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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 13 RICARDO CASTILLO, on behalf of himself and all others similarly situated, Plaintiff, 14 15 16 17 18 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. 19 20 ----oo0oo---- 21 22 Plaintiff Ricardo Castillo brought this class action 23 against defendant, ADT, alleging that defendant failed to pay him 24 and other class members for off-the-clock work, overtime, and 25 business expenses in violation of California wage and hour laws. 26 (Second Am. Compl. (“SAC”) (Docket No. 42).) 27 are plaintiff’s Motions for final approval of class settlement, 28 (Pl.’s Mot. for Final Approval of Settlement (Docket No. 51)), 1 Before the court 1 and approval of attorneys’ fees, costs, and an incentive award, 2 (Pl.’s Mot. for Attorneys’ Fees (Docket No. 50)). 3 I. 4 Factual and Procedural Background Defendant provides electronic security, alarm, and home 5 and business automation services throughout the United States. 6 (SAC ¶ 10.) 7 each of which employs “non-exempt High Volume Installers.” 8 id. ¶¶ 10, 23.) 9 It operates some twenty locations in California, (See Plaintiff, a non-exempt high volume installer, alleges 10 that defendant violated various provisions of the California 11 Labor Code by paying him and other high volume installers 12 pursuant to a wage policy that fails to compensate them for off- 13 the-clock work, such as traveling between customer sites and 14 picking up supplies from warehouses. 15 them pursuant to such a policy, plaintiff alleges, defendant also 16 under-calculates their overtime pay, which must be “at least one 17 and one-half times [their] regular rate of pay” under California 18 law. 19 “reimburse [him and other installers] for necessary business 20 expenses and provide compliant wage statements.” 21 (Id. ¶ 4.) (Id. ¶ 17.) By underpaying Plaintiff also alleges that defendant failed to (Id. ¶ 5.) Plaintiff brought this action on behalf of himself and 22 other high volume installers who were paid on a similar basis. 23 (See id. ¶ 4.) 24 before reaching a settlement on April 24, 2016 before mediator 25 Alan Berkowitz. 26 The parties litigated this case for over a year (Docket No. 44 at 3-4.) After reaching settlement, the parties filed a motion 27 for preliminary approval of settlement on September 30, 2016. 28 (Id.) The court granted preliminary approval and provisionally 2 1 certified the following class: “[A]ll non-exempt individuals 2 employed by ADT in California as high volume installers who were 3 paid for services performed at any time from April 18, 2013 to 4 [November 1, 2016].” 5 The court appointed plaintiff as class representative; Alan 6 Harris and Priya Mohan of the firm of Harris & Ruble and David 7 Harris of North Bay Law Group as class counsel; and Dahl 8 Administration as claims administrator. 9 (Nov. 1, 2016 Order at 22 (Docket No. 48).) (Id.) The court also approved plaintiff’s opt-in/opt-out form 10 and notice of settlement, (id. at 15-16); directed the claims 11 administrator to send notice of settlement to class members by 12 November 21, 2016, (id. at 23); directed class members to file 13 claims, objections, and opt-outs by January 5, 2017, (id.); 14 directed plaintiff to file a motion for attorneys’ fees by 15 December 29, 2016, (id.); and directed the parties to file briefs 16 in support of final approval of settlement by December 29, 2016, 17 (id.). 18 January 23, 2017 at 1:30 p.m. The final fairness hearing in this action took place on 19 After conducting the final fairness hearing and 20 carefully considering the settlement terms, the court now 21 addresses whether this action should receive final class 22 certification, whether the proposed settlement should receive 23 final approval, and whether plaintiff’s request for attorneys’ 24 fees, costs, and an incentive award should be granted. 25 II. 26 Discussion The Ninth Circuit has declared that a strong judicial 27 policy favors settlement of class actions. 28 City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992). 3 Class Plaintiffs v. 1 Nevertheless, where, as here, “the parties reach a settlement 2 agreement prior to class certification, courts must peruse the 3 proposed compromise to ratify both [1] the propriety of the 4 certification and [2] the fairness of the settlement.” 5 Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). 6 Staton v. The first part of the inquiry requires the court to 7 “pay ‘undiluted, even heightened, attention’ to class 8 certification requirements” because, unlike in a fully litigated 9 class action suit, the court “will lack the opportunity . . . to 10 adjust the class, informed by the proceedings as they unfold.” 11 Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 620 (1997); see 12 Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). 13 In the second stage, the court holds a fairness hearing 14 where the court entertains any class member’s objections to (1) 15 the treatment of this litigation as a class action and (2) the 16 terms of the settlement. 17 Islands, 876 F.2d 1401, 1408 (9th Cir. 1989) (holding that a 18 court is required to hold a hearing prior to final approval of a 19 dismissal or compromise of class claims to “inquire into the 20 terms and circumstances of any dismissal or compromise to ensure 21 it is not collusive or prejudicial”). 22 the court must reach a final determination as to whether the 23 court should allow the parties to settle the class action 24 pursuant to the agreed-upon terms. 25 DIRECTV, Inc., 221 F.R.D. 523, 525 (C.D. Cal. 2004). 26 A. See Diaz v. Tr. Territory of Pac. Following such a hearing, See Telecomms. Coop. v. Class Certification 27 A class action will be certified only if it meets the 28 four prerequisites identified in Rule 23(a) and fits within one 4 1 of the three subdivisions of Rule 23(b). 2 (b). 3 whether the moving party has satisfied each Rule 23 requirement, 4 the court must conduct a rigorous inquiry before certifying a 5 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). 6 1. Rule 23(a) Requirements 7 Rule 23(a) restricts class actions to cases where: 8 (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. 9 10 11 12 Fed. R. Civ. P. 23(a). 13 approval of settlement, the court found that the putative class 14 satisfied the Rule 23(a) requirements. 15 aware of any facts that would alter its initial Rule 23(a) 16 analysis, the court finds that the class definition proposed by 17 plaintiff meets the requirements of Rule 23(a). 18 19 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 20 23(a) may be certified as a class action only if it also 21 satisfies the requirements of one of the three subdivisions of 22 Rule 23(b). Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th 23 Cir. 2013). Plaintiff seeks certification under Rule 23(b)(3), 24 which provides that a class action may be maintained only if (1) 25 “the court finds that questions of law or fact common to class 26 members predominate over questions affecting only individual 27 members” and (2) “a class action is superior to other available 28 methods for fairly and efficiently adjudicating the controversy.” 5 1 2 Fed. R. Civ. P. 23(b)(3). In its Order granting preliminary approval of 3 settlement, the court found that both prerequisites of Rule 4 23(b)(3) were satisfied. 5 that would alter this conclusion. 6 satisfies both Rule 23(a) and 23(b)(3), the court will grant 7 final class certification in this action. 8 9 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 10 “must direct to class members the best notice that is practicable 11 under the circumstances, including individual notice to all 12 members who can be identified through reasonable effort.” 13 R. Civ. P. 23(c)(2)(B). 14 content of a proposed notice. 15 651, 658 (N.D. Cal. 1997) (citing Eisen v. Carlisle & Jacquelin, 16 417 U.S. 156, 172-77 (1974)). 17 “reasonably certain to inform the absent members of the plaintiff 18 class,” actual notice is not required. 19 1449, 1454 (9th Cir. 1994) (citation omitted). 20 21 22 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 23 of 427 class members on November 17, 2016. 24 (“Kratz Decl.”) ¶ 4 (Docket No. 54-1).) 25 current mailing addresses for each class member using the 26 National Change of Address database maintained by the United 27 States Postal Service (“USPS”). 28 2016, Dahl mailed notice of settlement to the 427 class members Dahl obtained the most (Id. ¶ 5.) 6 (Decl. of Kelly Kratz On November 21, 1 via first class USPS mail.1 2 notice on December 21, 2016 to the 285 class members who had not 3 responded by that point. 4 (Id. ¶ 6.) Dahl sent a second (Id. ¶ 7.) Of the 427 class members identified and sent notice, 5 287 filed timely claim forms. (Jan. 13, 2017 Decl. of Alan 6 Harris (“Harris Decl. II”) ¶ 3 (Docket No. 54).) 7 members filed late claim forms, which the parties have agreed to 8 accept. 9 (“Harris Decl. III”) at 2 (Docket No. 55).) Four class (See id. ¶ 4; Jan. 19, 2017 Decl. of Alan Harris Counting the late 10 claim forms, the class settlement participation rate in this 11 action was 68%. 12 class member objected to the settlement. 13 Seven class members2 decided to opt out, and no (Harris Decl. II ¶ 5.) The notice sent by Dahl explained the proceedings in 14 this action; who comprised the settlement class; the claim form 15 requirement and the binding effect of opting in; the procedure 16 for opting out or objecting; when and where the final fairness 17 hearing would be held; and how to contact class counsel should 18 the class member have any questions or wish to request more 19 information. 20 notice also explains that class members’ individual settlement 21 awards would be determined based on number of weeks worked during (See Kratz Decl. Ex. A, Notice of Settlement.) The 22 23 24 25 26 27 28 1 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.) 2 The parties stated at the final fairness hearing that two of the seven opt-out members may decide to re-opt in. 7 1 the class period, and that weeks worked during the ‘piece rate’ 2 period would be compensated differently from weeks worked during 3 the ‘hourly rate’ period.3 4 (See id. at 4-5.) The court is satisfied that the parties’ notice plan 5 was “best notice that [was] practicable under the circumstances,” 6 and that the content of their notice satisfied Rule 23(c)(2)(B). 7 See Fed. R. Civ. P. 23(c)(2)(B); see also Churchill Vill., L.L.C. 8 v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004) (“Notice is 9 satisfactory if it generally describes the terms of the 10 settlement in sufficient detail to alert those with adverse 11 viewpoints to investigate and to come forward and be heard.” 12 (citation omitted)). 13 B. Rule 23(e): Fairness, Adequacy, and Reasonableness of 14 Proposed Settlement 15 Having determined class treatment to be warranted and 16 notice to be adequate, the court must now determine whether the 17 18 19 20 21 22 23 24 25 26 27 28 3 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. 8 1 terms of the parties’ settlement are fair, adequate, and 2 reasonable. 3 1026. 4 factors,” including: 5 6 7 8 9 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. 10 Hanlon, 150 F.3d at 1026. But see In re Bluetooth Headset Prods. 11 Liab. Litig., 654 F.3d 935, 946 (9th Cir. 2011) (“The factors in 12 a court’s fairness assessment will naturally vary from case to 13 case.”). 14 1. Strength of Plaintiff’s Case 15 An important consideration is the strength of 16 plaintiff’s case balanced against the amount offered in the 17 settlement. 18 however, is not required to reach any ultimate conclusions on the 19 merits of the case, “for it is the very uncertainty of outcome in 20 litigation and avoidance of wastefulness and expensive litigation 21 that induce consensual settlements.” 22 Civil Serv. Comm’n of the City & Cnty. of SF, 688 F.2d 615, 625 23 (9th Cir. 2004). 24 DIRECTV, 221 F.R.D. at 526. The district court, Officers for Justice v. The terms of the parties’ settlement compare favorably 25 to the uncertainties of plaintiff’s case. 26 settled, defendant would have opposed plaintiff’s request for 27 class certification, contested the merits of his claims at 28 summary judgment and/or trial, and appealed any adverse judgment 9 If the parties had not 1 the court issued. 2 Settlement at 14.) 3 some twenty-three defenses against plaintiff’s claims, such as 4 failure to exhaust administrative remedies, failure to mitigate 5 damages, time bar under various statutes of limitations, and 6 inaccuracy of various allegations made in plaintiff’s second 7 amended Complaint. 8 defenses, defendant contends, “present serious threats to the 9 claims of Plaintiff and the other Class Members.” 10 11 (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 12 claims, he may have faced difficulty recovering statutory damages 13 and civil penalties from defendant in light of recent cases from 14 courts in this circuit holding that such damages and penalties 15 cannot be “stack[ed]” on top of each other. 16 Retail N. Am., Inc., No. C 13-01579 WHA, 2013 WL 2932243, at *3 17 (N.D. Cal. June 13, 2013). See Smith v. Lux 18 In light of the uncertainties plaintiff would have 19 faced had he not settled this case, the court finds that the 20 proposed settlement, which will provide an average recovery 21 totaling in the thousands of dollars to participating class 22 members, is a fair resolution of the claims brought in this case. 23 24 25 2. Risk, Expense, Complexity, and Likely Duration of Further Litigation As explained above, plaintiff would have faced risk 26 with respect to defendant’s defenses and recovering damages had 27 he not settled this case. 28 would have opposed class certification, contested the merits of Defendant’s representation that it 10 1 this case at summary judgment and/or trial, and appealed any 2 adverse judgment, would have resulted in “several more years” of 3 litigation, at the end of which “any damage/penalty [recovered by 4 plaintiff and the class may] be dwarfed by the fees and costs 5 expended to obtain it.” 6 Settlement at 15-16.) 7 duration of further litigation in this matter weigh in favor of 8 approving the settlement. 9 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 10 (“[U]nless the settlement is clearly inadequate, its acceptance 11 and approval are preferable to lengthy and expensive litigation 12 with uncertain results.”). 13 14 15 3. Risk of Maintaining Class Action Status Throughout Trial Though defendant has agreed to class certification for 16 purposes of this settlement, it “intends to vigorously oppose 17 class certification” should this case proceed on the merits. 18 (Pl.’s Mot. for Final Approval of Settlement at 15.) 19 plaintiff’s allegations, it appears that class certification may 20 be warranted in this case. 21 “pays employees an impermissibly low overtime rate” “as a matter 22 of company policy”).) 23 is nevertheless “risk that class-wide status may be denied” 24 should this case proceed on the merits and defendant contest 25 class certification. 26 Settlement at 15-16.) 27 guaranteed,” Morales v. Conopco, Inc., No. 2:13-2213 WBS EFB, 28 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 11 1 weighs in favor of approving the settlement. 2 4. Amount Offered in Settlement 3 “In assessing the consideration obtained by the class 4 members in a class action settlement, it is the complete package 5 taken as a whole, rather than the individual component parts, 6 that must be examined for overall fairness.” 7 Zamora, 303 F.R.D. 356, 370 (E.D. Cal. 2014). 8 whether a settlement agreement is substantively fair to the 9 class, the court must balance the value of expected recovery Ontiveros v. In determining 10 against the value of the settlement offer. 11 Antitrust Litig., 484 F. Supp. 2d 1078, 1080 (N.D. Cal. 2007). 12 This inquiry may involve consideration of the uncertainty class 13 members would face if the case were litigated to trial. 14 Ontiveros, 303 F.R.D. at 370-71. 15 See In re Tableware See The gross settlement amount in this case is $1,060,000. 16 (Dec. 29, 2016 Decl. of Alan Harris (“Harris Decl. I”) Ex. 1, 17 Settlement Agreement ¶ 2.21 (Docket No. 53-1).) 18 agreed to distribute that amount as follows: (1) class counsel 19 will receive a fee of $349,800, equal to 33% of the gross 20 settlement amount, (id. ¶ 5.1); (2) plaintiff will receive an 21 incentive award of $5,000, (id. ¶ 5.3); (3) $14,080 will go 22 towards litigation costs, (Harris Decl. III at 2-3); (4) $3,750 23 will be paid to the California Labor & Workforce Development 24 Agency in satisfaction of defendant’s alleged penalties under the 25 Labor Code Private Attorneys General Act, (Settlement Agreement ¶ 26 5.6); (5) $7,971 will be paid to Dahl Administration, (see Pl.’s 27 Proposed Order ¶ 11 (Docket No. 51-1)); and (6) the remaining 28 amount--$679,399--will be distributed to the settlement class 12 The parties have 1 based on number of weeks worked during the class period, (see 2 Settlement Agreement ¶ 4.2). 3 non-reversionary. The entire settlement amount is (Harris Decl. II ¶ 7.) 4 Each of the 291 class members who submitted claim forms 5 will receive a settlement payment based on the number of weeks he 6 or she worked for defendant during the class period. 7 6.) 8 approximately $2,334.70. 9 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 10 Mot. for Final Approval of Settlement at 16), which is “well 11 within a reasonable range . . . [for] class action settlements,” 12 Rodriguez v. W. Pub. Corp., No. CV 05-3222 R (MCX), 2007 WL 13 2827379, at *9 (C.D. Cal. Sept. 10, 2007), rev’d on other grounds 14 in Rodriguez v. W. Publ’g Corp., 563 F.3d 948 (9th Cir. 2009). 15 In light of the risks and expense of further litigation 16 in this matter, the court finds the settlement amount to be fair 17 and adequate. 18 5. Extent of Discovery and State of Proceedings 19 A settlement that occurs in an advanced stage of the 20 proceedings indicates that the parties carefully investigated the 21 claims before reaching a resolution. 22 No. 07-1895 WBS DAD, 2008 WL 4891201, at *9 (E.D. Cal. Nov. 12, 23 2008). 24 before settling it. 25 settlement only after engaging in “voluminous” discovery, 26 “diligent[]” investigation, motion practice, assessment of the 27 “risks of further litigation,” and two “lengthy” mediation 28 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.) 13 They reached 1 respective positions.” 2 extent of discovery and state of proceedings in this action weigh 3 in favor of approving the parties’ settlement. (Id. at 2-3, 15.) Accordingly, the 4 6. Experience and Views of Counsel 5 “When approving class action settlements, the court 6 must give considerable weight to class counsel’s opinions due to 7 counsel’s familiarity with the litigation and [their] previous 8 experience with class action lawsuits.” 9 Elec. Co., Civ. No. 2:08-1974 WBS GGH, 2010 WL 2889728, at *8 Murillo v. Pac. Gas & 10 (E.D. Cal. July 21, 2010). Here, plaintiff has provided evidence 11 that class counsel have “substantial experience in prosecuting 12 class actions, including wage-and-hour matters.” 13 Final Approval of Settlement at 16; see also Harris Decl. I ¶¶ 14 13-16.) 15 Agreement [in this action] represents a good compromise for the 16 Class, given the inherent risks, hazards, and expenses of 17 carrying the Action through trial.” 18 Approval of Settlement at 16-17.) 19 weight to class counsel’s opinions due to counsel’s familiarity 20 with the litigation and [their] previous experience with class 21 action lawsuits.” 22 Accordingly, this factor weighs in favor of approving the 23 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. 24 7. 25 No government entity participated in this matter. 26 27 28 Presence of Government Participant factor, therefore, is irrelevant to the court’s analysis. 8. Reaction of Class Members to the Proposed Settlement 14 This 1 “[T]he absence of a large number of objections to a 2 proposed class action settlement raises a strong presumption that 3 the terms of a proposed class settlement action are favorable to 4 the class members.” 5 settlement was sent to 427 class members and no class member 6 objected. 7 (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. 8 9. Conclusion 9 Having considered the foregoing factors, the court 10 finds the parties’ settlement to be fair, adequate, and 11 reasonable under Rule 23(e). 12 C. 13 Attorney’s Fees Federal Rule of Civil Procedure 23(h) provides that 14 “[i]n a certified class action, the court may award reasonable 15 attorney’s fees and nontaxable costs that are authorized by law 16 or by the parties’ agreement.” 17 includes an award of attorney’s fees, that award must be 18 evaluated in the overall context of the settlement. 19 Network Assocs., 312 F.3d 1123, 1126 (9th Cir. 2002); Monterrubio 20 v. Best Buy Stores, L.P., 291 F.R.D. 443, 455 (E.D. Cal. 2013) 21 (England, J.). 22 ensure that the award, like the settlement itself, is reasonable, 23 even if the parties have already agreed to an amount.” 24 Headset, 654 F.3d at 941. 25 26 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 23 approved fees that exceeded that “benchmark” in many cases, see 24 Bond v. Ferguson Enterprises, Inc., No. 1:09-CV-1662 OWW MJS, 25 2011 WL 2648879, at *9 (E.D. Cal. June 30, 2011) (“[T]he exact 26 27 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. 16 1 percentage [of attorneys’ fees] varies depending on the facts of 2 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 12 class members, the court finds the requested fees to be 13 reasonable. 14 to be reasonable in light of the invoices counsel have submitted 15 with their Motion. 16 requested fees and costs. 17 D. 18 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 20 compensated class representatives for work done on behalf of the 21 class, to make up for financial or reputational risk undertaken 22 in bringing the action, and, sometimes, to recognize their 23 willingness to act as a private attorney general.” 24 59. 25 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 4 this case, “provid[ed] factual background and support” to 5 counsel, and “analyz[ed] ADT provided data” to assist counsel. 6 (Id. at 21-22.) 7 Francisco to participate in the [parties’] two mediation 8 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 14 reasonable, and will approve the award. 15 III. Conclusion 16 (Id.) In light of the Based on the above, the court grants final class 17 certification in this action and finds the parties’ settlement to 18 be fair, reasonable, and adequate. 19 settlement in accordance with the terms and provisions of the 20 parties’ settlement agreement is approved. 21 agreement shall be binding upon all class members who did not 22 timely opt out of this action. 23 Consummation of the The settlement The court also finds plaintiff’s request of $349,800 24 in attorneys’ fees, $14,080 in litigation costs, and $5,000 in 25 incentive award to be reasonable, and grants final approval with 26 respect to those payments. 27 28 IT IS THEREFORE ORDERED that plaintiff’s Motions for class certification, final approval of class settlement, and 18 1 attorneys’ fees, costs, and incentive award be, and the same 2 hereby are, GRANTED. 3 4 IT IS FURTHER ORDERED THAT: (1) Solely for the purpose of this settlement, and pursuant 5 to Federal Rule of Civil Procedure 23, the court hereby 6 certifies the following class: All non-exempt 7 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 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21

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