Vazquez v. Kraft Heinz Foods Company et al

Filing 114

ORDER re the Motion for Order Granting Final Approval of Class Action Settlement (ECF No. 111 ), the Court grants final approval of the Settlement. Signed by Judge William Q. Hayes on 4/1/2020. (ag)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12
13
14

ENRIQUE VASQUEZ, SERGIO
ALFONSO LOPEZ, MARIA
VIVEROS, and XOCHITL
LOZANO, individually and on
behalf of themselves and others
similarly situated,

15

Case No.: 3:16-cv-2749-WQH-BLM
ORDER

Plaintiffs,

16

v.

17

KRAFT HEINZ FOODS
COMPANY, a Pennsylvania
Corporation, and DOES 1 through
100, inclusive,

18
19
20
21

Defendants.
HAYES, Judge:

22
23
24
25
26
27

The matter before the Court is the Motion for Order Granting Final Approval of
Class Action Settlement and Entering Judgment filed by Plaintiffs Enrique Vasquez, Sergio
Alfonso, Maria Viveros, and Xochitl Lozano. (ECF No. 111).
I.

PROCEDURAL BACKGROUND
On September 8, 2016, Plaintiff Enrique Vasquez, on behalf of himself and others

similarly situated, filed a Class Action Complaint in the Superior Court for the State of

28
1
3:16-cv-2749-WQH-BLM

1

California, County of San Diego, against Defendants Kraft Heinz Foods Company

2

(“Kraft”) and Does 1 through 100, inclusive. (Ex. A, ECF No. 1-2). On November 7, 2016,

3

Kraft removed the action to this Court and filed an Answer to the Complaint. (ECF Nos.

4

1, 2).

5

On March 20, 2017, the parties filed a Joint Motion to Consolidate this action,

6

Vasquez v. Kraft Heinz Foods Company, Case No. 16-CV-02479-WQH-AGS, with Lopez

7

v. H.J. Heinz Company, L.P., et al., Case No. 17-CV-00077-WQH-AGS, and to add

8

Plaintiff Maria Viveros as a proposed Class Representative. (ECF No. 21). On May 1,

9

2017, the Court granted the Joint Motion to Consolidate and designated the Vasquez action

10

as the lead case. (ECF No. 26).

11

On May 9, 2017, Plaintiffs Enrique Vasquez, Sergio Alfonso Lopez, and Maria

12

Viveros, on behalf of themselves and others similarly situated, filed a Consolidated Class

13

Action Complaint against Defendants Kraft and Does 1 through 100, inclusive. (ECF No.

14

29). Plaintiffs allege that Kraft underpaid hourly and overtime wages, failed to provide

15

accurate and itemized wage statements, failed to provide rest and meal periods or pay

16

compensation for missed rest and meal periods, and failed to timely pay wages due to

17

separated employees. Plaintiffs bring claims against Kraft for violations of the California

18

Labor Code §§ 201-204, 226 et seq., 510, 512, 516, 558, 1182.12, 1194, 1194.2, 1197,

19

and 1198; the Industrial Welfare Commission Wage Order 1; and California’s Unfair

20

Competition Law, Cal. Bus. & Prof. Code §§ 17200 et seq. Plaintiffs seek damages,

21

statutory penalties, restitution, interest, attorneys’ fees, and costs.

22
23

On July 12, 2017, Kraft filed an Answer to the Consolidated Complaint. (ECF No.
38). The parties engaged in fact discovery.

24

On March 16, 2018, Plaintiffs filed a Motion for Class Certification, seeking to

25

certify eleven classes. (ECF No. 56). On November 9, 2018, the Court issued an Order

26

granting in part and denying in part the Motion for Class Certification and certifying six

27

of the proposed classes. (ECF No. 88).

28
2
3:16-cv-2749-WQH-BLM

1

On November 16, 2018, the Court stayed the action pending mediation, except for

2

the production of timekeeping and payroll records. (ECF No. 90). Following mediation,

3

the parties reached a tentative classwide settlement. (See ECF No. 93 at 3).

4

On June 20, 2019, Plaintiffs filed the First Amended Consolidated Class Action

5

Complaint, adding a cause of action under the California Labor Code Private Attorneys

6

General Act of 2004 (“PAGA”), Cal. Lab. Code §§ 2698 et seq., and adding Xochitl

7

Lozano as a fourth proposed Class Representative. (ECF No. 102).

8

On July 9, 2019, Plaintiffs filed a Motion for Preliminary Approval of Class Action

9

Settlement. (ECF No. 105). On August 2, 2019, the Court issued an Order granting

10

Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement. (ECF No. 107).

11

The Court preliminarily approved the Settlement Agreement and the Notice of Class

12

Action Settlement; appointed CPT Group, Inc. (“CPT Group”), as the settlement

13

Administrator; appointed the law firms of Haines Law Group, APC, Cohelan Khoury &

14

Singer, and the Law Office of Sahag Majarian II as Class Counsel; and appointed Plaintiffs

15

Vasquez, Lopez, Viveros, and Lozano as Class Representatives.

16

On February 21, 2020, Plaintiffs filed a Motion for Order Granting Final Approval

17

of Class Action Settlement and Entering Judgment. (ECF No. 111). Kraft did not file any

18

opposition to the Motion for Order Granting Final Approval of Class Action Settlement

19

and Entering Judgment.

20

On March 20, 2020, the Court held a final approval hearing. No Class Member

21

appeared.

22

II.

23

TERMS OF THE PROPOSED SETTLEMENT
a. The Class

24

The Settlement Agreement provides that “‘Class Members’ shall include all persons

25

included in the classes certified by the Court . . . in addition to all non-exempt employees

26

who were employed by Defendant in California at any time during the Class Period.”

27

(Settlement Agreement, Ex. A, Declaration of Paul K. Haines in Support of Plaintiffs’

28

Motion for Preliminary Approval of Class Action Settlement, ECF No. 105-1 ¶ 7). The
3
3:16-cv-2749-WQH-BLM

1

“Class Period” began on September 8, 2012, and continued through August 2, 2019, the

2

date the Court preliminarily approved the Settlement Agreement. (Id. ¶ 9). The “classes

3

certified by the Court” include:

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19

Class 1a (Unpaid Wages – Paycode Rule: Automatic 30 Minute
Unauthorized Meal Deductions – Legacy Heinz Locations): All current
and former non-exempt production employees of Defendant’s Legacy Heinz
locations, whose timekeeping records reflect a 30 minute deduction of time
worked for shifts worked in excess of 6.0 hours where no meal period is
reflected in the time punch records, during the time period September 8, 2012
through October 9, 2018;
Class 1c (Unpaid Wages – Unauthorized Deductions for “Unapproved”
Hours Worked – Legacy Heinz Locations): All current and former nonexempt production employees of Defendant’s Legacy Heinz locations whose
timekeeping records reflect a deduction of time from the employee’s
timekeeping records, accompanied by any of the following notations: (i)
UnApproved – Late Out; (ii) UnApproved – Late Out - OT; (iii) UnApproved
– Early In; or (iv) UnApproved – Early In – OT, during the time period
September 8, 2012 through October 9, 2018;
Class 2a (Meal Period Class – Paycode Rule: Automatic 30 Minute
Unauthorized Meal Deductions – Legacy Heinz Locations): All current
and former non-exempt production employees of Defendant’s Legacy Heinz
locations, whose timekeeping records reflect a 30 minute deduction of time
worked for shifts worked in excess of 6.0 hours where no meal period is
reflected in the time punch records, during the time period September 8, 2012
through October 9, 2018;

20
21
22
23

Class 2c (Meal Period Class – Late Meal Periods – San Diego Location):
All current and former non-exempt production employees of Defendant’s
San Diego location whose timekeeping records reflect a meal period
commencing after the employee had worked for 5.0 hours or more, during
the time period September 8, 2012 through October 9, 2018;

24
25
26
27
28

Class 4 (Wage Statement Class): All members of Class 1a, 1c, 2a, and/or
2c, who meet the criteria for class membership for the time period September
8, 2015 through October 9, 2018, and who also received a wage statement
from Defendant during this same time period;
Class 5 (Waiting Time Penalty Class): All members of Class 1a, 1c, 2a,
4
3:16-cv-2749-WQH-BLM

1

and/or 2c, who have separated their employment from Defendant during the
time period September 8, 2013 through October 9, 2018.

2
3

(Id. ¶ 6; Order on Motion for Class Certification, ECF No. 88 at 2-3).

4

b. Class Benefits

5

Under the terms of the Settlement Agreement, the “Gross Settlement Amount” is

6

$3,000,000, the “maximum amount Defendant shall have to pay in connection with this

7

Settlement.” (Settlement Agreement ¶ 17). “[F]ollowing the Court-approved deductions1

8

from the Gross Settlement Amount, the remaining amount, the Net Settlement Amount . .

9

. shall be entirely distributed to Participating Class Members”––Class Members who did

10

not opt-out of the Settlement––based upon the following formula:
Class 1a – From the Net Settlement Amount, $50,000 shall be allocated to
the Participating Class Members of Class 1a . . . .

11
12

Class 2a – From the Net Settlement Amount, $75,000 shall be allocated to
the Participating Class Members of Class 2a . . . .

13
14

Class 1c – From the Net Settlement Amount, $5,000 shall be allocated to the
Participating Class Members of Class 1c . . . .

15
16

Class 2c – From the Net Settlement Amount, $200,000 shall be allocated to
the Participating Class Members of Class 2c . . . .

17
18

Class 4 – From the Net Settlement Amount, $100,000 shall be allocated to
the Participating Class Members of Class 4 . . . .

19
20

Class 5 – From the Net Settlement Amount, $200,000 shall be allocated to
the Participating Class Members of Class 5 . . . .

21
22
23

(Id. ¶ 43(d)(i)-(vi)). “Settlement Payments to members of [each Class] will be based on

24

the total number of Compensable Workweeks worked by the member of [that Class]

25
26
The parties estimate “the following anticipated Court-approved deductions from the Gross Settlement
Amount: $112,500 for[ ] PAGA Payment; $50,000 for Administration Costs; $25,500 for Aggregate
Service Payments to four Class Representatives; $175,000 for estimated Class Counsel litigation costs
and $1,000,000 for Class Counsel attorneys’ fees.” (Settlement Agreement ¶ 43(d) n. 1).
1

27
28

5
3:16-cv-2749-WQH-BLM

1

during the time period September 8, 2013 through October 9, 2018, in relation to the

2

aggregate number of Compensable Workweeks worked by all members of [that Class]

3

during the same time period.” (Id.). “Compensable Workweeks” are “the weeks during

4

the Class Period during which a Class Member worked at least one shift for Defendant in

5

the State of California.” (Id. ¶ 11). The Settlement Agreement further provides:

6

From the Net Settlement Fund, $37,500 shall be allocated to the Participating
PAGA Aggrieved Employees, who are defined as all non-exempt production
employees who worked for Defendant during the time period September 8,
2015 through [August 2, 2019]. Settlement Payments to Participating PAGA
Aggrieved Employees will be based on the total number of Compensable
Workweeks worked by the Aggrieved Employees during the time period
September 8, 2015 through [August 2, 2019], in relation to the aggregate
number of Compensable Workweeks worked by all Participating PAGA
Aggrieved Employees during the same time period.

7
8
9
10
11
12
13
14
15
16
17

(Id. ¶ 43(d)(vii)). “The remainder of the Net Settlement Amount estimated at $969,500
shall be allocated to all Participating Class Members based upon the total number of
Compensable Workweeks worked by the Class Member during the Class Period in
relation to the aggregate number of Compensable Workweeks worked by all Class
Members during the Class Period.” (Id. ¶ 43(d)(viii)).
The appointed Administrator, CPT Group, determined that “[a]fter deducting the

18
19
20
21
22
23
24
25
26
27
28

number of Compensable Workweeks associated with the one (1) person that requested
exclusion [from the Settlement], the total number of Compensable Workweeks worked by
all Participating Class Members is 519,753.50.” (Declaration of Ani S. Sarich on Behalf
of CPT Group with Respect to Notification and Settlement Administration (“CPT Decl.”),
ECF No. 111-5 ¶ 14). The Net Settlement Amount is currently estimated at $1,661,415.28.
“Based on estimated settlement calculations, the highest Individual Settlement Payment
to be distributed to a Participating Class Member is estimated to be $2,386.02 and the
average Individual Settlement Payment is estimated to be $542.77.” (Id.).
///
///
6
3:16-cv-2749-WQH-BLM

1

c. Class Notice

2

CPT Group stated that “[b]etween August 19, 2019 and October 29, 2019, CPT

3

received data files from Counsel for Defendants containing Class Members’ names, last-

4

known mailing addresses, social security numbers, dates of employment, location of

5

employment, and number of Class 1a, Class 2a, Class 2c, Class 4, Class 5, PAGA, and

6

Compensable Workweeks.” (Id. ¶ 4). “The initial mailing list contained three thousand

7

sixty-two (3,062) Class Members.” (Id.). On November 1, 2019, CPT Group searched the

8

National Change of Address Database to “provide[ ] updated addresses for any individual

9

who [ ] moved in the previous four years and [ ] notified the U.S. Postal Service of his or

10

her change of address.” (Id. ¶ 5).

11

“On November 15, 2019, [ ] three thousand sixty-two (3,062) Notice Packets were

12

mailed via U.S. First-Class Mail to the identified Class Members.” (Id. ¶ 6). The Notice

13

Packet included the “Court-approved Class Notice, Change of Address form, . . . and pre-

14

printed return envelope . . . .” (Settlement Agreement ¶ 22). The Class Notice to each

15

Class Member stated the Class Member’s “total number of Compensable Workweeks that

16

[the Class Member] worked during each of the applicable Class Periods . . .” and the

17

estimated Settlement Payment the Class Member would receive. (Class Notice, Ex. A,

18

CPT Decl., ECF No. 111-5 at 18).

19

As of February 19, 2020, 161 Notice Packets were returned to CPT Group as

20

“undeliverable.” (CPT Decl., ECF No. 111-5 ¶ 8). “As a result of either Skip Trace,

21

request from Counsel or Class Members, or receipt of updated address information for

22

currently employed Class Members, a total of one hundred forty-one (141) Notice Packets

23

have been re-mailed,” and thirty-eight remain undeliverable. (Id. ¶ 9).

24

d. Opt-Outs and Objections to Settlement

25

The Class Notice “indicated a deadline of January 14, 2020, to dispute the total

26

number of work weeks, [or] to object or request exclusion from the settlement.” (Id. ¶ 6).

27

As of February 19, 2020, CPT Group “received one (1) request for exclusion from Victor

28

Duarte, and no notices of objection.” (Id. ¶ 11). As of February 19, 2020, CPT Group
7
3:16-cv-2749-WQH-BLM

1

“report[ed] a total of three thousand sixty-one (3,061) Participating Class Members,

2

representing 99.97% of the Class.” (Id. ¶ 12).

3

e. Notice and Administration Costs

4

CPT Group “print[ed] and mail[ed] to Class Members the Notice of Class Action

5

Settlement, Change of Address Form, in English and Spanish, and a pre-paid return

6

envelope.” (Id. ¶ 2). CPT Group also “process[ed] undeliverable mail and locat[ed]

7

updated addresses for Class Members; [ ] receiv[ed] other communications about the

8

settlement; [ ] notif[ied] the parties of the number of Class Members that filed timely

9

requests for exclusion; [ ] notif[ied] the parties of the number of Class Members who filed

10

untimely or deficient requests for exclusion . . .; [and] establish[ed] and maintain[ed] a

11

toll-free hotline where Class Members c[ould] speak to case representatives . . . .” (Id.).

12

CPT Group is still tasked with answering Class Member questions and “issuing and

13

mailing settlement checks, including the Class Representative Service Awards to the

14

Plaintiffs, to all Participating Class Members with the appropriate tax reporting.” (Id.)

15

“Under the Settlement Agreement, administration fees were estimated to be

16

$50,000.” (Id. ¶ 16; see Settlement Agreement ¶ 43(d) n. 1). “CPT estimated for a Class

17

of 3,062, a bid of $35,500.00 to administer the Settlement.” (CPT Decl., ECF No. 111-5

18

¶ 16). Kraft also incurred “fees for a data expert in the sum of $15,776.00” to “isolate the

19

number of Compensable Workweeks worked by each Class Member in each Subclass.”

20

(Id.).

21

f. Attorneys’ Fees and Costs

22

Class Counsel requests an award of attorneys’ fees of $1,000,000 and

23

reimbursement of Class Counsel’s litigation costs of $150,584.72. “Class Counsel seeks

24

an attorneys’ fee award of 33.33% of the common fund . . . .” (ECF No. 111-1). Attorney

25

Michael D. Singer stated in a Declaration that, “[t]o produce the favorable results on behalf

26

of the Class, Class Counsel has expended 2,374.6 attorney and para-professional hours

27

since the inception of this case through the present resulting in a lodestar fee of

28

$1,230,315.00.” (Declaration of Michael D. Singer in Support of Plaintiff’s Motion for
8
3:16-cv-2749-WQH-BLM

1

Final Approval of Class Action Settlement (“Singer Decl.”), ECF No. 111-3 ¶ 13). “To

2

date, Class Counsel has advanced costs of $150,584.72 [ ] in this action.” (Id. ¶ 29; see

3

Declaration of Paul K. Haines in Support of Plaintiff’s Motion for Final Approval of Class

4

Action Settlement (“Haines Decl.”), ECF No. 111-2 ¶¶ 15, 17; Declaration of Sahag

5

Majarian II in Support of Plaintiff’s Motion for Final Approval of Class Action Settlement

6

(“Majarian Decl.”), ECF No. 111-4 ¶ 9).

7

g. Incentive Award

8

“Class Counsel requests the sum of $7,500 be awarded to Plaintiffs Enrique

9

Vasquez, Sergio Alfonso Lopez, and Maria Viveros each, and $3,000 to Plaintiff Xochitl

10

Lozano . . . .” (ECF No. 111-1 at 32).

11 III.

FAIRNESS OF THE SETTLEMENT

12

Plaintiffs assert that the Settlement is in the best interests of the Class. Plaintiffs

13

assert that the parties weighed the risks and balances of litigating this case through trial.

14

Plaintiffs assert that “the affirmative defenses asserted by Defendant[ ], the uncertainty of

15

maintaining Rule 23 certification, the prospect of a potential adverse summary judgment

16

ruling, the difficulties of complex litigation, the lengthy process of establishing specific

17

damages and various possible delays and appeals, were also carefully considered by Class

18

Counsel in arriving at the proposed settlement.” (ECF No. 111-1 at 18). Plaintiffs further

19

assert that “[t]he absence of any objections and only one opt-out, resulting in a 99.97%

20

participation rate, supports a strong presumption of fairness and that the Settlement is

21

adequate and reasonable.” (Id. at 17).

22

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

23

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

24

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

25

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

26

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

27

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

28

action settlements. Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992).
9
3:16-cv-2749-WQH-BLM

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

adequate to all concerned.” Officers for Justice v. Civil Serv. Comm’n of San Francisco,

9

688 F.2d 615, 625 (9th Cir. 1982).

10
11
12
13
14
15

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.

16
17
18
19
20
21
22
23
24
25
26
27

Linney v. Cellular Alaska P’ship, 151 F.3d 1234, 1242 (9th Cir. 1998) (quotation 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).
The parties have been litigating this case for three and a half years. Nearly thirty
depositions were taken, and “[s]ignificant written discovery was propounded and
responded to by the parties.” (Haines Decl., ECF No. 111-2 ¶ 10). “[T]he Parties exchanged
over 50,000 pages of documents and Defendant produced 700 excel spreadsheets
containing thousands of lines of data that included Class Member payroll and timekeeping
records.” (Id. ¶ 11). “Plaintiffs’ counsel interview[ed] over one hundred Class Members.”
(Id. ¶ 12). Class Counsel retained an economics expert. “Significant discovery was

28
10
3:16-cv-2749-WQH-BLM

1

conducted in this litigation,” allowing the parties to make an informed settlement analysis.

2

(Id. ¶ 10).

3

“On March 18, 2019, the Parties participated in a private mediation session with

4

Jeff Ross, a well-regarded and experienced wage and hour class action mediator.” (Id. ¶

5

13; see In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d at 948 (explaining that

6

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

7

of non-collusiveness”)). As a result of mediation, “settlement of the principle terms was

8

reached by way of a double-blind mediator’s proposal that was accepted by both sides.”

9

(Haines Decl., ECF No. 111-2 ¶ 10). The parties’ extensive investigation, discovery, and

10

subsequent mediation weigh in favor of granting final approval.

11

The Participating Class Members’ estimated recovery is $1,661,415.28. (CPT Decl.,

12

ECF No. 111-5 ¶ 14). “The Gross Settlement Amount is $3,000,000 and will have the

13

following anticipated deductions: attorneys’ fees of $1,000,000.00, litigation costs of

14

$150,584.72, Class Representative Service Awards of $25,500.00, PAGA civil penalties

15

of $112,500.00 to the Labor Workforce and Development Agency, and settlement

16

administration expenses of $50,000.00.” (Id. ¶ 13). “Based on estimated settlement

17

calculations, the highest Individual Settlement Payment to be distributed to a Participating

18

Class Member is estimated to be $2,386.02 and the average Individual Settlement Payment

19

is estimated to be $542.77.” (Id. ¶ 14). Only one individual has opted out of the Settlement,

20

and no objections to the Settlement have been submitted. See Mandujano v. Basic

21

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

22

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

23

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

24

Supp. 610, 624 (N.D. Cal. 1979) (finding “persuasive” the fact that 84% of the Class filed

25

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

26

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

27

number of objectors supports the fairness, reasonableness, and adequacy of the settlement).

28

Given the lack of objection by the Class Members and the risk, expense, complexity, and
11
3:16-cv-2749-WQH-BLM

1

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

2

monetary benefits to the Participating Class Members are fair and reasonable.

3

Class Counsel included attorneys at three different law firms with significant

4

experience in class action and wage and hour litigation. The attorneys have a strong

5

understanding of the case from litigating against Defendant for three and a half years and

6

from prior experience in similar cases. (Haines Decl., ECF No. 111-2 ¶¶ 3-8; Singer Decl.,

7

ECF No. 111-3 ¶¶ 3-9). Plaintiffs’ attorneys are well qualified to conduct this litigation and

8

to assess its settlement value. The Court finds that the Class has been fairly and adequately

9

represented during settlement negotiations.
The Court finds that the settlement is fundamentally “fair, adequate and reasonable”

10
11

and that no evidence of collusion exists. Fed. R. Civ. P. 23(e).

12 IV.

ATTORNEYS’ FEES AND COSTS

13

Plaintiffs request that the Court award $1,000,000 in attorneys’ fees, $150,584.72 in

14
15

litigation costs, and $50,000 in administrative costs.
a. Attorneys’ Fees

16

Plaintiffs request that the Court award $1,000,000 in attorneys’ fees. Rule 23(h) of

17

the Federal Rules of Civil Procedure provides that, “[i]n a certified class action, the court

18

may award reasonable attorneys’ fees and nontaxable costs that are authorized by law or

19

by the parties’ agreement.” Fed. R. Civ. P. 23(h). “Where a settlement produces a common

20

fund for the benefit of the entire class, courts have discretion to employ either the lodestar

21

method or the percentage-of-recovery method.” In re Bluetooth Headset Prods. Liab.

22

Litig., 654 F.3d at 942. Under the percentage-of-recovery method, “courts typically

23

calculate 25% of the fund as the ‘benchmark’ for a reason-able fee award, providing

24

adequate explanation in the record of any ‘special circumstances’ justifying a departure.”

25

Id. (quoting Six (6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1311 (9th

26

Cir. 1990); Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir. 1989)).

27

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

28

party reasonably expended on the litigation (as supported by adequate documentation) by
12
3:16-cv-2749-WQH-BLM

1

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

2

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

3

may then adjust the figure upward or downward taking into consideration twelve

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

rates claimed.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), superseded by the Prison

14

Litigation Reform Act on other grounds. However, trial courts may use “rough”

15

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

16

(2011).

17

In this case, Class Counsel provided current billing rates for the sixteen paralegals

18

and attorneys who worked on this case, ranging from $175 per hour for paralegals and $325

19

per hour for a second-year associate to $900 per hour for a forty-sixth-year partner. (See

20

Ex. 1, Singer Decl., ECF No. 111-3 at 23-24 ($900/hour for Timothy D. Cohelan (of

21

Cohelan Khoury & Singer (“CKS”) with 46 years’ experience); $875/hour for Isam C.

22

Khoury (of CKS with 45 years’ experience) and Michael D. Singer (of CKS with 36 years’

23

experience); $725/hour for Diana M. Khoury (of CKS with 33 years’ experience);

24

$700/hour for Sahag Majarian II (of the Law Offices of Sahag Majarian II (“LOSM”) with

25

29 years’ experience); $650/hour for Paul K. Haines (of Haines Law Group (“HLG”) with

26

13 years’ experience); $550/hour for Marta Manus (of CKS with 12 years’ experience),

27

Janine R. Menhennet (formerly of CKS with 28 years’ experience), and Seam M. Blakely

28

and Tuvia Korobkin (both of HLG with 10 years’ experience); $400/hour for Daniel Brown
13
3:16-cv-2749-WQH-BLM

1

and Stacey M. Shim (both of HLG with 4 years’ experience); $325/hour for Jamin Xu (of

2

HLG with 2 years’ experience); $200/hour for Amber Worden (a certified paralegal of

3

CKS); and $175/hour for all other paralegals)). Upon consideration of the Declarations and

4

filings submitted by Class Counsel, the attorneys’ experience, and other rates approved in

5

this district, the Court finds that the requested rates are reasonable. See Hunter v. Nature’s

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

Class Counsel provided general summaries of each firm’s billing time. Class

14

Counsel expended approximately 2,374.6 hours prosecuting this action. CKS expended

15

513.1 hours prosecuting this action. HLG expended 1,823.2 hours prosecuting this action.

16

LOSM expended 38.3 hours prosecuting this action. (See Haines Decl., ECF No. 111-2 ¶

17

15; Singer Decl., ECF No. 111-3 ¶¶ 23-26 and Ex. 1; Majarian Decl., ECF No. 111-4 ¶¶ 7-

18

9). The summaries and Declarations provide a sufficient showing of the hours Class

19

Counsel expended on this case.

20

As of November 19, 2019, Class Counsel’s total fee lodestar in this action was

21

$1,230,315.00. The total lodestar for CKS was $27,665.92. The total lodestar for HLG was

22

$104,783.72. The total lodestar for LOSM was $18,135.08. (Ex. 1, Singer Decl., ECF No.

23

111-3 at 24). Class Counsel’s requested $1,000,000 in attorneys’ fees represents 33.33% of

24

the common fund and approximately 81.28% of the lodestar. Courts in this circuit have

25

routinely authorized similar awards. See, e.g., Shames, 2012 U.S. Dist. LEXIS 158577, at

26

*64 (“In light of this presumptively reasonable lodestar, Plaintiffs’ $5,123,336.00 fee

27

request is reasonable, as it represents a 20% reduction of the lodestar.”); Stuart v.

28

RadioShack Corp., No. C-07-4499-EMC, 2010 U.S. Dist. LEXIS, at *18 (N.D. Cal. Aug.
14
3:16-cv-2749-WQH-BLM

1

9, 2010) (finding 33% fee award “well within the range of percentages which courts have

2

upheld as reasonable in other class action lawsuits”); Ripee v. Bos. Mkt. Corp., No.

3

05cv1359 BTM (JMA), 2006 U.S. Dist. LEXIS 101136 (S.D. Cal. Oct. 10, 2006) (award

4

of 40% of $3,750,000 wage and hour class action settlement). The Court approves the

5

award of attorneys’ fees in the amount of $1,000,000.

6

b. Litigation Costs

7

Plaintiffs request that the Court award $150,584.72 in litigation costs. Class Counsel

8

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

9

investigating and prosecuting this case. See Staton, 327 F.3d at 974. Class Counsel

10

expended $150,584.72 in un-reimbursed expenses in the prosecution of this action. CKS

11

incurred $27,665.92 in costs. HLG incurred $104,783.72 in costs. LOSM incurred

12

$18,135.08 in costs. (Ex. 1, Singer Decl., ECF No. 111-3 at 24). No Class Member has

13

objected to the request for reimbursement of $150,584.72 in costs. The Court finds that

14

Class Counsel’s out-of-pocket costs were reasonably incurred in connection with the

15

prosecution of this litigation, were advanced by Class Counsel for the benefit of the Class,

16

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

17

litigation costs and expenses in the amount of $150,584.72.

18

c. Administrative Costs

19

Plaintiffs request that the Court award $50,000 to CPT Group, the appointed

20

Administrator. “CPT estimated for a class of 3,062, a bid of $35,000.00 to administer the

21

Settlement.” (CPT Decl., ECF No. 111-5 ¶ 16). Plaintiffs assert that “CPT has

22

administered, and will continue to administer the Settlement following final approval, by

23

calculating Settlement Payment awards, printing and mailing settlement checks, issuing

24

IRS W-2 and 1099 forms, reporting taxes to the appropriate agencies, and responding to

25

inquiries.” (ECF No. 111-1 at 33). In addition, Defendant Kraft retained a data expert and

26

incurred fees of $15,766.00, which was required “to determine the pay-out amounts to each

27

Participating Class Member.” (CPT Decl., ECF No. 111-5 ¶ 16). Plaintiffs request that

28

Kraft’s expert fee be included as part of the $50,000 to CPT Group. Courts regularly award
15
3:16-cv-2749-WQH-BLM

1

administrative costs associated with providing notice to the class. See, e.g., Odrick v.

2

UnionBanCal Corp., No. C 10-5565 SBA, 2012 U.S. Dist. LEXIS 171413, at *17-18 (N.D.

3

Cal. Dec. 3, 2012). The Court concludes that CPT Group’s costs and the costs of the expert

4

were reasonably incurred for the benefit of the Class. The Court approves Class Counsel’s

5

requests for administrative costs in the amount of $50,000.

6

V.

INCENTIVE AWARD

7

Plaintiffs request incentive awards of $7,500 to Plaintiffs Vasquez, Lopez, and

8

Viveros, and $3,000 to Plaintiff Lozano. Incentive awards are “fairly typical” discretionary

9

awards “intended to compensate class representatives for work done on behalf of the class,

10

to make up for financial or reputational risk undertaken in bringing the action, and,

11

sometimes, to recognize their willingness to act as a private attorney general.” Rodriguez

12

v. W. Publ’g Corp., 563 F.3d 948, 958-59 (9th Cir. 2009) (emphasis omitted) (citations

13

omitted). In assessing the reasonableness of an incentive award, several district courts in

14

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

15

Co., 901 F. Supp. 294, 299 (N.D. Cal. 1995), which analyzes (1) risk to the class

16

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

17

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

18

and effort spent by the class representative; (4) the duration of the litigation; (5) the

19

personal benefit, or lack thereof, enjoyed by the class representative as a result of the

20

litigation. See, e.g., Miller v. Wise Co., ED CV17-00616 JAK (PLAx), 2020 U.S. Dist.

21

LEXIS 40032, at *37 (C.D. Cal. Feb. 11, 2020); Hunter, 2020 U.S. Dist. LEXIS 1706, at

22

*25-26; Rodriguez v. Penske Logistics, LLC, No. 2:14-cv-02061-KJM-CKD, 2019 U.S.

23

Dist. LEXIS 9441, at *39 (E.D. Cal. Jan. 17, 2019); Vietnam Veterans of Am. v. CIA, No.

24

09-cv-00037-CW, 2018 U.S. Dist. LEXIS 172135, at *3-4 (N.D. Cal. Oct. 4, 2018).

25

“Class Counsel requests the sum of $7,500 be awarded to Plaintiffs Enrique

26

Vasquez, Sergio Alfonso Lopez, and Maria Viveros each, and $3,000 to Plaintiff Xochitl

27

Lozano for their commitment to prosecuting this Action, their efforts, risks undertaken for

28

the payment of attorneys’ fees and costs if the Action had been lost, general releases of all
16
3:16-cv-2749-WQH-BLM

1

claims arising from their employment, stigma upon future employment opportunities for

2

having sued a former employer, as well as having obtained substantial recoveries for every

3

Class Member.” (ECF No. 111-1 at 32). The Van Vranken factors weigh in favor of

4

approving the service award requested. Plaintiff Vasquez initiated this action, “searched

5

for and found over 475 pages of earning statements, time punch details, tax documents,

6

and health benefits information,” answered written discovery requests, appeared for

7

deposition, attended mediation, and reviewed the Settlement Agreement. (Declaration of

8

Enrique Vasquez in Support of Plaintiffs’ Motion for Final Approval of Settlement, ECF

9

No. 111-6 ¶¶ 5-10). Plaintiff Lopez initiated the action consolidated with this case and has

10

been “actively involved in this case since . . . October 2016.” (Declaration of Sergio

11

Alfonso Lopez in Support of Plaintiffs’ Motion for Final Approval of Settlement, ECF

12

No. 111-7 ¶ 4). Plaintiff Lopez gathered documents, reviewed and analyzed documents

13

produced by Kraft, discussed case strategy, responded to formal discovery requests, and

14

sat for deposition. (Id. ¶ 4). Plaintiff Viveros has been actively involved in the case since

15

joining the lawsuit and has gathered documents, reviewed and analyzed documents

16

produced by Kraft, discussed case strategy, responded to formal discovery requests, and

17

sat for deposition. (Declaration of Maria Viveros in Support of Plaintiffs’ Motion for Final

18

Approval of Settlement, ECF No. 111-8 ¶ 4). Plaintiff Lozano has been actively involved

19

in the case since joining the lawsuit and has gathered documents, reviewed and analyzed

20

documents produced by Kraft, and discussed case strategy. (Declaration of Xochitl

21

Lozano in Support of Plaintiffs’ Motion for Final Approval of Settlement, ECF No. 111-

22

9 ¶ 4).

23

The Plaintiffs have protected the interests of the Class Members and have

24

participated in all aspects of the case. The Class has benefitted from these actions by

25

receiving a settlement. No Class Members has objected to an incentive award of $7,500

26

for Plaintiffs Vasquez, Lopez, and Viveros, and $3,000 for Plaintiff Lozano. The incentive

27

awards are within the acceptable range of approval and do not appear to be the result of

28

collusion. See, e.g., Van Vranken, 901 F. Supp. at 300 (approving an award of $50,000 for
17
3:16-cv-2749-WQH-BLM

1

the named plaintiff); Williams v. Costco Wholesale Corp., No. 02cv2003 IEG (AJB), 2012

2

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

3

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

4

requested incentive awards of $7,500 each to Plaintiffs Enrique Vasquez, Sergio Alfonso

5

Lopez, and Maria Viveros, and $3,000 to Plaintiff Xochitl Lozano are reasonable.

6 VI.

CONCLUSION

7

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

8

by the parties, and the evidence and argument received by the Court in conjunction with

9

the Motion for Order Granting Preliminary Approval of Class Action Settlement (ECF No.

10

105) , and the Motion for Order Granting Final Approval of Class Action Settlement (ECF

11

No. 111), the Court grants final approval of the Settlement. The Court HEREBY ORDERS

12

AND MAKES THE FOLLOWING DETERMINATIONS:

13

1.

Pursuant to the Court’s Order granting preliminary approval of class action

14

settlement, the Court-approved Notice of Class Action Settlement, Change of Address

15

form, in English and Spanish, and a pre-printed return envelope (“Notice Packet”) were

16

mailed to all Class Members by first-class mail. The Notice Packet notified Class Members

17

of their rights (1) to receive their share of the Settlement without a claim form; (2) to object

18

to the Settlement and the deadline to submit an objection; (3) to request exclusion and the

19

deadline to do so; (4) to appear at the Final Approval Hearing; and (5) the number of weeks

20

each Class Member worked during the Class Period and the estimated amount of their

21

Individual Settlement Payment.

22

2.

The Court finds and determines that this notice procedure afforded adequate

23

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

24

decision regarding approval of the Settlement based on the response of the Class. No

25

objections were presented by any Class Member, and only one individual, identified in the

26

CPT Declaration, requested exclusion from the Settlement. The Court finds and determines

27

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

28

requirements of law and due process.
18
3:16-cv-2749-WQH-BLM

1

3.

The Court further finds and determines that the terms of the Settlement are

2

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

3

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

4

should be and hereby are ordered to be consummated.

5
6
7
8
9

4.

The Court confirms the law firms of Cohelan Khoury & Singer, Haines Law

Group, APC, and the Law Office of Sahag Majarian II as Class Counsel.
5.

The Court confirms the Plaintiffs Enrique Vasquez, Sergio Alfonso Lopez,

Maria Viveros, and Xochitl Lozano as the Class Representatives.
6.

The Court finds and determines that the payments to be paid to 3,061

10

Participating Class Members as provided for by the Settlement Agreement are fair and

11

reasonable. The Court hereby grants final approval to, and orders payment of, those

12

amounts to be made in accordance with the terms of the Settlement Agreement.

13

7.

Pursuant to the terms of the Settlement, and the authorities, evidence and

14

argument submitted by Class Counsel, the Court hereby awards Class Counsel attorneys’

15

fees of $1,000,000 and reimbursement of their litigation costs of $150,584.72. The Court

16

finds and determines that such amounts are fair and reasonable and orders the

17

Administrator to make these payments in accordance with the terms of the Settlement

18

Agreement.

19

8.

The Court approves Class Representative service payments of $7,500 to

20

Enrique Vasquez, $7,500 to Sergio Alfonso Lopez, and $7,500 to Maria Viveros, and

21

$3,000 to Xochitl Lozano in consideration of (1) their initiation and prosecution of their

22

actions; (2) service as representatives of the Class; (3) work performed; (4) risks

23

undertaken for the payment of costs in the event the case had not concluded successfully;

24

(5) general releases of all claims; and (6) the substantial benefits conferred upon all

25

Participating Class Members.

26

9.

The Court finds and determines that payment to the California Labor and

27

Workforce Development Agency of $112,500 as its share of the Settlement of civil

28

penalties under the Private Attorneys General Act is fair, reasonable, and appropriate. The
19
3:16-cv-2749-WQH-BLM

1

Court hereby grants final approval to and orders that amount be paid in accordance with

2

the Settlement Agreement.

3

10.

The Court further approves the payment of the fees and costs of the appointed

4

Administrator, CPT Group, Inc., of $50,000 for services rendered and to be rendered in

5

connection with the completion of its administrative duties pursuant to the Settlement.

6

11.

Without affecting the finality of this Order in any way, the Court retains

7

jurisdiction of all matters relating to the interpretation, administration, implementation,

8

effectuation, and enforcement of this Order and the Settlement.

9
10

12.

Nothing in this Order shall preclude any action to enforce the parties’

obligations under the Settlement or under this Order.

11

13.

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

12

14.

The parties shall bear their own costs and attorneys’ fees except as otherwise

13

provided by the Settlement Agreement and this Order granting Class Counsel’s attorneys’

14

fees and reimbursement of litigation costs.

15

15.

The Court will enter final judgment in this case in accordance with the terms

16

of the Settlement, Order granting preliminary approval of class action settlement, and this

17

Order. The parties shall submit a proposed judgment.

18

Dated: April 1, 2020

19
20
21
22
23
24
25
26
27
28
20
3:16-cv-2749-WQH-BLM