Martinez et al v. Incom Mechanical, Inc. et al

Filing 52

ORDER RE: FINAL APPROVAL OF CLASS ACTION SETTLEMENT; PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS (Illston, Susan) (Filed on 3/20/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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RICKY MARTINEZ, JOSH LECLAIR,
NORBERTO SUAREZ, TYLER FOX,
AND JARED HUTMAN, individually, and on
behalf of all others similarly situated,
Plaintiffs,

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No. C 11-01392 SI
ORDER RE: FINAL APPROVAL
OF CLASS ACTION SETTLEMENT;
PLAINTIFFS’ MOTION FOR
ATTORNEYS’ FEES AND COSTS

v.
INCOM MECHANICAL, INC., JOE
LOCATI, JEFFREY LOCATI, PHIL
LOCATI, and DOES 1 through 50,
inclusive,
Defendants.

/

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On October 7, 2011, the Court preliminarily approved the class settlement in this class action

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suit involving plaintiffs’ claims for overtime compensation and related wage and hour claims. See. Doc.

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37. On March 19, 2012, the Court held a hearing on plaintiffs’ motions for final approval of the class

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settlement and for attorneys’ fees and costs. Defendants joined in plaintiffs’ motion for final approval,

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but requested that the Court not issue its final approval order until May 17, 2012. The reason for the

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requested delay is that defendants failed to give statutorily required notice to the United States Attorney

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General and the California Attorney General “not later than 10 days after a proposed settlement of a

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class action is filed in court,” as required by the Class Action Fairness Act (“CAFA”). 28 U.S.C. §

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1715(b). The proposed settlement was filed on September 9, 2011, and thus the attorneys general

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should have been notified by the defendants of its existence by September 19, 2011. Instead, defendants

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provided notice on February 17, 2012.

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CAFA requires that “an order giving final approval of a proposed settlement may not be issued

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earlier than 90 days after the later of the dates on which the appropriate Federal official and the

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appropriate State Official are served with the notice required under Subsection (b).” 28 § 1715(d).

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Defendants thus request that the Court not issue the final order until after May 17, 2012, 90 days after

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they provided notice to the attorneys general. Plaintiffs request that the Court issue its final approval

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immediately, or, in the alternative, charge defendants interest on the settlement amount as a penalty for

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their mistake and award additional attorneys’ fees.
The settlement itself is in the amount of $550,000.00. Doc. 28-1, Settlement Agreement, ¶ 13.c.

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Notices of the settlement were mailed to 151 Settlement Class Members; 112 (74.17%) affirmatively

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opted-in to the settlement, none filed objections, and none requested to be excluded from the action.

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United States District Court
For the Northern District of California

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Tittle Decl., ¶¶ 8, 10. The estimated average recovery per class member who opted to participate in the

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suit is $3,259. Schwartz Decl., ¶ 3. Class representatives will receive a $5,000 enhancement.

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Settlement Agreement, ¶ 13.o. Having reviewed these facts, and the remaining terms of the settlement,

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the Court finds that the settlement is fair, reasonable, and adequate within the meaning of Fed. R. Civ.

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P. 23(e), and intends to approve it.

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Class Counsel seeks attorneys’ fees in the amount of $137,500.00, representing 25% of the

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settlement fund. They also seek reimbursement of $8,668.69 in actual litigation costs. The Court finds

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these requests reasonable, and intends to grant plaintiffs’ motion for attorney’s fees and costs as well.

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See Powers v. Eichen, 229 F.3d 1249, 1256-57 (9th Cir. 2000) (stating the Ninth Circuit has established

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25% of the recovery as the “benchmark” for attorneys’ fees under the percentage-of-recovery approach).

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However, the Court will delay issuing its final approval order until the appropriate time. At the

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March 19, 2012 hearing, the Court requested that defendants’ attorney request expedited approval of

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(or non-objection to) the settlement from the appropriate attorneys general. If the Court receives such

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notice from the attorneys general, it will issue its final approval order at that time. Barring notice from

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the attorneys general, the Court will wait until May 18, 2012, to issue its final approval order. In the

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meantime, as stated at the March 19th hearing, defendants shall pay 2% simple interest on the

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Settlement Amount. No additional attorney’s fees will be awarded.

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Upon receipt of notice from both attorneys general, or May 18, 2012, whichever comes first,

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plaintiffs shall submit a proposed final approval order containing the amount of the 2% interest as
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applied on the date the proposed order is filed.

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IT IS SO ORDERED.

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Dated: March 20, 2012
SUSAN ILLSTON
United States District Judge

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United States District Court
For the Northern District of California

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