Castillo v. ADT, LLC

Filing 57

MEMORANDUM and ORDER signed by Senior Judge William B. Shubb on 01/24/2017 GRANTING Plaintiff's 51 Motion for Final Approval of Class Settlement, and GRANTING Plaintiff's 50 Motion for Attorney Fees. This action is DISMISSED WITH PR EJUDICE. 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 in this action and their counsel of record. CASE CLOSED. (Jackson, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICARDO CASTILLO, on behalf
of himself and all others
similarly situated,
Plaintiff,

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v.

CIV. NO. 2:15-383 WBS DB
MEMORANDUM AND ORDER RE: MOTIONS
FOR FINAL APPROVAL OF CLASS
SETTLEMENT AND APPROVAL OF
ATTORNEYS’ FEES, COSTS, AND
INCENTIVE AWARD

ADT, LLC, and DOES 1 through
100, inclusive,
Defendant.

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Plaintiff Ricardo Castillo brought this class action

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against defendant, ADT, alleging that defendant failed to pay him

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and other class members for off-the-clock work, overtime, and

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business expenses in violation of California wage and hour laws.

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(Second Am. Compl. (“SAC”) (Docket No. 42).)

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are plaintiff’s Motions for final approval of class settlement,

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(Pl.’s Mot. for Final Approval of Settlement (Docket No. 51)),
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Before the court

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and approval of attorneys’ fees, costs, and an incentive award,

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(Pl.’s Mot. for Attorneys’ Fees (Docket No. 50)).

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I.

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Factual and Procedural Background
Defendant provides electronic security, alarm, and home

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and business automation services throughout the United States.

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(SAC ¶ 10.)

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each of which employs “non-exempt High Volume Installers.”

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id. ¶¶ 10, 23.)

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It operates some twenty locations in California,
(See

Plaintiff, a non-exempt high volume installer, alleges

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that defendant violated various provisions of the California

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Labor Code by paying him and other high volume installers

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pursuant to a wage policy that fails to compensate them for off-

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the-clock work, such as traveling between customer sites and

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picking up supplies from warehouses.

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them pursuant to such a policy, plaintiff alleges, defendant also

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under-calculates their overtime pay, which must be “at least one

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and one-half times [their] regular rate of pay” under California

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law.

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“reimburse [him and other installers] for necessary business

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expenses and provide compliant wage statements.”

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(Id. ¶ 4.)

(Id. ¶ 17.)

By underpaying

Plaintiff also alleges that defendant failed to

(Id. ¶ 5.)

Plaintiff brought this action on behalf of himself and

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other high volume installers who were paid on a similar basis.

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(See id. ¶ 4.)

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before reaching a settlement on April 24, 2016 before mediator

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Alan Berkowitz.

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The parties litigated this case for over a year

(Docket No. 44 at 3-4.)

After reaching settlement, the parties filed a motion

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for preliminary approval of settlement on September 30, 2016.

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(Id.)

The court granted preliminary approval and provisionally
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certified the following class: “[A]ll non-exempt individuals

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employed by ADT in California as high volume installers who were

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paid for services performed at any time from April 18, 2013 to

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[November 1, 2016].”

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The court appointed plaintiff as class representative; Alan

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Harris and Priya Mohan of the firm of Harris & Ruble and David

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Harris of North Bay Law Group as class counsel; and Dahl

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Administration as claims administrator.

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(Nov. 1, 2016 Order at 22 (Docket No. 48).)

(Id.)

The court also approved plaintiff’s opt-in/opt-out form

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and notice of settlement, (id. at 15-16); directed the claims

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administrator to send notice of settlement to class members by

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November 21, 2016, (id. at 23); directed class members to file

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claims, objections, and opt-outs by January 5, 2017, (id.);

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directed plaintiff to file a motion for attorneys’ fees by

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December 29, 2016, (id.); and directed the parties to file briefs

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in support of final approval of settlement by December 29, 2016,

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(id.).

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January 23, 2017 at 1:30 p.m.

The final fairness hearing in this action took place on

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After conducting the final fairness hearing and

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carefully considering the settlement terms, the court now

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addresses whether this action should receive final class

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certification, whether the proposed settlement should receive

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final approval, and whether plaintiff’s request for attorneys’

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fees, costs, and an incentive award should be granted.

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II.

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Discussion
The Ninth Circuit has declared that a strong judicial

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policy favors settlement of class actions.

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

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Nevertheless, where, as here, “the parties reach a settlement

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agreement prior to class certification, courts must peruse the

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

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certification and [2] the fairness of the settlement.”

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

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Staton v.

The first part of the inquiry requires the court to

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“pay ‘undiluted, even heightened, attention’ to class

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certification requirements” because, unlike in a fully litigated

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class action suit, the court “will lack the opportunity . . . to

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adjust the class, informed by the proceedings as they unfold.”

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Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 620 (1997); see

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

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In the second stage, the court holds a fairness hearing

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where the court entertains any class member’s objections to (1)

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the treatment of this litigation as a class action and (2) the

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terms of the settlement.

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Islands, 876 F.2d 1401, 1408 (9th Cir. 1989) (holding that a

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court is required to hold a hearing prior to final approval of a

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dismissal or compromise of class claims to “inquire into the

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terms and circumstances of any dismissal or compromise to ensure

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it is not collusive or prejudicial”).

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the court must reach a final determination as to whether the

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court should allow the parties to settle the class action

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pursuant to the agreed-upon terms.

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

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A.

See Diaz v. Tr. Territory of Pac.

Following such a hearing,

See Telecomms. Coop. v.

Class Certification

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A class action will be certified only if it meets the

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four prerequisites identified in Rule 23(a) and fits within one
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of the three subdivisions of Rule 23(b).

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(b).

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whether the moving party has satisfied each Rule 23 requirement,

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the court must conduct a rigorous inquiry before certifying a

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class.

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

Although a district court has discretion in determining

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

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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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approval of settlement, the court found that the putative class

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satisfied the Rule 23(a) requirements.

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aware of any facts that would alter its initial Rule 23(a)

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analysis, the court finds that the class definition proposed by

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plaintiff meets the requirements of Rule 23(a).

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2.

In the court’s Order granting preliminary

Because the court is not

Rule 23(b) Requirements

An action that meets all of 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) “a class action is superior to other available

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methods for fairly and efficiently adjudicating the controversy.”
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Fed. R. Civ. P. 23(b)(3).
In its Order granting preliminary approval of

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settlement, the court found that both prerequisites of Rule

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23(b)(3) were satisfied.

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that would alter this conclusion.

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satisfies both Rule 23(a) and 23(b)(3), the court will grant

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final class certification in this action.

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3.

The court is not aware of any facts
Because the settlement class

Rule 23(c)(2) Notice Requirements

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)).

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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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Fed.

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

Although that notice must be

Silber v. Mabon, 18 F.3d

The parties agreed that Dahl Administration would serve
as claims administrator in this action.

(Docket No. 44 at 9.)

Defendant identified and provided Dahl with the records

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of 427 class members on November 17, 2016.

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(“Kratz Decl.”) ¶ 4 (Docket No. 54-1).)

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current mailing addresses for each class member using the

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National Change of Address database maintained by the United

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States Postal Service (“USPS”).

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2016, Dahl mailed notice of settlement to the 427 class members

Dahl obtained the most

(Id. ¶ 5.)

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(Decl. of Kelly Kratz

On November 21,

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via first class USPS mail.1

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notice on December 21, 2016 to the 285 class members who had not

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responded by that point.

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(Id. ¶ 6.)

Dahl sent a second

(Id. ¶ 7.)

Of the 427 class members identified and sent notice,

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287 filed timely claim forms.

(Jan. 13, 2017 Decl. of Alan

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Harris (“Harris Decl. II”) ¶ 3 (Docket No. 54).)

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members filed late claim forms, which the parties have agreed to

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accept.

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(“Harris Decl. III”) at 2 (Docket No. 55).)

Four class

(See id. ¶ 4; Jan. 19, 2017 Decl. of Alan Harris
Counting the late

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claim forms, the class settlement participation rate in this

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action was 68%.

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class member objected to the settlement.

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Seven class members2 decided to opt out, and no
(Harris Decl. II ¶ 5.)

The notice sent by Dahl explained the proceedings in

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this action; who comprised the settlement class; the claim form

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requirement and the binding effect of opting in; the procedure

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for opting out or objecting; when and where the final fairness

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hearing would be held; and how to contact class counsel should

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the class member have any questions or wish to request more

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information.

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notice also explains that class members’ individual settlement

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awards would be determined based on number of weeks worked during

(See Kratz Decl. Ex. A, Notice of Settlement.)

The

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Ten class notices were returned as undeliverable.
(Kratz Decl. ¶ 8.) Dahl forwarded those notices to a
professional search firm for tracing. (Id.) Plaintiff stated at
the final fairness hearing that seven of the ten undeliverable
notices were re-mailed pursuant to updated addresses. The
remaining three notices did not have updated addresses and could
not be re-sent. (Id.)
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The parties stated at the final fairness hearing that
two of the seven opt-out members may decide to re-opt in.
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the class period, and that weeks worked during the ‘piece rate’

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period would be compensated differently from weeks worked during

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the ‘hourly rate’ period.3

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(See id. at 4-5.)

The court is satisfied that the parties’ notice plan

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was “best notice that [was] practicable under the circumstances,”

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and that the content of their notice satisfied Rule 23(c)(2)(B).

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

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

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satisfactory if it generally describes the terms of the

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settlement in sufficient detail to alert those with adverse

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viewpoints to investigate and to come forward and be heard.”

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(citation omitted)).

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B.

Rule 23(e): Fairness, Adequacy, and Reasonableness of

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Proposed Settlement

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Having determined class treatment to be warranted and

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notice to be adequate, the court must now determine whether the

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Pursuant to their settlement, the parties agree that
the class period will be comprised of two sub-periods: (1) a
‘piece rate’ period, during which defendant allegedly paid class
members pursuant to a piece rate system; and (2) an ‘hourly rate’
period, during which defendant allegedly paid class members
pursuant to an hourly rate system. (Dec. 29, 2016 Decl. of Alan
Harris (“Harris Decl. I”) Ex. 1, Settlement Agreement at 8-9
(Docket No. 53-1).) Ninety percent of class funds will go
towards compensating weeks worked during the ‘piece rate’ period,
and ten percent of class funds will go towards compensating weeks
worked during the ‘hourly rate’ period. (Id.) The implication
of this split is that defendant’s ‘piece rate’ system
undercompensated class members more severely than its ‘hourly
rate’ system did. (See Harris Decl. I ¶ 10 (“The plan of
allocation was negotiated in such a way as to fairly allocate the
recovery among Class Members in accordance with Plaintiff‘s
theories of potential damages as well as the relative strengths
and weaknesses of the claims . . . .”) (Docket No. 53).) The
court finds no reason to doubt the fairness of this allocation.
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terms of the parties’ settlement are 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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Hanlon, 150 F.3d at 1026.

But see In re Bluetooth Headset Prods.

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Liab. Litig., 654 F.3d 935, 946 (9th Cir. 2011) (“The factors in

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a court’s fairness assessment will naturally vary from case to

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case.”).

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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 balanced against the amount offered in the

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settlement.

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however, is not required to reach any ultimate conclusions on the

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merits of the case, “for it is the very uncertainty of outcome in

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litigation and avoidance of wastefulness and expensive litigation

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that induce consensual settlements.”

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Civil Serv. Comm’n of the City & Cnty. of SF, 688 F.2d 615, 625

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(9th Cir. 2004).

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

The district court,

Officers for Justice v.

The terms of the parties’ settlement compare favorably

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to the uncertainties of plaintiff’s case.

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settled, defendant would have opposed plaintiff’s request for

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class certification, contested the merits of his claims at

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summary judgment and/or trial, and appealed any adverse judgment
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If the parties had not

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the court issued.

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Settlement at 14.)

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some twenty-three defenses against plaintiff’s claims, such as

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failure to exhaust administrative remedies, failure to mitigate

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damages, time bar under various statutes of limitations, and

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inaccuracy of various allegations made in plaintiff’s second

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amended Complaint.

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defenses, defendant contends, “present serious threats to the

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claims of Plaintiff and the other Class Members.”

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(See Pl.’s Mot. for Final Approval of
In doing so, defendant would have asserted

(See Answer at 6-10 (Docket No. 31).)

These

(Pl.’s Mot.

for Final Approval of Settlement at 14.)
Even if plaintiff succeeded on the merits of his

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claims, he may have faced difficulty recovering statutory damages

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and civil penalties from defendant in light of recent cases from

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courts in this circuit holding that such damages and penalties

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cannot be “stack[ed]” on top of each other.

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Retail N. Am., Inc., No. C 13-01579 WHA, 2013 WL 2932243, at *3

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(N.D. Cal. June 13, 2013).

See Smith v. Lux

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In light of the uncertainties plaintiff would have

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faced had he not settled this case, the court finds that the

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proposed settlement, which will provide an average recovery

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totaling in the thousands of dollars to participating class

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members, is a fair resolution of the claims brought in this case.

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2.

Risk, Expense, Complexity, and Likely Duration of
Further Litigation

As explained above, plaintiff would have faced risk

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with respect to defendant’s defenses and recovering damages had

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he not settled this case.

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would have opposed class certification, contested the merits of

Defendant’s representation that it

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this case at summary judgment and/or trial, and appealed any

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adverse judgment, would have resulted in “several more years” of

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litigation, at the end of which “any damage/penalty [recovered by

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plaintiff and the class may] be dwarfed by the fees and costs

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expended to obtain it.”

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Settlement at 15-16.)

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duration of further litigation in this matter weigh in favor of

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approving the settlement.

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Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 526 (C.D. Cal. 2004)

(Pl.’s Mot. for Final Approval of
Accordingly, the risks, expense, and

See Nat’l Rural Telecommunications

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(“[U]nless the settlement is clearly inadequate, its acceptance

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and approval are preferable to lengthy and expensive litigation

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with uncertain results.”).

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3.

Risk of Maintaining Class Action Status Throughout
Trial

Though defendant has agreed to class certification for

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purposes of this settlement, it “intends to vigorously oppose

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class certification” should this case proceed on the merits.

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(Pl.’s Mot. for Final Approval of Settlement at 15.)

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plaintiff’s allegations, it appears that class certification may

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be warranted in this case.

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“pays employees an impermissibly low overtime rate” “as a matter

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of company policy”).)

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is nevertheless “risk that class-wide status may be denied”

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should this case proceed on the merits and defendant contest

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class certification.

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Settlement at 15-16.)

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guaranteed,” Morales v. Conopco, Inc., No. 2:13-2213 WBS EFB,

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2016 WL 6094504, at *5 (E.D. Cal. Oct. 18, 2016), this factor

Based on

(See SAC ¶ 4 (alleging that defendant

However, plaintiff acknowledges that there

(Pl.’s Mot. for Final Approval of
Because “class certification is not

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weighs in favor of approving the settlement.

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4.

Amount Offered in Settlement

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“In assessing the consideration obtained by the class

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members in a class action settlement, it is the complete package

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taken as a whole, rather than the individual component parts,

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that must be examined for overall fairness.”

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Zamora, 303 F.R.D. 356, 370 (E.D. Cal. 2014).

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whether a settlement agreement is substantively fair to the

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class, the court must balance the value of expected recovery

Ontiveros v.
In determining

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against the value of the settlement offer.

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Antitrust Litig., 484 F. Supp. 2d 1078, 1080 (N.D. Cal. 2007).

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This inquiry may involve consideration of the uncertainty class

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members would face if the case were litigated to trial.

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Ontiveros, 303 F.R.D. at 370-71.

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See In re Tableware

See

The gross settlement amount in this case is $1,060,000.

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(Dec. 29, 2016 Decl. of Alan Harris (“Harris Decl. I”) Ex. 1,

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Settlement Agreement ¶ 2.21 (Docket No. 53-1).)

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agreed to distribute that amount as follows: (1) class counsel

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will receive a fee of $349,800, equal to 33% of the gross

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settlement amount, (id. ¶ 5.1); (2) plaintiff will receive an

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incentive award of $5,000, (id. ¶ 5.3); (3) $14,080 will go

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towards litigation costs, (Harris Decl. III at 2-3); (4) $3,750

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will be paid to the California Labor & Workforce Development

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Agency in satisfaction of defendant’s alleged penalties under the

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Labor Code Private Attorneys General Act, (Settlement Agreement ¶

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5.6); (5) $7,971 will be paid to Dahl Administration, (see Pl.’s

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Proposed Order ¶ 11 (Docket No. 51-1)); and (6) the remaining

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amount--$679,399--will be distributed to the settlement class
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The parties have

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based on number of weeks worked during the class period, (see

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Settlement Agreement ¶ 4.2).

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non-reversionary.

The entire settlement amount is

(Harris Decl. II ¶ 7.)

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Each of the 291 class members who submitted claim forms

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will receive a settlement payment based on the number of weeks he

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or she worked for defendant during the class period.

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6.)

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approximately $2,334.70.

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amount represents “33% of the maximum possible recovery,” (Pl.’s

(See id. ¶

The average recovery per participating class member will be
Plaintiff notes that the settlement

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Mot. for Final Approval of Settlement at 16), which is “well

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within a reasonable range . . . [for] class action settlements,”

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Rodriguez v. W. Pub. Corp., No. CV 05-3222 R (MCX), 2007 WL

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2827379, at *9 (C.D. Cal. Sept. 10, 2007), rev’d on other grounds

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in Rodriguez v. W. Publ’g Corp., 563 F.3d 948 (9th Cir. 2009).

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In light of the risks and expense of further litigation

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in this matter, the court finds the settlement amount to be fair

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and adequate.

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5.

Extent of Discovery and State of Proceedings

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A settlement that occurs in an advanced stage of the

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proceedings indicates that 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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before settling it.

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settlement only after engaging in “voluminous” discovery,

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“diligent[]” investigation, motion practice, assessment of the

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“risks of further litigation,” and two “lengthy” mediation

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sessions at which “they each aggressively advocated for their

Alberto v. GMRI, Inc., Civ.

Here, the parties litigated this action for over a year
(Docket No. 44 at 3-4.)

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They reached

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respective positions.”

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extent of discovery and state of proceedings in this action weigh

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in favor of approving the parties’ settlement.

(Id. at 2-3, 15.)

Accordingly, the

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6.

Experience and Views of Counsel

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“When approving class action settlements, the court

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must give considerable weight to class counsel’s opinions due to

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counsel’s familiarity with the litigation and [their] previous

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experience with class action lawsuits.”

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Elec. Co., Civ. No. 2:08-1974 WBS GGH, 2010 WL 2889728, at *8

Murillo v. Pac. Gas &

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(E.D. Cal. July 21, 2010).

Here, plaintiff has provided evidence

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that class counsel have “substantial experience in prosecuting

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class actions, including wage-and-hour matters.”

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Final Approval of Settlement at 16; see also Harris Decl. I ¶¶

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13-16.)

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Agreement [in this action] represents a good compromise for the

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Class, given the inherent risks, hazards, and expenses of

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carrying the Action through trial.”

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Approval of Settlement at 16-17.)

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weight to class counsel’s opinions due to counsel’s familiarity

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with the litigation and [their] previous experience with class

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action lawsuits.”

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Accordingly, this factor weighs in favor of approving the

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settlement.

(Pl.’s Mot. for

Class counsel is “of the opinion that the Settlement

(Pl.’s Mot. for Final
The court gives “considerable

Alberto, 2008 WL 4891201, at *10.

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7.

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No government entity participated in this matter.

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Presence of Government Participant

factor, therefore, is irrelevant to the court’s analysis.
8.

Reaction of Class Members to the Proposed
Settlement
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This

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“[T]he absence of a large number of objections to a

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proposed class action settlement raises a strong presumption that

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the terms of a proposed class settlement action are favorable to

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the class members.”

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settlement was sent to 427 class members and no class member

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objected.

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(Id.)

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

(Harris Decl. II ¶ 5.)

Here, notice of

Only seven members4 opted out.

This factor weighs in favor of approving the settlement.

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9.

Conclusion

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Having considered the foregoing factors, the court

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finds the parties’ settlement to be fair, adequate, and

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reasonable under Rule 23(e).

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C.

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Attorney’s Fees
Federal Rule of Civil Procedure 23(h) provides that

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“[i]n a certified class action, the court may award reasonable

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attorney’s fees and nontaxable costs that are authorized by law

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or by the parties’ agreement.”

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includes an award of attorney’s fees, that 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

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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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Headset, 654 F.3d at 941.

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If a class action settlement

The court “ha[s] an independent obligation to

Bluetooth

The Ninth Circuit has approved two methods of assigning
attorneys’ fees in class settlements: percentage-of-recovery and

27
28

Knisley v.

4

See supra note 2.
15

1

lodestar.

2

Cir. 2002).

3

as here, to choose either method.

4

“cross-check[]” upon the other.

5

at 944.

6

Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th
The court has discretion in common fund cases, such
Id.

It may also use one as a

See Bluetooth Headset, 654 F.3d

Class counsel in this case request $349,000 in

7

attorneys’ fees, and $14,080 in litigation costs.

8

for Attorneys’ Fees at 1; Harris Decl. III at 2-3.)

9

has agreed not to oppose either request.

(Pl.’s Mot.
Defendant

(Settlement Agreement

10

¶¶ 5.1-5.2.)

11

33% of the gross settlement amount, and is slightly below the

12

lodestar figure of $370,245, which counsel calculated based on

13

706 hours expended in this case times rates of $650 for partners,

14

$350 for associates, and $150 for paralegals.5

15

Attorneys’ Fees at 11, 20.)

16

justifying the number of hours worked and litigation costs

17

incurred.

18

I Ex. 2, Invoices (Docket No. 53-2); Harris Decl. III.)

19

The attorneys’ fees requested by counsel constitute

(Pl.’s Mot. for

Counsel submitted detailed invoices

(See Docket No. 50-1 Exs. 1-3, Invoices; Harris Decl.

While the attorneys’ fees requested is above the 25%

20

“benchmark” set by the Ninth Circuit for “common fund”

21

settlements, see Six Mexican Workers v. Arizona Citrus Growers,

22

904 F.2d 1301, 1311 (9th Cir. 1990), courts in this circuit have

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approved fees that exceeded that “benchmark” in many cases, see

24

Bond v. Ferguson Enterprises, Inc., No. 1:09-CV-1662 OWW MJS,

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2011 WL 2648879, at *9 (E.D. Cal. June 30, 2011) (“[T]he exact

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28

5

The rates are the same as those the court approved in
Garnett v. ADT, LLC, No. CV 2:14-02851 WBS AC, 2016 WL 3538354,
at *4 (E.D. Cal. June 28, 2016), which involved the same
defendant and similar claims.
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1

percentage [of attorneys’ fees] varies depending on the facts of

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the case, and in most common fund cases, the award exceeds [the

3

25%] benchmark.”).

4

total settlement value” is considered “acceptable.”

5

fact that the requested fees in this case are below the lodestar

6

figure further supports granting approval.

7

F.3d at 1050 (“[T]he lode star . . . provides a check on the

8

reasonableness of the percentage award.”).

9

A fees award amounting to “33 1/3% of the
Id.

The

See Vizcaino, 290

In light of the risks counsel incurred by taking this

10

case on a contingency basis, the nearly two years they spent

11

litigating this case, and the reasonable result they obtained for

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class members, the court finds the requested fees to be

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reasonable.

14

to be reasonable in light of the invoices counsel have submitted

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with their Motion.

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requested fees and costs.

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D.

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The court also finds the requested litigation costs

Accordingly, the court will approve counsel’s

Incentive Payment to Plaintiff
“Incentive awards are fairly typical in class action

19

cases.”

Rodriguez, 563 F.3d at 958.

“[They] are intended to

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compensated class representatives for work done on behalf of the

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class, to make up for financial or reputational risk undertaken

22

in bringing the action, and, sometimes, to recognize their

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willingness to act as a private attorney general.”

24

59.

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reasonable.

26

2009 WL 928133, at *10 (N.D. Cal. Apr. 3, 2009) (citing In re

27

Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 463 (9th Cir. 2000)).

28

Here, plaintiff requests an incentive award of $5,000.

Id. at 958-

Courts in this circuit have found awards of $5,000 to be
Hopson v. Hanesbrands Inc., Civ. No. 08-0844 EDL,

17

1

(Pl.’s Mot. for Attorneys’ Fees at 21.)

2

plaintiff represents that he “expended considerable time

3

conferring with Class Counsel and their investigators” regarding

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this case, “provid[ed] factual background and support” to

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counsel, and “analyz[ed] ADT provided data” to assist counsel.

6

(Id. at 21-22.)

7

Francisco to participate in the [parties’] two mediation

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sessions.”

9

the financial risk that, in the event of a judgment in favor of

(Id.)

In justifying the award,

Plaintiff also notes that he “travelled to San

Finally, plaintiff states that he “undertook

10

ADT in this action, he could have been personally responsible for

11

any costs awarded in favor of ADT.”

12

efforts plaintiff put in to and the risks he incurred in bringing

13

this action, the court finds his requested incentive award to be

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reasonable, and will approve the award.

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III. Conclusion

16

(Id.)

In light of the

Based on the above, the court grants final class

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certification in this action and finds the parties’ settlement to

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be fair, reasonable, and adequate.

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settlement in accordance with the terms and provisions of the

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parties’ settlement agreement is approved.

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agreement shall be binding upon all class members who did not

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timely opt out of this action.

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Consummation of the

The settlement

The court also finds plaintiff’s request of $349,800

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in attorneys’ fees, $14,080 in litigation costs, and $5,000 in

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incentive award to be reasonable, and grants final approval with

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respect to those payments.

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28

IT IS THEREFORE ORDERED that plaintiff’s Motions for
class certification, final approval of class settlement, and
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1

attorneys’ fees, costs, and incentive award be, and the same

2

hereby are, GRANTED.

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4

IT IS FURTHER ORDERED THAT:
(1)

Solely for the purpose of this settlement, and pursuant

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to Federal Rule of Civil Procedure 23, the court hereby

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certifies the following class: All non-exempt

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individuals employed by ADT in California as high

8

volume installers who were paid for services performed

9

at any time from April 18, 2013 to November 1, 2016.

10

(2)

The court appoints plaintiff Ricardo Castillo as class

11

representative and finds that he meets the requirements

12

of Rule 23.

13

(3)

The court appoints Alan Harris and Priya Mohan of the

14

firm of Harris & Ruble and David Harris of North Bay

15

Law Group as class counsel and finds that they meet the

16

requirements of Rule 23.

17

(4)

The court finds that the notice plan described in the

18

parties’ settlement agreement (Docket No. 53-1) was the

19

best notice practicable under the circumstances and

20

satisfies the requirements of due process and Rule 23.

21

That plan is approved and adopted.

22

settlement sent to the class (Docket No. 52 Ex. A)

23

complies with Rule 23(c)(2) and 23(e), and is approved

24

and adopted.

25

(5)

The notice of

The court finds that the parties and their counsel took

26

appropriate efforts to locate and inform all class

27

members of the settlement.

28

filed an objection to the settlement, the court finds
19

Given that no class member

1
2

that no additional notice to the class is necessary.
(6)

As of the date of the entry of this Order, plaintiff

3

and all class members who have not timely opted out of

4

this settlement hereby do and shall be deemed to have

5

fully, finally, and forever released, settled,

6

compromised, relinquished, and discharged defendant of

7

and from any and all settled claims, pursuant to the

8

release provisions stated in the parties’ settlement

9

agreement.

10

(7)

Plaintiff’s counsel are entitled to attorneys’ fees in

11

the amount of $349,800, and litigation costs in the

12

amount of $14,080.

13

(8)

14
15
16
17

Plaintiff Castillo is entitled to receive an incentive
award in the amount of $5,000.

(9)

Dahl Administration is entitled to administration costs
in the amount of $7,971.

(10) $3,750 from the gross settlement amount shall be paid

18

to the California Labor & Workforce Development Agency

19

in satisfaction of defendant’s alleged penalties under

20

the Labor Code Private Attorneys General Act.

21

(11) The remaining settlement funds shall be paid to

22

participating class members in accordance with the

23

terms of the parties’ settlement agreement.

24

(12) This action is dismissed with prejudice.

However,

25

without affecting the finality of this Order, the court

26

shall retain continuing jurisdiction over the

27

interpretation, implementation, and enforcement of the

28

settlement agreement with respect to all parties in
20

1

this action and their counsel of record.

2
3
4

The clerk is instructed to enter judgment accordingly.
Dated:

January 24, 2017

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