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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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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

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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,

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No. 2:21-cv-1639 WBS KJN

v.
ULTA SALON, COSMETICS &
FRAGRANCE, INC.; and DOES 1-100,
inclusive,
Defendants.

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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.
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Plaintiffs Dorcas-Cothy Kabasele,2 Angel Gonzalez,

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Mindy Miranda, Saryna De Jesus, Tatiana Brenal, Flor Cruz,

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Julissa Perez, Elissa Padilla, Ian Lamar, Claudia Benitez,

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Brittney Hughes, George Maddox, Victoria Henkes, Allexandra Tan,

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Danielle Quaid, Jerrica Labian, Ryan Guffey, Kiersten Wong,

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Brittani Herena, Janet Sanchez, Brittany Sommers, Cheyenne Lopez,

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Talia Casteneda, Nohely Llamas, Rhonda Prickett, Debbie Harrison,

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and Katia Arellano, individually and on behalf of similarly

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situated individuals, brought this putative class action against

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defendant Ulta Salon, Cosmetics, & Fragrance, Inc. (“Ulta”),

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alleging violations of California wage and hour laws.

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Fourth Am. Compl. (“FAC”) (Docket No. 48).)

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(See

This is one of four actions against defendant Ulta

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covering similar class and PAGA claims.

The other actions are

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Gonzalez v. Ulta Salon Cosmetics & Fragrance, Inc., No. 2:22-cv-

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00363 AB RAO (C.D. Cal.), a federal class and PAGA action;

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Arellano v. Ulta Salon, Cosmetics and Fragrance, Inc., No. 5:22-

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cv-00639 JGB KK (C.D. Cal.), a federal class action; and Arellano

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v. Ulta Salon, Cosmetics and Fragrance, Inc., No. CIVSB2209151

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(San Bernardino Super. Ct.), a state PAGA action.

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The settlement disposes of all four actions.

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parties agreed to seek settlement approval only in this action;

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once the settlement receives final approval in this action and

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all class payments are distributed, counsel in the Gonzalez and

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Arellano actions (state and federal) will voluntarily dismiss

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All

The court is informed by plaintiff’s counsel that the
first named plaintiff, Dorcas-Cothy Kabasele, is deceased.
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their cases.

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59) ¶ 9.8.)

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(See Settlement Agreement (Docket No. 49-5 at 24-

Before the court are plaintiffs’ motion for final

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approval of class action settlement (Docket No. 49) and motion

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for attorneys’ fees, costs, and enhancement payments (Docket No.

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49-4).

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50.)

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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

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

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Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 965 (9th Cir. 2009)

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(“We put a good deal of stock in the product of an arms-length,

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non-collusive, negotiated resolution[.]”) (citation omitted).

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

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certified class may be settled . . . only with the court’s

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approval.”

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

“Approval under 23(e) involves a two-step process in

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which the Court first determines whether a proposed class action

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settlement deserves preliminary approval and then, after notice

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is given to class members, whether final approval is warranted.”

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Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523,

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525 (C.D. Cal. 2004) (citing Manual for Complex Litig. (Third),

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§ 30.41 (1995)).

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plaintiffs’ unopposed motion for preliminary approval of class

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action settlement on July 25, 2023.

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Approval (Docket No. 47).)

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members, the court will consider whether final approval is

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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

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class action and (2) the terms of the settlement.

See Diaz v.

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Tr. Territory of Pac. Islands, 876 F.2d 1401, 1408 (9th Cir.

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1989).

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I.

Class Certification

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The putative class consists of all current and former

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hourly-paid or non-exempt employees who worked for defendant Ulta

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within California between October 12, 2019 and November 8, 2022.

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(Settlement Agreement ¶ 1.6.)

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To be certified, the putative class must satisfy the

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requirements of Federal Rules of Civil Procedure 23(a) and 23(b).

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Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th Cir. 2013).

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A.

Rule 23(a)
Rule 23(a) restricts class actions to cases where: “(1)

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the class is so numerous that joinder of all members is

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impracticable [numerosity]; (2) there are questions of law or

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fact common to the class [commonality]; (3) the claims or

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defenses of the representative parties are typical of the claims

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or defenses of the class [typicality]; and (4) the representative

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parties will fairly and adequately protect the interests of the

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class [adequacy of representation].”

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

In the court’s order granting preliminary approval of

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the settlement, the court found that the putative class satisfied

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the Rule 23(a) requirements.

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Approval at 6-12.)

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would affect its conclusion that the putative class satisfies the

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Rule 23(a) requirements, and the parties have not indicated that

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they are aware of any such developments.

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finds that the class definition proposed by plaintiffs meets the

(See Order Granting Prelim.

The court is unaware of any changes that

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The court therefore

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requirements of Rule 23(a).
B.

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Rule 23(b)
After fulfilling the threshold requirements of Rule

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23(a), the proposed class must satisfy the requirements of one of

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the three subdivisions of Rule 23(b).

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Plaintiffs seek certification under Rule 23(b)(3), which provides

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that a class action may be maintained only if (1) “the court

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finds that questions of law or fact common to class members

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predominate over questions affecting only individual members” and

Leyva, 716 F.3d at 512.

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(2) “that a class action is superior to other available methods

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for fairly and efficiently adjudicating the controversy.”

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

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Fed.

In its order granting preliminary approval of the

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settlement, the court found that both the predominance and

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superiority prerequisites of Rule 23(b)(3) were satisfied.

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(Order Granting Prelim. Approval at 12-14.)

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of any changes that would affect its conclusion that Rule

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23(b)(3) is satisfied.

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

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certification of this action.

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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

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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,

Fed.

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

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417 U.S. 156, 172–77 (1974)).

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“reasonably certain to inform the absent members of the plaintiff

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class,” actual notice is not required.

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

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Although that notice must be

Silber v. Mabon, 18 F.3d

The notice explains the proceedings, defines the scope

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of the class, and explains what the settlement provides and how

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much each class member can expect to receive in compensation.

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(See Notice of Class Action Settlement (Docket No. 49-2 at 7-12)

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at 1-5.)

The notice further explains the opt-out procedure, the

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procedure for objecting to the settlement, and the date and

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location of the final approval hearing.

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content of the notice therefore satisfies Rule 23(c)(2)(B).

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

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

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if it ‘generally describes the terms of the settlement in

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sufficient detail to alert those with adverse viewpoints to

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

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

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(See id. at 5-6.)

The
See

The parties selected Simpluris, Inc. to serve as the

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Settlement Administrator.

(See Settlement Agreement ¶ 1.30.)

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Defendant timely provided Simpluris with the class contact

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information and data, which included the name, last known

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address, Social Security Number, email address, telephone number,

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and pertinent employment information for each class member.

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Docket No. 49-2 ¶ 6.)

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(Id. ¶ 6.)

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addresses using the National Change of Address Database

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maintained by the U.S. Postal Service.

(See

The class list contained 18,705 members.

The Settlement Administrator updated the mailing

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(Id. ¶ 7.)

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The Settlement Administrator delivered notice of the

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settlement via mail on August 18, 2023.

(Id. ¶ 8.)

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were returned as undeliverable.

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forwarding address, the Settlement Administrator performed a skip

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trace address search to locate updated addresses.

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880 notices returned as undeliverable, 726 notices were remailed

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to new addresses.

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notices were ultimately undeliverable by mail.

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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

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addresses for 106 individuals and complete notice via email.

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(Id.)

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The Settlement Administrator received five requests for exclusion

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and zero objections.

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This constitutes a 99.74% successful notice rate.

(Id.)

(Id. ¶¶ 11-12.)

The court appreciates the thorough efforts taken by the

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Settlement Administrator to effectuate notice and is satisfied

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that the notice procedure was “reasonably calculated, under all

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the circumstances,” to apprise all class members of the proposed

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settlement.

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1045–46 (9th Cir. 2019).

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II.

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See Roes, 1-2 v. SFBSC Mgmt., LLC, 944 F.3d 1035,

Final Settlement Approval
Having determined that class treatment is warranted,

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the court must now address whether the terms of the parties’

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settlement appear fair, adequate, and reasonable.

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Civ. P. 23(e)(2).

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reasonableness of the agreement, Rule 23(e) requires the court to

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consider four factors: “(1) the class representatives and class

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counsel have adequately represented the class; (2) the proposal

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was negotiated at arm’s length; (3) the relief provided for the

See Fed. R.

To determine the fairness, adequacy, and

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class is adequate; and (4) the proposal treats class members

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equitably relative to each other.”

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also identified eight additional factors the court may consider,

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many of which overlap substantially with Rule 23(e)’s four

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factors:

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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.

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Id.

Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998).3
A.

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Adequate Representation
The court must first consider whether “the class

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representatives and class counsel have adequately represented the

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class.”

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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.
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Fed. R. Civ. P. 23(e)(2)(A).

This analysis is

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“redundant of the requirements of Rule 23(a)(4) . . . .”

2

v. Libre Tech., Inc., No. 3:18-cv-1371 GPC KSC, 2020 WL 2467060,

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at *5 (S.D. Cal. May 13, 2020) (quoting 4 Newberg on Class

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Actions § 13:48 (5th ed.)); see also In re GSE Bonds Antitr.

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Litig., 414 F. Supp. 3d 686, 701 (S.D.N.Y. 2019) (noting

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similarity of inquiries under Rule 23(a)(4) and Rule

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23(e)(2)(A)).

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Because the Court has found that the proposed class
satisfies Rule 23(a)(4) for purposes of class certification, the

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adequacy factor under Rule 23(e)(2)(A) is also met.

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2020 WL 2467060, at *5.

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Hudson

B.

See Hudson,

Negotiation of the Settlement Agreement

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Prior to settlement negotiations, counsel engaged in

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thorough investigation of the claims and informal discovery,

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including securing employee records and policy documents,

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obtaining declarations from multiple plaintiffs, and retaining an

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expert to analyze the documents provided by defendant.

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Decl. of Robert J. Wasserman (“Wasserman Decl.”) (Docket No. 49-

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5) ¶ 7.)

(See

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On September 8, 2022, the parties participated in a

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full-day private medication with an experienced wage and hour

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class action mediator.

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to reach a settlement on that day, but continued negotiations

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over the next two weeks.

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mediator’s proposal on September 22, 2022.

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spent several months negotiating the final terms of the

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Settlement Agreement, executing the agreement on January 18,

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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
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negotiations were adversarial and conducted at arms’ length.

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(Id. ¶ 11.)

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Given that the settlement reached was the product of

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arms-length bargaining following extensive informal discovery and

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with the help of an experienced mediator, this factor weighs in

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favor of final approval.

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

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

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likely non-collusive.”).

See La Fleur v. Med. Mgmt. Int’l, Inc.,

The court is satisfied that the outcome

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of the negotiations was not infected by counsel’s pursuit of

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their own self-interests.

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Performance Litig., 50 F.4th 769, 782 (9th Cir. 2022).

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C.

See In re Apple Inc. Device

Adequate Relief

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In determining whether a settlement agreement provides

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adequate relief for the class, the court must “take into account

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(i) the costs, risks, and delay of trial and appeal; (ii) the

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effectiveness of any proposed method of distributing relief to

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the class, including the method of processing class-member

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claims; (iii) the terms of any proposed award of attorney’s fees,

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including timing of payment; and (iv) any [other] agreement[s]”

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made in connection with the proposal.

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23(e)(2)(C); Baker v. SeaWorld Entm’t, Inc., No. 14-cv-02129-MMA-

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AGS, 2020 WL 4260712, at *6-8 (S.D. Cal. Jul. 24, 2020).

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See Fed. R. Civ. P.

The court notes that, in evaluating whether the

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settlement provides adequate relief, it must consider several of

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the same factors outlined in Hanlon, including the strength of

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the plaintiffs’ case; the risk, expense, complexity, and likely

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duration of further litigation; the risk of maintaining class
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action status throughout the trial; and the amount offered in

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settlement.

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See Hanlon, 150 F.3d at 1026.

In determining whether a settlement agreement is

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substantively fair to class members, the court must balance the

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value of expected recovery against the value of the settlement

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offer.

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1078, 1080 (N.D. Cal. 2007).

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to class certification, it is subject to heightened scrutiny for

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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

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782.

The recommendations of plaintiffs’ counsel will not be

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given a presumption of reasonableness, but rather will be subject

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to close review.

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scrutinize “any subtle signs that class counsel have allowed

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pursuit of their own self-interests to infect the negotiations.”

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See id. at 782 (quoting Roes, 1-2 v. SFBSC Mgmt., LLC, 944 F.3d

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1035, 1043 (9th Cir. 2019)).

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See id. at 782-83.

The court will particularly

The Settlement Agreement provides for a gross

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settlement amount of $1,500,000, which covers all four actions

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and includes the following: (1) $5,000 incentive awards for the

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lead plaintiffs and $500 for each remaining named plaintiff, for

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a total of $22,000 in plaintiff incentive awards;4 (2) maximum

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attorneys’ fees of $500,000, or 33.33% of the gross settlement

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amount, plus reasonable documented costs; (3) settlement

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administration costs of approximately $65,000; and (4) $50,000

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for PAGA penalties, of which 75% (i.e., $37,500) will be

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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.
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distributed to the Labor and Workforce Development Agency

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(“LWDA”) and the remaining 25% will be distributed to individual

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aggrieved employees.

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1.16, 1.21, 1.31.)

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distributed to the class members and aggrieved employees based on

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their number of pay periods.

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(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

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$5,327,023.36.

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gross settlement amount allocated to class claims -- $1,450,000

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-- constitutes approximately 27.22% of the $5,327,023.36 maximum

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valuation.

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percentage recoveries that California courts have found to be

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reasonable.

14

00062 DAD EPG, 2022 WL 2918361, at *6 (E.D. Cal. July 25, 2022)

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(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,

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including proving all elements of the claims, obtaining and

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maintaining class certification, establishing liability, and the

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costliness of litigation on these issues.

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uncovered specific factual weaknesses in plaintiffs’ case,

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including defendant’s use of facially valid timekeeping policies

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and sophisticated timekeeping software; very low rates of unpaid

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wages and sick pay based on analyzed payroll records; high rates

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of meal and rest break premiums actually paid by defendant;

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facially valid policies for reimbursement of business expenses;

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significant reimbursements given to class members for cell phone

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usage; and large amounts of waiting time penalties paid to class

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members.

(See Wasserman Decl. ¶¶ 17-41.)
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Investigation

Plaintiffs’ counsel

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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.

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52.)

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(See id. ¶

In light of the risks associated with further

6

litigation and the relative strength of defendant’s arguments,

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the court finds that the value of the settlement counsels in

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favor of granting final approval.

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method of processing class member claims to be adequate.

The court further finds the
Each

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class member’s individual share of the settlement is

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proportional to the number of pay periods worked for defendant

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during the time period covered by the Settlement Agreement.

13

court is also satisfied that counsel’s requested fees are

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reasonable and support approval of the settlement, which it will

15

address in greater detail below.

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D.

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The

Equitable Treatment of Class Members
Finally, the court must consider whether the Settlement

18

Agreement “treats class members equitably relative to each

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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.

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Agreement ¶ 6.1.)
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(See Settlement

1

While the Settlement Agreement allows plaintiffs to

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seek incentive payments, plaintiffs have submitted evidence

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documenting their time and effort spent on this case, which, as

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discussed further below, has satisfied the court that their

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additional compensation above other class members is justified.

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See Hudson, 2020 WL 2467060, at *9.

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that the settlement treats class members equitably.

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Civ. P. 23(e)(D).

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E.

The court therefore finds
See Fed. R.

Remaining Hanlon Factors

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In addition to the factors already considered as part

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of the court’s analysis under Rule 23(e)(A)-(D), the court must

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also examine “the extent of the discovery completed . . ., the

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presence of government participation, and the reaction of class

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members to the proposed settlement.”

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As explained above, counsel engaged in thorough

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informal discovery.

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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.

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submitted to the [LWDA] at the same time that it is submitted to

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the court.”

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order, the LWDA has not sought to intervene or otherwise objected

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to the PAGA settlement.

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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

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members to the proposed settlement, also weighs in favor of final

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approval, as only five of the 18,705 class members requested to
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1

be excluded and no class members objected.

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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,

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weigh in favor of approving the settlement.

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therefore grant final approval of the Settlement Agreement.

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III. Attorneys’ Fees

The court will

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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

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