Hose v. WIS Holdings Corp. et al

Filing 304

ORDER on Motion for Final Approval of Collective Action Settlement, Motion for Attorneys' Fees, Motion for Service Awards, and Joint Motion to Include Opt-ins Who Submit Untimely Claims in the First Distribution of Settlement Funds. Signed by Judge William Q. Hayes on 7/2/2020. (tcf)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RICHARD HOSE (deceased);
EVE STALLWORTH on her own
behalf, and on behalf of all others
similarly situated,

Case No.: 14-cv-2869-WQH-AGS
ORDER

Plaintiffs,

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v.

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WASHINGTON INVENTORY
SERVICE, INC. d/b/a WIS
INTERNATIONAL, a California
Corporation; RETAIL SERVICES
WIS, INC., a Delaware
Corporation; and CENTRE LANE
PARTNERS, LLC, a New York
Limited Liability Company,

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Defendants.

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HAYES, Judge:
The matters before the Court are 1) the Motion for Service Awards (ECF No. 296);
2) the Motion for Attorneys’ Fees (ECF No. 297); and 3) the Motion for Final Approval of
Collective Action Settlement (ECF No. 298) filed by Plaintiff Eve Stallworth; and 4) the
Joint Motion to Include Opt-ins Who Submit Untimely Claims Prior to Final Approval in
the First Distribution of Settlement Funds filed by the parties (ECF No. 299).
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I.

PROCEDURAL BACKGROUND

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On December 4, 2014, Plaintiff Richard Hose, on behalf of himself and all others

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similarly situated, filed a Collective Action Complaint against Defendants Washington

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Inventory Service, Inc. d/b/a WIS International (“WIS”) and WIS Holdings Corp. (“WIS

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Holdings”) under the Fair Labor Standards Act (“FLSA”). (ECF No. 1). This wage and

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hour action arises from Plaintiff Hose’s former employment as an Inventory Associate for

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Defendant WIS, which employs “thousands” of people as “auditors, inventory associates,

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and/or other functionally equivalent hourly positions” to travel to retail stores and count

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inventory in those stores. (ECF No. 82 at ¶ 2).

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On March 19, 2015, the Court issued an Order granting Defendant WIS’s Motion

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to Dismiss the Complaint. (ECF No. 13). On May 29, 2015, Plaintiff Hose filed a First

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Amended Complaint (“FAC”). (ECF No. 26). On June 9, 2015, Plaintiff Hose dismissed

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the claims against Defendant WIS Holdings. (ECF No. 27). On June 15, 2015, Defendant

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WIS filed an Answer to the FAC. (ECF No. 29). The parties engaged in fact discovery.

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On March 14, 2016, Plaintiff Hose filed a Second Amended Complaint (“SAC”). (ECF

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No. 82). On March 30, 2016, Defendant WIS filed an Answer to the SAC. (ECF No. 86).

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On June 7, 2016, the Court issued an Order granting Plaintiff Hose’s Motion for

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Conditional Certification under the FLSA. (ECF No. 94). On June 14, 2016, the Court

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issued an Order approving the class definition and notice of collective action. (ECF No.

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97). The Court conditionally certified a class of “[a]ll individuals currently or formerly

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employed by WIS as an Inventory Associate in the United States at any time from three

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years before the mailing of the notice of collective action who have not released all alleged

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claims that they still may pursue under the Fair Labor Standards Act during the applicable

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time period of this case.” (ECF Nos. 95 at 2; 97). On June 23, 2016, the Court issued an

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Order approving the consent to join form, approving the procedures for distributing notice

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to the collective, and appointing Heffler Claims Group (“Heffler”) as the notice

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administrator. (ECF No. 104).

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On August 30, 2016, the Court issued an order granting Defendant’s Motion to

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Compel Arbitration as to thirteen Opt-in Plaintiffs, directing that their claims proceed to

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arbitration and staying those claims in favor of arbitration. (ECF No. 119).

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In June 2017, Retail Services WIS, Inc. (“RSW”), a company backed by private

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equity firm Centre Lane Partners, LLC (“CLP”), acquired Defendant WIS as part of a

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foreclosure sale of the WIS company.

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On July 19, 2017, the Court issued an Order granting in part and denying in part

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Defendant’s Motion for Summary Judgment and Motions to Compel Arbitration as to

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13,830 Opt-in Plaintiffs. (ECF No. 189). The Court denied the Motion for Summary

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Judgment as to one Opt-in Plaintiff and granted the Motion as to 464 other Opt-in

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Plaintiffs. The Court denied the Motions to Compel Arbitration as to any Opt-in Plaintiffs

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who signed certain dispute resolution agreements and granted the Motions as to all other

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Opt-in Plaintiffs identified in the Motions, staying those claims in favor of arbitration.

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On August 7, 2017, Plaintiff Hose filed a Third Amended Complaint (“TAC”),

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adding RSW and CLP as Defendants. (ECF No. 194). The TAC is the operative complaint

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in this matter. In the TAC, Plaintiff Hose asserts three claims for FLSA violations against

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all Defendants: (1) failure to pay minimum wages, (2) failure to pay overtime wages, and

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(3) failure to compensate for all hours worked; and three common law claims against all

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Defendants: (1) breach of contract, (2) breach of covenant of good faith and fair dealing,

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and (3) unjust enrichment; and one common law claim for successor liability against

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Defendants RSW and CLP.

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On August 14, 2017, Defendant WIS filed an Answer to the TAC. (ECF No. 196).

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On May 30, 2018, Defendants RSW and CLP filed Answers to the TAC. (ECF Nos. 210,

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211).

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On July 2, 2018, Defendant WIS filed for Chapter 11 bankruptcy. On July 3, 2018,

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a Notice of Automatic Stay pursuant to 11 U.S.C. § 362 was filed as to debtor Defendant

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WIS. (ECF No. 214).

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On December 18, 2018, the Court issued an Order granting in part and denying in

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part Plaintiff Hose’s Motion for Declaratory Relief, ordering Defendant RSW to

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participate in the ongoing arbitration with the Opt-in Plaintiffs and Defendant WIS

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pursuant to the WIS arbitration agreements. (ECF No. 251).

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On April 23, 2019, Defendants RSW and CLP filed a Motion for Summary

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Judgment and a Motion for Decertification. (ECF Nos. 271, 273). On May 28, 2019, the

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parties notified the Court that they had reached a settlement. (ECF No. 280). On October

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30, 2019, Plaintiff Hose filed a Motion for Preliminary Approval of Collective Action

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Settlement. (ECF No. 290). On December 12, 2019, the Court issued an Order granting

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the Motion for Preliminary Approval. (ECF No. 292). The Court preliminarily approved

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the Settlement (Ex. 1, Decl. of Joshua G. Konecky (“Konecky Decl.”), ECF No. 290-3 at

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2-48) and the Notice of Collective Action Settlement (“Notice”) (id. at 87-96); appointed

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Heffler as the settlement administrator; and set a schedule for dissemination of the Notice,

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submission of requests for exclusion and objections, and briefing on the motions for final

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approval, attorneys’ fees and costs, and service awards. The Court further denied

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Defendants RSW and CLP’s Motion for Summary Judgment and Motion for

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Decertification as moot.

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On February 18, 2020, the Court issued an Order granting the parties’ Joint Motion

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to Substitute Eve Stallworth as the Named Plaintiff for Recently Deceased Named

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Plaintiff Richard Hose. (ECF No. 295).

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On March 5, 2020, Plaintiff Stallworth filed a Motion for Service Awards (ECF No.

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296) and a Motion for Attorneys’ Fees (ECF No. 297). On May 18, 2020, Plaintiff

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Stallworth filed a Motion for Final Approval of Collective Action Settlement. (ECF No.

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298). On June 10, 2020, the parties filed a Joint Motion to Include Opt-Ins Who Submit

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Untimely Claims Prior to Final Approval in the First Distribution of Settlement Funds.

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(ECF No. 299). On June 12, 2020, Plaintiff Stallworth filed a Supplemental Declaration.

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(ECF No. 300).

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Defendants did not file any opposition to the Motion for Service Awards, Motion
for Attorneys’ Fees, or Motion for Final Approval of Collective Action Settlement.

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On June 26, 2020, the Court held a final approval hearing. (ECF No. 302). No
member of the collective appeared.

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On June 26, 2020, the parties filed a Stipulation and Joint Proposal Regarding

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Language for Inclusion of Late Claimants in First Distribution of Settlement. (ECF No.

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303).

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II.

TERMS OF THE PROPOSED SETTLEMENT

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The Settlement at issue in this case is a global settlement that resolves 1) the FLSA

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claims made by Opt-in Plaintiffs in this case (“Hose v. WIS”); and 2) claims for civil

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penalties under the Private Attorneys General Act in Arispe v. Washington Inventory

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Service, et al., RIC 1801185, currently pending in the Superior Court for the State of

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California, County of Riverside (“Arispe v. WIS”). This Court is asked to approve the terms

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of the Settlement pertaining to Hose v. WIS, and the superior court is asked to approve the

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terms of the Settlement pertaining to Arispe v. WIS.

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a. The Class

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The Settlement resolves the FLSA claims of the “Hose Plaintiffs:” “any inventory

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associate employed by [WIS] on or after July 22, 2013, and who timely submitted a valid

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opt-in consent form on or before September 19, 2016, in accordance with the notice

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procedures set forth in the District Court’s Order of June 23, 2016 [Dkt. 104] in [Hose v.

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WIS].” (Settlement, Ex. A, Konecky Decl., ECF No. 290-3 at 11).

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b. Class Benefits

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The total amount of the global settlement of Hose v. WIS and Arispe v. WIS is

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$7,015,516.59––the sum of the “Gross Settlement Amount” of $6,615,500 plus an

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additional $400,016.59 in “Rabbi Trust Reserve,” sponsored by Defendant WIS. (Id. at 9).

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The total amount available for settlement of Hose v. WIS is $6,565,516 (the “Hose Total

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Settlement Amount”). The Hose Total Settlement Amount includes $6,165,500 of the

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Gross Settlement Amount allocated to Hose v. WIS plus $400,016.59 in Rabbi Trust
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Reserve. (Id. at 11). The $400,016.59 from Rabbi Trust Reserve is included in the Hose

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Total Settlement Amount on the condition that Defendant RSW remains solvent in June

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2021, the deadline for RSW to deposit the $400,016.59 into the Qualified Settlement Fund.

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Following deductions to the Hose Total Settlement Amount for the Hose Class

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Representative Service Award, the Hose Attorneys’ Fees and Costs Award, and Settlement

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Administration Costs allocated to Hose v. WIS, the remaining “Hose Net Settlement

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Amount” will be distributed to the Hose Plaintiffs.

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Each “Hose Participating Plaintiff” will receive an “Individual Settlement Payment”

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from the Hose Net Settlement Amount based on the individual’s proportionate share of

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“Adjusted Settlement Workweeks.” (Id. at 16). Hose Participating Plaintiffs are defined in

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the Settlement as “Hose Plaintiffs who (a) do not submit timely and valid Requests for

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Exclusion on or before [April 7, 2020]; and (b) submit a timely and valid claim form on or

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before [April 7, 2020].” (Id. at 11). To determine the amount of each Individual Settlement

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Payment, Heffler first determines the number of actual weeks that the Hose Participating

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Plaintiff worked as an Inventory Associate for WIS from July 22, 2013, through December

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12, 2019, the date this Court preliminarily approved the proposed settlement. (Id. at 11,

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16). Heffler then calculates the number of Adjusted Settlement Workweeks by adjusting

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the number of actual workweeks upwards in the following two cases: (a) each actual

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workweek will be multiplied by three for a Hose Participating Plaintiff who was not

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compelled to arbitration and who either appeared for deposition or submitted substantive

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interrogatory responses in the case; and (b) each actual workweek will be multiplied by

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two for a Hose Participating Plaintiff who was compelled to arbitration and who

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substantially completed the written survey circulated via the website maintained by

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Plaintiffs’ counsel. (16-17 ¶ 10). Heffler then divides the Hose Net Settlement Amount by

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the total number of Adjusted Settlement Workweeks, resulting in the “Hose Workweek

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Value.” (Id. at 17). The Individual Settlement Payment for each Hose Participating Plaintiff

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is calculated by multiplying the Hose Workweek Value by the Hose Participating

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Plaintiff’s total number of Adjusted Settlement Workweeks. Each Individual Settlement

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Payment will be reduced by appropriate tax withholdings or deductions.

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Hose Participating Plaintiffs will receive their Individual Settlement Payments in

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two distributions: “(1) one payment estimated to occur in or about the Third Quarter of

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2020; and (2) a second payment estimated to occur in or about December of 2021.” (ECF

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No. 298-1 at 8; see Settlement, Ex. A, Konecky Decl., ECF No. 290-3 at 32-33). The parties

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have stipulated, and seek approval from the Court, to include “108 opt-in plaintiffs who

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have submitted late claims as of June 19, 2020, as well as any additional opt-in plaintiffs

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who submit claim forms prior to two weeks before the date of the first distribution . . . as

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[Hose] Participating Plaintiffs to receive their proportionate share of the Hose Individual

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Settlement Payments from the first distribution . . . .” (ECF No. 303 at 2). All Hose

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Plaintiffs will receive a $50 “Hose Minimum Settlement Payment” as part of the second

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distribution, in addition to any Individual Settlement Payment. (Settlement, Ex. A,

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Konecky Decl., ECF No. 290-3 at 18, 34). After the second distribution, and after Heffler

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processes any late claims, remaining funds will be distributed to cy pres recipient Legal

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Aid at Work. (Id. at 34-35).

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There are 14,676 Hose Plaintiffs. (See Decl. of Mark Rapazzini (“Rapazzini Decl.”),

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ECF No. 298-2 ¶ 3). As of June 10, 2020, 5,977 Hose Plaintiffs submitted timely claim

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forms. (Supp. Decl. of Mark Rapazzini (“Rapazzini Supp. Decl.”), ECF No. 300 ¶¶ 7-8).

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108 Hose Plaintiffs submitted claim forms postmarked after the April 7, 2020, deadline.

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(See ECF No. 303 at 2).

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c. Class Notice

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Mark Rapazzini, the Senior Director at Heffler, states in his Declaration that “[o]n

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January 9, 2020, Heffler received the class list from Defendants’ counsel which included

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the following information from Defendants’ records: each Hose Plaintiff’s full name; most

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recent mailing address and telephone number; Social Security number; e-mail address

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(where available); and number of Workweeks as a Hose Plaintiff.” (Rapazzini Decl., ECF

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No. 298-2 ¶ 3). “Heffler ran the class list through the Post Office’s National Change of
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Address database (NCOA) to obtain updated addresses.” (Id. ¶ 4). “On February 7, 2020,

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Heffler printed and mailed the Court approved Notice and Claim Form to all Hose

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Plaintiffs.” (Id.). “Heffler also emailed 14,203 Notice packages to those Hose class

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members for whom Heffler was provided an email address.” (Id. ¶ 5).

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As of June 10, 2020, Heffler “received 46 Notices returned by the USPS with a

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forwarding address. Heffler re-mailed all 46 Notices to the updated addresses provided by

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the USPS.” (Rapazzini Supp. Decl., ECF No. 300 ¶ 5). As of June 10, 2020, Heffler

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“received 2,408 Notices returned by the USPS as undeliverable as addressed. Heffler ran

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2,336 undeliverable records through an address trace process. The address-tracing

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produced 1,923 updated addresses. Heffler [ ] re-mailed Notices to the 1,923 updated

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addresses obtained from the trace process. Following the re-mail, 447 Notices [were]

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returned by the USPS as undeliverable a second time.” (Id. ¶ 6).

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d. Opt-Outs and Objections to Settlement

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The Notice informed the Hose Plaintiffs that they “had until April 7, 2020, to submit

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a Claim Form, object to the Settlement, request to be excluded from (opt-out of) the

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Settlement, and dispute Defendants’ workweek records.” (Rapazzini Decl., ECF No. 298-

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2 ¶ 4; see Notice, Ex. A, Rapazzini Decl., ECF No. 298-2 at 10-13). As of June 10, 2020,

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Heffler received 3,981 online claims through the settlement website and 1,996 timely

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paper claim forms, for a total of 5,977 timely claim forms. As of June 19, 2020, Heffler

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also received 108 claim forms that were postmarked after the claims filing deadline of

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April 7, 2020. (Rapazzini Supp. Decl., ECF No. 300 ¶ 8; ECF No. 303 at 2).

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Heffler “received workweek disputes from nine (9) Hose Plaintiffs. Eight (8) of

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these individuals provided alternative workweek estimates, but none provided supporting

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documentation. Heffler reviewed all nine disputes after forwarding them to counsel for

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their comments. In each case, Heffler determined that the there was insufficient evidence

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to dispute workweek data previously submitted by Defendants.” (Rapazzini Decl., ECF

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No. 298-2 ¶ 12).

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As of June 10, 2020, Heffler “ha[d] not received any requests for exclusion [ ]or
objections.” (Rapazzini Supp. Decl., ECF No. 300 ¶ 9).
e. Notice and Administration Costs

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The Settlement provides:

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Subject to Court approval, the Settlement Administrator will be paid for the
reasonable costs of administration of the Settlement and calculation and
distribution of payments, which barring unusual or unforeseen
circumstances, is not estimated to exceed Two Hundred Thirty Five
Thousand Dollars $235,000 (the “Settlement Administration Costs”). The
Parties agree that the Settlement Administrator has fairly and reasonably
allocated Two Hundred Twenty Thousand ($220,000) of these Settlement
Administration Costs to the Hose Lawsuit . . . These Settlement
Administration Costs[ ] [ ] will be paid from the respective Total Settlement
Amounts . . . .

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(Settlement, Ex. A, Konecky Decl., ECF No. 290-3 at 21).
Heffler’s estimated fees and costs for administering this settlement are
$220,370. This includes providing the mail and email notice to 14,676 opt-in
Plaintiffs, performing the skip tracing and remailing of notices returned as
undeliverable, providing phone and website support, and processing claim
forms . . . . It also includes [Heffler’s] projected costs for processing and
mailing settlement awards, preparing and filing federal and state tax
documentation, and maintaining the qualified settlement fund through
December 2021 to manage all current and future payments.
(Rapazzini Decl., ECF No. 298-2 ¶ 14).
f. Attorneys’ Fees and Costs
Plaintiff Stallworth requests that the Court approve an award of attorneys’ fees of
$2,188,505.53 and litigation costs of $684,387.95. Attorney Joshua G. Konecky states in

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his Declaration that “[t]he $2,188,505.53 in attorneys’ fees is one-third (1/3) the Hose

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Total Settlement Amount, but less than one-half (1/2) of the actual[ ] attorneys’ fees

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incurred over the past five (5) years to effectively litigate this difficult and risk-laden[ ]

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case.” (Decl. of Joshua G. Konecky in Support of Mot. for Attorneys’ Fees (“Konecky

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Fees Decl.”), ECF No. 297-2 ¶ 2). Attorney Konecky states that “[a]s of February 28,

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2020, [the law firm of Schneider Wallace Cottrell Konecky Wotkyns LLP] has invested

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approximately 8,500.74 hours of work into this case, for a total lodestar of approximately

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$4,882,304 after removing all billing entries by individuals who recorded fewer than 10

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hours on the case . . . .” (Id. ¶ 7). Attorney Konecky states that the requested fee award

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“would result in a ‘negative’ multiplier of approximately 0.44 of [the] lodestar. In addition,

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[the] total lodestar of $4,882,304 does not include the work [the law firm] will do after

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completion of [the Motion for Attorneys’ Fees], such as working with the settlement

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administrator, preparing the motion for final approval, and communicating with the Opt-

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in Plaintiffs.” (Id. ¶ 8). “Plaintiffs’ Counsel also have incurred costs of suit of

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approximately of $684,387.95 through February 26, 2020.” (Id. ¶ 82).

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g. Incentive Award

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Plaintiff Stallworth requests that the Court award approve service awards in the

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amount of $20,000 to the estate of deceased Plaintiff Hose and $5,000 to Plaintiff

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Stallworth “for their important contributions to the Collective in both the litigation and

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settlement of this matter.” (ECF No. 296-1 at 5).

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FAIRNESS OF THE SETTLEMENT

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Plaintiff Stallworth asserts that the Settlement is fair and reasonable. Plaintiff

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Stallworth asserts that the parties reached the Settlement after “a lengthy mediation and

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follow-up with a well-respected mediator experienced in the area of wage and hour

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collective action cases,” an in-person settlement meeting, and nine months of follow-up

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negotiations. (ECF No. 298-1 at 15-16). Plaintiff Stallworth asserts that the parties reached

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the Settlement “after substantial discovery, depositions and motion practice” by

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experienced legal counsel. (Id. at 16). Plaintiff Stallworth asserts that the absence of

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objections or exclusions to the Settlement is indicative of its fairness and value. Plaintiff

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Stallworth asserts that the $6,565,516.59 recovery achieved in the Settlement “represents

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a strong result” in light of “the WIS bankruptcy, the motion to compel thousands of

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individual arbitrations, and the need to prove successor liability.” (Id. at 18).

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“To guard against th[e] potential for class action abuse, Rule 23(e) of the Federal

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Rules of Civil Procedure requires court approval of all class action settlements, which may

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be granted only after a fairness hearing and a determination that the settlement taken as a

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whole is fair, reasonable, and adequate.” Jones v. GN Netcom, Inc. (In re Bluetooth Headset

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Prods. Liab. Litig.), 654 F.3d 935, 946 (9th Cir. 2011) (citing Fed. R. Civ. P. 23(e)(2)).

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The Court of Appeals for the Ninth Circuit has a “strong judicial policy” in support of class

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action settlements. Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992).

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However, when presented with a motion to finally approve a class action settlement,

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“judges have the responsibility of ensuring fairness to all members of the class . . . .” Staton

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v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). Ultimately, “the court’s intrusion upon

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what is otherwise a private consensual agreement negotiated between the parties to a

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lawsuit must be limited to the extent necessary to reach a reasoned judgment that the

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agreement is not the product of fraud or overreaching by, or collusion between, the

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negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and

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adequate to all concerned.” Officers for Justice v. Civil Serv. Comm’n of S.F., 688 F.2d

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615, 625 (9th Cir. 1982).

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Courts consider several factors in determining the fairness of a proposed settlement,
including:
the strength of plaintiffs’ 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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Linney v. Cellular Alaska P’ship, 151 F.3d 1234, 1242 (9th Cir. 1998) (citation and internal
quotation marks omitted); see Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1376 (9th
Cir. 1993) (holding that only one factor was necessary to demonstrate that the district court
was acting within its discretion in approving the settlement).

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The parties litigated this case for four years before negotiating the Settlement. The

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parties investigated facts and claims; interviewed Hose Plaintiffs; propounded and

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responded to written discovery; conducted depositions; litigated discovery disputes and

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motions, including motions to dismiss, motions to compel arbitration, and motions for

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summary judgment; prepared and filed more than 1000 demands for individual arbitration;

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represented the Unsecured Creditor Committee in the WIS bankruptcy proceedings in the

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Bankruptcy Court of the District of Delaware; and engaged in settlement negotiations. (See

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Konecky Decl., ECF No. 290-2 ¶¶ 2-40).

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Plaintiffs Hose and Stallworth faced significant challenges in litigating this case to

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settlement. After 13,781 Opt-in Plaintiffs were compelled to individual arbitration, only

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approximately 485 individuals remained in the action. Defendant WIS filed for Chapter 11

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bankruptcy. Defendant WIS had approximately $3.5 million in total assets to distribute to

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its creditors in the bankruptcy and approximately $250 million in creditor claims. (Id. ¶

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59). Defendants RSW and CLP filed a Motion for Summary Judgment on successor

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liability and maintain that they are not liable as successors to Defendant WIS.

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The parties attended an in-person mediation and lengthy follow-up “with Jeffrey

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Ross, Esq., an experienced employment and class action mediator.” (Id. ¶ 23; see In re

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Bluetooth Headset Prods. Liab. Litig., 654 F.3d at 948 (explaining that participation of a

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mediator is not dispositive but is “a factor weighing in favor of a finding of non-

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collusiveness”)). The mediation allowed the parties to assess the strengths and weaknesses

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of their claims and defenses, which laid the groundwork for the negotiations that followed

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and ultimately resulted in the Settlement.

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“[T]he Settlement recovery of $6,565,516 is approximately 9.86% of the total

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theoretical exposure of $66 million that Plaintiffs originally asserted—approximately

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9.24% even without the value of the Rabbi Trust claims that are scheduled to revert back

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to settlement fund for the benefit of the Hose Plaintiffs in June 2021.” (Konecky Decl.,

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ECF No. 290-2 ¶ 66). Every Hose Plaintiff will receive a minimum of $50 in the

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Settlement, even if they failed to submit a claim form. Following the anticipated deductions
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of $25,000 in service awards, $2,188,505.53 in attorneys’ fees, $684,387.95 in litigation

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costs, and $220,000 in administration costs, approximately $3,447,624 remains as the Net

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Settlement Amount to be distributed to the Hose Plaintiffs, with none of the Net Settlement

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Amount to revert to Defendants.

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As of June 19, 2020, Heffler received a total of 6,085 claim forms. Heffler received

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workweek disputes from only nine Hose Plaintiffs. None of the Hose Plaintiffs have

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objected to the Settlement or requested exclusion. See Mandujano v. Basic Vegetable

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Prods., Inc., 541 F.2d 832, 837 (9th Cir. 1976) (“The opposition of a significant number

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of the members of the class to a proposed settlement is a factor to be considered when

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approving a settlement.” (citations omitted)); see also Boyd v. Bechtel Corp., 485 F. Supp.

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610, 624 (N.D. Cal. 1979) (finding “persuasive” the fact that 84% of the class filed no

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opposition); Shames v. Hertz Corp., No. 07-CV-2174-MMA(WMC), 2012 U.S. Dist.

13

LEXIS 158577, at *25-26 (S.D. Cal. Nov. 5, 2012) (explaining that the absence of a large

14

number of objectors supports the fairness, reasonableness, and adequacy of the

15

settlement). Given the lack of objection by the Hose Plaintiffs and the risk, expense,

16

complexity, and duration of further litigation, the Court finds that the amount and terms

17

of the proposed monetary benefits to the Hose Plaintiffs are fair and reasonable.

18

Plaintiffs’ counsel has extensive experience litigating and settling complex wage and

19

hour class and collective actions. (Konecky Decl., ECF No. 290-2 ¶¶ 42, 72; see generally

20

Firm Profile, Ex. 3, Konecky Decl., ECF No. 290-5). Plaintiffs’ attorneys have a strong

21

understanding of this case from litigating for over four years and from prior experience in

22

similar cases. Plaintiffs’ attorneys are well qualified to conduct this litigation and to assess

23

its settlement value. The Court finds that the Hose Plaintiffs have been fairly and

24

adequately represented during settlement negotiations. The Court finds that the Settlement

25

is fundamentally “fair, adequate and reasonable” and that no evidence of collusion exists.

26

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

27

///

28

///
13
14-cv-2869-WQH-AGS

1 IV.

ATTORNEYS’ FEES AND COSTS

2

Plaintiff Stallworth request that the Court award $2,188,505 in attorneys’ fees,

3
4

$684,387.95 in litigation costs, and $220,370 in administrative costs.
a. Attorneys’ Fees

5

Plaintiff Stallworth requests that the Court award $2,188,505 in attorneys’ fees. Rule

6

23(h) of the Federal Rules of Civil Procedure provides that, “[i]n a certified class action,

7

the court may award reasonable attorneys’ fees and nontaxable costs that are authorized by

8

law or by the parties’ agreement.” Fed. R. Civ. P. 23(h). Pursuant to the FLSA, when

9

judgment is entered in a plaintiff’s favor, the plaintiff may recover reasonable attorney’s

10
11
12
13
14
15
16
17
18
19
20

fees and costs of the action. See 29 U.S.C. § 216(b). The Settlement provides:
Hose Counsel will seek an award of attorneys’ fees of not more than onethird (1/3) of the Hose Total Settlement Amount, or two million, one hundred
and eighty-eight thousand, five hundred and five dollars and fifty-three cents
($2,188,505.53), plus reasonable litigation costs (including any expert costs),
currently estimated to be six hundred, sixty-four thousand, four hundred and
fifty two dollars and sixty three cents ($664,452.63) . . . . All Attorneys’ Fees
and Costs will be paid from the Gross Settlement Amount . . . . If the
applicable Court reduces the requested attorneys’ fees, costs and expenses,
any such reduction will be applied to the respective Net Settlement
Amount(s).
(Settlement, Ex. A, Konecky Decl., ECF No. 290-3 at 19-20).
“Where a settlement produces a common fund for the benefit of the entire class,
courts have discretion to employ either the lodestar method or the percentage-of-recovery

21

method.” In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d at 942. Under the

22

percentage-of-recovery method, “courts typically calculate 25% of the fund as the

23

‘benchmark’ for a reason-able fee award, providing adequate explanation in the record of

24

any ‘special circumstances’ justifying a departure.” Id. (quoting Six (6) Mexican Workers

25
26

v. Ariz. Citrus Growers, 904 F.2d 1301, 1311 (9th Cir. 1990); Paul, Johnson, Alston &
Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir. 1989)).

27
28
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1

“The lodestar figure is calculated by multiplying the number of hours the prevailing

2

party reasonably expended on the litigation (as supported by adequate documentation) by

3

a reason-able hourly rate for the region and for the experience of the lawyer.” Id. at 941

4

(citing Staton, 327 F.3d at 965). After computing the lodestar figure, the district court may

5

then adjust the figure upward or downward taking into consideration twelve

6

“reasonableness” factors: (1) the time and labor required; (2) the novelty and difficulty of

7

the questions involved; (3) the skill requisite to perform the legal service properly; (4) the

8

preclusion of other employment by the attorney due to acceptance of the case; (5) the

9

customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by

10

the client or the circumstances; (8) the amount involved and the results obtained; (9) the

11

experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case;

12

(11) the nature and length of the professional relationship with the client; and (12) awards

13

in similar cases. Morales v. City of San Rafael, 96 F.3d 359, 363 n. 8 (9th Cir. 1996). “The

14

party seeking an award of fees should submit evidence supporting the hours worked and

15

rates claimed.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), superseded on other

16

grounds by the Prison Litigation Reform Act. However, trial courts may use “rough”

17

estimations, so long as they apply the correct standard. Fox v. Vice, 563 U.S. 826, 838

18

(2011).

19

In this case, Plaintiffs’ counsel submitted the 2019 billing rates for fourteen attorneys

20

and twenty law clerks and paralegals from Schneider Wallace Cottrell Konecky Wotkyns

21

LLP who worked more than ten hours on this case. Three attorneys from the law firm

22

served as the lead counsel in this action. Joshua G. Konecky is a partner with 24 years’

23

experience and an hourly rate of $925.00. Leslie H. Joyner is an eleventh-year associate

24

with an hourly rate of $800. Nathan B. Piller is a sixth-year associate with an hourly rate

25

of $680. The hourly rates of other associate and staff attorneys on this case range from

26

$500 to $680 per hour. (See Konecky Fees Decl., ECF No. 297-2 ¶ 81 ($680/hour for

27

associate attorneys Scott Gordon (a third-year attorney) and Abigail Laudick (a first-year

28

attorney) and staff attorney Moises Jrade (a twenty-fourth-year attorney); $675/hour for
15
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1

associate attorney Nicole Coon (an eighth-year attorney); $600/hour for staff attorneys

2

Ryan Bonner (a fifth-year attorney), John Gaudette (an eighth-year attorney), and

3

Benjamin Reumke (a ninth-year attorney); $550/hour for staff attorneys Justin Schultz (a

4

fourth-year attorney) and Melissa Ruffalow (a fourth-year attorney); $500/hour for

5

associate attorney Michael Hart (a fourth-year attorney) and staff attorney Krishna Desai

6

(a third-year attorney)). Paralegal and law clerk billing rates range from $150 per hour to

7

$350 per hour.

8

Plaintiffs’ counsel submitted evidence that their rates have been approved in the past

9

by numerous courts in the Northern District of California. (See id. ¶¶ 70, 71). The requested

10

rates are slightly high for the Southern District of California. See Hunter v. Nature’s Way

11

Prods., LLC, No. 3:16-cv-532-WQH-AGS, 2020 U.S. Dist. LEXIS 1706, at *22 (S.D. Cal.

12

Jan. 6, 2020) (finding hourly rates ranging from $500 to $750 reasonable); Obesity

13

Research Inst., LLC v. Fiber Research Int’l, LLC, No. 15-cv-595-BAS-MDD, 2016 U.S.

14

Dist. LEXIS 52463, at *8 (S.D. Cal. Apr. 18, 2016) (finding hourly rates of $400 for a

15

sixth-year associate and $725 for a thirty-fifth-year partner reasonable); Makaeff v. Trump

16

Univ., LLC, No. 10cv1940 GPC (WVG), 2015 U.S. Dist. LEXIS 46749, at *17 (S.D. Cal.

17

Apr. 9, 2015) (finding hourly rates ranging from $250 to $825 reasonable).

18

Plaintiffs’ counsel submitted a summary of hours worked for each attorney,

19

paralegal, or law clerk who worked more than ten hours on this case. In total, the law firm

20

expended 8,500.74 hours on this case, for a total lodestar of $4,882,304. The requested

21

$2,188,505.53 in attorneys’ fees represents 33% of the Hose Total Settlement Amount and

22

44% of the lodestar. Although the billing rates are comparably high for the Southern

23

District of California, the requested total fee award represents less than half of the fees

24

actually incurred. No class member has objected to the requested attorney fee award.

25

Courts in this circuit have routinely authorized awards representing a similar reduction in

26

the lodestar. See, e.g., Shames, 2012 U.S. Dist. LEXIS 158577, at *64 (“Plaintiffs’

27

$5,123,336.00 fee request is reasonable, as it represents a 20% reduction of the lodestar.”);

28

Stuart v. RadioShack Corp., No. C-07-4499-EMC, 2010 U.S. Dist. LEXIS 92067, at *18
16
14-cv-2869-WQH-AGS

1

(N.D. Cal. Aug. 9, 2010) (finding 33% fee award “well within the range of percentages

2

which courts have upheld as reasonable in other class action lawsuits”); Rippee v. Bos. Mkt.

3

Corp., No. 05cv1359 BTM (JMA), 2006 U.S. Dist. LEXIS 101136, at *11 (S.D. Cal. Oct.

4

10, 2006) (award of 40% of $3,750,000 wage and hour class action settlement).

5

Upon consideration of the Declarations and filings submitted by Plaintiffs’ counsel,

6

the attorneys’ experience, the difficulty and uncertainty of this case, and other rates

7

approved in this district, the Court finds that the requested fees are reasonable. The Court

8

approves the award of attorneys’ fees in the amount of $2,188,505.53.

9

b. Litigation Costs

10

Plaintiff Stallworth requests that the Court award $684,387.95 in litigation costs.

11

Class counsel is entitled to reimbursement of the out-of-pocket costs they reasonably

12

incurred investigating and prosecuting this case. See Staton, 327 F.3d at 974. Plaintiffs’

13

counsel has expended $684,387.95 in un-reimbursed expenses through February 26, 2020.

14

Plaintiffs’ counsel has provided a ledger identifying each individual charge, which include

15

“costs related to depositions, travel, [and] mediation[;] filing and service fees[;] . . . over

16

$211,000 in mailing and administration costs for the FLSA notice and opt in process; nearly

17

$70,000 in costs to establish the Wis.claims website portal . . .; over $100,000 in

18

eDiscovery fees . . .; and over $70,000 in expert fees.” (Konecky Fees Decl., ECF No. 297-

19

2 ¶ 83; see generally Ex. 3, Konecky Fees Decl., ECF No. 297-2 at 52-68). No class

20

member has objected to the request for reimbursement of $684,387.95 in costs. The Court

21

finds that Plaintiffs’ counsel’s out-of-pocket costs were reasonably incurred in connection

22

with the prosecution of this litigation, were advanced for the benefit of the class, and shall

23

be reimbursed in full in the amount requested. The Court approves the request for litigation

24

costs and expenses in the amount of $684,387.95.

25
26
27
28

c. Administrative Costs
Plaintiff Stallworth requests that the Court award $220,370 in administrative costs
to Heffler, the appointed administrator. The Settlement provides:
Subject to Court approval, the Settlement Administrator will be paid for the
17
14-cv-2869-WQH-AGS

1

reasonable costs of administration of the Settlement and calculation and
distribution of payments, which barring unusual or unforeseen
circumstances, is not estimated to exceed Two Hundred Thirty Five
Thousand Dollars $235,000 (the “Settlement Administration Costs”). The
Parties agree that the Settlement Administrator has fairly and reasonably
allocated Two Hundred Twenty Thousand ($220,000) of these Settlement
Administration Costs to the Hose Lawsuit . . . . These Settlement
Administration Costs[ ] [ ] will be paid from the respective Total Settlement
Amounts . . . .

2
3
4
5
6
7
8
9

(Settlement, Ex. A, Konecky Decl., ECF No. 290-3 at 21). Mark Rapazzini, the Senior
Director at Heffler, states in his Declaration:
Heffler’s estimated fees and costs for administering this settlement are
$220,370. This includes providing the mail and email notice to 14,676 opt-in
Plaintiffs, performing the skip tracing and remailing of notices returned as
undeliverable, providing phone and website support, and processing claim
forms . . . . It also includes [Heffler’s] projected costs for processing and
mailing settlement awards, preparing and filing federal and state tax
documentation, and maintaining the qualified settlement fund through
December 2021 to manage all current and future payments.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

(Rapazzini Decl., ECF No. 298-2 ¶ 14). Courts regularly award administrative costs
associated with providing notice to the class. See, e.g., Odrick v. UnionBanCal Corp., No.
C 10-5565 SBA, 2012 U.S. Dist. LEXIS 171413, at *17-18 (N.D. Cal. Dec. 3, 2012).
However, Plaintiff Stallworth fails to provide evidence that an award of $370 above the
$220,000 negotiated in the Settlement is warranted. The Court approves an award of
administrative costs in the amount of $220,000.
V.

INCENTIVE AWARD
Plaintiff Stallworth requests that the Court approve service awards in the amounts

of $20,000 to the estate of deceased Plaintiff Richard Hose and $5,000 to Plaintiff Eve
Stallworth. Incentive awards are “fairly typical” discretionary awards “intended to
compensate class representatives for work done on behalf of the class, to make up for
financial or reputational risk undertaken in bringing the action, and, sometimes, to
recognize their willingness to act as a private attorney general.” Rodriguez v. W. Publ’g
18
14-cv-2869-WQH-AGS

1

Corp., 563 F.3d 948, 958-59 (9th Cir. 2009) (emphasis omitted) (citations omitted). In

2

assessing the reasonableness of an incentive award, several district courts in the Ninth

3

Circuit have applied the five-factor test set forth in Van Vranken v. Atl. Richfield Co., 901

4

F. Supp. 294 (N.D. Cal. 1995), which analyzes (1) risk to the class representative in

5

commencing a class action, both financial and otherwise; (2) the notoriety and personal

6

difficulties encountered by the class representative; (3) the amount of time and effort spent

7

by the class representative; (4) the duration of the litigation; (5) the personal benefit, or

8

lack thereof, enjoyed by the class representative as a result of the litigation. See, e.g., Miller

9

v. Wise Co., ED CV17-00616 JAK (PLAx), 2020 U.S. Dist. LEXIS 40032, at *37 (C.D.

10

Cal. Feb. 11, 2020); Hunter, 2020 U.S. Dist. LEXIS 1706, at *25-26; Rodriguez v. Penske

11

Logistics, LLC, No. 2:14-cv-02061-KJM-CKD, 2019 U.S. Dist. LEXIS 9441, at *39 (E.D.

12

Cal. Jan. 17, 2019); Vietnam Veterans of Am. v. CIA, No. 09-cv-00037-CW, 2018 U.S.

13

Dist. LEXIS 172135, at *3-4 (N.D. Cal. Oct. 4, 2018).

14

In this case, Plaintiff Hose provided information during lengthy interviews,

15

responded to extensive written discovery, provided hundreds of pages of documents, and

16

assisted counsel in preparing for depositions and seeking discovery. (Decl. of Joshua G.

17

Konecky in Support of Mot. for Service Awards, ECF No. 296-3 ¶¶ 4-29). Plaintiff Hose

18

prepared for and sat for his deposition, which required him to travel from Texas to

19

California. (Id. ¶ 12). Plaintiff Hose assisted in preparing and evaluating the case for

20

mediation and traveled from Texas to California to attend the mediation. (Id. ¶ 17). Plaintiff

21

Hose further agreed to petition the United States Trustee to establish a Committee of

22

Unsecured Creditors and protect Hose Plaintiffs in the bankruptcy proceedings, ultimately

23

leading to settlement of this case. (Id. ¶¶ 20-23).

24

Plaintiff Stallworth provided information during lengthy interviews, responded to

25

extensive written discovery, and produced 771 pages of documents. (Decl. of Eve

26

Stallworth, ECF No. 296-2 ¶¶ 4, 11-12). Plaintiff Stallworth travelled to Atlanta to prepare

27

for and sit for her deposition and provided information to Plaintiffs’ counsel about the sale

28
19
14-cv-2869-WQH-AGS

1

of WIS, which led to the filing of the TAC. (Id. ¶ 12). Both Plaintiffs took risks in suing

2

their former or current employer and participated in the case for four to five years.

3

The Plaintiffs have protected the interests of the class members and have participated

4

in all aspects of the case. The Hose Plaintiffs have benefitted from these actions by

5

receiving a settlement. No class member has objected to an incentive award of $20,000 for

6

Plaintiff Hose and $5,000 for Plaintiff Stallworth. The proposed awards combined

7

represent less than 0.4% of the Hose Total Settlement Amount. The incentive awards are

8

within the acceptable range of approval and do not appear to be the result of collusion. See,

9

e.g., Van Vranken, 901 F. Supp. at 300 (approving an award of $50,000 for the named

10

plaintiff); Williams v. Costco Wholesale Corp., No. 02cv2003 IEG (AJB), 2010 U.S. Dist.

11

LEXIS 67731, at *20 (S.D. Cal. Jul. 7, 2010) (approving a $5,000 award to a class

12

representative in an antitrust case settling for $440,000). The Court finds that the requested

13

incentive awards are reasonable.

14 VI.

CONCLUSION

15

Having received and considered the proposed Settlement, the supporting papers filed

16

by the parties, and the evidence and argument received by the Court, the Court grants final

17

approval of the Settlement. The Court HEREBY ORDERS AND MAKES THE

18

FOLLOWING DETERMINATIONS:

19

1. The parties litigated this case for more than five years before reaching the

20

proposed collective action Settlement currently before the Court. During the litigation, the

21

Court became very familiar with the claims, defenses, competing facts, and legal theories

22

presented by the parties, as well as the work of counsel in presenting them. Among other

23

things, the Court considered and decided three complex Motions to Compel Arbitration

24

(involving supplemental briefing and a hearing), a Motion for Conditional Certification, a

25

Motion for Summary Judgment, several Motions to Compel Discovery, and a Motion for

26

Relief concerning the filing fees that would be assessed in arbitration. These motions

27

presented complex and difficult issues. They also evidenced that the parties conducted

28
20
14-cv-2869-WQH-AGS

1

extensive discovery, depositions, and investigation to support and vet their positions

2

during the case.

3

2. With this history, the Court has now considered Plaintiffs’ Motion for Final

4

Approval of Collective Action Settlement, which weighs the strength of the case; the risk,

5

expense, complexity, and likely duration of further litigation; the risk of maintaining

6

collective action status throughout the trial; the amount offered in settlement; and the

7

extent of discovery completed, among other factors. The Court concludes based on these

8

factors, as well as the terms of the Settlement itself and the history of the lengthy arms-

9

length negotiations that resulted in an agreement of these terms, that the Settlement is

10

“fair, adequate, and reasonable.” Staton, 327 F.3d at 959.

11

3. The Court finds that due and proper notice of the Settlement was provided to

12

all members of the collective, including notice of the right to object to the proposed

13

Settlement, the right to object to class counsel’s Motion for Attorneys’ Fees and Costs,

14

the right to appear in person or by counsel at the final approval hearing and be heard, and

15

the right to opt-out of the Settlement. The Court finds that the notice provided was the best

16

means of providing notice to the members of the collective under the circumstances. The

17

Court further finds that it was due and sufficient notice of the Settlement and the final

18

approval hearing to all persons affected by and/or entitled to participate in the Settlement

19

or the final approval hearing, in full compliance with the requirements of due process.

20

4. The Court further finds that the Settlement is fair and reasonable, given the

21

substantial benefits to the settlement class provided by the non-reversionary, $6,565,516

22

payment, and the risks associated with continued litigation.

23
24
25
26

5. The Court finds that no class member has objected to the Settlement or the
Motion for Attorneys’ Fees and Costs.
6. The Court finds that no class member has requested to opt-out of the
Settlement.

27
28
21
14-cv-2869-WQH-AGS

1

7. The Court finds that the award of $2,188,505.53 in attorneys’ fees and

2

$684,387.95 in costs is fair, reasonable, and appropriate, and approves the service awards

3

of $5,000 to Plaintiff Eve Stallworth and $20,000 to the estate of Plaintiff Richard Hose).

4

8. The Court approves payment to the settlement administrator, Heffler Claims

5

Group LLC, of $220,000 based on the declaration of Mark Rapazzini verifying the

6

administrator’s reasonable costs in fulfilling the settlement administration in this case.

7

9. The Court finds that the terms of the Settlement are fair, reasonable, and

8

adequate; the Court hereby approves them on a final basis. Specifically, the Court

9

approves in full the Settlement attached as Exhibit 1 to the Declaration of Joshua Konecky

10

in Support of the Motion for Preliminary Approval (ECF No. 290-3). The parties shall

11

comply with and implement the Settlement according to its terms.

12

10. Pursuant to the parties’ stipulation, the 108 Opt-in Plaintiffs who have

13

submitted late claims as of June 19, 2020, as well as any additional Opt-in Plaintiffs who

14

submit late claim forms prior to two weeks before the date of the first distribution, shall

15

be included as Hose Participating Plaintiffs to receive their proportionate share of the Hose

16

Individual Settlement Payments from the first distribution, provided that they meet the

17

definitional criteria of “Hose Plaintiffs” set forth in the Settlement.

18
19
20

11. The Court will separately enter a judgment and dismissal of this action,
consistent with the terms of this Order.
Dated: July 2, 2020

21
22
23
24
25
26
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14-cv-2869-WQH-AGS