Garnett v. ADT LLC

Filing 90

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 6/27/16 ORDERING that Plaintiff's Motions for final approval of the class and class action settlement and for reasonable attorney's fees, expenses, and an incentive award (Do cket Nos. 86 , 87 ) are GRANTED. Plaintiff's counsel is entitled to fees and costs in the amount of $978,534.60; the named Plaintiff is entitled to an incentive payment of $7,500; this action is DISMISSED with prejudice; however, without affecting the finality of this Order, the court shall retain continuing jurisdiction over the interpretation, implementation, and enforcement of the settlement agreement with respect to all parties to this action and their counsel of record.(Mena-Sanchez, L)

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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,
Plaintiff,

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CIV. NO. 2:14-02851 WBS AC
MEMORANDUM AND ORDER RE: MOTION
FOR FINAL APPROVAL OF CLASS
ACTION SETTLEMENT

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

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Defendants.

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Plaintiff Shirley Garnett brought this putative class

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action against defendant ADT, LLC, asserting claims arising out

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

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vehicle expenses and failure to provide accurate wage statements

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as required by California law.

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plaintiff’s motion for final approval of the class action

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settlement, (Docket No. 87), and motion for attorney’s fees,

Presently before the court is

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costs, and an incentive award for the named plaintiff, (Docket

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No. 86).

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I. Factual and Procedural Background

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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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(Oct. 6, 2015 Order (Docket No. 33).)
The court granted preliminary approval of plaintiff’s

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class action settlement on April 18, 2016.

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(Docket No. 85).)

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class-wide settlement pursuant to Federal Rule of Civil Procedure

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23(e).

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87-1).)

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II. Discussion

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(Apr. 18, 2016 Order

Plaintiff now seeks final approval of the

(Pl.’s Mot. for Final Approval (“Pl.’s Mot.”) (Docket No.
Defendant does not oppose plaintiff’s motions.

Rule 23(e) provides that “[t]he claims, issues, or

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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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Class Plaintiffs v. City
Nevertheless,

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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 the propriety of the certification and

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the fairness of the settlement.”

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938, 952 (9th Cir. 2003).

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Staton v. Boeing Co., 327 F.3d

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).

See

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Ontiveros v. Zamora, Civ. No. 2:08-567 WBS DAD, 2014 WL 3057506,

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at *4 (E.D. Cal. July 7, 2014); Fed. R. Civ. P. 23(a)-(b).

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Although a district court has discretion in determining whether

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the moving party has satisfied each Rule 23 requirement, see

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Califano v. Yamasaki, 442 U.S. 682, 701 (1979); Montgomery v.

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Rumsfeld, 572 F.2d 250, 255 (9th Cir. 1978), the court must

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conduct a rigorous inquiry before certifying a class, see Gen.

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

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Motor Freight Sys. v. Rodriguez, 431 U.S. 395, 403–05 (1977).

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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

In its Preliminary Approval Order, the court found that
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the class satisfied these requirements, (Apr. 18, 2016 Order at

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3-9), and the court is unaware of any changes that would alter

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its analysis.

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2. Rule 23(b)

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An action that meets all the prerequisites of Rule

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23(a) may be certified as a class action only if it also

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satisfies the requirements of one of the three subdivisions of

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Rule 23(b).

Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th

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Cir. 2013).

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.”

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

In its Preliminary Approval Order, the court found that

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both prerequisites were satisfied.

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10.)

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conclusion.

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both Rule 23(a) and 23(b)(3), the court will grant plaintiff’s

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motion for final certification of the settlement class.

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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

(Apr. 18, 2016 Order at 9-

The court is unaware of any changes that would affect this
Accordingly, since the settlement class satisfied

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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.

Fed.

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

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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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Although that notice must be

Silber v. Mabon, 18 F.3d

In this case, the court-appointed claims administrator,

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ILYM, mailed notice to 1,593 class members on May 9, 2016, after

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checking the names and addresses against the National Change of

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Address database maintained by the United States Postal Service

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and updating any changed addresses.

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(Docket No. 87-3).)

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returned and ILYM located updated addresses and re-mailed the

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packets.

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undeliverable.

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(Mullins Decl. ¶¶ 7-8

One hundred sixty notice packets were

(Id. at ¶ 9.)

Only nine notices were deemed

(Id.)

The notice explained the proceedings; defined the scope

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of the class; informed the class members of the claim form

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requirement and the binding effect of the class action; described

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

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and date of the final fairness hearing.

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addition, the parties modified the text box on page two of the

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notice entitled, “YOUR LEGAL RIGHTS AND OPTIONS IN THIS LAWSUIT,”

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to make it clear that class members must submit a claim form in

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order to receive a settlement check, pursuant to this court’s

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instructions at the preliminary approval hearing.

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Workman Decl. in Support of Pl.’s Mot. for Final Approval ¶ 7

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(Docket No. 87-2).)

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(Id. Ex. A, Notice.)

In

(Id. at 2;

Accordingly, the court finds that the content of the
notice was reasonably certain to inform the class members of the
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terms of the settlement agreement and the method used was the

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best form of notice available under the circumstances.

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R. Civ. P. 23(c)(2)(B); see also Churchill Vill., L.L.C. v. Gen.

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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.’” (citation

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omitted)).

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See Fed.

B. Rule 23(e): Fairness, Adequacy, and Reasonableness of
Proposed Settlement
Having determined class treatment to be warranted, the

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court must now determine whether the terms of the parties’

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settlement appear fair, adequate, and reasonable.

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Civ. P. 23(e)(2); Hanlon, 150 F.3d at 1026.

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requires the court to “balance a number of factors,” including:

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See Fed. R.

This process

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.
Hanlon, 150 F.3d at 1026.

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1. Strength of Plaintiff’s Case

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An important consideration is the strength of

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plaintiff’s case on the merits balanced against the amount

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offered in the settlement.

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district court, however, is not required to reach any ultimate

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conclusions on the merits of the dispute, “for it is the very

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uncertainty of outcome in litigation and avoidance of

DIRECTV, 221 F.R.D. at 526.

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The

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wastefulness and expensive litigation that induce consensual

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settlements.”

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City & Cnty. of SF, 688 F.2d 615, 625 (9th Cir. 2004).

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Officers for Justice v. Civil Serv. Comm’n of the

The settlement terms compare favorably to the

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uncertainties with respect to liability in this case.

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case had not settled, defendant would have opposed any class

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certification request and continued to insist that it properly

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reimbursed class members for all expenses incurred on the job.

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(Pl.’s Mot. at 12.)

If the

Defendant also disagreed with this court’s

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October 6, 2015 Order granting plaintiff partial summary judgment

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

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unsuccessful motion for reconsideration and motion for

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

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48-49), and made clear its intention to appeal any final judgment

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in plaintiff’s favor.

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(Pl.’s Mot. at 12.)

In comparing the strength of plaintiff’s case with the

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proposed settlement, the court finds that the proposed settlement

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is a fair resolution of the issues in this case.

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2. Risk, Expense, Complexity, and Likely Duration of

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Further Litigation
Further litigation could greatly delay resolution of

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this case and increase expenses.

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parties would have had to litigate class certification, which

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would have required additional discovery, time, and expense.

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(Id. at 13.)

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judgment in plaintiff’s favor.

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settlement of the action.

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Prior to any judgment, the

In addition, defendant planned to appeal any final
(Id.)

This weighs in favor of

3. Risk of Maintaining Class Action Status Throughout
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Trial

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If the case proceeded to trial, plaintiff would have a

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strong chance of certifying the class given the court’s

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certification for the purposes of settlement.

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however, acknowledges a risk that defendant would have defeated

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class certification on the reimbursement claim.

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Accordingly, this factor also favors approval of the settlement.

Plaintiff,

(Id. at 12-13.)

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4. Amount Offered in Settlement

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In assessing the amount offered in settlement, “[i]t is

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the complete package taken as a whole, rather than the individual

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component parts, that must be examined for overall fairness.”

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Officers for Justice, 688 F.2d at 628.

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that a cash settlement amounting to only a fraction of the

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potential recovery will not per se render the settlement

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inadequate or unfair.”

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“It is well-settled law

Id.

The gross settlement amount in this case is $2.7

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million and about $1.6 million of the total fund will be

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distributed to class members, after the incentive award,

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attorney’s fees, and costs are deducted.

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the 831 class members who submitted a claim form will receive a

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settlement check based on the number of workweeks he or she was

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employed by defendant during the class period.1

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11, Ex. A, Notice.)

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receive is $1,470.68 and the highest award is $4,280.01.

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Plaintiff’s anticipated award is $1,552.39.

(Id. at 14.)

Each of

(Mullins Decl. ¶

The average amount class members will

(Id.)

(Id.)

No money from

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Sixty-nine class members submitted claim forms after
the June 8, 2016 deadline but both parties agreed to accept the
late claims. (Suppl. Workman Decl. ¶ 2 (Docket No. 88-1).)
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the class fund will revert to defendant and, as a result, the

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claims administrator estimates that there will be $458,728.15

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remaining for distribution after the 831 claims are paid.

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Suppl. Mullins Decl. ¶ 3 (Docket No. 88).)

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be distributed on a workweek basis and the average additional

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amount each class member will receive is $552.

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Decl. ¶ 3.)

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(Id.;

This amount will also

(Suppl. Mullins

While the $2.7 million settlement is on the lower end
of the range of potential recovery for this case--the damage

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calculation experts hired by plaintiff estimated that the range

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is between $2.5 million and $11.7 million--class members will

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receive substantial cash awards rather than coupons or nominal

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awards.

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avoid the significant risks and costs associated with further

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litigation.

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fair.

(Pl.’s Mot. at 14.)

Class members will also be able to

Accordingly, the settlement amount is adequate and

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5. Extent of Discovery and the State of Proceedings

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A settlement that occurs in an advanced stage of the

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proceeding indicates the parties carefully investigated the

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claims before reaching a resolution.

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No. 07-1895 WBS DAD, 2008 WL 4891201, at *9 (E.D. Cal. Nov. 12,

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2008).

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of discovery, took depositions, participated in two full

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mediations, and fully briefed motions and cross-motions for

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summary judgment before reaching a settlement.

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15.)

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discovery, informal discovery, and mediation weigh in favor of

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settlement.

Alberto v. GMRI, Inc., Civ.

The parties in this case conducted a significant amount

(Pl.’s Mot. at

The parties’ investigation of the claims through formal

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6. Experience and Views of Counsel

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Plaintiff’s counsel has extensive experience litigating

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class actions, particularly those involving employment law and

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wage and hour enforcement.

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Mot. for Final Approval ¶¶ 13-14.)

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plaintiff’s counsel believes the proposed settlement is fair,

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reasonable, and adequate to the class members.

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court gives considerable weight to class counsel’s opinions

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regarding the settlement due to counsel’s experience and

(Workman Decl. in Support of Pl.’s

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familiarity with the litigation.

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*10.

Based on her experience,

(Id. ¶ 9.)

The

Alberto, 2008 WL 4891201, at

This factor supports approval of the settlement agreement.

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7. Presence of Government Participant

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No governmental entity participated in this matter;

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this factor, therefore, is irrelevant to the court’s analysis.

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8. Reaction of the Class Members to the Proposed

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Settlement

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Notice of the settlement was sent to 1,593 class

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members and only seven class members submitted requests for

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exclusion prior to the June 8, 2016 deadline.

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10.)

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that the absence of a large number of objections to a proposed

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class action settlement raises a strong presumption that the

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terms of a proposed class settlement action are favorable to the

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class members.”

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factor weighs in favor of the court’s approval of the settlement.

No class members have objected.

(Id.)

DIRECTV, 221 F.R.D. at 529.

(Mullins Decl. ¶
“It is established

Accordingly, this

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9. Conclusion

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Having considered the foregoing factors, the court

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finds the settlement is fair, adequate, and reasonable pursuant
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to Rule 23(e).

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B. Attorney’s Fees

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Federal Rule of Civil Procedure 23(h) provides, “[i]n a

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certified class action, the court may award reasonable attorney’s

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fees and nontaxable costs that are authorized by law or by the

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parties’ agreement.”

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includes an award of attorney’s fees, that fee award must be

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evaluated in the overall context of the settlement.

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Network Assocs., 312 F.3d 1123, 1126 (9th Cir. 2002); Monterrubio

If a negotiated class action settlement

Knisley v.

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v. Best Buy Stores, L.P., 291 F.R.D. 443, 455 (E.D. Cal. 2013)

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(England, J.).

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ensure that the award, like the settlement itself, is reasonable,

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even if the parties have already agreed to an amount.”

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Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 941 (9th

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Cir. 2011).

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The court “ha[s] an independent obligation to

In re

Plaintiff’s counsel requests $891,000 in attorney’s

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fees for 1,541.58 hours of attorney and paralegal work on this

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case.

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Plaintiff also requests $87,534.60 in costs.

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parties negotiated the agreed-upon attorney’s fees and costs

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after reaching an agreement on the total settlement fund amount.

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(Id. at 10.)

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attorney’s fees that did not exceed 33% of the settlement and

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costs that did not exceed $90,000.

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requested by plaintiff constitute 33% of the total settlement

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fund and are slightly above the lodestar figure of $829,533,

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which plaintiff calculated based on hourly rates of $650 for

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partners, $350 for associates, and $150 for paralegals.

(Pl.’s Mot. for Att’y’s Fees at 1 (Docket No. 86-1).)
(Id. at 1.)

The

Defendant agreed not to oppose a request for

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(Id.)

The attorney’s fees

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Plaintiff’s counsel submitted detailed time sheets justifying the

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hours worked on this case.

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Fees Ex. B (Docket No. 86-5).)

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(Workman Decl. to Mot. for Attn’y’s

While such substantial hourly rates might not have been

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accepted by the court under different circumstances, the court

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finds plaintiff’s counsel’s request for attorney’s fees and costs

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in the agreed-upon amount of $978,534.60 reasonable given her

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exceptional handling of this case.

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demonstrated exceptional advocacy skills both at the hearing for

Plaintiff’s counsel has

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the cross-motions for summary judgment and the preliminary

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approval hearing.

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prevail on a highly contested issue on summary judgment and to

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resolve the case in a manner that significantly benefits class

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members.

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the substantial awards the class members will receive in this

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case, the court will grant the requested fees and costs.

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Furthermore, plaintiff’s counsel was able to

Both because of plaintiff’s counsel’s able advocacy and

D. Incentive Payment to Named Plaintiff
The court may award “reasonable incentive payments” to

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named plaintiffs “to compensate class representatives for work

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done on behalf of the class, to make up for financial or

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reputational risk undertaken in bringing the action, and,

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sometimes, to recognize their willingness to act as a private

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attorney general.”

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01211 LJO BAM, 2015 WL 6697929, at *11 (E.D. Cal. Nov. 3, 2015).

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In assessing the reasonableness of incentive payments, the court

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should consider “the actions the plaintiff has taken to protect

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the interests of the class, the degree to which the class has

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benefitted from those actions” and “the amount of time and effort

Davis v. Brown Shoe Co., Inc., Civ. No. 1:13-

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the plaintiff expended in pursuing the litigation.”

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F.3d at 977 (citation omitted).

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number of named plaintiffs receiving incentive payments, the

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proportion of the payments relative to the settlement amount, and

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the size of each payment.”

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incentive award of $5,000 is presumptively reasonable.

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2015 WL 6697929, at *11.

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Staton, 327

The court must balance “the

Id.

In the Ninth Circuit, an
Davis,

The class representative in this case seeks an
incentive payment of $7,500.

(Pl.’s Mot. for Att’y’s Fees at 6.)

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While the award amount is higher than the $5,000 award found to

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be presumptively reasonable in the Ninth Circuit, it is

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proportionate to the substantial settlement awards the class

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members stand to receive.

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which class members receive nominal settlement awards, discounts,

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or coupons, the class members in this case will receive an

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average of $1,470.68, with a high of 4,280.01.

Plaintiff is

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anticipated to receive an award of $1,552.39.

The requested

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incentive award of $7,500 represents only 0.004% of the total

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$1.6 million available for distribution to class members.

As discussed above, unlike in cases in

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In addition, the award fairly compensates plaintiff for

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the significant time and resources she committed to pursuing this

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case and representing the class.

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least forty hours to this case--traveling from Stockton to San

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Francisco to consult with and assist her attorney; traveling from

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Stockton to Sacramento for her deposition; assisting in answering

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document requests, interrogatories, and requests for admissions;

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searching for documents and requested information; and making

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herself available to answer any potential questions during the
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Plaintiff has dedicated at

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depositions and mediation sessions.

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No. 80-2).)

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attorney general under California Labor Code section 2698 and

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risked her own reputation and future employment prospects by

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bringing a suit against her former employer.

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also agreed to a more expansive release of all claims against

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defendant than the other class members and a covenant not to sue.

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(Suppl. Workman Decl. Ex. A, Joint Stipulation and Agreement of

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Compromise and Settlement of Class Action (“Settlement

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(Garnett Decl. ¶ 10 (Docket

In addition, plaintiff agreed to act as a private

Lastly, plaintiff

Agreement”) ¶ 8.2.4 (Docket No. 81).)

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The court therefore finds that the incentive payment is

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reasonable and fairly compensates plaintiff for the work done on

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behalf of the class and the financial and reputational risks

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undertaken.

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III. Conclusion

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Based on the foregoing, the court grants final

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certification of the settlement class and approves the settlement

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set forth in the settlement agreement as fair, reasonable, and

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adequate.

Consummation of the settlement agreement is therefore

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approved.

The settlement agreement shall be binding upon all

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participating class members who did not exclude themselves.

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IT IS THEREFORE ORDERED that plaintiff’s motions for

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final approval of the class and class action settlement and for

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reasonable attorney’s fees, expenses, and an incentive award

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(Docket Nos. 86, 87) be, and the same hereby is, GRANTED.

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IT IS FURTHER ORDERED THAT:
(1)

solely for the purpose of this settlement, and pursuant
to Federal Rule of Civil Procedure 23, the court hereby
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certifies the following subclasses:

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- Wage Statement Settlement Class: All employees who

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worked as sales representatives for defendant from

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October 1, 2010 to April 18, 2016.

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- Vehicle Expense Reimbursement Class: All employees

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who worked as sales representatives for defendant

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from October 1, 2010 to April 18, 2016 and employees

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who worked for defendant as sales managers from July

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1, 2013 to April 18, 2016.

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Specifically, the court finds that:

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(a)

the settlement class members are so numerous that

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joinder of all settlement class members would be

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impracticable;

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(b)

there are questions of law and fact common to the

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settlement class which predominate over any

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individual questions;

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(c)

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claims of the named plaintiff are typical of the
claims of the settlement class;

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(d)

the named plaintiff and plaintiff’s counsel have

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fairly and adequately represented and protected the

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interests of the settlement class; and

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(e)

a class action is superior to other available

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methods for the fair and efficient adjudication of

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the controversy.

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(2)

the court appoints the named plaintiff, Shirley Garnett,

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as representative of the class and finds that she meets

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the requirements of Rule 23;

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(3)

the court appoints Robin Workman and Aviva Roller,
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Workman Law Firm, 177 Post Street, Suite 900, San

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Francisco, CA, 94108, as counsel to the settlement class

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and finds that counsel meet the requirements of Rule 23;

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(4)

the settlement agreement’s plan for class notice is the

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best notice practicable under the circumstances and

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satisfies the requirements of due process and Rule 23.

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The plan is approved and adopted.

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class complies with Rule 23(c)(2) and Rule 23(e) and is

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approved and adopted;

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(5)

The notice to the

having found that the parties and their counsel took

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appropriate efforts to locate and inform all putative

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class members of the settlement, and given that no class

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members filed an objection to the settlement, the court

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finds and orders that no additional notice to the class

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is necessary;

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(6)

as of the date of the entry of this Order, plaintiff and

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all class members who have not timely opted out hereby do

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and shall be deemed to have expressly waived and

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relinquished all claims, charges, complaints, liens,

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demands, causes of action, obligations, damages and

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liabilities, that each class member had, now has, or may

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hereafter claim to have against the released parties,

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arising at any time during the settlement class period,

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out of, or relating in any way to, the facts, legal

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theories, and alleged causes of action in the present

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case (as defined by paragraph 8.2.3 of the settlement

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agreement);

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(7)

plaintiff’s counsel is entitled to fees and costs in the
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amount of $978,534.60;
(8)

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the named plaintiff is entitled to an incentive payment
of $7,500; and

(9)

this action is dismissed with prejudice; however, without

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affecting the finality of this Order, the court shall

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retain continuing jurisdiction over the interpretation,

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implementation, and enforcement of the settlement

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agreement with respect to all parties to this action and

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their counsel of record.

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The clerk is instructed to enter judgment accordingly.

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Dated:

June 27, 2016

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