Sullivan v. Dolgen California, LLC, a Tennessee limited liability company
Filing
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ORDER RE FINAL APPROVAL, ATTORNEYS' FEES, COSTS AND INCENTIVE AWARD. Signed by Judge James Donato on 7/31/2017. (jdlc3S, COURT STAFF) (Filed on 7/31/2017)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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JULIE SULLIVAN, et al.,
Plaintiffs,
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United States District Court
Northern District of California
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Case No. 3:15-cv-01617-JD
v.
DOLGEN CALIFORNIA, LLC, A
TENNESSEE LIMITED LIABILITY
COMPANY,
ORDER RE FINAL APPROVAL,
ATTORNEYS’ FEES, COSTS AND
INCENTIVE AWARD
Re: Dkt. Nos. 114, 115
Defendant.
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This order resolves plaintiffs’ unopposed motions for (1) final approval of a class action
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settlement, and (2) attorneys’ fees and costs and a named plaintiff incentive award. Dkt. Nos. 114,
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115. The Court granted preliminary approval of the proposed settlement on November 14, 2016.
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Dkt. No. 113. As indicated at the final approval hearing, final approval of the class action
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settlement is granted, the requested attorneys’ fees and costs are awarded, and the request for a
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named plaintiff incentive award is denied. Dkt. No. 116.
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BACKGROUND
The key facts are presented in the Court’s preliminary approval order. Dkt. No. 113. To
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recap, named plaintiff Julie Sullivan sued on behalf of a putative class of current and former
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employees of defendant Dolgen California, LLC (“Dollar General”) for a variety of wage-and-
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hour claims. Dkt. No. 12. After summary judgment and class certification briefing, the parties
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reached a settlement in principle on June 14, 2016, in a conference with Chief Magistrate Judge
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Joseph C. Spero. Dkt. No. 98. Sullivan moved for preliminary approval. Dkt. No. 105. The
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parties stipulated to an amended settlement agreement. Dkt. No. 108-1, Exh. 1 (Amended Joint
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Stipulation for Class Action Settlement). The Court preliminarily approved the amended
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settlement agreement. Dkt. No. 113.
The proposed final settlement is consistent with the approved preliminary agreement. In
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key terms, Dollar General will pay $300,000 into a non-reversionary settlement fund, which will
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fund the payments to class members, the costs of notice and settlement administration, any Court-
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approved service awards, attorneys’ fees, costs, and litigation expenses, and payment of a PAGA
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penalty to the California Labor & Workforce Development Agency. Dkt. No. 108-1, Exh. 1 ¶ 20.
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Nothing in the settlement fund will ever go back to Dollar General. Id. ¶ 52. Class payments will
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be apportioned pro rata to class members based on their length of employment by Dollar General
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during the relevant time period. Id. ¶¶ 39-40. The average gross recovery per class member will
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United States District Court
Northern District of California
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be $280.64; the maximum $1,690.38; and the minimum $2.87 (for a class member employed for
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just a single day). Dkt. No. 115 at 5. Class members do not need to make an affirmative claim
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and will automatically be mailed a check for their pro rata share of the settlement fund. Dkt. No.
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108-1, Exh. 1 ¶¶ 39, 43. Dollar General will issue and mail checks within 30 days of the effective
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date. Id. ¶ 43. Any checks that remain uncashed after 180 days will be voided, and their amounts
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will be allocated cy pres to the Legal Aid Society-Employment Law Center. Dkt. No. 115 at 6.
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In exchange for this consideration, class members who do not opt out will release “all
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claims that are alleged in, or that could have been alleged in, Plaintiff’s notice letters to the
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LWDA (submitted on or about March 11, 2015), the Complaint (filed February 20, 2015), and the
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First Amended Complaint (filed April 29, 2015), arising out of the alleged failure by Defendant to
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comply with California Labor Code § 226, as well as any derivative penalties due to such alleged
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failure under PAGA.” Dkt. No. 108-1, Exh. 1 ¶ 55. Settling class members release claims
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pertaining only to Dollar General’s failure to provide printed wage statements.
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The settlement administrator reports that notice has been provided consistent with the
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proposed settlement agreement and with the requirements of Rule 23(e)(1). Dkt. No. 115-1 at 2.
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Notices were mailed to 1,088 class members, out of which 119 were returned as undeliverable. Id.
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Of the notices that came back as undeliverable, the administrator was able to find updated
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addresses for and re-mail notices to 79 class members, out of which 8 were ultimately returned.
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Id. In total, less than 5% of the mailed notices were undeliverable. See id.
DISCUSSION
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I.
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
In the order granting preliminary approval, the Court found that the proposed settlement
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was fair, adequate, and reasonable, and satisfied the requirements of Federal Rules of Civil
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Procedure 23(a) and (b)(3). Dkt. No. 113. The same conclusions apply here. The parties disputed
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the case with engagement, and significant outcome risks attached to the wage statement claims for
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both sides. See Dkt. No. 115 at 14-15. The full value of the claims was estimated to be just over
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$1.6 million, plus an additional 50 percent in potential discretionary penalties under PAGA. Id. at
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United States District Court
Northern District of California
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9. Plaintiff made an informed and not unreasonable agreement to settle for $300,000. See In re
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Omnivision Techs., Inc., 559 F. Supp. 2d 1036, 1042 (N.D. Cal. 2008). The settlement amount
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provides monetary relief to class members. Dkt. No. 115 at 5. No objections were received and
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no class member has asked to opt-out, Dkt. No. 115-1 at 2, which bolsters the conclusion that the
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settlement is fair, reasonable, and adequate. See Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d
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566, 575-77 (9th Cir. 2004). The form of notice satisfied due process. Consequently, final
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approval of the proposed settlement is granted.
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II.
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ATTORNEYS’ FEES AND COSTS
The proposed attorneys’ fee award, which amounts to 25% of the settlement fund and
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approximately 28% of class counsel’s reported lodestar, is within acceptable boundaries. Dkt. No.
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114. Class counsel litigated the case for over two years and through the production and review of
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thousands of pages of discovery, Rule 30(b)(6) depositions, a motion to certify the class, an
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opposition to a motion for summary judgment, and settlement negotiations. Dkt. No. 114-1 (Arias
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Decl.) ¶ 17. Notice of the proposed fees and costs was sent to class members in a reasonable
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manner, and class members had an appropriate opportunity to object. No objections were made.
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While the requested $75,000 fee award is a substantial slice of the $300,000 gross settlement fund
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and gives the Court some pause, it is within acceptable parameters for common fund fee awards.
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In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 949 (9th Cir. 2015). The fact the
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requested amount is less than thirty percent of class counsel’s lodestar has helped to assuage the
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Court’s qualms. See Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1051 (9th Cir. 2002).
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Class counsel also seeks $11,699.63 in costs and expenses. Dkt. No. 114 at 12. The Court
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has reviewed the supporting declarations of class counsel and finds that the costs and expenses for
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which they seek reimbursement were reasonably necessary to the prosecution of this litigation,
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were the sort of expenses normally billed to paying clients, and were incurred for the benefit of the
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class. Dkt. No. 114-1 ¶ 26. Consequently, they are approved.
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III.
NAMED PLAINTIFF INCENTIVE AWARD
Class counsel requests a $1,000 “incentive award” for named plaintiff Julie Sullivan. Dkt.
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No. 114 at 13. The Court has consistently expressed skepticism about settlements in which named
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United States District Court
Northern District of California
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plaintiffs do appreciably better than rank-and-file class members; these settlements pose a risk of
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collusion and conflict within the plaintiffs’ side of the case. See, e.g., Myles v. AlliedBarton Sec.
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Servs., LLC, No. 12-cv-05761-JD, 2014 WL 6065602, at *6 (N.D. Cal. Nov. 12, 2014) (“Absent a
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particularized showing of expenses incurred or injury suffered by [the named plaintiff] (above and
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beyond those of the other proposed class members), an enhancement award is inappropriate.”).
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That concern is heightened in cases, like this one, where the named plaintiff stands to receive a
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separate payment from the defendant due to an independently negotiated “Individual Settlement
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Agreement.” Dkt. No. 108-1, Exh. 1 ¶ 34. The request for an incentive award is denied.
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CONCLUSION
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The Court grants final approval of the class action settlement, grants the requests for
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attorneys’ fees and costs, and denies the requested incentive award. This action is dismissed with
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prejudice, each side to bear its own costs and attorneys’ fees except as provided by the settlement
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agreement and this order.
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IT IS SO ORDERED.
Dated: July 31, 2017
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JAMES DONATO
United States District Judge
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