grant preliminary approval to the

18

settlement because it is within the range of possible approval.

19

Murillo, 266 F.R.D. at 479 (quoting Gautreaux v. Pierce, 690 F.2d

20

616, 621 n.3 (7th Cir. 1982)).

21

3. Attorney’s Fees

22

If a negotiated class action settlement includes an

23

award of attorney’s fees, that fee award must be evaluated in the

24

overall context of the settlement.

25

312 F.3d 1123, 1126 (9th Cir. 2002); Monterrubio, 291 F.R.D. at

26

455.

27

the award, like the settlement itself, is reasonable, even if the

28

parties have already agreed to an amount.”

Knisley v. Network Assocs.,

The court “ha[s] an independent obligation to ensure that

16

In re Bluetooth

1

Headset Prods. Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011).

2

The settlement agreement provides that plaintiff’s

3

counsel will apply to the court for a fee award of up to 33% of

4

the gross settlement amount, or $891,000, for the 1,306 hours

5

spent on the case.

6

¶ 34.)

7

the fee award so long as it does not exceed 33%.

8

Agreement ¶ 5.1.)

9

part, the fee award, it will not prevent the settlement agreement

10
11

(Settlement Agreement ¶ 5.1; Workman Decl.

Defendant agrees not to oppose plaintiff’s petition for
(Settlement

If the court does not approve, in whole or in

from becoming effective or be grounds for termination.

(Id.)

In deciding the attorney’s fees motion, the court will

12

have the opportunity to assess whether the requested fee award is

13

reasonable, by multiplying a reasonable hourly rate by the number

14

of hours counsel reasonably expended.

15

Mut. Life. Co., 214 F.3d 1041, 1045 (9th Cir. 2000).

16

this lodestar calculation, the court may take into account

17

factors such as the “degree of success” or “results obtained” by

18

plaintiff’s counsel.

19

879 F.2d 481, 488 (9th Cir. 1988).

20

the fee motion, finds that the amount of the settlement warrants

21

a fee award at a rate lower than what plaintiff’s counsel

22

requests, then it will reduce the award accordingly.

23

will therefore not evaluate the fee award at length here in

24

considering whether the settlement is adequate.

25

See Van Gerwen v. Gurantee
As part of

See Cunningham v. County of Los Angeles,
If the court, in ruling on

The court

IT IS THEREFORE ORDERED that plaintiff’s motion for

26

preliminary certification of a conditional settlement class and

27

preliminary approval of the class action settlement be, and the

28

same hereby is, GRANTED.
17

1

IT IS FURTHER ORDERED that:

2

(1) The claims administrator shall notify class members

3

of the settlement in the manner specified under section nine of

4

the settlement agreement, with the slight adjustment to the text

5

of the notice discussed above;

6

(2) Class members who want to receive a settlement

7

payment under the settlement agreement must accurately complete

8

and deliver the claim form to the claims administrator no later

9

than thirty calendar days after the date the class notices are

10

mailed.

11

settlement sum must set forth the information he or she believes

12

is correct in the claim form, explain the basis for such belief,

13

and submit supporting written documentation within seven days of

14

the claim deadline.

15

form, the claims administrator will send a deficiency notice to

16

any class member whose claim form contains irregularities and

17

provide the class member with fifteen days to mail a written

18

response curing the deficiencies;

19

Class members who want to make a claim for a different

Within five days of receiving the claim

(3) Class members who want to object to the settlement

20

agreement must either deliver written objections to the claims

21

administrator postmarked no later than thirty calendar days after

22

the notice date or appear in person at the final fairness

23

hearing.

24

name, current address, all objections and reasons for the

25

objections, and any supporting papers.

26

submits an objection remains eligible to submit a claim form and

27

receive monetary compensation;

28

The objection must include the objecting person’s full

Any class member who

(4) Class members who fail to object to the settlement
18

1

agreement in the manner specified above shall be deemed to have

2

waived their right to object to the settlement agreement and any

3

of its terms;

4

(5) Class members who want to be excluded from the

5

settlement must, within thirty days from the date class notices

6

are mailed, submit the request for exclusion form to the claims

7

administrator.

8

settlement proceeds or be bound by any of the terms of the

9

settlement, including the release provisions;

10

Class members who opt out shall not receive any

(6) The Wage Statement Settlement Class is

11

provisionally certified as all employees working as sales

12

representatives for defendant from October 1, 2010 to the date

13

this Order is signed.

14

provisionally certified as all employees working as sales

15

representatives for defendant from October 1, 2010 to the date

16

this Order is signed and employees working as sales managers for

17

defendant from July 1, 2013 to the date this Order is signed;

18

The Vehicle Expense Reimbursement Class is

(7) Plaintiff Shirley Garnett is conditionally

19

certified as the class representative to implement the parties’

20

settlement in accordance with the settlement agreement.

21

firm of Workman Law Firm, through Robin Workman and Aviva Roller,

22

is conditionally appointed as class counsel.

23

Workman Law Firm must fairly and adequately protect the class’s

24

interests;

25
26
27
28

The law

Plaintiff and

(8) The parties agree that ILYM will serve as the
claims administrator;
(9) If the settlement agreement terminates for any
reason, the following will occur: (a) class certification will be
19

1

automatically vacated; (b) plaintiff will stop functioning as

2

class representative; and (c) this action will revert to its

3

previous status in all respects as it existed immediately before

4

the parties executed the settlement agreement;

5

(10) All discovery and pretrial proceedings and

6

deadlines are stayed and suspended until further notice from the

7

court, except for such actions as are necessary to implement the

8

settlement agreement and this Order;

9

(11) The fairness hearing is set for June 27, 2016 at

10

1:30 p.m., in Courtroom No. 5, to determine whether the

11

settlement agreement should be finally approved as fair,

12

reasonable, and adequate;

13

(12) Based on the date this Order is signed and the

14

date of the fairness hearing, the following are the certain

15

associated dates in this settlement:

16

(a) Defendant shall provide the claims

17

administrator the necessary contact information for class members

18

by May 2, 2016 and the claims administrator shall mail notice by

19

May 9, 2016;

20
21

(b) Class members shall file objections, requests
for exclusion, and claim forms by June 8, 2016;

22

(c) Pursuant to Local Rule 293, plaintiff shall

23

file a motion for attorney’s fees no later than 28 days prior to

24

the final fairness hearing;

25

(13) The parties shall file briefs in support of the

26

final approval of the settlement no later than June 13, 2016.

27

Dated:

April 18, 2016

28
20