Del Toro Lopez v. Uber Technologies, Inc.

Filing 72

ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AND FINAL JUDGMENT [*AS MODIFIED BY THE COURT*] re 60 MOTION for Attorney Fees, Costs, and Service Awards filed by Roxana Del Toro Lopez, Ana Medina, 59 MOTION for Final Approval of Settleme nt filed by Roxana Del Toro Lopez, Ana Medina. The Court sets a Compliance hearing re Post-Distribution Accounting for Friday, January 18, 2019 at 9:01 AM. This action is dismissed with prejudice, each side to bear its own costs and attorneys' fees except as provided by the Settlement and the Court's orders.. Signed by Judge Yvonne Gonzalez Rogers on 11/14/18. (fs, COURT STAFF) (Filed on 11/14/2018)

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Jahan C. Sagafi (SB# 224887)
Rachel W. Dempsey (SB# 310424)
Laura Iris Mattes (SB# 310594)
OUTTEN & GOLDEN LLP
One California Street, 12th Floor
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
E-mail: [e-mail]
E-mail: [e-mail]

Adam T. Klein (admitted pro hac vice)
OUTTEN & GOLDEN LLP
685 Third Avenue, 25th Floor
New York, New York 10017
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

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Rachel M. Bien (SB# 315886)
OUTTEN & GOLDEN LLP
601 S Figueroa St., Suite 4050
Los Angeles, CA 90017
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

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Counsel for Plaintiffs and Settlement Class Members
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

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ROXANA DEL TORO LOPEZ and ANA
MEDINA, on behalf of themselves and all
others similarly situated,

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Plaintiffs,
v.

Case Number: 17-cv-06255-YGR
[PROPOSED] ORDER GRANTING
FINAL APPROVAL OF SETTLEMENT
AND FINAL JUDGMENT
*as modified by the Court*

UBER TECHNOLOGIES, INC.,
Defendant.

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[PROPOSED] FINAL APPROVAL ORDER AND
FINAL JUDGMENT
CASE NO. 17-CV-06255-YGR

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On November 6, 2018, a hearing was held on the unopposed motion of Plaintiffs Roxana

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del Toro Lopez and Ana Medina (“Plaintiffs”) for final approval of the class settlement (Dkt. No.

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59); and on the separate motion of Plaintiffs and their counsel for awards of the Class

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Representative Service Payments and the Class Counsel Attorneys’ Fees and Costs Payment

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(Dkt. No. 60). Jahan C. Sagafi and Iris Mattes appeared for Plaintiffs. Nancy Abell appeared for

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Defendant Uber Technologies, Inc. (“Uber”).

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The Parties have submitted their Stipulation of Class Settlement and Release (Dkt. No.

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61-1 (the “Settlement”)), attached hereto as Exhibit 1, which this Court preliminarily approved in

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its April 19, 2018 order (Dkt. No. 49 (the “Preliminary Approval Order”)). In accordance with

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the Preliminary Approval Order, Class Members have been given notice of the terms of the

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Settlement and the opportunity to submit a claim form, comment on the settlement, and/or opt

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out of its provisions. In addition, pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. §

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1715 (“CAFA”), Uber has given the Attorney General of the United States and the appropriate

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state officials in the states in which the Class Members reside timely notice of the Settlement.

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Having received and considered the Settlement, the supporting papers filed by the Parties,

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and the evidence and argument received by the Court at the final approval hearing on November

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6, 2018, by means of this order (the “Final Approval Order”) the Court GRANTS final approval

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of the Settlement, and HEREBY ORDERS and MAKES DETERMINATIONS as follows:

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Definitions

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1.

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Except as otherwise specified herein, the Court for purposes of this Final

Approval Order adopts all defined terms set forth in the Settlement.

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Jurisdiction

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2.

This Court has jurisdiction over the subject matter of this litigation and all related

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matters and all state and federal claims raised in this action and released in the Settlement, and

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personal jurisdiction over Uber and all Class Members (except for those who timely filed opt-out

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requests). Specifically, this Court has federal question jurisdiction over this action pursuant to

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[PROPOSED] FINAL APPROVAL ORDER AND
FINAL JUDGMENT
CASE NO. 17-CV-06255-YGR

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28 U.S.C. § 1331 and section 16(b) of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §

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216(b).

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3.

This Court also has supplemental jurisdiction over all state-law claims asserted by

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Plaintiffs because the state-law claims derive from a common nucleus of operative fact and form

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part of the same case or controversy as those claims over which the Court has primary

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jurisdiction. See 28 U.S.C. § 1367 (providing for supplemental jurisdiction over related

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state-law claims that “form part of the same case or controversy”); United Mine Workers

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of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (holding that federal courts have supplemental

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jurisdiction over state law claims that arise from the same “common nucleus of operative fact”

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such that the parties “would ordinarily be expected to try them all in one judicial proceeding”).

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4.

This Court also has jurisdiction to approve the Settlement’s release of claims by

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Class Members over which the Court has jurisdiction, even if the Court would not independently

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have jurisdiction over those released claims. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442

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F.3d 741, 748 (9th Cir. 2006) (“[A] federal court may release not only claims alleged in the

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complaint, but also state claims arising from the same nucleus of operative facts over which the

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court would not have jurisdictional competence.”) (quoting Class Plaintiffs v. City of Seattle, 955

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F.2d 1268, 1287–88 (9th Cir. 1992)).

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Dissemination of Notice to Class Members

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5.

Pursuant to the Preliminary Approval Order, the notice documents were sent to

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each Class Member by email and by first-class mail. The notice was clear and organized,

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following the model forms provided by the Federal Judicial Center at www.fjc.gov. The notice

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materials informed Class Members of the terms of the Settlement, how their settlement share of

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Fund A would be calculated, how to submit a Claim Form, the conditions of eligibility for a

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settlement share of Fund B, their right to comment on (including object to) the Settlement or opt

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out of the Settlement to pursue their claims individually, and their right to appear in person or by

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counsel at the final approval hearing and be heard regarding approval of the Settlement.

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Adequate periods of time were provided by each of these procedures.

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[PROPOSED] FINAL APPROVAL ORDER AND
FINAL JUDGMENT
CASE NO. 17-CV-06255-YGR

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6.

The Court finds and determines that this notice procedure afforded adequate

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protections to Class Members and provides the basis for the Court to make an informed decision

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regarding approval of the Settlement based on the responses of Class Members. Notice was

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accomplished in the manner prescribed by the Settlement. The Court finds and determines that

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the notice provided in this case was the best notice practicable, which satisfied the requirements

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of law and due process.

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Notice to Attorneys General Pursuant to CAFA

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7.

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Pursuant to CAFA, within ten days after the filing of the motion seeking

preliminary approval of the Settlement, Uber served upon the Attorney General of the United

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States and the appropriate state officials of the states in which the Class Members reside a notice

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of the Settlement consisting of: a copy of the complaint in this action; a notice of the scheduled

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judicial hearing in this action; copies of the Settlement; and the proposed Notice. The Notice of

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Settlement also invited comment on the Settlement. This Final Approval Order is being entered

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at least 90 days after the later of the dates on which the appropriate federal and state officials

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were served with the notice of proposed settlement.

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The Court finds and determines that Uber’s notice of Settlement was timely,

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adequate, and compliant with the statutory requirements of CAFA. Accordingly, 28 U.S.C.

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§1715(e) has no application to the Settlement.

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Certification Under Fed. R. Civ. P. 23 and the FLSA

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9.

For the reasons stated in the Preliminary Approval Order, this Court finds and

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determines that the proposed Settlement Class, as defined in Section 1 of the Settlement and in

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Section II.A of its Preliminary Approval Order, meets all of the legal requirements for class

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certification under Federal Rule of Civil Procedure 23 (“Rule 23”) (a) and (b)(3), and it is hereby

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ordered that the Settlement Class is finally approved and certified as a Class for purposes of

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settlement of this action.

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10.

This Court finds and determines that the action meets all of the legal requirements

for certification as a collective action under section 16(b) of the FLSA, 29 U.S.C. § 216(b), for

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[PROPOSED] FINAL APPROVAL ORDER AND
FINAL JUDGMENT
CASE NO. 17-CV-06255-YGR

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the three-year period preceding the filing of Plaintiffs’ complaint, and it is hereby ordered that

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the action is certified as a collective action for purposes of settlement of this action.

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Fairness

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Pursuant to Rule 23(e), the Court further finds and determines that the terms of

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the Settlement are fair, reasonable, and adequate to the Class and to each Class Member and that

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the Class Members who have not opted out will be bound by the Settlement, that the Settlement

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is ordered finally approved, and that all terms and provisions of the Settlement should be and

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hereby are ordered to be consummated. The Court specifically finds that the Settlement is

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rationally related to the strength of Plaintiffs’ claims given the risk, expense, complexity, and

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duration of further litigation. This Court also finds that the Settlement is the result of arms’-

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length negotiations between experienced counsel representing the interests of the Class Members

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and Uber, under the supervision of an experienced and independent third-party mediator, after

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thorough factual and legal investigation. Staton v. Boeing Co., 327 F.3d 938, 960 (9th Cir.

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2003); Class Plaintiffs, 955 F.2d at 1291.

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12.

The Court finds and determines that the payments to be made to the Class

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Members as provided for in the Settlement, Section 5, are fair and reasonable. The proposed

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plan of allocation bases each Class Member’s recovery on (a) the number of weeks during the

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Covered Period the Class Member worked, (b) the Class Member’s position, (c) whether the

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Class Member worked in California, (d) when the Class Member was employed with Uber, (e)

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whether the Class Member worked full-time or part-time, (f) whether the Class Member

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previously signed a release of claims, and (g) whether the Class Member submitted a Claim

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Form and the contents of the Claim Form. The plan of allocation is rational. The Court hereby

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gives final approval to the payments and orders those amounts be paid to the claimants out of the

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Net Fund value in accordance with the terms of the Settlement.

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Class Member Response

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13.

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The Court further finds that the response of the Class Members to the Settlement

supports settlement approval. Of the 485 Class Members, only two opted out of the Settlement.

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[PROPOSED] FINAL APPROVAL ORDER AND
FINAL JUDGMENT
CASE NO. 17-CV-06255-YGR

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No Class Members objected to the Settlement.

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Appointment of Class Representatives and Class Representative Service Awards

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The Court confirms as final the appointment of Roxana del Toro Lopez and Ana

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Medina as Class Representatives of the Rule 23 Class and the nationwide FLSA Class under

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section 16(b). The Court finds and determines that the award of $50,000 to Ms. del Toro Lopez

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and $30,000 to Ms. Medina for their services as Class Representatives, in addition to their

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Individual Settlement Payments, is fair and reasonable.

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Plaintiffs have satisfied the criteria as set forth in Staton, 327 F.3d 938. Under

Staton, service awards should be evaluated using “relevant factors, includ[ing] the actions the

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plaintiff has taken to protect the interests of the class, the degree to which the class has benefitted

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from those actions, . . . the amount of time and effort the plaintiff expended in pursuing the

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litigation . . . and reasonabl[e] fear[s of] workplace retaliation.” Id. at 977 (internal quotation

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marks omitted) (alterations in original). Here, the Class Representatives’ initiation of this suit

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caused them personal exposure and potential adverse consequences with future employers.

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16.

Ms. del Toro Lopez and Ms. Medina were substantially involved throughout the

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litigation, educating Class Counsel regarding Class Members’ job duties and Uber’s policies and

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procedures. The Court hereby approves the Class Representative Service Awards as set forth

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herein, to be made to Class Representatives out of the Qualified Settlement Fund in accordance

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with the terms of the Settlement.

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Appointment of Class Counsel; Attorneys’ Fees and Costs

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The Court hereby finds that the requested payment of $2,500,000 in attorneys’

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fees and $152,958 in litigation costs and expenses, for a total payment of $2,652,958 to Class

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Counsel, is fair and reasonable and orders that payment be made to Class Counsel out of the

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Gross Fund Value in accordance with the terms of the Settlement. See, e.g., Vizcaino v.

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Microsoft Corp., 290 F.3d 1043 (9th Cir. 2002); In re Wash. Pub. Power Supply Sec. Litig., 19

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F.3d 1291, 1297 (9th Cir. 1994). First, in granting the award, the Court recognizes that the fee is

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25% of the total fund, which is consistent with the Ninth Circuit’s 25% “benchmark” for class

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[PROPOSED] FINAL APPROVAL ORDER AND
FINAL JUDGMENT
CASE NO. 17-CV-06255-YGR

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action settlements, In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 942 (9th Cir.

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2011), and the norm in this district in cases involving comparable common funds. See e.g.

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Hopwood v. Nuance Commc’ns, Inc., No. 4:13-cv-02132-YGR, 2015 WL 12941896, at *2 (N.D.

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Cal. Oct. 28, 2015) (finding 25% of common fund of $6,500,000 to be fair and reasonable);

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Pimental v. Google Inc., No. 11-cv-02585-YGR, 2013 WL 12177158, at *3 (N.D. Cal. June 26,

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2013) (finding 25% of common fund of $6,000,000 to be fair and reasonable). Second, while it

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is difficult to monetize the value of the injunctive relief, “[t]he fact that [class] counsel obtained

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injunctive relief in addition to monetary relief for their clients is . . . a relevant circumstance to

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consider in determining what percentage of the fund is reasonable as fees.” Staton, 327 F.3d at

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946. Third, the Settlement contemplates that during the injunctive period, Class Counsel will

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continue to engage for three years without payment to monitor the programmatic relief that Uber

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has undertaken. These efforts are to be completed in addition to the hours noted.

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Fourth, under a lodestar cross-check, the lodestar multiplier of 2.9x supports the fee

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award. See id. at 968. Class Counsel attest to performing substantial work on behalf of the Class

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Members, totaling $856,314 in lodestar. Except as set forth below, the Court finds the hours

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worked by Class Counsel to have been reasonably incurred for the benefit of the Class Members.

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Class Counsel’s hourly rates, ranging from $250 to $850 for attorneys, are reasonable in light of

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the market for legal services of this type and quality. In addition, Class Counsel attested at the

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final approval hearing that the matter was leanly staffed, with the bulk of the work performed by

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two associates and one partner. Moreover, the Court finds the fact that only one law firm was

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involved in representing the Class Members mitigates against the risk of duplicative work. The

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Court hereby confirms as final the appointment of Adam T. Klein, Jahan C. Sagafi, Rachel Bien,

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Rachel Williams Dempsey, and Iris Mattes of Outten & Golden LLP as Class Counsel for the

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Rule 23 and FLSA Classes. Class Counsel has capably and effectively represented the Class

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Members’ interests.

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Notwithstanding the foregoing, and as stated on the record at the final approval hearing,

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the Court finds that certain factors have contributed to an inflated lodestar figure. For example,

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[PROPOSED] FINAL APPROVAL ORDER AND
FINAL JUDGMENT
CASE NO. 17-CV-06255-YGR

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Class Counsel charged excessively high hourly rates for work performed by its contract and staff

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attorneys, ranging from $280 to $425, in contrast to the $25 to $75 that these individuals are

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actually paid, excluding benefits. Moreover, having reviewed the billing timesheets submitted to

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the Court at the final approval hearing, the Court finds Class Counsel’s charges for

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administrative tasks at attorney and paralegal rates, as opposed to nonchargeable administrative

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overhead, to be inappropriate. Such charges include, inter alia, booking travel to the mediation,

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processing reimbursement requests for mediation-related travel, transcribing voicemails, and

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formatting motions. In addition, while there may have been internal reasons for having four

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attorneys attend the mediation, charging the Class Members for the attendance of all four

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attorneys is not appropriate. The Court also finds that Class Counsel should not be compensated

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for time spent on media-related activity, especially since there is no indication in the billing

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timesheets or elsewhere that any such activity was “directly and intimately related to the

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successful representation of [the Class Members]” or “contribute[d], directly and substantially, to

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the attainment of [the] litigation goals.” L.H. v. Schwarzenegger, 645 F. Supp. 2d 888, 900 (E.D.

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Cal. 2009) (internal quotation marks omitted).

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In light of the above, the Court would typically reduce the award accordingly, and Class

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Counsel are so admonished. However, the Court finds that the amount of any reduction is offset

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by the work Class Counsel will be performing over the next three years without payment to

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monitor the programmatic relief that Uber has undertaken. Accordingly, the Court approves the

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requested award.

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Settlement Administrator Report

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18.

Upon completion of administration of the Settlement, the Settlement

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Administrator, JND Legal Administration, will provide written certification of such completion

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to the Court and counsel for the Parties.

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Compliance Hearing re: Post-Distribution Accounting

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19.

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The Court hereby SETS a compliance hearing for Friday, January 18, 2019 on

the Court’s 9:01 a.m. calendar in the Federal Building, 1301 Clay Street, Oakland, California in

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[PROPOSED] FINAL APPROVAL ORDER AND
FINAL JUDGMENT
CASE NO. 17-CV-06255-YGR

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Courtroom 1. No later than five (5) business days prior to the date of the hearing, the parties

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shall file a Post-Distribution Accounting in compliance with this District’s Procedural Guidance

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for Class Action Settlements, see

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https://www.cand.uscourts.gov/ClassActionSettlementGuidance.

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If compliance is complete, the parties need not appear, and the compliance hearing will

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be taken off calendar.

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Release

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20.

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By operation of the entry of this Final Approval Order and pursuant to the

Settlement, all Qualified Claimants are permanently barred from prosecuting against Uber any

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Claim as set forth in Section 12 of the Settlement. The Court has reviewed the release in Section

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12 of the Settlement and finds it to be fair, reasonable, and enforceable under Rule 23, the FLSA,

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and all other applicable law.

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Contingency on Finality

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21.

If, for any reason, the Settlement ultimately does not become Final (as defined in

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the Settlement, Section 1.10), this Final Approval Order will be vacated; the Parties will return to

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their respective positions in this action as those positions existed immediately before the parties

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executed the Settlement; and nothing stated in the Settlement or any other papers filed with this

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Court in connection with the Settlement will be deemed an admission of any kind by any of the

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Parties or used as evidence against, or over the objection of, any of the Parties for any purpose in

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this action or in any other action.

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Final Judgment and Dismissal

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22.

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By means of this Final Approval Order, this Court hereby enters final judgment in

this action, as defined in Federal Rule of Civil Procedure 58(a)(1).
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Without affecting the finality of the Court’s judgment in any way, the Court

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retains jurisdiction over this matter, for a period of three (3) years, for purposes of resolving

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issues relating to interpretation, administration, implementation, effectuation, and enforcement of

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the Settlement. Nothing in this Final Approval Order will preclude any action to enforce the

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[PROPOSED] FINAL APPROVAL ORDER AND
FINAL JUDGMENT
CASE NO. 17-CV-06255-YGR

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Parties’ obligations under the Settlement or under this order, including the requirement that Uber

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make the settlement payments in accordance with the terms of the Settlement.

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The Parties are hereby ordered to comply with the terms of the Settlement.

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25.

This action is dismissed with prejudice, each side to bear its own costs and

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attorneys’ fees except as provided by the Settlement and the Court’s orders.

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Dated: November 14, 2018
The Honorable Yvonne Gonzalez Rogers
United States District Judge

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[PROPOSED] FINAL APPROVAL ORDER AND
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CASE NO. 17-CV-06255-YGR

EXHIBIT 1