Kabasele v. Ulta Salon, Cosmetics & Fragrance, Inc.

Filing 52

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 2/6/24 GRANTING 49 plaintiffs' unopposed motion for final approval of the parties' class action settlement and [49-4] motion for attorneys' fees, costs, and enhancement payments (see order for further details). This action is DISMISSED with prejudice. CASE CLOSED (Kastilahn, A)

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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 14 15 16 17 18 19 DORCAS-COTHY KABASELE, KATIA ARRELLANO, ANGEL GONZALEZ, MINDY MIRANDA, SARYNA DE JESUS, TATIANA BRENAL, FLOR CRUZ, JULISSA PEREZ, ELISSA PADILLA, IAN LAMAR, CLAUDIA BENITEZ, BRITTNEY HUGHES, GEORGE MADDOX, VICTORIA HENKES, ALLEXANDRA TAN, DANIELLE QUAID, JERRICA LABIAN, RYAN GUFFEY, KIERSTEN WONG, BRITTANI HERENA, JANET SANCHEZ, BRITTANY SOMMERS, CHEYENNE LOPEZ, TALIA CASTENEDA, NOHELY LLAMAS, RHONDA PRICKETT, and DEBBIE HARRISON,1 22 23 MEMORANDUM AND ORDER RE: PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT AND MOTION FOR ATTORNEYS’ FEES, COSTS, AND ENHANCEMENT PAYMENTS Plaintiffs, 20 21 No. 2:21-cv-1639 WBS KJN v. ULTA SALON, COSMETICS & FRAGRANCE, INC.; and DOES 1-100, inclusive, Defendants. 24 25 26 27 28 Although the caption on the operative complaint does not state as such, plaintiffs assert claims both individually and on behalf of similarly situated Ulta employees. 1 1 1 ----oo0oo---- 2 Plaintiffs Dorcas-Cothy Kabasele,2 Angel Gonzalez, 3 Mindy Miranda, Saryna De Jesus, Tatiana Brenal, Flor Cruz, 4 Julissa Perez, Elissa Padilla, Ian Lamar, Claudia Benitez, 5 Brittney Hughes, George Maddox, Victoria Henkes, Allexandra Tan, 6 Danielle Quaid, Jerrica Labian, Ryan Guffey, Kiersten Wong, 7 Brittani Herena, Janet Sanchez, Brittany Sommers, Cheyenne Lopez, 8 Talia Casteneda, Nohely Llamas, Rhonda Prickett, Debbie Harrison, 9 and Katia Arellano, individually and on behalf of similarly 10 situated individuals, brought this putative class action against 11 defendant Ulta Salon, Cosmetics, & Fragrance, Inc. (“Ulta”), 12 alleging violations of California wage and hour laws. 13 Fourth Am. Compl. (“FAC”) (Docket No. 48).) 14 (See This is one of four actions against defendant Ulta 15 covering similar class and PAGA claims. The other actions are 16 Gonzalez v. Ulta Salon Cosmetics & Fragrance, Inc., No. 2:22-cv- 17 00363 AB RAO (C.D. Cal.), a federal class and PAGA action; 18 Arellano v. Ulta Salon, Cosmetics and Fragrance, Inc., No. 5:22- 19 cv-00639 JGB KK (C.D. Cal.), a federal class action; and Arellano 20 v. Ulta Salon, Cosmetics and Fragrance, Inc., No. CIVSB2209151 21 (San Bernardino Super. Ct.), a state PAGA action. 22 The settlement disposes of all four actions. 23 parties agreed to seek settlement approval only in this action; 24 once the settlement receives final approval in this action and 25 all class payments are distributed, counsel in the Gonzalez and 26 Arellano actions (state and federal) will voluntarily dismiss 27 28 All The court is informed by plaintiff’s counsel that the first named plaintiff, Dorcas-Cothy Kabasele, is deceased. 2 2 1 their cases. 2 59) ¶ 9.8.) 3 (See Settlement Agreement (Docket No. 49-5 at 24- Before the court are plaintiffs’ motion for final 4 approval of class action settlement (Docket No. 49) and motion 5 for attorneys’ fees, costs, and enhancement payments (Docket No. 6 49-4). 7 50.) 8 9 Defendant does not oppose the motions. (See Docket No. The Ninth Circuit has declared a strong judicial policy favoring settlement of class actions. Class Plaintiffs v. City 10 of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992); see also 11 Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 965 (9th Cir. 2009) 12 (“We put a good deal of stock in the product of an arms-length, 13 non-collusive, negotiated resolution[.]”) (citation omitted). 14 Rule 23(e) provides that “[t]he claims, issues, or defenses of a 15 certified class may be settled . . . only with the court’s 16 approval.” 17 Fed. R. Civ. P. 23(e). “Approval under 23(e) involves a two-step process in 18 which the Court first determines whether a proposed class action 19 settlement deserves preliminary approval and then, after notice 20 is given to class members, whether final approval is warranted.” 21 Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 22 525 (C.D. Cal. 2004) (citing Manual for Complex Litig. (Third), 23 § 30.41 (1995)). 24 plaintiffs’ unopposed motion for preliminary approval of class 25 action settlement on July 25, 2023. 26 Approval (Docket No. 47).) 27 members, the court will consider whether final approval is 28 merited by evaluating: (1) the treatment of this litigation as a This court satisfied step one by granting (Order Granting Prelim. Now, following notice to the class 3 1 class action and (2) the terms of the settlement. See Diaz v. 2 Tr. Territory of Pac. Islands, 876 F.2d 1401, 1408 (9th Cir. 3 1989). 4 I. Class Certification 5 The putative class consists of all current and former 6 hourly-paid or non-exempt employees who worked for defendant Ulta 7 within California between October 12, 2019 and November 8, 2022. 8 (Settlement Agreement ¶ 1.6.) 9 To be certified, the putative class must satisfy the 10 requirements of Federal Rules of Civil Procedure 23(a) and 23(b). 11 Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th Cir. 2013). 12 13 A. Rule 23(a) Rule 23(a) restricts class actions to cases where: “(1) 14 the class is so numerous that joinder of all members is 15 impracticable [numerosity]; (2) there are questions of law or 16 fact common to the class [commonality]; (3) the claims or 17 defenses of the representative parties are typical of the claims 18 or defenses of the class [typicality]; and (4) the representative 19 parties will fairly and adequately protect the interests of the 20 class [adequacy of representation].” 21 See Fed. R. Civ. P. 23(a). In the court’s order granting preliminary approval of 22 the settlement, the court found that the putative class satisfied 23 the Rule 23(a) requirements. 24 Approval at 6-12.) 25 would affect its conclusion that the putative class satisfies the 26 Rule 23(a) requirements, and the parties have not indicated that 27 they are aware of any such developments. 28 finds that the class definition proposed by plaintiffs meets the (See Order Granting Prelim. The court is unaware of any changes that 4 The court therefore 1 2 requirements of Rule 23(a). B. 3 Rule 23(b) After fulfilling the threshold requirements of Rule 4 23(a), the proposed class must satisfy the requirements of one of 5 the three subdivisions of Rule 23(b). 6 Plaintiffs seek certification under Rule 23(b)(3), which provides 7 that a class action may be maintained only if (1) “the court 8 finds that questions of law or fact common to class members 9 predominate over questions affecting only individual members” and Leyva, 716 F.3d at 512. 10 (2) “that a class action is superior to other available methods 11 for fairly and efficiently adjudicating the controversy.” 12 R. Civ. P. 23(b)(3). 13 Fed. In its order granting preliminary approval of the 14 settlement, the court found that both the predominance and 15 superiority prerequisites of Rule 23(b)(3) were satisfied. 16 (Order Granting Prelim. Approval at 12-14.) 17 of any changes that would affect its conclusion that Rule 18 23(b)(3) is satisfied. 19 both Rule 23(a) and 23(b)(3), the court will grant final class 20 certification of this action. 21 22 C. The court is unaware Because the settlement class satisfies Rule 23(c)(2) Notice Requirements If the court certifies a class under Rule 23(b)(3), it 23 “must direct to class members the best notice that is practicable 24 under the circumstances, including individual notice to all 25 members who can be identified through reasonable effort.” 26 R. Civ. P. 23(c)(2)(B). 27 content of a proposed notice. 28 651, 658 (N.D. Cal. 1997) (citing Eisen v. Carlisle & Jacquelin, Fed. Rule 23(c)(2) governs both the form and See Ravens v. Iftikar, 174 F.R.D. 5 1 417 U.S. 156, 172–77 (1974)). 2 “reasonably certain to inform the absent members of the plaintiff 3 class,” actual notice is not required. 4 1449, 1454 (9th Cir. 1994) (citation omitted). 5 Although that notice must be Silber v. Mabon, 18 F.3d The notice explains the proceedings, defines the scope 6 of the class, and explains what the settlement provides and how 7 much each class member can expect to receive in compensation. 8 (See Notice of Class Action Settlement (Docket No. 49-2 at 7-12) 9 at 1-5.) The notice further explains the opt-out procedure, the 10 procedure for objecting to the settlement, and the date and 11 location of the final approval hearing. 12 content of the notice therefore satisfies Rule 23(c)(2)(B). 13 Fed. R. Civ. P. 23(c)(2)(B); Churchill Vill., L.L.C. v. Gen. 14 Elec., 361 F.3d 566, 575 (9th Cir. 2004) (“Notice is satisfactory 15 if it ‘generally describes the terms of the settlement in 16 sufficient detail to alert those with adverse viewpoints to 17 investigate and to come forward and be heard.’”) (quoting Mendoza 18 v. Tucson Sch. Dist. No. 1, 623 F.2d 1338, 1352 (9th Cir. 1980)). 19 (See id. at 5-6.) The See The parties selected Simpluris, Inc. to serve as the 20 Settlement Administrator. (See Settlement Agreement ¶ 1.30.) 21 Defendant timely provided Simpluris with the class contact 22 information and data, which included the name, last known 23 address, Social Security Number, email address, telephone number, 24 and pertinent employment information for each class member. 25 Docket No. 49-2 ¶ 6.) 26 (Id. ¶ 6.) 27 addresses using the National Change of Address Database 28 maintained by the U.S. Postal Service. (See The class list contained 18,705 members. The Settlement Administrator updated the mailing 6 (Id. ¶ 7.) 1 The Settlement Administrator delivered notice of the 2 settlement via mail on August 18, 2023. (Id. ¶ 8.) 3 were returned as undeliverable. 4 forwarding address, the Settlement Administrator performed a skip 5 trace address search to locate updated addresses. 6 880 notices returned as undeliverable, 726 notices were remailed 7 to new addresses. 8 notices were ultimately undeliverable by mail. 9 154 class members, the Settlement Administrator obtained email (Id. ¶ 9.) 880 notices For those without a (Id.) Of the Following these efforts, a total of 154 (Id.) Of those 10 addresses for 106 individuals and complete notice via email. 11 (Id.) 12 The Settlement Administrator received five requests for exclusion 13 and zero objections. 14 This constitutes a 99.74% successful notice rate. (Id.) (Id. ¶¶ 11-12.) The court appreciates the thorough efforts taken by the 15 Settlement Administrator to effectuate notice and is satisfied 16 that the notice procedure was “reasonably calculated, under all 17 the circumstances,” to apprise all class members of the proposed 18 settlement. 19 1045–46 (9th Cir. 2019). 20 II. 21 See Roes, 1-2 v. SFBSC Mgmt., LLC, 944 F.3d 1035, Final Settlement Approval Having determined that class treatment is warranted, 22 the court must now address whether the terms of the parties’ 23 settlement appear fair, adequate, and reasonable. 24 Civ. P. 23(e)(2). 25 reasonableness of the agreement, Rule 23(e) requires the court to 26 consider four factors: “(1) the class representatives and class 27 counsel have adequately represented the class; (2) the proposal 28 was negotiated at arm’s length; (3) the relief provided for the See Fed. R. To determine the fairness, adequacy, and 7 1 class is adequate; and (4) the proposal treats class members 2 equitably relative to each other.” 3 also identified eight additional factors the court may consider, 4 many of which overlap substantially with Rule 23(e)’s four 5 factors: 7 8 9 10 12 The Ninth Circuit has 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. 6 11 Id. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998).3 A. 13 Adequate Representation The court must first consider whether “the class 14 representatives and class counsel have adequately represented the 15 class.” 16 Because claims under PAGA are “a type of qui tam action” in which an employee brings a claim as an agent or proxy of the state’s labor law enforcement agencies, the court must also “review and approve” settlement of plaintiff’s and other class members’ PAGA claims along with their class claims. See Cal. Lab. Code § 2669(k)(2); Sakkab v. Luxottica Retail N. Am., Inc., 803 F.3d 425, 435-36 (9th Cir. 2015). Though “PAGA does not establish a standard for evaluating PAGA settlements,” Rodriguez v. RCO Reforesting, Inc., No. 2:16CV-2523 WBS DMC, 2019 WL 331159, at *4 (E.D. Cal. Jan. 25, 2019) (citing Smith v. H.F.D. No. 55, Inc., No. 2:15-cv-01293 KJM KJN, 2018 WL 1899912, at *2 (E.D. Cal. Apr. 20, 2018)), a number of district courts have applied the eight Hanlon factors, listed above, to evaluate PAGA settlements. See, e.g., Smith, 2018 WL 1899912, at *2; Ramirez v. Benito Valley Farms, LLC, No. 16-cv04708 LHK, 2017 WL 3670794, at *3 (N.D. Cal. Aug. 25, 2017); O’Connor v. Uber Techs., 201 F. Supp. 3d 1110, 1134 (N.D. Cal. 2016). “Many of these factors are not unique to class action lawsuits and bear on whether a settlement is fair and has been reached through an adequate adversarial process.” See Ramirez, 2017 WL 3670794, at *3. Thus, the court finds that these factors will also govern its review of the PAGA settlement. See id. 8 17 18 19 20 21 22 23 24 25 26 27 28 3 Fed. R. Civ. P. 23(e)(2)(A). This analysis is 1 “redundant of the requirements of Rule 23(a)(4) . . . .” 2 v. Libre Tech., Inc., No. 3:18-cv-1371 GPC KSC, 2020 WL 2467060, 3 at *5 (S.D. Cal. May 13, 2020) (quoting 4 Newberg on Class 4 Actions § 13:48 (5th ed.)); see also In re GSE Bonds Antitr. 5 Litig., 414 F. Supp. 3d 686, 701 (S.D.N.Y. 2019) (noting 6 similarity of inquiries under Rule 23(a)(4) and Rule 7 23(e)(2)(A)). 8 9 Because the Court has found that the proposed class satisfies Rule 23(a)(4) for purposes of class certification, the 10 adequacy factor under Rule 23(e)(2)(A) is also met. 11 2020 WL 2467060, at *5. 12 Hudson B. See Hudson, Negotiation of the Settlement Agreement 13 Prior to settlement negotiations, counsel engaged in 14 thorough investigation of the claims and informal discovery, 15 including securing employee records and policy documents, 16 obtaining declarations from multiple plaintiffs, and retaining an 17 expert to analyze the documents provided by defendant. 18 Decl. of Robert J. Wasserman (“Wasserman Decl.”) (Docket No. 49- 19 5) ¶ 7.) (See 20 On September 8, 2022, the parties participated in a 21 full-day private medication with an experienced wage and hour 22 class action mediator. 23 to reach a settlement on that day, but continued negotiations 24 over the next two weeks. 25 mediator’s proposal on September 22, 2022. 26 spent several months negotiating the final terms of the 27 Settlement Agreement, executing the agreement on January 18, 28 2023. (Id. ¶ 10.) (See id. ¶ 8.) (Id. ¶ 9.) The parties were unable The parties accepted a (Id.) The parties Counsel represents that that the settlement 9 1 negotiations were adversarial and conducted at arms’ length. 2 (Id. ¶ 11.) 3 Given that the settlement reached was the product of 4 arms-length bargaining following extensive informal discovery and 5 with the help of an experienced mediator, this factor weighs in 6 favor of final approval. 7 No. 5:13-cv-00398, 2014 WL 2967475, at *4 (N.D. Cal. June 25, 8 2014) (“Settlements reached with the help of a mediator are 9 likely non-collusive.”). See La Fleur v. Med. Mgmt. Int’l, Inc., The court is satisfied that the outcome 10 of the negotiations was not infected by counsel’s pursuit of 11 their own self-interests. 12 Performance Litig., 50 F.4th 769, 782 (9th Cir. 2022). 13 C. See In re Apple Inc. Device Adequate Relief 14 In determining whether a settlement agreement provides 15 adequate relief for the class, the court must “take into account 16 (i) the costs, risks, and delay of trial and appeal; (ii) the 17 effectiveness of any proposed method of distributing relief to 18 the class, including the method of processing class-member 19 claims; (iii) the terms of any proposed award of attorney’s fees, 20 including timing of payment; and (iv) any [other] agreement[s]” 21 made in connection with the proposal. 22 23(e)(2)(C); Baker v. SeaWorld Entm’t, Inc., No. 14-cv-02129-MMA- 23 AGS, 2020 WL 4260712, at *6-8 (S.D. Cal. Jul. 24, 2020). 24 See Fed. R. Civ. P. The court notes that, in evaluating whether the 25 settlement provides adequate relief, it must consider several of 26 the same factors outlined in Hanlon, including the strength of 27 the plaintiffs’ case; the risk, expense, complexity, and likely 28 duration of further litigation; the risk of maintaining class 10 1 action status throughout the trial; and the amount offered in 2 settlement. 3 See Hanlon, 150 F.3d at 1026. In determining whether a settlement agreement is 4 substantively fair to class members, the court must balance the 5 value of expected recovery against the value of the settlement 6 offer. 7 1078, 1080 (N.D. Cal. 2007). 8 to class certification, it is subject to heightened scrutiny for 9 purposes of final approval. See In re Tableware Antitrust Litig., 484 F. Supp. 2d When a settlement was reached prior See In re Apple Inc., 50 F.4th at 10 782. The recommendations of plaintiffs’ counsel will not be 11 given a presumption of reasonableness, but rather will be subject 12 to close review. 13 scrutinize “any subtle signs that class counsel have allowed 14 pursuit of their own self-interests to infect the negotiations.” 15 See id. at 782 (quoting Roes, 1-2 v. SFBSC Mgmt., LLC, 944 F.3d 16 1035, 1043 (9th Cir. 2019)). 17 See id. at 782-83. The court will particularly The Settlement Agreement provides for a gross 18 settlement amount of $1,500,000, which covers all four actions 19 and includes the following: (1) $5,000 incentive awards for the 20 lead plaintiffs and $500 for each remaining named plaintiff, for 21 a total of $22,000 in plaintiff incentive awards;4 (2) maximum 22 attorneys’ fees of $500,000, or 33.33% of the gross settlement 23 amount, plus reasonable documented costs; (3) settlement 24 administration costs of approximately $65,000; and (4) $50,000 25 for PAGA penalties, of which 75% (i.e., $37,500) will be 26 27 28 The incentive awards originally totaled $27,000, but this figure has been reduced by the $5,000 that was provided for Ms. Kabasele’s incentive award, which will be divided among the class members, as explained below. 11 4 1 distributed to the Labor and Workforce Development Agency 2 (“LWDA”) and the remaining 25% will be distributed to individual 3 aggrieved employees. 4 1.16, 1.21, 1.31.) 5 distributed to the class members and aggrieved employees based on 6 their number of pay periods. 7 (See Settlement Agreement ¶¶ 1.5, 1.13, The remaining net settlement amount will be (See id. ¶¶ 1.18, 6.1-6.3.) Plaintiffs estimate that the claims are worth up to 8 $5,327,023.36. 9 gross settlement amount allocated to class claims -- $1,450,000 10 -- constitutes approximately 27.22% of the $5,327,023.36 maximum 11 valuation. 12 percentage recoveries that California courts have found to be 13 reasonable. 14 00062 DAD EPG, 2022 WL 2918361, at *6 (E.D. Cal. July 25, 2022) 15 (collecting cases). 16 (See Wasserman Decl. ¶ 45.) The portion of the This amount is comfortably within the range of See Cavazos v. Salas Concrete, Inc., No. 1:19-cv- Plaintiffs faced numerous hurdles in the litigation, 17 including proving all elements of the claims, obtaining and 18 maintaining class certification, establishing liability, and the 19 costliness of litigation on these issues. 20 uncovered specific factual weaknesses in plaintiffs’ case, 21 including defendant’s use of facially valid timekeeping policies 22 and sophisticated timekeeping software; very low rates of unpaid 23 wages and sick pay based on analyzed payroll records; high rates 24 of meal and rest break premiums actually paid by defendant; 25 facially valid policies for reimbursement of business expenses; 26 significant reimbursements given to class members for cell phone 27 usage; and large amounts of waiting time penalties paid to class 28 members. (See Wasserman Decl. ¶¶ 17-41.) 12 Investigation Plaintiffs’ counsel 1 represents that, given the strength of plaintiffs’ claims and 2 defendant’s potential exposure, the settlement and resulting 3 distribution provides a strong result for the class. 4 52.) 5 (See id. ¶ In light of the risks associated with further 6 litigation and the relative strength of defendant’s arguments, 7 the court finds that the value of the settlement counsels in 8 favor of granting final approval. 9 method of processing class member claims to be adequate. The court further finds the Each 10 class member’s individual share of the settlement is 11 proportional to the number of pay periods worked for defendant 12 during the time period covered by the Settlement Agreement. 13 court is also satisfied that counsel’s requested fees are 14 reasonable and support approval of the settlement, which it will 15 address in greater detail below. 16 D. 17 The Equitable Treatment of Class Members Finally, the court must consider whether the Settlement 18 Agreement “treats class members equitably relative to each 19 other.” 20 determines whether the settlement “improperly grant[s] 21 preferential treatment to class representatives or segments of 22 the class.” 23 484 F. Supp. at 1079. See Fed. R. Civ. P. 23(e)(2)(D). In doing so, the court Hudson, 2020 WL 2467060, at *9 (quoting Tableware, 24 Here, the Settlement Agreement does not improperly 25 discriminate between any segments of the class, as all class 26 members are entitled to monetary relief based on the number of 27 pay periods they spent working for defendants. 28 Agreement ¶ 6.1.) 13 (See Settlement 1 While the Settlement Agreement allows plaintiffs to 2 seek incentive payments, plaintiffs have submitted evidence 3 documenting their time and effort spent on this case, which, as 4 discussed further below, has satisfied the court that their 5 additional compensation above other class members is justified. 6 See Hudson, 2020 WL 2467060, at *9. 7 that the settlement treats class members equitably. 8 Civ. P. 23(e)(D). 9 E. The court therefore finds See Fed. R. Remaining Hanlon Factors 10 In addition to the factors already considered as part 11 of the court’s analysis under Rule 23(e)(A)-(D), the court must 12 also examine “the extent of the discovery completed . . ., the 13 presence of government participation, and the reaction of class 14 members to the proposed settlement.” 15 As explained above, counsel engaged in thorough 16 informal discovery. 17 approval of the settlement. 18 Hanlon, 150 F.3d at 1026. This factor thus weighs in favor of final The seventh Hanlon factor, pertaining to government 19 participation, also weighs in favor of approval. 20 F.3d at 1026. 21 submitted to the [LWDA] at the same time that it is submitted to 22 the court.” 23 order, the LWDA has not sought to intervene or otherwise objected 24 to the PAGA settlement. 25 final approval of the settlement. 26 See Hanlon, 150 Under PAGA, “[t]he proposed settlement [must be] Cal. Lab. Code § 2669(k)(2). As of the date of this This factor therefore weighs in favor of The eighth Hanlon factor, the reaction of the class 27 members to the proposed settlement, also weighs in favor of final 28 approval, as only five of the 18,705 class members requested to 14 1 be excluded and no class members objected. 2 at 1026. 3 See Hanlon, 150 F.3d In sum, the four factors that the court must evaluate 4 under Rule 23(e) and the eight Hanlon factors, taken as a whole, 5 weigh in favor of approving the settlement. 6 therefore grant final approval of the Settlement Agreement. 7 III. Attorneys’ Fees The court will 8 Federal Rule of Civil Procedure 23(h) provides, “[i]n a 9 certified class action, the court may award reasonable attorney’s 10 fees and nontaxable costs that are authorized by law or by the 11 parties’ agreement.” 12 class action settlement includes an award of attorneys’ fees, 13 that fee award must be evaluated in the overall context of the 14 settlement. 15 Cir. 2002); Monterrubio v. Best Buy Stores, L.P., 291 F.R.D. 443, 16 455 (E.D. Cal. 2013) (England, J.). 17 independent obligation to ensure that the award, like the 18 settlement itself, is reasonable, even if the parties have 19 already agreed to an amount.” 20 Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011). 21 ‘common fund’ doctrine, ‘a litigant or a lawyer who recovers a 22 common fund for the benefit of persons other than himself or his 23 client is entitled to a reasonable [attorneys’] fee from the fund 24 as a whole.’” 25 2003) (quoting Boeing Co. v. Van Gemert, 444 U.S. 472, 478 26 (1980)). 27 to determine the amount of attorneys’ fees to be drawn from the 28 fund by employing either the percentage method or the lodestar Fed. R. Civ. P. 23(h). If a negotiated Knisley v. Network Assocs., 312 F.3d 1123, 1126 (9th The court “ha[s] an In re Bluetooth Headset Prod. “Under the Staton v. Boeing Co., 327 F.3d 938, 969 (9th Cir. In common fund cases, the district court has discretion 15 1 method. 2 check[ ]” upon the other method. 3 at 944. 4 Id. The court may also use one method as a “crossSee Bluetooth Headset, 654 F.3d As explained above, the settlement agreement appears to 5 provide adequate recovery for the class members. 6 payments will be quickly available to class members without the 7 delay associated with further litigation. 8 9 Further, the Like other complex employment class actions, this case presented both counsel and the class with a risk of no recovery 10 at all, as already discussed above. Plaintiffs’ counsel took on 11 this matter on a contingency basis. (See Wasserman Decl. ¶ 64.) 12 The nature of contingency work inherently carries risks that 13 counsel will sometimes recovers very little to nothing at all, 14 even for cases that may be meritorious. 15 Inc., No. 2:19-cv-00166 WBS KNJ, 2021 WL 492493, at *7 (E.D. Cal. 16 Feb. 10, 2021). 17 statutory and employment rights on behalf of a class of 18 employees, they depend on recovering a reasonable percentage-of- 19 the-fund fee award to enable them to take on similar risks in 20 future cases. 21 of the result obtained and substantial risk taken in this case, a 22 $500,000 fee constituting 33.33% of the fund, as requested here, 23 is reasonable. 24 See Kimbo v. MXD Group, Where counsel do succeed in vindicating See id. Plaintiffs’ counsel argues that, in light The Ninth Circuit has established 25% of the fund as 25 the “benchmark” award that should be given in common fund cases. 26 Six (6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 27 1311 (9th Cir. 1990). 28 California cases . . . reveals that courts usually award As this court has explained, “a review of 16 1 attorneys’ fees in the 30-40% range in wage and hour class 2 actions that result in recovery of a common fun[d] under $10 3 million.” 4 WL 5502318, at *7 (E.D. Cal. Sep. 11, 2020) (awarding 33.33% of 5 settlement fund); see also Osegueda v. N. Cal. Inalliance, No. 6 18-cv-00835 WBS EFB, 2020 WL 4194055, at *16 (E.D. Cal. July 21, 7 2020) (same). 8 typical practice in the Ninth Circuit and in this district, the 9 court agrees that plaintiffs’ counsel’s requested percentage of 10 11 Watson v. Tennant Co., No. 2:18-cv-02462 WBS DB, 2020 Given that the requested fee is in line with the the common fund is reasonable. “Calculation of the lodestar, which measures the 12 lawyers’ investment of time in the litigation, provides a check 13 on the reasonableness of the percentage award.” 14 Microsoft Corp., 290 F.3d 1043, 1050 (9th Cir. 2002). 15 Vizcaino v. Here, a lodestar cross-check confirms the 16 reasonableness of the requested award. Counsel represent that 17 they have dedicated 738.6 hours of work to these cases. 18 Wasserman Decl. ¶ 72.) 19 hourly rates in class actions range from $675 to $997. 20 ¶ 70; Docket No. 49-6 ¶¶ 17, 19; Docket No. 49-7 ¶ 13.) 21 firms specialize in wage and hour matters and class action cases, 22 and counsel represents that comparable hourly rates have been 23 approved by multiple federal and state courts in California. 24 (See Wasserman Decl. ¶¶ 65, 69.) 25 calculation, the court will apply the rate at the lower end of 26 the range provided by counsel. 27 hourly rate of $675, the lodestar figure is $498,555. 28 figure is nearly identical to the $500,000 award requested, with (See Counsel states that their customary (See id. The For purposes of the lodestar Based on 738.6 hours billed at an 17 This 1 a multiplier of 1.003, confirming the reasonableness of the 2 requested award. 3 award with lodestar cross-check multiplier of 3.65). Cf. Vizcaino, 290 F.3d at 1051 (affirming fee 4 Accordingly, the court finds the requested fees to be 5 reasonable and will grant counsel’s motion for attorneys’ fees. 6 IV. Costs 7 “There is no doubt that an attorney who has created a 8 common fund for the benefit of the class is entitled to 9 reimbursement of reasonable litigation expenses from that fund.” 10 In re Heritage Bond Litig., No. 02-cv-1475, 2005 WL 1594403, at 11 *23 (C.D. Cal. June 10, 2005). 12 plaintiffs’ counsel shall be entitled to recover reasonable, 13 documented litigation costs. 14 Counsel’s litigation expenses and costs total $24,667.33, though 15 they only seek $20,000. 16 expenses include copying and mailing expenses, filing fees, 17 mediation fees, expert fees, and travel expenses. 18 No. 49-5 at 103-05; Docket No. 49-6 at 17-18; Docket No. 49-7 at 19 11.) 20 Therefore, the court will grant class counsel’s request for costs 21 in the amount of $20,000. 22 V. Here, the parties agreed that (See Settlement Agreement ¶ 1.5.) (See Wasserman Decl. ¶ 78.) These (See Docket The court finds these are reasonable litigation expenses. Representative Service Award 23 “Incentive awards are fairly typical in class action 24 cases.” Rodriguez, 563 F.3d at 958. 25 compensate class representatives for work done on behalf of the 26 class, to make up for financial or reputational risk undertaken 27 in bringing the action, and, sometimes, to recognize their 28 willingness to act as a private attorney general.” 18 “[They] are intended to Id. at 958- 1 59. 2 Nevertheless, the Ninth Circuit has cautioned that 3 “district courts must be vigilant in scrutinizing all incentive 4 awards to determine whether they destroy the adequacy of the 5 class representatives . . . .” 6 Solutions, Inc., 715 F.3d 1157, 1164 (9th Cir. 2013). 7 assessing the reasonableness of incentive payments, the court 8 should consider “the actions the plaintiff has taken to protect 9 the interests of the class, the degree to which the class has Radcliffe v. Experian Info. In 10 benefitted from those actions” and “the amount of time and effort 11 the plaintiff expended in pursuing the litigation.” 12 F.3d at 977 (citation omitted). 13 number of named plaintiffs receiving incentive payments, the 14 proportion of the payments relative to the settlement amount, and 15 the size of each payment.” 16 Staton, 327 The court must balance “the Id. In the Ninth Circuit, an incentive award of $5,000 is 17 presumptively reasonable. 18 1:13-cv-01211 LJO BAM, 2015 WL 6697929, at *11 (E.D. Cal. Nov. 3, 19 2015) (citing Harris v. Vector Marketing Corp., No. 08-cv-5198 20 EMC, 2012 WL 381202, at *7 (N.D. Cal. Feb. 6, 2012) (collecting 21 cases)). 22 Davis v. Brown Shoe Co., Inc., No. Plaintiffs seek $5,000 incentive awards for the two 23 lead plaintiffs, Katia Arellano and Angel Gonzalez, and $500 for 24 each remaining named plaintiff. 25 included interviewing and selecting counsel, providing documents 26 to counsel, providing statements to counsel, reviewing documents 27 and discovery responses, participating in mediation, and 28 reviewing the settlement agreement. The efforts of the plaintiffs 19 (See Docket Nos. 49-8 1 through 49-31.) 2 incurred in bringing this action, the court finds the requested 3 incentive awards to be reasonable. 4 In light of plaintiffs’ efforts and the risks The settlement originally provided a $5,000 incentive 5 award for Ms. Kabasele. However, in light of Ms. Kabasele’s 6 death, the court orders that her incentive award remain part of 7 the net settlement funds, to be distributed to the class members 8 and aggrieved employees in accordance with the terms of the 9 settlement. At oral argument, counsel for both sides consented 10 to this arrangement. 11 incentive award to Ms. Kabasele’s heirs or dividing it among the 12 other named plaintiffs, but concluded that distributing it among 13 the entire class was the most beneficial for the class. 14 VI. 15 The court also considered giving the Conclusion Based on the foregoing, the court will grant final 16 certification of the settlement class and will approve the 17 settlement set forth in the Settlement Agreement as fair, 18 reasonable, and adequate. 19 binding upon all participating class members who did not exclude 20 themselves. 21 The Settlement Agreement shall be IT IS THEREFORE ORDERED that plaintiffs’ unopposed 22 motion for final approval of the parties’ class action settlement 23 (Docket No. 49) and motion for attorneys’ fees, costs, and 24 enhancement payments (Docket No. 49-4) be, and the same hereby 25 are, GRANTED. 26 IT IS FURTHER ORDERED THAT: 27 (1) Solely for the purpose of this settlement, and 28 pursuant to Federal Rule of Civil Procedure 23, the court hereby 20 1 certifies the following class: all current and former hourly-paid 2 or non-exempt employees who worked for defendant Ulta within 3 California between October 12, 2019 and November 8, 2022. 4 (2) The court appoints Angel Gonzalez, Mindy Miranda, 5 Saryna De Jesus, Tatiana Brenal, Flor Cruz, Julissa Perez, Elissa 6 Padilla, Ian Lamar, Claudia Benitez, Brittney Hughes, George 7 Maddox, Victoria Henkes, Allexandra Tan, Danielle Quaid, Jerrica 8 Labian, Ryan Guffey, Kiersten Wong, Brittani Herena, Janet 9 Sanchez, Brittany Sommers, Cheyenne Lopez, Talia Casteneda, 10 Nohely Llamas, Rhonda Prickett, Debbie Harrison, and Katia 11 Arellano as class representatives and finds that they meet the 12 requirements of Rule 23; 13 (3) The court appoints the law firms of Mayall Hurley, 14 P.C., SW Employment Law Group, APC, and Lavi & Ebrahimian, LLP, 15 as class counsel and finds that they meet the requirements of 16 Rule 23; 17 (4) The settlement agreement’s plan for class notice 18 satisfies the requirements of due process and Rule 23. 19 is approved and adopted. 20 Rule 23(c)(2) and Rule 23(e) and is approved and adopted; 21 The plan The notice to the class complies with (5) The court finds that the parties and their counsel 22 took appropriate efforts to locate and inform all class members 23 of the settlement. 24 from the class. 25 the settlement, the court finds that no additional notice to the 26 class is necessary; Five employees have requested to be excluded Given that no class member filed an objection to 27 (6) As of the date of the entry of this order, 28 plaintiffs and all class members who have not timely opted out of 21 1 this settlement hereby do and shall be deemed to have fully, 2 finally, and forever released, settled, compromised, 3 relinquished, and discharged defendants of and from any and all 4 settled claims, pursuant to the release provisions stated in the 5 parties’ settlement agreement; 6 (7) Plaintiffs’ counsel is entitled to fees in the 7 amount of $500,000, and litigation costs in the amount of 8 $20,000; 9 10 11 (8) Simpluris, Inc. is entitled to administration costs in the amount of $65,000; (9) Plaintiffs Katia Arellano and Angel Gonzalez are 12 entitled to incentive awards in the amount of $5,000, and 13 plaintiffs Mindy Miranda, Saryna De Jesus, Tatiana Brenal, Flor 14 Cruz, Julissa Perez, Elissa Padilla, Ian Lamar, Claudia Benitez, 15 Brittney Hughes, George Maddox, Victoria Henkes, Allexandra Tan, 16 Danielle Quaid, Jerrica Labian, Ryan Guffey, Kiersten Wong, 17 Brittani Herena, Janet Sanchez, Brittany Sommers, Cheyenne Lopez, 18 Talia Casteneda, Nohely Llamas, Rhonda Prickett, and Debbie 19 Harrison are entitled to incentive awards in the amount of $500; 20 (10) $37,500 from the gross settlement amount shall be 21 paid to the California Labor and Workforce Development Agency in 22 satisfaction of defendant’s alleged penalties under the Private 23 Attorneys General Act; 24 (11) The remaining settlement funds shall be paid to 25 participating class members and aggrieved employees in accordance 26 with the terms of the Settlement Agreement; and 27 28 (12) This action is dismissed with prejudice. However, without affecting the finality of this Order, the court shall 22 1 retain continuing jurisdiction over the interpretation, 2 implementation, and enforcement of the Settlement Agreement with 3 respect to all parties to this action and their counsel of 4 record. 5 Dated: February 6, 2024 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23

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