Fontes v. Heritage Operating, L.P. et al

Filing 55

ORDER Granting Final Approval of Class Action Settlement (ECF No. 49 ); Granting Motion for Attorneys' Fees, Costs, and Incentive Award (ECF No. 47 ); Judgment and Order of Dismissal: The Court Orders that payments be made to the Settlement Cla ss Members out of the $550,000 Settlement Fund. The Court Grants the application presented by Class Counsel for an award of attorneys' fees in the amount of $165,000 and reimbursement of litigation costs in the amount of $19,295. 67. The Court hereby Approves the application for a Class Representative incentive award in the amount of $5,000 to Plaintiff William Beckman. The parties are hereby Ordered to comply with the terms of the Settlement Agreement. This action, inc luding the claims alleged in the complaint filed with this action, is hereby Dismissed with prejudice, each side to bear its own costs and attorneys' fees, except as provided by the Settlement Agreement and this Order. Without affecting the finality of this Order, the Court retains jurisdiction of all matters relating to the interpretation, administration, implementation, effectuation, and enforcement of this Order and the Settlement. Signed by Judge Michael M. Anello on 4/14/2016.(rlu)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 EDWARD FONTES, an individual, on behalf of himself; WILLIAM BECKMAN, an individual, on behalf of himself, a class of persons similarly situated, and the general public, 14 15 16 17 Case No.: 14cv1413-MMA (NLS) ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT; [Doc. No. 49] Plaintiffs, v. GRANTING MOTION FOR ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARD HERITAGE OPERATING, L.P., a Delaware Limited partnership; AMERIGAS, a Pennsylvania corporation; and DOES 1 through 100, inclusive, 18 Defendants. 19 20 [Doc. No. 47] Plaintiff William Beckman, on behalf of himself and all others similarly situated, 21 moves for final approval of class action settlement and for attorneys’ fees, costs, and an 22 incentive award. Doc. Nos. 49, 47. The Court held a final approval hearing on these 23 matters pursuant to Federal Rule of Civil procedure 23(e)(2). Doc. No. 54. For the 24 reasons set forth below, the Court GRANTS Plaintiff’s Motion for Final Approval of 25 Class Action Settlement and Motion for Attorneys’ Fees, Costs, and Class Representative 26 Incentive Award. 27 // 28 // -1- 14cv1413-MMA (NLS) 1 BACKGROUND 2 Defendants Heritage Operating, L.P. (“Heritage”) and AmeriGas (collectively, 3 “Defendants”) are in the propane business. They acquire propane in large quantities from 4 their suppliers and then deliver the propane to residential and business customers using 5 their own propane delivery trucks. The putative Class Members are propane-purchasing 6 customers of Heritage, which did business in Southern California through various local 7 entities (Pro-Flame of Julian, Pro-Flame of Ramona, etc.). These entities were eventually 8 acquired by AmeriGas. 9 The Pricing of propane is not regulated in California. However, in selling their 10 propane Defendants advertised that their customers would be charged after each delivery 11 based on the “laid-in cost” (the cost of the purchase of propane from Defendants’ 12 suppliers plus the cost of delivery in trucks to Class Members), and an additional amount 13 that was negotiated between each Class Member and Defendants. 14 Plaintiff Edward Fontes filed this putative class action lawsuit against Defendants 15 in April 2014 in California Superior Court, alleging violations of California’s False 16 Advertising Law (“FAL”) and Unfair Competition Law (“UCL”). Plaintiff alleges 17 Defendants inflated the true price of their laid-in cost to Class Members, and that Class 18 Members were therefore overcharged for each gallon of propane they purchased. 19 On June 10, 2014, Defendants removed the case to this Court. On September 29, 20 2014, the Court granted the parties’ joint motion for leave to file a second amended 21 complaint substituting William Beckman as Class Representative in place of Edward 22 Fontes. 23 Over the course of the litigation, the parties have engaged in significant 24 investigation and informal discovery, including analysis of Defendants’ consumer pricing 25 in ten sample districts in California. On May 26, 2015, the parties engaged in a full-day 26 private mediation before The Honorable Edward A. Infante (Ret.) in San Francisco. The 27 parties reached a settlement at the mediation, and engaged in confirmatory discovery 28 before executing a formal settlement agreement. -2- 14cv1413-MMA (NLS) 1 The Court granted preliminary approval of the class action settlement on 2 November 23, 2015. Doc. No. 45. Plaintiff filed his Motion for Attorneys’ Fees, Costs, 3 and Class Representative Incentive Award on February 5, 2016 (Doc. No. 47), and his 4 Motion for Final Approval of Class Action Settlement on February 29, 2016 (Doc. No. 5 49). DISCUSSION 6 7 I. Overview of the Settlement 8 A. 9 The Settlement Class is defined as all Heritage customers in California who: (1) Settlement Class 10 purchased propane at any time between January 1, 2008 and August 31, 2012 (the “Class 11 Period”); (2) did not purchase propane from Defendants following the implementation of 12 an arbitration agreement which became effective on September 1, 2012; and (3) were 13 assigned a price code based in part on Heritage’s laid-in cost. The Class excludes two 14 customers who were demonstrably undercharged, and the members of a particular 15 Homeowners Association who did not individually contract with defendants. 16 The parties have identified 706 Class Members. The Class members are divided 17 into a “High Volume” Class (the seven members who each purchased over 35,000 18 gallons of propane), and the “Remaining” Class (699 members who purchased less than 19 35,000 gallons of propane). 20 B. Settlement Terms 21 The proposed settlement creates a non-reversionary common fund of $550,000. 22 Under the terms of the Settlement Agreement, the seven members of the High Volume 23 Class who purchased more than 35,000 gallons of propane during the Class Period will 24 receive approximately 75% of their calculated net overcharges. The balance of the 25 settlement fund will then be distributed to the 6331 members of the Remaining Class who 26 27 1 Ultimately, the parties were unable to locate 66 of the 706 Class Members despite using 28 all reasonable efforts, even above and beyond what was called for in the Settlement -3- 14cv1413-MMA (NLS) 1 purchased fewer than 35,000 gallons of propane during the Class Period on a pro rata 2 basis. Based on an average overcharge of 32 cents per gallon, as determined by the 3 parties in discovery, the Remaining Class Members will receive approximately 84% of 4 their calculated net overcharges as a result of this settlement. 5 Pursuant to the terms of the Settlement Agreement, the parties appointed CPT 6 Group, Inc. as the Claims Administrator. The Claims Administrator mailed notice of this 7 class action settlement to Class Members on December 14, 2015 via U.S. first-class mail. 8 Class Members who objected to the settlement or did not wish to participate had 60 9 calendar days within which to file an objection or a request for exclusion with the Claims 10 Administrator. As of April 4, 2016, no objections or requests for exclusion from the 11 settlement have been received. 12 In the Settlement Agreement, Defendants agree not to oppose an award of 13 attorneys’ fees up to 30% of the total settlement amount (i.e., $165,000), litigation costs 14 of up to $20,000, and a Class Representative incentive award of $5,000. 15 II. Motion for Final Approval of Class Settlement 16 A. 17 Courts require a higher standard of fairness when settlement takes place prior to Legal Standard 18 class certification to ensure class counsel and defendants have not colluded in settling the 19 case. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998). Ultimately, “[t]he 20 court’s intrusion upon what is otherwise a private consensual agreement negotiated 21 between the parties to a lawsuit must be limited to the extent necessary to reach a 22 reasoned judgment that the agreement is not the product of fraud or overreaching by, or 23 collusion between, the negotiating parties, and that the settlement, taken as a whole, is 24 25 Agreement. See Doc. No. 52 (at the fairness hearing, Class Counsel informed the Court 26 that one additional Class Member could not be contacted, bringing the total number listed 27 in Doc. No. 52 to 66). The parties and the Court agree that the funds that would have been distributed to the 66 Class Members should instead be distributed equally among the 28 rest of the Remaining Class. -4- 14cv1413-MMA (NLS) 1 fair, reasonable and adequate to all concerned.” Officers for Justice v. Civil Serv. 2 Comm’n, 688 F.2d 615, 625 (9th Cir. 1982). 3 Courts consider several factors in determining whether a proposed settlement is 4 “fair, reasonable, and adequate” under Rule 23(e). Such factors may include: (1) the 5 strength of the case; (2) the risk, expense, complexity, and likely duration of further 6 litigation and the risk of maintaining class action status throughout the trial; (3) the stage 7 of the proceedings; (4) the settlement amount; (5) whether the class has been fairly and 8 adequately represented during settlement negotiations; and (6) the reaction of the class to 9 the proposed settlement. Staton v. Boeing Co., 327 F.3d 938, 959 (9th Cir. 2003). The 10 Court need only consider some of these factors—namely, those designed to protect 11 absentees. See Molski v. Gleich, 318 F.3d 937, 954 (9th Cir. 2003) (overruled in part on 12 other grounds). 13 Judicial policy favors settlement in class actions and other complex litigation 14 where substantial resources can be conserved by avoiding the time, cost, and rigors of 15 formal litigation. In re Wash. Pub. Power Supply Sys. Sec. Litig., 720 F. Supp. 1379, 16 1387 (D. Ariz. 1989). 17 18 19 20 B. Fairness Factors 1. Strength of the case, and the risk, expense, complexity, and likely duration of further litigation To determine whether the proposed settlement is fair, reasonable, and adequate, the 21 Court must balance the continuing risks of litigation (including the strengths and 22 weaknesses of the Plaintiff’s case), with the benefits afforded to members of the Class, 23 and the immediacy and certainty of a substantial recovery. See In re Mego Fin. Corp. 24 Sec. Litig., 213 F.3d 454, 458 (9th Cir. 2000). In other words: The Court shall consider the vagaries of litigation and compare the 25 significance of immediate recovery by way of the compromise to the mere possibility of relief in the future, after protracted and expensive litigation. In 26 this respect, “It has been held proper to take the bird in hand instead of a prospective flock in the bush.” 27 28 -5- 14cv1413-MMA (NLS) 1 Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 526 (C.D. Cal. 2004) 2 (citations omitted). 3 Plaintiff contends that he and the Class face significant risks if the litigation were 4 to continue. For instance, Defendants will likely move for summary judgment as to the 5 named Plaintiff. Additionally, Plaintiff asserts that class certification would pose a 6 substantial challenge, that both liability and damages remain disputed, and that 7 Defendants “will assert various defenses, including challenging Plaintiff’s standing on 8 injury and statute of limitations grounds.” Accordingly, this factor weighs in favor of 9 approving the settlement. 10 11 2. Risk of maintaining class action status through trial Pursuant to Rule 23, the Court may revisit a prior order granting certification of a 12 class at any time before final judgment. See Fed. R. Civ. P. 23(c)(1)(C) (“An order that 13 grants or denies class certification may be altered or amended before final judgment.”). 14 Where there is a risk of maintaining class action status throughout the trial, this factor 15 favors approving the settlement. Adoma v. Univ. of Phoenix, Inc., 913 F. Supp. 2d 964, 16 976 (E.D. Cal. 2012) (finding that the complexity of the case weighed in favor of 17 approving the settlement). 18 While Plaintiff believes that he would have strong argument for certifying a class, 19 Defendants have argued that individualized issues will predominate because any 20 overcharges that resulted from its pricing structure were inadvertent and limited to a 21 small number of customers, and may involve consideration of each customer’s pricing 22 agreement with Defendants. Accordingly, this factor weighs in favor of settlement. 23 24 3. Stage of the proceedings “A settlement following sufficient discovery and genuine arms-length negotiation 25 is presumed fair.” DIRECTV, 221 F.R.D. at 528. In the context of class action 26 settlements, as long as the parties have sufficient information to make an informed 27 decision about settlement, “formal discovery is not a necessary ticket to the bargaining 28 -6- 14cv1413-MMA (NLS) 1 table.” Linney v. Cellular Alaska P’ship, 151 F.3d 1234, 1239 (9th Cir. 1998) (quoting In 2 re Chicken Antitrust Litig., 669 F.2d 228, 241 (5th Cir.1982)). 3 Based on the parties’ representations, it appears the Settlement Agreement resulted 4 from arms-length negotiations during a private mediation before a retired judge, and was 5 not the result of collusion. Although formal discovery was not conducted in this case, 6 Class counsel engaged in extensive investigation and informal discovery, including 7 analyzing pricing summaries from ten districts Defendants sold propane in, as well as the 8 raw data used to prepare the summaries. Class Counsel also conducted confirmatory 9 discovery, including taking the deposition of Defendants’ manager of central pricing, 10 prior to finalizing the Settlement Agreement. This factor favors approval. 11 12 4. Settlement amount “In assessing the consideration obtained by the class members in a class action 13 settlement, it is the complete package taken as a whole, rather than the individual 14 component parts, that must be examined for overall fairness.” DIRECTV, 221 F.R.D. at 15 527 (internal citation and alteration omitted). “[I]t is well-settled law that a proposed 16 settlement may be acceptable even though it amounts to only a fraction of the potential 17 recovery that might be available to the class members at trial.” Id. (citing Officers for 18 Justice, 688 F.2d at 628). 19 Pursuant to the Settlement Agreement, Defendants must establish a non- 20 reversionary Settlement Fund of $550,000 from which the Class Representative incentive 21 award, Class Counsel’s fees and costs, the costs of settlement administration, and the 22 Class Member claims will be paid. This will result in the High Volume Class receiving 23 approximately 78% of their alleged overcharges, and the Remaining Class receiving 24 approximately 84%. If, after the settlement checks are disbursed, the total amount 25 remaining from any uncashed checks is sufficient to justify a second distribution, those 26 funds will be distributed on a pro-rata basis to the Class Members who did cash their 27 checks. Otherwise, the funds will be donated via cy pres to California Rural Legal 28 -7- 14cv1413-MMA (NLS) 1 Assistance, Inc. No settlement funds will revert to Defendants. This factor favors 2 approval. 3 5. 4 5 Whether the Class has been fairly and adequately represented during settlement negotiations “Great weight is accorded to the recommendation of counsel, who are most closely 6 acquainted with the facts of the underlying litigation. This is because parties represented 7 by competent counsel are better positioned than courts to produce a settlement that fairly 8 reflects each party’s expected outcome in the litigation.” DIRECTV, 221 F.R.D. at 528; 9 Adoma, 913 F. Supp. 2d at 977. 10 Class Counsel assert that they have experience litigating and settling consumer 11 class actions, including cases that involve false and misleading advertising and unfair 12 business practices. It appears the Class was adequately represented by competent 13 counsel, so this factor supports approval of the settlement. 14 15 6. The reaction of the Class to the proposed settlement The Ninth Circuit has held that the number of class members who object to a 16 proposed settlement is a factor to be considered. Mandujano v. Basic Vegetable Prods. 17 Inc., 541 F.2d 832, 837 (9th Cir. 1976). The absence of a large number objectors 18 supports the fairness, reasonableness, and adequacy of the settlement. See In re Austrian 19 & German Bank Holocaust Litig., 80 F. Supp. 2d 164, 175 (S.D.N.Y. 2000) (“If only a 20 small number of objections are received, that fact can be viewed as indicative of the 21 adequacy of the settlement.”) (citations omitted); Boyd v. Bechtel Corp., 485 F. Supp. 22 610, 624 (N.D. Cal. 1979) (finding “persuasive” the fact that 84% of the class has filed 23 no opposition). 24 After receiving notice of the proposed settlement, none of the 706 Class Members 25 have objected or requested an exclusion. Accordingly, this factor favors approval. 26 // 27 // 28 // -8- 14cv1413-MMA (NLS) 1 C. Conclusion 2 Upon due consideration of the factors set forth above, the Court finds that the 3 settlement is “fair, reasonable, and adequate” under Rule 23(e), and therefore GRANTS 4 the Motion for Final Approval of Class Action (Doc. No. 49). 5 II. Motion for Award of Attorneys’ Fees , Costs, and Class Representative 6 Incentive Award 7 Plaintiff seeks attorneys’ fees of $165,000 (approximately 30% of the Settlement 8 Fund), as well as litigation costs of $19,295.67, and a Class Representative incentive 9 award of $5,000. 10 A. Relevant Law 11 Rule 23(h) of the Federal Rules of Civil Procedure provides that, “[i]n a certified 12 class action, the court may award reasonable attorney’s fees and nontaxable costs that are 13 authorized by law or by the parties’ agreement.” A court has discretion to calculate and 14 award attorneys’ fees using either the lodestar method or the percentage-of-the-fund 15 method. Vizcaino v. Microsoft Corp., 290 F.3d 1043 (9th Cir. 2002). 16 The Ninth Circuit has held that 25% of the gross settlement amount is the 17 benchmark for attorneys’ fees awarded under the percentage method. Id. at 1047. “The 18 benchmark percentage should be adjusted, or replaced by a lodestar calculation, when 19 special circumstances indicate that the percentage recovery would be either too small or 20 too large in light of the hours devoted to the case or other relevant factors.” Six (6) 21 Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1311 (9th Cir. 1990). 22 With respect to the percentage method, case law surveys suggest that 50% is the 23 upper limit, with 30–50% commonly being awarded in cases in which the common fund 24 is relatively small. See Rubenstein, Conte and Newberg, Newberg on Class Actions at § 25 14:6. California cases in which the common fund is small tend to award attorneys’ fees 26 above the 25% benchmark. See Craft v. Cnty. of San Bernardino, 624 F. Supp. 2d 1113, 27 1127 (C.D. Cal. 2008) (holding attorneys fees for large fund cases are typically under 28 25% and cases below $10 million are often more than the 25% benchmark). -9- 14cv1413-MMA (NLS) 1 Regardless of whether the Court uses the percentage approach or the lodestar 2 method, the ultimate inquiry is whether the end result is reasonable. Powers v. Eichen, 3 229 F.3d 1249, 1258 (9th Cir. 2000). The Ninth Circuit has identified a number of 4 factors that may be relevant in determining if the award is reasonable: (1) the results 5 achieved; (2) the risks of litigation; (3) the skill required and the quality of work; (4) the 6 contingent nature of the fee; (5) the burdens carried by class counsel; and (6) the awards 7 made in similar cases. See Vizcaino, 290 F.3d at 1048–50. 8 B. The Requested Attorneys’ Fees Are Reasonable 9 Class Counsel seeks an award of attorneys’ fees under the percentage-of-the-fund 10 method in an amount of $165,000, or approximately 30% of the Settlement Fund. The 11 percentage-of-the-fund method appears appropriate in this common fund case, and Class 12 Counsel’s request appears reasonable given the high level of risk involved and the highly 13 favorable result for the Settlement Class. The Court has also considered additional 14 factors listed below. 15 16 1. The results achieved are very good The Class is receiving a very favorable outcome because the High Volume Class 17 will receive approximately 78% of their alleged overcharges back and the Remaining 18 Class will receive 84%. This translates to an average payment of approximately $10,300 19 to the seven High Volume Class Members, and an average payment of approximately 20 $431 to the 633 Remaining Class Members. Accordingly, this factor favors approval of 21 the requested attorneys’ fees award. 22 23 2. Continued litigation may have been risky The original named plaintiff in this matter was compelled into arbitration, and 24 there was a chance that the statute of limitations would bar the claims of current named 25 Plaintiff William Beckman. Additionally, it is disputed whether Defendant’s pricing 26 practices constituted an actual statement or representation under California law, and it is 27 not clear that Plaintiff’s unlawful business practices claim under California’s UCL could 28 have been tied to a specific unlawful practice. Additionally, because Plaintiff’s claims -10- 14cv1413-MMA (NLS) 1 ultimately relied in some part on individual agreements made between each individual 2 Class Member and Defendants, there was a substantial risk that Class Certification would 3 have been unobtainable. Accordingly, this factor favors approval of the requested 4 attorneys’ fees award. 5 6 3. Counsel appear to have provided skilled and high quality work Litigating this case and negotiating the proposed settlement involved significant 7 research and investigation by counsel, as well as informal discovery (including statistical 8 analysis and depositions), and a private mediation. Accordingly, this factor favors 9 approval of the requested attorneys’ fees award. 10 11 4. Counsel worked on a contingent fee Class Counsel bore the risk and cost of this litigation for nearly two years on a 12 contingency basis. Counsel advanced all costs and deferred all payment of fees in this 13 case with no guarantee that their expenses would be recovered. Litigating this case also 14 required counsel to forgo other fee generating work. Accordingly, this factor favors 15 approval of the requested attorneys’ fees award. 16 17 5. The award is similar to those made in other cases Although Ninth Circuit courts generally use a 25% benchmark as the starting point 18 for analysis under the percentage-of-the-fund method, courts frequently approve fee 19 awards above the benchmark. Here, the amount of the common fund is relatively small, 20 so an award that is higher than the 25% benchmark is normal. See Craft, 624 F. Supp. 2d 21 at 1127 (holding attorneys’ fees for large fund cases are typically under 25% and cases 22 below $10 million are often more than the 25% benchmark); Mason v. Heel, Inc., No. 23 3:12-CV-03056-GPC, 2014 WL 1664271, at *6 (S.D. Cal. Mar. 13, 2014) (awarding 24 30% of $1,000,000 common fund in case involving UCL and FAL claims regarding 25 homeopathic remedies). Accordingly, this factor favors approval of the requested 26 attorneys’ fees award. 27 // 28 // -11- 14cv1413-MMA (NLS) 1 2 6. A lodestar cross-check supports the reasonableness of the award Class Counsel requests a fee award of $165,000. To date, Class Counsel has 3 provided itemized billing records showing an expenditure of more than 624 hours on this 4 matter. Counsel’s hourly rates range from $495 per hour to $695 per hour, and counsel 5 has incurred fees in the amount of $354,140. “[C]ourts have routinely enhanced the 6 lodestar to reflect the risk of non-payment in common fund cases.” Vizcaino, 290 F.3d at 7 1051. Counsel’s requested award, even without a multiplier, is significantly less than 8 what they may be entitled to under the lodestar method. Accordingly, this factor favors 9 approval of the requested attorneys’ fees award. 10 For these reasons, the Court GRANTS Plaintiff’s request for attorneys’ fees in the 11 amount of $165,000. Plaintiff’s Costs Are Reasonable 12 C. 13 Federal Rule of Civil Procedure 23(h) provides that, “[i]n a certified class action, 14 the court may award reasonable attorneys’ fees and nontaxable costs that are authorized 15 by law or by the parties’ agreement.” Class counsel are entitled to reimbursement of the 16 out-of-pocket costs they reasonably incurred investigating and prosecuting this case. See 17 In re Media Vision Tech. Sec. Litig., 913 F. Supp. 1362, 1366 (N.D. Cal. 1996) (citing 18 Mills v. Electric Auto-Lite Co., 396 U.S. 375, 391–92 (1970)); Staton, 327 F.3d at 974. 19 Class Counsel’s expenses include court filing fees, research costs, mediation- 20 related expenses, attorney services costs, and travel expenses. See Doc. No. 47-1 at 16– 21 18; Doc. No. 47-2 at 5. Accordingly, because Class Counsel’s out-of-pocket costs were 22 reasonably incurred in connection with the prosecution of this litigation, and were 23 advanced by Counsel for the benefit of the Class, the Court APPROVES reimbursement 24 of litigation costs in the amount of $19,295.67. 25 // 26 // 27 // 28 // -12- 14cv1413-MMA (NLS) 1 D. A Class Representative Incentive Award is Appropriate 2 “Incentive awards are appropriate only to compensate named plaintiffs for work 3 done in the interest of the class.” Chun-Hoon v. McKee Foods Corp., 716 F. Supp. 2d 4 848, 854 (N.D. Cal. 2010) (citing Staton, 327 F.3d at 977). Courts should ensure that an 5 incentive award is not based on fraud or collusion. Id. 6 The only class representative in this case is Plaintiff William Beckman. Mr. 7 Beckman appears to have spent a significant amount of time consulting with Class 8 Counsel and provided information that was important to counsel’s understanding of the 9 case and ability to negotiate a fair settlement. This award does not appear to be the result 10 of fraud or collusion. Accordingly, the Court APPROVES the $5,000 service award as 11 reasonable. 12 CONCLUSION 13 For the reasons set forth above, the Court finds that the proposed class action 14 settlement is fair, adequate, and reasonable pursuant to Federal Rule of Civil Procedure 15 23(e), and therefore GRANTS Plaintiff’s Motion for Final Approval of Class Action 16 Settlement (Doc. No. 49). The Court further GRANTS Plaintiff’s Motion for Attorneys’ 17 Fees, Costs, and Class Representative Incentive Award (Doc. No. 47) and APPROVES 18 Plaintiff’s requests as follows: 19 1. 20 21 $165,000; 2. 22 23 24 Class Counsel shall receive an award for attorneys’ fees in the amount of Class Counsel’s litigation costs shall be reimbursed in the amount of $19,295.67; and 3. Class Representative William Beckman shall receive an incentive award in the amount of $5,000. 25 // 26 // 27 // 28 // -13- 14cv1413-MMA (NLS) JUDGMENT AND ORDER OF DISMISSAL 1 2 The Court APPROVES the settlement and ORDERS the parties to implement the 3 Settlement Agreement according to its terms and any additional conditions set forth in 4 this Order. 5 8 1. The Settlement Class covered by this Order is defined as: All Heritage Operating, L.P. laid-in cost based customers in California who purchased propane during the relevant Class Period, and who did not purchase propane from Defendants after August 31, 1012, provided however, that the Settlement Class shall not include persons or entities excluded pursuant to Paragraph 13 of the Settlement Agreement. 9 2. 6 7 Pursuant to this Court’s November 23, 2015 Order Granting Motion for 10 Preliminary Approval of Class Action Settlement and Approving Notice to the Class 11 (Doc. No. 45), a Notice of Pendency of Class Action was sent to each Class Member by 12 first-class mail. The notice informed Class members of the terms of the Settlement, their 13 right to object to the Settlement or elect not to participate in the Settlement and to pursue 14 their own remedies, and their right to appear in person or by counsel at the Final 15 Approval Hearing and be heard regarding approval of the Settlement. Adequate periods 16 of time were provided for each of these procedures. No Class Members filed written 17 objections to the Settlement or stated an intent to appear at the Final Approval Hearing. 18 3. The Court finds and determines that the notice procedure afforded adequate 19 protections to Class Members and provided the best notice practicable. The notice 20 satisfied the requirements of law and due process. 21 4. The Court has determined that the proposed Settlement Class, as defined 22 above, meets all of the legal requirements for class certification, and it is hereby 23 ORDERED that the Settlement Class is finally approved and certified as a Class for 24 Purposes of Settlement of this Action. 25 5. The Court further finds and determines that the terms of the Settlement are 26 fair, reasonable, and adequate as to each Class Member, that Class Members shall be 27 bound by the Settlement, and ORDERS that the Settlement is finally approved, and that 28 all terms and provisions of the Settlement shall be consummated. -14- 14cv1413-MMA (NLS) 1 6. The Court finds that the Claims Administrator, CPT Group, Inc. has 2 complied with the notice requirements of the Class Action Fairness Act, 28 U.S.C. § 3 1715(b). 4 7. The Court finds and determines that the payments to be made to the 5 Settlement Class are fair and reasonable. The Court ORDERS that payments be made to 6 the Settlement Class Members out of the $550,000 Settlement Fund in accordance with 7 the terms of the Settlement. 8 8. The Court further finds and determines that pursuant to the parties’ 9 agreement and paragraph 18.3 of the Settlement Agreement, total payments in the amount 10 of $27,183.21 that are due to the 66 Remaining Class Members whose notices were 11 deemed undeliverable shall be preemptively redistributed ratably to the 633 Remaining 12 Class Members whose notices were delivered. 13 9. The Court GRANTS the application presented by Class Counsel for an 14 award of attorneys’ fees in the amount of $165,000 and reimbursement of litigation costs 15 in the amount of $19,295.67, pursuant to paragraph 21 of the Settlement Agreement. 16 10. The Court hereby APPROVES the application for a Class Representative 17 incentive award in the amount of $5,000 to Plaintiff William Beckman, pursuant to 18 paragraph 24 of the settlement. 19 11. Upon completion of administration of the Settlement, the Settlement 20 Administrator will provide written certification of such completion to the Court and 21 counsel for the parties. 22 12. Pursuant to the Settlement, Plaintiff William Beckman and all other 23 members of the Settlement Class, and their heir, executors, administrators, spouses, 24 domestic partners, attorneys, successors, and assigns, are permanently barred from 25 prosecuting any and all Released Claims, as defined in the Settlement Agreement, against 26 Defendants, their divisions and business units, and any of their past, present, or future 27 parent entities, associates, affiliates, subsidiaries, and licensees, and each and all of their 28 past, present, and future officers, directors, stockholders, principals, employees, advisors, -15- 14cv1413-MMA (NLS) 1 agents, attorneys, financial or investment advisers, consultants, lenders, insurers, 2 investment bankers, commercial bankers, representatives, joint ventures, general and 3 limited partners and partnerships, heirs, executors, trustees, personal representatives, 4 estates, administrators, trusts, licensees, licensors, distributors, subdistributors, 5 predecessors, successors, and assigns. 6 13. The parties are hereby ORDERED to comply with the terms of the 7 Settlement Agreement. 8 14. This action, including the claims alleged in the complaint filed with this 9 action, is hereby DISMISSED with prejudice, each side to bear its own costs and 10 attorneys’ fees, except as provided by the Settlement Agreement and this Order. 11 15. Without affecting the finality of this Order, the Court retains jurisdiction of 12 all matters relating to the interpretation, administration, implementation, effectuation, and 13 enforcement of this Order and the Settlement. 14 IT IS SO ORDERED. 15 16 Dated: April 14, 2016 17 18 _____________________________ Hon. Michael M. Anello United States District Judge 19 20 21 22 23 24 25 26 27 28 -16- 14cv1413-MMA (NLS)

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