Rodriguez, et al v. D.M. Camp & Sons, No. 1:2009cv00700 - Document 60 (E.D. Cal. 2013)
Court Description: FINDINGS and RECOMMENDATIONS Granting Plaintiffs' Motion for Final Approval of Class Settlement 52 , signed by Magistrate Judge Jennifer L. Thurston on 5/15/2013. Referred to Judge Ishii. Objections to F&R due by 5/29/2013. (Hall, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 FERNANDO RODRIGUEZ, and GUADALUPE HERERRA, on behalf of themselves and all others similarly situated, 13 14 15 16 17 18 Plaintiffs, v. D.M. CAMP & SONS, Defendants. ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:09-cv-00700 - AWI - JLT FINDINGS AND RECOMMENDATIONS GRANTING PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT (Doc. 52) Fernando Rodriguez and Guadalupe Herrera (“Plaintiffs”) request final approval of a class 19 settlement. (Doc. 52). Specifically, Plaintiffs seek: (1) certification of the settlement class; (2) final 20 approval of the settlement; (3) awards to class representatives in the amount of $10,000 each; (4) 21 attorney’s fees in the amount of $202,500 to class counsel; (5) an award of costs in the amount of 22 $15,000 to class counsel; (6) payment to the settlement administrator in the amount of $23,000; (7) 23 payment of $15,000 to the California Labor Workforce Development Agency; (8) approval of the 24 method for distribution of funds; and (9) entry of judgment. (Doc. 52 at 2). Defendant D.M. Camp & 25 Sons (“Defendant”) has not opposed the motion, and no objections were filed by class members. 26 The Court determined the matter was suitable for decision without oral argument and took the 27 matter under submission pursuant to Local Rule 230(g). (Doc. 59). For the following reasons, the 28 Court recommends Plaintiffs’ motion for final approval of class settlement be GRANTED. 1 FACTUAL AND PROCEDURAL HISTORY 1 2 On November 9, 2005, “Doe” plaintiffs initiated an action against table grape growers based in 3 Kern County, including D.M. Camp & Sons; Stevco, Inc.; Marko Zaninovich, Inc.; Sunview Vineyards 4 of California; Guimarra Vineyards Corp.; El Rancho Farms; Castlerock; and FAL, Inc. 1 See Doe v. 5 D.M. Camp & Sons, 624 F.Supp.2d 1153 (E.D. Cal. 2008). Plaintiffs alleged that they were former and 6 current employees of the defendants. Id. at 1156. 7 Defendants in the Doe action, including D.M. Camp & Sons, filed motions to dismiss the 8 operative complaint, which were granted by the Court on March 31, 2008. Likewise, the Court granted 9 motions to sever the action, and the Court directed the plaintiffs to file amended pleadings against each 10 defendant to effectuate the severance. On May 29, 2008, Fernando Rodriguez and Guadalupe Herrera 11 were named as plaintiffs in the Third Amended Complaint against D.M. Camp & Sons. (Doe, Doc. 12 170). On March 31, 2009, the Court ordered Plaintiffs to re-file their suit in a new case number within 13 twenty days to finalize the severance. (Doe, Doc. 240). 14 On April 20, 2009, Plaintiffs filed their complaint against D.M. Camp & Sons. (Doc. 1 at 1). 15 The complaint alleges: violation of the Agricultural Workers Protection Act, 29 U.S.C. § 1801, et seq.; 16 failure to pay wages; failure to pay reporting time wages; failure to provide rest and meal periods; 17 failure to pay wages of terminated or resigned employees; knowing and intentional failure to comply 18 with itemized employee wage statement provisions; penalties under Labor Code § 2699, et seq.; breach 19 of contract; and violation of unfair competition law. (Id.) Plaintiffs brought the action “on behalf of 20 Plaintiffs and members of the Plaintiff Class comprising all non-exempt agricultural, packing shed, and 21 storage cooler employees employed, or formerly employed, by each of the Defendants within the State 22 of California.” (Id. at 4). 23 The parties engaged in private mediation with Daniel Quinn, and the matter was resolved after 24 25 26 27 28 1 The Court may take notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). The record of state court proceeding is a source whose accuracy cannot reasonably be questioned, and judicial notice may be taken of court records. Mullis v. United States Bank. Ct., 828 F.2d 1385, 1388 n.9 (9th Cir. 1987); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D.Cal.1978), aff'd, 645 F.2d 699 (9th Cir. 1981); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989); Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th Cir. 1980). Therefore, judicial notice is taken of the Court’s docket in Doe v. D.M. Camp & Sons, Case No. 1:05cv-01417-AWI-SMS. 2 1 “numerous sessions and telephone calls coving a period well in excess of one year.” (Doc. 54 at 9). 2 Thereafter, Plaintiffs filed a motion for preliminary approval of class settlement on November 2, 2012. 3 (Doc. 37). The Court held a hearing on December 6, 2012 (Doc. 44), after which preliminary approval 4 of the class settlement was granted. (Doc. 45). Due to difficulties in preparing the necessary class data, the parties requested a continuation of 5 6 applicable deadlines and continuation of the Final Approval and Fairness Hearing. (Doc. 47). The 7 parties reported Defendant discovered “a large number of class members with very small (1 or 2 pay 8 period) claims” while gathering the class data, and estimated there were “approximately 900 class 9 member[s] with de minimus claims” that had not been identified previously. (Id. at 2., n.1.) Therefore, 10 the Court extended the applicable deadlines, and ordered the Settlement Administrator to mail the 11 approved Class Notice Packet on or before March 11, 2011. (Doc. 48 at 2). In addition, the Court 12 ordered class members to submit claim forms or file any objections to the Settlement Agreement no 13 later than April 24, 2013. (Id. at 2). On March 1, 2013, the parties notified the Court that Defendant was “unable to produce current 14 15 addresses and social security numbers for a substantial minority of the Class Members – particularly 16 those with short work histories with Defendant due to their labor being secured through farm labor 17 contractors.” (Doc. 49 at 2). Plaintiffs proposed running broadcasts on a Spanish-language station in 18 an effort to increase claim rates. (Id.) The Court approved this proposal on March 4, 2013. (Doc. 50). In compliance with the deadlines set forth by the Court, Plaintiffs filed their motion for final 19 20 approval of the class settlement and supporting documents on May 1, 2012. (Docs. 52-58). SETTLEMENT TERMS 21 22 Pursuant to the proposed settlement (“the Settlement”), the parties agreed to a gross settlement 23 amount of $675,000. (Settlement § III.A, Doc. 53-1 at 5). Defendant agreed to fund the settlement by 24 January 15, 2013 (Doc. 53-1 at 11), and Plaintiffs report the amount has been paid. (Doc. 54 at 7). 25 I. 26 Payment Terms The settlement fund covers payments to qualified class members with additional compensation 27 to class representatives. (Settlement § III.B.1, Doc. 53-1 at 5). Also, the Settlement provides for 28 attorneys’ fees and expenses, as well as payments to the settlement administrator and the California 3 1 Labor & Workforce Development Agency. (Settlement § III.B; Doc. 53-1 at 5-6). Specifically, the 2 Settlement provides: 3 • Class representatives will receive up to $10,000 each; 4 • Class counsel will receive no more than $225,000 for attorneys’ fees, which equals 33.33% of the gross settlement amount, and $15,000 for expenses; 5 • The California Labor and Workforce Development Agency shall receive $15,000; and 6 • The Settlement Administrator will receive up to $23,000 for fees and expenses. 7 8 (Id. at § III.B; Doc. 54 at 7). After these payments are made, the remaining money (“Net Settlement 9 Fund”) will be distributed as settlement shares. (Id. at § III.D; Doc. 53-1 at 6). 10 To receive a share from the Net Settlement Fund, a class member was required to submit a 11 timely and valid claim form. (Settlement §§ I.B, III.D; Doc. 53-1 at 6). Settlement shares will be 12 calculated with the following formula: “(a) the Claimant’s total number of Months of Employment2 13 during the Class Period3 (b) divided by the aggregate number of Months of Employment of 14 Participating Class Members during the Class Period (with the division rounded to four decimal 15 places) (c) multiplied by the value of the Net Settlement Fund.” Id. Thus, the amount an individual 16 receives depended upon the number of class members who submitted timely and valid claim forms. 17 According to the parties, 171 valid claims were made, and if the Settlement is approved, the average 18 claim will be “approximately $2,204.68 per worker.” (Doc. 54 at 12, 26). The entire Net Settlement Fund will be distributed, but if any checks are not cashed, that 19 20 money will be distributed to a charity of Defendant’s choice. (Doc. 54 at 7). Payments will not be 21 made to individuals who elected to exclude themselves from the class or failed to submit a timely and 22 valid claim. Id. at 10. 23 II. 24 Releases The Settlement provides that Plaintiffs and class members, other than those who elect not to 25 26 2 “Months of Employment” is defined as “months during the Class Period that the Class Member was an active employee or joint employee of Defendant.” (Settlement § I.U; Doc. 53-1 at 3). 27 3 28 “Class Period” is defined as “the period of time from November 17, 2001 to December 31, 2006.” (Settlement, § I.K; Doc. 53-1 at 2). 4 1 participate in the Settlement, shall release Defendant from the claims arising in the class period at the 2 time final judgment is entered. The release for class members provides: As of the date of the Judgment, all Participating Class Members hereby fully and finally release Defendant, and its parents, predecessors, successors, subsidiaries, affiliates, and trusts, and all of its employees, officers, agents, attorneys, stockholders, fiduciaries, other service providers, and assigns, from any and all claims, known and unknown, for or related to all claims based on or arising from the allegations that they were or are improperly compensated under federal, California, or local law (the “Class’s Released Claims”). The Class’s Released Claims are limited to the time period November 17, 2001 to December 31, 2006 for claims for alleged unpaid wages, overtime compensation, missed meal-period and rest-break wages or penalties, and interest; related penalties, recordkeeping penalties, pay-stub penalties, minimum-wage penalties, missed meal-period and rest-break penalties, and waiting-time penalties; and costs and attorneys’ fees and expenses. 3 4 5 6 7 8 9 10 11 (Settlement § III.G.2; Doc. 53-1 at 13-14). The release for Plaintiffs provides for “any and all claims 12 arising from or related to the matters alleged in the Action.” (Id. at § III.G.1). Thus, the release for 13 class representatives encompasses more clans than the release of class members. Defendant mutually releases Plaintiffs and class members from “claims arising from or related 14 15 to Defendant’s employment during the time period November 17, 2001 to December 31, 2006 of 16 Plaintiffs and Participating Class Members, including . . . all claims arising from or related to the 17 matters alleged in the Action.” (Settlement § III.G.3; Doc. 53-1 at 14). 18 III. Objections and Opt-Out Procedure 19 Any class member who wished had an opportunity to object or elect not to participate in the 20 Settlement. The Notice of Proposed Settlement (“the Notice”) explained the procedures to “claim a 21 share of the settlement, comment in favor of the settlement, object to the settlement, or elect not to 22 participate in the settlement.” (Doc. 41-2 at 2-3). In addition, the Notice explained the release of 23 claims by class members pursuant to the Settlement. (Id. at 6-7). 24 IV. 25 Service of the Notice Packets and Responses Received On January 1, 2013, the Settlement Administrator, Simpluris, Inc. (“Simpluris”) received the 26 Court-approved Notice Packet, which included the Notice, Claim Form, and Exclusion Form. (Butler 27 Decl. ¶ 5; Doc. 55 at 3). Mary Butler, case manager for Simpluris, reports that Notice Packets were 28 mailed to 1,132 class members identified by Defendant on March 11, 2013. (Id. ¶ 8). Notice Packets 5 1 were not mailed to 590 class members because addresses and Social Security numbers were not 2 available. (Id.) Also, four individuals who contacted Simpluris should have been included in the 3 class, and they received Notice Packets from Simpluris. (Id. ¶ 10). The United States Postal Service returned 381 Notice Packets as undeliverable. (Butler Decl. ¶ 4 5 10). Simpluris attempted to locate current addresses for these individuals, and re-mailed 197 of the 6 Notice Packets. (Id.) After the additional searches for correct addresses, 178 Notice Packets remained 7 undeliverable. (Id.) On April 10, 2013, Simpluris mailed a reminder to the 1,044 class members who 8 had not submitted a Claim Form or an Exclusion Form. (Id. ¶ 11; Doc. 55-2 at 3). 9 Ultimately, Simpluris received a total of 171 claim forms from a total of 1,136 class members 10 with addresses. (Butler Decl. ¶ 12). According to Ms. Butler, the claims received “represent 15.05 % 11 of the entire Settlement Class that contained addresses.” (Id.). Only one individual completed a valid 12 request for exclusion, and no objections to the Settlement were filed. (Id. ¶¶ 14-15). APPROVAL OF A CLASS SETTLEMENT 13 14 I. Legal Standard 15 When parties reach a settlement agreement prior to class certification, the Court has an 16 obligation to “peruse the proposed compromise to ratify both the propriety of the certification and the 17 fairness of the settlement.” Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). Approval of a 18 class settlement is generally a two-step process. First, the Court must assess whether a class exists. 19 Id. (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997)). Second, the Court must 20 “determine whether the proposed settlement is fundamentally fair, adequate, and reasonable.” Id. 21 (citing Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 2998)). The decision to approve or 22 reject a settlement is within the Court’s discretion. Hanlon, 150 F.3d at 1026. 23 II. 24 Certification of a Class for Settlement4 Class certification is governed by the Federal Rules of Civil Procedure, which provide that 25 “[o]ne or more members of a class may sue or be sued as representative parties on behalf of all.” Fed. 26 R. Civ. P. 23(a). Under the terms of the Settlement, the proposed class is comprised of “nonexempt 27 28 4 Because the class was only conditionally certified upon preliminary approval of the Settlement, final certification of the Settlement Class is required. 6 1 field workers who have been employed or jointly employed by Defendant and any Farm Labor 2 Contractor utilized on land owned by Defendant and as regular non-exempt grape worker agricultural 3 employees between 2001 and 2006.” (Doc. 53-1 at 1). 4 Parties seeking class certification bear the burden of demonstrating the elements of Rule 23(a) 5 are satisfied, and “must affirmatively demonstrate . . . compliance with the Rule.” Wal-Mart Stores, 6 Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011); Doninger v. Pacific Northwest Bell, Inc., 563 F.2d 1304, 7 1308 (9th Cir. 1977). If an action meets the prerequisites of Rule 23(a), the Court must consider 8 whether the class is maintainable under Rule 23(b). Narouz v. Charter Communs., LLC, 591 F.3d 9 1261, 1266 (9th Cir. 2010). Plaintiffs argue class certification should be granted because “[e]very 10 requirement of Rule 23 is satisfied with respect to this proposed settlement class.” (Doc. 54 at 20-21). 11 A. Rule 23(a) Requirements 12 The prerequisites of Rule 23(a) “effectively limit the class claims to those fairly encompassed 13 by the named plaintiff’s claims.” General Telephone Co. of the Southwest. v. Falcon, 457 U.S. 147, 14 155-56 (1982) (citation omitted). Certification of a class is proper if: 15 16 17 (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. 18 Fed. R. Civ. P. 23(a). These prerequisites are generally referred to as numerosity, commonality, 19 typicality, and adequacy of representation. Falcon, 457 U.S. at 156. 20 21 1. Numerosity A class must be “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 22 23(a)(1). This requires the Court to consider “specific facts of each case and imposes no absolute 23 limitations.” EEOC, 446 U.S. at 330. Although there is no specific numerical threshold, joining more 24 than one hundred plaintiffs is impracticable. See Jordan v. county of Los Angeles, 669 F.2d 1311, 25 1319 & n.10 (9th Cir. 1982) (finding the numerosity requirement was “satisfied solely on the basis of 26 the number of ascertained class members” and identifying cases in which courts certified classes with 27 fewer than 100 members), vacated on other grounds, 469 U.S. 810 (1982). Plaintiffs assert “class 28 Notice Packets were mailed to 1,132 class members.” Id. at 13 (citing Butler Decl. ¶ 11). Joinder of 7 1 this many individuals would be impractical, and as such the numerosity requirement is satisfied. 2. 2 3 Commonality Rule 23(a) requires “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). 4 Commonality “does not mean merely that [class members] have all suffered a violation of the same 5 pro-vision of law,” but “claims must depend upon a common contention.” Dukes, 131 S. Ct. at 2551. 6 In this case, for purposes of settlement, the parties agree the following common questions of fact and 7 law exist: 8 • whether Defendant failed to provide farm workers with required meal periods; 9 • whether Defendant failed to pay farm workers [sic] wages for meal periods during which they remained on duty; 10 11 12 13 14 15 16 17 18 19 • whether Defendant authorized and permitted the farm workers to take required rest periods; • whether Defendant failed to pay farm workers an additional hour of wages for missed meal periods and rest breaks; • whether Defendant failed to pay all legally required minimum wages and overtime compensation; • whether hourly production workers are owed waiting time penalties because Defendant allegedly willfully failed to pay them additional wages for missed meal periods and rest breaks, and for meal periods taken during which they remained on duty, upon the termination of their employment; and • whether Defendant’s business practices violated Business and Professions Code section 17200 et seq. 20 (Doc. 42 at 11-12). Based upon the stipulation of the parties that these questions are shared by 21 prospective class members, the Court finds this sufficient to satisfy the commonality requirement. 22 3. Typicality 23 This requirement demands that the “claims or defenses of the representative parties are typical 24 of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). A claim or defense is not required to 25 be identical, but rather “reasonably co-extensive” with those of the absent class members. Hanlon, 26 150 F.3d at 1020. “The test of typicality is whether other members have the same or similar injury, 27 whether the action is based on conduct which is not unique to the named plaintiffs, and whether other 28 class members have been injured by the same course of conduct.” Hanon v. Dataproducts Corp., 976 8 1 F.2d 497, 508 (9th Cir. 1992) (internal quotation marks and citation omitted); see also Kayes v. Pac. 2 Lumber Co., 51 F.3d 1449, 1463 (9th Cir. 1995). 3 In the operative complaint, Plaintiffs allege they were employed by Defendant during the 4 relevant time period. (Doc. 1 at 2-3). The parties agreed Plaintiffs “were paid under the same pay 5 practices as every other class member.” (Doc. 42 at 12). Plaintiffs contend they have “claims similar 6 and typical of the rest of the Class since they suffered similar injuries and have the same interest in 7 redressing [the injuries].” (Doc. 54 at 21-22). Accordingly, the typicality requirement is satisfied. 4. 8 Fair and Adequate Representation 9 Absentee class members must be adequately represented for judgment to be binding upon 10 them. Hansberry v. Lee, 311 U.S. 32, 42-43 (1940). Accordingly, the Court must determine the 11 “representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 12 23(a)(4). “[R]esolution of this issue requires that two questions be addressed: (a) do the named 13 plaintiffs and their counsel have any conflicts of interest with other class members and (b) will the 14 named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” In re Mego 15 Fin. Corp. Sec. Litig., 213 F.3d 454, 462 (9th Cir. 2000) (citing Hanlon, 150 F.3d at 1020). a. 16 17 Class counsel As the Court noted previously, Mr. Mallison and Mr. Martinez have significant experience 18 litigating wage and hour class action cases and in serving as class counsel. (Doc. 45 at 8). In 19 addition, Defendant offers no opposition to the adequacy of counsel and, therefore, the Court finds 20 counsel satisfy the adequacy requirements. b. 21 Class representatives 22 Plaintiffs Fernando Rodriguez and Guadalupe Herrera seek to appointment as the class 23 representatives and contend “the named plaintiffs . . . are adequate class representatives.” (Doc. 54 at 24 23) (emphasis omitted). Plaintiffs’ claims are typical of the class members, and there are no noted 25 conflicts between the claims of Plaintiffs and those of the class members. Therefore, it appears 26 Plaintiffs will fairly and adequately represent the interests of the class. 27 B. Certification of a Class under Rule 23(b) 28 As noted above, once the requirements of Rule 23(a) are satisfied, a class may only be certified 9 1 if it is maintainable under Rule 23(b). Fed. R. Civ. P. 23(b); see also Narouz, 591 F.3d at 1266. 2 According to Plaintiffs, certification of the class is appropriate under Rule 23(b)(3). (Doc. 54 at 22). 3 Rule 23(b)(3) requires a finding that (1) “the questions of law or fact common to class members 4 predominate over any questions affecting only individual members,” and (2) “a class action is superior 5 to other available methods for fairly and efficiently adjudicating the controversy.” These requirements 6 are generally called the “predominance” and “superiority” requirements. See Hanlon, 150 F.3d at 7 1022-23; see also Wal-mart Stores, 131 S. Ct. at 2559 (“(b)(3) requires the judge to make findings 8 about predominance and superiority before allowing the class”). 9 10 1. Predominance The predominance inquiry focuses on “the relationship between the common and individual 11 issues” and “tests whether proposed classes are sufficiently cohesive to warrant adjudication by 12 representation.” Hanlon, 150 F.3d at 1022 (citing Amchem Prods., 521 U.S. at 623). The Ninth 13 Circuit explained, “[A] central concern of the Rule 23(b)(3) predominance test is whether 14 ‘adjudication of common issues will help achieve judicial economy.’” Vinole v. Countrywide Home 15 Loans, Inc., 571 F.3d 935, 944 (9th Cir. 2009) (quoting Zinser v. Accufix Research Inst., Inc., 253 F.3d 16 1180, 1189 (9th Cir. 2001)). 17 Plaintiffs contend “the issues of Defendants’ alleged failure to pay Class Members minimum 18 wage, overtime, and rest and meal period violations create common issues that predominate over 19 individual questions.” (Doc. 54 at 22). In addition, the parties agreed common questions predominate 20 over any questions affecting individual class members. (Id.) 21 22 2. Superiority The superiority inquiry requires a determination of “whether objectives of the particular class 23 action procedure will be achieved in the particular case.” Hanlon, 150 F.3d at 1023 (citation omitted). 24 This tests whether “class litigation of common issues will reduce litigation costs and promote greater 25 efficiency.” Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996). Pursuant to Rule 26 23(b)(3), the Court should consider four non-exclusive factors to determine whether a class is a 27 superior method of adjudication, including (1) the class members’ interest in individual litigation, (2) 28 other pending litigation, (3) the desirability of concentrating the litigation in one forum, and (4) 10 1 difficulties with the management of the class action. a. 2 Class members’ interest in individual litigation Plaintiffs contend “[t]his factor is more relevant where each class member has suffered sizeable 3 4 damages or has an emotional stake in the litigation.” (Doc. 53 at 22) (citing In re N. Dist. of Cal., 5 Dalkon Shield, Etc., 693 F.2d 847, 856 (9th Cir. 1982)). Because the monetary damages each class 6 member will receive “are relatively modest,” Plaintiffs assert the factor weighs in favor of class 7 certification. (Id. at 22-23). As there is no evidence the putative class members have an interest in 8 pursuing or controlling individual cases, this factor weighs in favor of class certification. b. 9 According to Plaintiffs, “The only known litigation concerning the controversy is the case at 10 11 Other pending litigation issue in this settlement.” (Doc. 54 at 23). As a result, this factor weighs in favor of certification. c. 12 Desirability of concentrating litigation in one forum Because common issues predominate on Plaintiffs’ class claims, “presentation of the evidence 13 14 in one consolidated action will reduce unnecessarily duplicative litigation and promote judicial 15 economy.” Galvan v. KDI Distrib., 2011 U.S. Dist. LEXIS 127602, at *37 (C.D. Cal. Oct. 25, 2011). 16 Moreover, because the parties have resolved the claims through the Settlement, this factor does not 17 weigh against class certification. d. 18 Difficulties in managing a class action The Supreme Court explained, in general, this factor “encompasses the whole range of practical 19 20 problems that may render the class format inappropriate for a particular suit.” Eisen v. Carlisle & 21 Jacquelin, 417 U.S. 156, 164 (1974). However, because the parties have reached a settlement 22 agreement, it does not appear there are any problems with managing the action. Therefore, this factor 23 weighs in favor of class certification. 24 Because the factors set forth in Rule 23(b) weigh in favor of certification, the Settlement Class 25 is maintainable under Rule 23(b)(3). Accordingly, the Court recommends Plaintiffs’ request to certify 26 the Settlement Class be GRANTED. 27 III. 28 Evaluation of the Settlement Terms Settlement of a class action requires approval of the Court, which may be granted “only after a 11 1 hearing and on finding that [the settlement] is fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). 2 Approval is required to ensure the settlement is consistent with Plaintiffs’ fiduciary obligations to the 3 class. See Ficalora v. Lockheed Cal. Co., 751 F.2d 995, 996 (9th Cir. 1985). The Ninth Circuit set 4 forth several factors to determine whether a settlement agreement meets these standards, including: 5 6 7 the strength of plaintiff’s 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;5 and the reaction of the class members to the proposed settlement. 8 9 Staton, 327 F.3d at 959 (citation omitted). Further, a court should consider whether settlement is “the 10 product of collusion among the negotiating parties.” In re Mego Fin. Corp. Sec. Litig., 213 F.3d at 11 458 (citing Class Plaintiffs v. Seattle, 955 F.2d 1268, 1290 (9th Cir. 1992)). When reviewing the 12 settlement terms, “[t]he court need not reach any ultimate conclusions on the contested issues of fact 13 and law which underlie the merits of the dispute.” Class Plaintiffs, 955 F.2d at 1291(internal 14 quotations and citation omitted). Strength of Plaintiffs’ Case 15 A. 16 In this action, there are several disputed claims the fact-finder would be required to determine. 17 Plaintiffs observe, “wage and hour cases on behalf of low wage workers can [be] difficult to prove on 18 a class basis especially given the changing and uncertain legal environment.” (Doc. 54 at 16-17). In 19 addition, Plaintiffs contend “there are clear uncertainties surrounding [their] ability to prove their 20 claims given the unpredictability of a lengthy and complex jury trial.” (Id. at 17). Given the 21 uncertainties, this factor weighs in favor of approval of the Settlement. 22 B. Risk, Expense, Complexity, and Likely Duration of Further Litigation 23 Settlement is “preferable to lengthy and expensive litigation with uncertain results.” Nat’l 24 Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 529 (C.D. Cal. 2004). If the Settlement 25 were to be rejected, the parties would have to engage in further litigation, including re-certification of 26 the class and discovery on the issue of damages. Plaintiffs observe: “There is no guarantee of class 27 28 5 This factor does not weigh in the Court’s analysis because the government is not a party in this action. However, the Settlement Agreement provides a payment of $15,000 to the California Labor and Workforce Development Agency because the PAGA claim allows Plaintiffs to act as a “private attorney general” on behalf of the State. 12 1 certification relating to a myriad of legal and factual issues in this case.” (Doc. 54 at 17). On the other 2 hand, the settlement provides for the immediate recovery for the class, averaging approximately 3 $2,300 per claimant. (Id.) Therefore, this factor weighs in favor of approval of the Settlement. 4 C. Maintenance of Class Status throughout the Trial 5 Plaintiffs acknowledge that even if they demonstrate wage and hour violations by Defendant, 6 “there is significant risk that the case may not survive a contested class certification proceeding.” 7 (Doc. 54 at 17). Notably, given the recent ruling of the California Supreme Court in Brinker 8 Restaurant Corp. v. Superior Court, class certification for Plaintiffs’ claims regarding missed meal 9 breaks would be more difficult. See Brinker, 53 Cal.4th 1004, 1040-41 (Cal. 2012) (holding the 10 employer is required to provide a meal period to employees, but “is not obligated to police meal breaks 11 and ensure no work thereafter is performed”); see also Brown v. Federal Express, 239 F.R.D. 580, 585 12 (C.D. Cal. 2008) (denying class certification of employees alleging the employers denied them meal 13 breaks and rest breaks, and failed to give additional pay to employees who missed meal breaks). Thus, 14 this factor supports approval of the Settlement. 15 D. Amount offered in Settlement 16 The Ninth Circuit observed “the very essence of a settlement is compromise, ‘a yielding of 17 absolutes and an abandoning of highest hopes.’” Officers for Justice v. Civil Serv. Commission, 688 18 F.2d 615, 624 (9th Cir. 1982) (citation omitted). Thus, when analyzing the amount offered in 19 settlement, the Court should examine “the complete package taken as a whole,” and the amount is “not 20 to be judged against a hypothetical or speculative measure of what might have been achieved by the 21 negotiators.” Id. at 625, 628. 22 Here, the proposed gross settlement amount is $675,000. Class Counsel asserts this amount 23 “will not put . . . Defendant’s operations at risk or endanger the continued employment of currently 24 employed class members.” (Mallison Decl. ¶ 45, Doc 53 at 14). Also, “Plaintiffs believe that the 25 recovery obtained of approximately $675,000 or nearly $2,204.68 per claimant net of all fees and 26 expenses is a good settlement result in a wage and hour case involving low-income farm workers.” 27 (Doc. 54 at 20). Based upon the parties’ agreement that this amount provides adequate compensation 28 for class members, this factor supports approval of the Settlement. 13 1 E. Extent of Discovery Completed and Stage of the Proceedings 2 Defendant has been litigating this action since 2005, and with the named Plaintiffs since 2008. 3 Plaintiffs assert: “Plaintiffs conducted significant discovery ultimately procuring all of the core 4 timekeeping and payroll documents in this case. Further, dozens of in depth interviews of Class 5 members were conducted. Plaintiffs’ litigation and mediation of this case was informed by a thorough 6 review of these documents and based on those in depth Class member interviews.” (Doc. 54 at 18) 7 (citations omitted). Plaintiffs assert that “by the time the settlement was reached, the litigation had 8 proceeded to a point at which both Plaintiffs and Defendant had a clear view of the strengths and 9 weaknesses of their cases.” Id. (internal quotation marks, citation omitted). Thus, the parties made an 10 informed decision regarding settlement of the action, and determined to resolve the matter with the 11 assistance of a mediator, Daniel Quinn. (Doc. 54 at 9, 18). Consequently, this factor favors approval 12 of the Settlement. 13 F. 14 As addressed above, Class Counsel are experienced in class action litigation. Based upon the 15 investigation and discovery conducted in the matter, Mr. Mallison believes “the terms set forth in the 16 Settlement Agreement [are] fair, reasonable and adequate,” and the settlement is “in the best interest of 17 the putative class members.” (Mallison Decl. ¶ 45, Doc 53 at 14). Likewise, Defendant and its 18 counsel believe the agreement “reflects a fair, reasonable, and adequate settlement of the [a]ction.” 19 (See Doc. 53-1 at 16). Both parties have weighed the strengths and weaknesses of their respective 20 positions and endorse the Settlement. This recommendation of counsel is entitled to significant 21 weight, and weighs in favor of settlement. See Nat’l Rural Telecomms., 221 F.R.D. at 528 (“Great 22 weight is accorded to the recommendation of counsel, who are most closely acquainted with the facts 23 of the underlying litigation”). Experience and Views of Counsel 24 G. Reaction of Class Members to Settlement 25 No objections were filed by class members after service of the Notice Packet. (Doc. 54 at 20). 26 In addition, Plaintiffs agreed to settle the action, and do not have any objections to the Settlement. 27 (See Rodriguez Decl. ¶ 10, Doc. 39 at 3; Herrera Decl. ¶ 10, Doc. 40 at 3). “[T]he absence of a large 28 number of objections to a proposed class action settlement raises a strong presumption that the terms 14 1 of a proposed class action settlement are favorable to the class members.” Nat’l Rural Telecomms., 2 221 F.R.D. at 529. Therefore, this factor supports approval of the Settlement. 3 H. Collusion between Negotiating Parties 4 The inquiry of collusion addresses the possibility that the settlement agreement is the result of 5 either “overt misconduct by the negotiators” or improper incentives of class members at the expense of 6 others. Staton, 327 F.3d at 960. The parties utilized an impartial mediator, and settlement agreement 7 “is based upon a mediator’s proposal.” (Doc. 54 at 20). Accordingly, the agreement appears to be is 8 the product of non-collusive conduct. 9 IV. 10 Conclusion The factors set forth by the Ninth Circuit weigh in favor of final approval of the Settlement, 11 which appears to be is fair, reasonable, and adequate as required by Rule 23. Therefore, the Court 12 recommends final approval of the Settlement Agreement be GRANTED. 13 REQUEST FOR FEES AND COSTS 14 Class Counsel seek an award of 30% of the settlement fund (equaling $202,500) and $15,000 in 15 costs. (Doc. 54 at 25). Attorneys’ fees and nontaxable costs “authorized by law or by agreement of the 16 parties” may be awarded pursuant to Rule 23(h). Under the “common fund” doctrine, attorneys who 17 create a common fund for a class may be awarded their fees and costs from the fund. Hanlon, 150 F.3d 18 at 1029; Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980) (“a lawyer who recovers a common fund 19 for the benefit of persons other than himself or his client is entitled to a reasonable attorney’s fee from 20 the fund as a whole”). An award from the common fund “rests on the perception that persons who 21 obtain the benefit of a lawsuit without contributing to its cost are unjustly enriched at the successful 22 litigant’s expense,” and as such application of the doctrine is appropriate “when each member of a 23 certified class has an undisputed and mathematically ascertainable claim to part of a lump-sum 24 judgment recovered on his behalf.” Boeing Co., 444 U.S. at 478. Here, the Settlement applies a 25 distribution formula to determine the amount paid to each class member who submitted a valid claim, 26 and application of the common fund doctrine is appropriate. 27 Notably, “when fees are to come out of the settlement fund, the district court has a fiduciary 28 role for the class.” Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 968 (9th Cir. 2009). Fees must be 15 1 “fundamentally fair, adequate, and reasonable.” Staton, 327 F.3d at 964. Accordingly, the Ninth 2 Circuit instructs that “a district court must carefully assess the reasonableness of a fee amount spelled 3 out in a class action settlement agreement.” Id. at 963. 4 I. Documentation of hours expended In general, the party seeking fees bears the burden of establishing that the fees and costs were 5 6 reasonably necessary to achieve the results obtained. See Fischer v. SJB-P.D., Inc., 214 F.3d 1115, 7 1119 (9th 2000). Therefore, a fee applicant must provide time records documenting the tasks 8 completed and the amount of time spent. Hensley v. Eckerhart, 461 U.S. 424, 424 (1983); Welch v. 9 Metropolitan Life Ins. Co., 480 F.3d 942, 945-46 (9th Cir. 2007). Here, Defendant has agreed Class Counsel may request fees up to 33.33% of the Gross 10 11 Settlement Amount. (Doc. 53-1 at 5). Nonetheless, a court “may not uncritically accept a fee request,” 12 but must review the time billed and assess whether it is reasonable in light of the work performed and 13 the context of the case. See Common Cause v. Jones, 235 F. Supp. 2d 1076, 1079 (C.D. Cal. 2002); see 14 also McGrath v. County of Nevada, 67 F.3d 248, 254 n.5 (9th Cir. 1995) (noting a court may not adopt 15 representations regarding the reasonableness of time expended without independently reviewing the 16 record); Sealy, Inc. v. Easy Living, Inc., 743 F.2d 1378, 1385 (9th Cir. 1984) (remanding an action for a 17 thorough inquiry on the fee request where “the district court engaged in the ‘regrettable practice’ of 18 adopting the findings drafted by the prevailing party wholesale” and explaining a court should not 19 “accept[] uncritically [the] representations concerning the time expended”). “Where the documentation 20 of hours in inadequate, the district court may reduce hours accordingly.” Hensley, 461 U.S. at 433. 21 II. 22 Determination of Fee Award The Ninth Circuit has determined both lodestar and percentage of the common fund methods 23 “have [a] place in determining what would be reasonable compensation for creating a common fund.” 24 Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir. 1989). Whether a court applies 25 the lodestar or percentage method, the Ninth Circuit “require[s] only that fee awards in common fund 26 cases be reasonable under the circumstances.” Florida v. Dunne, 915 F.2d 542, 545 (9th Cir. 1990). 27 A. Lodestar method 28 The lodestar method calculates attorney fees by “by multiplying the number of hours reasonably 16 1 expended by counsel on the particular matter times a reasonable hourly rate.” Florida v. Dunne, 915 2 F.2d 542, 545 n. 3 (9th Cir. 1990) (citing Hensley, 461 U.S. at 433). Thus, the first step in determining 3 the lodestar is to determine whether the number of hours expended was reasonable. Id. at 1119. Here, 4 Plaintiffs’ counsel provide lists of each attorney who worked on this action, the number of hours, and 5 the rate billed by each. (Doc. 53 at 19; Doc. 56 at 18; Doc. 57 at 4). However, the attorneys do not 6 provide any information regarding what activities were undertaken during this time. Consequently, the 7 Court is unable to determine whether the time set forth by each attorney is reasonable or compensable. 8 Significantly, the Ninth Circuit observed, “it is widely recognized that the lodestar method creates 9 incentives for counsel to expend more hours than may be necessary on litigating a case so as to recover 10 11 a reasonable fee.” Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1050 (9th Cir. 2002). Because the information provided by counsel is insufficient to determine whether the time 12 expended was reasonable, the Court will not apply the lodestar method. See Jones v. GN Netcom, Inc., 13 654 F.3d 935, 941 (9th Cir. 2011) (observing “[t]he lodestar figure is calculated by multiplying the 14 number of hours the prevailing party reasonably expended on the litigation (as supported by adequate 15 documentation) by a reason-able hourly rate for the region...”) (emphasis added). 16 B. Percentage of Common Fund 17 As the name suggests, under this method, “the court makes a fee award on the basis of some 18 percentage of the common fund.” Florida, 915 F.2d at 545 n. 3. In the Ninth Circuit, the typical 19 range of acceptable attorneys’ fees is 20% to 33 1/3% of the total settlement value, with 25% 20 considered the benchmark. Powers v. Eichen, 229 F.3d 1249, 1256 (9th Cir. 2000); see also Hanlon, 21 150 F.3d at 1029 (observing “[t]his circuit has established 25 % of the common fund as a benchmark 22 award for attorney fees”). The percentage may be adjusted below or above the benchmark “to account 23 for any unusual circumstances,” but reasons for adjustment must be clear. Paul, Johnson, Alston & 24 Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir. 1989). 25 When assessing whether the percentage requested is reasonable, courts may consider a number 26 of factors, including “(1) the results obtained for the class; (2) the risk undertaken by counsel; (3) the 27 complexity of the legal and factual issues; (4) the length of the professional relationship with the 28 client; (5) the market rate; and (6) awards in similar cases.” Romero v. Produces Dairy Foods, Inc., 17 1 2007 U.S. Dist. LEXIS 86270, at *8-9 (E.D. Cal. Nov. 14, 2007) (citing Vizcaino v. Microsoft Corp., 2 290 F.3d 1043, 1048-1050 (9th Cir. 2002); Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 3 1301, 1311 (9th Cir. 1990)). 4 5 1. Results obtained for the class The result achieved is a significant factor to be considered in making a fee award. Hensley, 461 6 U.S. at 436; Wilcox v. City of Reno, 42 F.3d 550, 554 (9th Cir. 1994). Class Counsel asserts the facts in 7 this action “do not generally produce recoveries in the thousands of dollars.” (Doc. 54 at 26). 8 However, the estimated average award exceeds $2,000 per claimant, and the highest award is estimated 9 to be approximately $17,300. (Butler Decl. ¶ 13; Doc. 55 at 4). Recently, the Court determined such 10 results weigh in favor of a higher award. See Morales v. Stevco, Inc., 2013 U.S. Dist. LEXIS 41799, at 11 * 7 (E.D. Cal. Mar. 25, 2013). 12 13 2. Risk undertaken by counsel The risk of costly litigation and trial is an important factor in determining the fees to be 14 awarded. Chemical Bank v. City of Seattle, 19 F.3d 1297, 1299-1301 (9th Cir. 1994). Class counsel 15 contend the request of 30% is justified, in part, due to “significant risks to Plaintiffs’ core theories of 16 liability for unpaid minimum wages.” (Doc. 54 at 27). In addition, they “invested $888,878 in 17 lodestar . . . with no guarantee o[f] recovery.” (Id. at 29). 18 The Supreme Court explained, “the risk of loss in a particular case is a product of two factors: 19 (1) the legal and factual merits of the claim, and (2) the difficulty of establishing those merits.” City of 20 Burlington v. Dague, 505 U.S. 557, 562 (1992). In a related action, the Court observed the “factual 21 merits of the case are straightforward,” but “Plaintiffs’ counsel faced significant risk on the legal 22 merits.” Morales, 2013 U.S. Dist. LEXIS 41799, at * 8. Accordingly, this factor weighs slightly in 23 favor of a departure from the benchmark fee award. See id. 24 25 3. Complexity of issues and skill required The complexity of issues and skills required may support a fee award greater than the 26 benchmark. See, e.g., Lopez v. Youngblood, 2011 U.S. Dist. LEXIS 99289, at *14-15 (E.D. Cal. Sept. 27 2, 2011) (in determining whether to award the requested fees totaling 28% of the class fund, the Court 28 observed the case involved “complex issues of constitutional law in an area where considerable 18 1 deference is given to jail officials,” and the action “encompassed two categories of class members”); 2 see also In re Heritage Bond Litig., 2005 U.S. Dist. LEXIS 13555, at *66 (C.D. Cal. June 10, 2005) 3 (“Courts have recognized that the novelty, difficulty and complexity of the issues involved are 4 significant factors in determining a fee award”). Here, Class Counsel contend this action “required exceptional skill in finding and contacting 5 6 largely Spanish speaking workers, litigating over cutting edge legal theories surrounding the 7 Agricultural Worker’s Protection Act, rest and meal periods and issues of proof in light of the limited 8 recording keeping by Defendant.” (Doc. 54 at 27). However, as noted above, counsel have not 9 provided timesheets such that the Court may determine the amount of time or skill required for “finding 10 and contacting . . . Spanish speaking workers.” See Bond v. Ferguson Enters., 2011 U.S. Dist. LEXIS 11 70390, at *27 (E.D. Cal. June 30, 2011) (observing “locating and contacting over 500 members of the 12 class, communicating with over 250 class members to ensure they received appropriate forms, [and] 13 obtaining new contact information for some members of the class . . . is entirely administrative work 14 that could be accomplished by paralegals”). On the other hand, in Morales the Court observed: “California wage and hour law is extremely 15 16 complex and the statutory/administrative language can be particularly difficult to parse.” Id., 2013 U.S. 17 Dist. LEXIS 41799, at *8. Given the complexities of California law, this factor weighs in favor of a 18 higher award. Id. 4. 19 Length of professional relationship Class Counsel do not address the length of the professional relationship. Fernando Rodriguez 20 21 and Guadalupe Herrera were identified as plaintiffs in the Third Amended Complaint against D.M. 22 Camp & Sons in the Doe action on May 29, 2008, prior to the Court’s severance of the action. Though 23 counsel have spent several years on this action, this factor does not weigh in favor of departure from 24 the benchmark. See Six Mexican Workers, 904 F.2d at 1311 (the litigation lasted more than a decade, 25 but “[n]othing in this case requires departure from the 25 percent standard award”). 26 /// 27 5. Market Rate 28 19 Previously, this Court observed, “Prevailing hourly rates in the Eastern District of California 1 2 are in the $400/hour range.” Bond, 2011 U.S. Dist. LEXIS 70390, at *30. The hourly rates sought by 3 attorneys on this action range from $425 to $725 per hour. (See Doc. 53 at 19; Doc. 56 at 18; Doc. 57 4 at 4). These hourly wages exceed those generally awarded in the Eastern District. Further, because 5 the attorneys have not provided information on the services provided or tasks completed, the Court is 6 unable to determine whether the rates requested are reasonable. Therefore, this factor weighs against a 7 departure from the benchmark. 8 6. Awards in similar cases 9 Plaintiffs’ counsel contend “the requested fee is in line with similar wage and hour cases 10 litigated in the Eastern District. (Doc. 54 at 28). Specifically, Plaintiffs identify the following rewards: 11 1. 30% in Morales v. Stevco, E.D. Cal. Case No. 1:09-cv-00704-AWI-JLT; 12 2. 30% in Vasquez v. Aartman, E.D. Cal. Case No. 1:02-CV05624 AWI-LJO; 13 3. 31.25% in Baganha v. California Milk Transport, Case No. 1:01-cv-05729-AWI-LJO; 14 4. 33% in Randall Willis et al. v. Cal Western Transport, and Earl Baron et al. v. Cal Western Transport, Coordinated Case No. 1:00-cv-05695 15 5. 16 33% in Benitez, et al. v. Jeff Wilbur and Lisa Wilbur, Case No. 1:08-cv-01122LJO-GSA; and 17 6. 18 33% in Chavez, at al. v. Petrissans, Case No. 1:08-cv-00122-LJO-GSA 19 (Id.) Further, Plaintiffs’ counsel assert similar awards are granted in wage and hour class actions 20 litigated in the state court. (Id.) Accordingly, comparable class action cases appear to have awarded 21 thirty-percent of the common fund, as requested by Class Counsel. Thus, this factor weighs in favor 22 of departure from the benchmark. 23 C. Amount of Fees to be Awarded 24 As set forth above, the factors set forth by the Ninth Circuit in Vizcaino and Six Mexican 25 Workers weigh slightly in favor of a departure from the benchmark. Accordingly, the Court 26 recommends Class Counsel’s request for 30% of the Settlement Fund – which amounts to $202,500 – 27 be GRANTED. 28 /// 20 1 III. Expenses of the Action 2 A. Litigation 3 The reimbursement of taxable costs is governed by 28 U.S.C. § 1920 and Federal Rule of Civil 4 Procedure 54. Attorneys may recover reasonable expenses that would typically be billed to paying 5 clients in non-contingency matters. See Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994). In this 6 case, Class Counsel seeks a total reimbursement of $15,000 for costs incurred in the course of this 7 action. (Doc. 54 at 29). According to Class Counsel, the costs incurred exceed the amount requested: 8 In the course of this litigation, Class Counsel had to incur out-of-pocket costs totaling $19,818.84 ($13,465.44, Mallison Decl. ¶58; $3,716.12, Rich Decl. ¶12; $2,637.28, Duckett Decl. ¶8) and expect to incur modest additional in costs related to the final approval of the Settlement. See Settlement Agreement III.B.1. The bulk of the incurred costs included filing fees, mediator fees, ground transportation, copy charges, computer research, and database expert fees. Mallison Decl. ¶ 58. 9 10 11 12 (Id. at 31). Previously, this Court observed costs “including filing fees, mediator fees . . . , ground 13 transportation, copy charges, computer research, and database expert fees ... are routinely reimbursed.” 14 Alvarado v. Nederend, 2011 U.S. Dist. LEXIS 52793, at *27-28 (E.D. Cal. Jan. 11, 2011). Therefore, 15 the Court recommends counsel’s request for costs in the amount of $15,000 be GRANTED. 16 B. 17 Pursuant to the parties’ proposal, the Court appointed Simpluris to serve as the Settlement 18 19 20 21 22 23 24 25 Claims Administration Administrator. (Doc. 45 at 16). Under the terms of the Settlement, its duties included: preparing, printing, and mailing the Class Notice Packet to all Class Members; conducting a National Change of Address search on any Class Notice Packet returned by the U.S. Postal Service as non-deliverable, and re-mailing the Class Notice Packet to the Class Member’s new address; receiving and reviewing for validity completed Claim Forms and Elections Not to Participate in Settlement; providing the Parties with weekly status reports about the delivery of Class Notice Packets and receipt of completed Claim Forms and Elections Not to Participate in Settlement; providing the parties with the received Claim Forms; calculating Settlement Shares; issuing the checks to effectuate the payments due under the Settlement; issuing the tax reports required under this Settlement; distributing any remaining funds as directed by the court; and otherwise administering the Settlement pursuant to this Agreement. 26 (Settlement § III.E, Doc. 53-1 at 6-7). According to Mary Butler, case manager for Simpluris, the 27 administrative fees and costs totaled $23,000, “which includes all work to conclude Simpluris’ duties 28 and responsibilities pursuant to the settlement.” (Butler Decl. ¶ 19; Doc. 55 at 3). 21 The requested amount is within the range of previous costs for claims administration awarded 1 2 in the Eastern District. See, e.g., Bond, 2011 U.S. Dist. LEXIS 70390 ($18,000 administration fee 3 awarded in a wage an hour action involving approximately 550 class members); Vasquez v. Coast 4 Valley Roofing, 266 F.R.D. 482, 483-84 (E.D. Cal. 2010) ($25,000 settlement administration fee in a 5 wage and hour case involving 170 potential class members). Therefore, the Court recommends the 6 request for $23,000 in expenses for the settlement administration by Simpluris be GRANTED. INCENTIVE PAYMENTS 7 Fernando Rodriguez and Guadalupe Herrera request class representative incentive payments of 8 9 $10,000 each. (Doc. 54 at 32). The Court has discretion to award a class representative a reasonable 10 incentive payment. Staton, 327 F.3d at 977; In re Mego Fin. Corp. Sec. Litig., 213 F.3d at 463. 11 However, incentive payments are not to be given routinely. The Ninth Circuit observed, Indeed, ‘[i]f class representatives expect routinely to receive special awards in addition to their share of the recovery, they may be tempted to accept suboptimal settlements at the expense of the class members whose interests they are appointed to guard.” Weseley v. Spear, Leeds & Kellogg, 711 F. Supp. 713, 720 (E.D.N.Y. 1989); see also Women’s Comm. for Equal Employment Opportunity v. Nat’l Broad. Co., 76 F.R.D. 173, 180 (S.D.N.Y. 1977) (“[W]hen representative plaintiffs make what amounts to a separate peace with defendants, grave problems of collusion are raised.”). 12 13 14 15 16 17 Staton, 327 F.3d at 975. 18 I. Whether Incentive Payments are Appropriate 19 Evaluating a request for an enhanced award to a class representative, the Court should consider 20 all “relevant factors including the actions the plaintiff has taken to protect the interests of the class, the 21 degree to which the class has benefitted from those actions, . . . the amount of time and effort the 22 plaintiff expended in pursuing the litigation . . . and reasonable fears of workplace retaliation.” Id. at 23 977. Further, incentive awards may recognize a plaintiff’s “willingness to act as a private attorney 24 general.” Rodriguez v. West Publ’g Corp., 563 F.3d 948, 958-59 (9th Cir. 2009). 25 A. Actions taken to benefit the class 26 Plaintiffs assert the payments to the class representatives are “intended to recognize the time 27 and efforts that the named Plaintiffs spent on behalf of the Class Members.” (Doc. 54 at 29). Plaintiffs 28 report they participated in two mediation sessions, produced evidence to support their claims, and 22 1 assisted with “investigating and substantiating the claims alleged.” Id. at 30. In addition, Plaintiffs 2 report they “sacrificed any additional claims that they may have had against the Defendants whether 3 they be related to the claims raised in the case or not . . . [as] a condition of the settlement,” and “these 4 rights were sacrificed by the plaintiffs for the benefit of the class.” Id. The actions taken by Plaintiffs 5 support incentive payments. 6 B. Amount of time expended by class representatives 7 In their respective declarations, Fernando Rodriguez and Guadalupe Herrera each report they 8 each spent exactly 117 hours on tasks including discussions with counsel and class members, 9 document preparation and review, and mediation.6 (See Rodriguez Decl. ¶ 10; Herrera Decl. ¶ 10). 10 Specifically, Plaintiffs identify the following tasks and time: TASK Initial Discussion with Counsel, including travel time Review and Translation of Settlement Review and Translation of Complaint Gathering, Reviewing, and Organizing records for investigation Consultation with Class Counsel and Plaintiffs regarding the status of case Helping attorneys with investigative processes Mediation in Bakersfield, CA, including travel time & Preparation Mediation in Stockton, CA, including travel time & Preparation Deposition, including travel time & Deposition Preparation 11 12 13 14 15 16 TIME 6 hours 3 hours 3 hours 6 hours 20 hours 40 hours 9 hours 18 hours 12 hours 17 18 (Id.) Accordingly, it appears Plaintiffs spent a number of hours on this action by providing assistance 19 with discovery and attending the mediation sessions and this factor supports class representative 20 incentive payments to Plaintiffs. 21 /// 22 23 24 25 26 27 28 6 Previously, in granting preliminary approval of the settlement, the Court commented, The Court finds dubious that each class representative spent the exact same number of hours on the exact same tasks, including the same exact amount of travel time from their homes to the places of mediation. This is not the first case involving Plaintiff’s counsel where this has occurred. Morales v. Stevco, Inc., Case No. 1:09-cv-00704, Doc. 66 at 26. Because counsel are bound by a duty of honesty to the Court and that the class representatives have signed their declarations under penalty of perjury, the Court accepts these representations as true. However, the Court will be hard-pressed to accept such an improbable representation a third time absent significant explanation. (Doc. 45 at 13 n. 7) Despite this, counsel, once again, offer these same declarations and, once again, they fail to provide any explanation as to how it is possible that two people could possibly spend the same, exact amount of time on the same, exact activities. Thus, this failure weighs in the Court’s evaluation of incentive payments. 23 1 C. Fears of workplace retaliation 2 Plaintiffs do not contend they feared retaliation for their connections to this action. Thus, this 3 factor does not support incentive payments to Plaintiffs. 4 II. 5 Amount to be awarded Because Plaintiffs provided assistance to counsel, participated in mediation although it required 6 traveling out of town, and met with class members, an incentive award is appropriate. See Rankin v. 7 Am. Greetings, Inc., 2011 U.S. Dist. LEXIS 72250, at *5 (E.D. Cal. July 6, 2011) (awarding an 8 incentive award because the plaintiff “retained counsel, assisted in the investigation, and was an active 9 participant in the full-day mediation”). 10 Plaintiffs assert “the requested enhancement is reasonable and appropriate” because they “(1) 11 travelled from Bakersfield to Sacramento for mediation sessions; (2) assisted Counsel in investigating 12 and substantiating the claims alleged in this action; (3) assisted in the preparation of the complaint in 13 this action; (4) produced evidentiary documents to Counsel; and (5) assisted in the settlement of this 14 litigation.” (Doc. 54 at 30). Also, Plaintiffs contend they “undertook the financial risk that, in the 15 event of a judgment in favor of Defendant in this action, they could have been personally responsible 16 for the costs awarded in favor of the Defendant.” Id. Although the Court preliminarily approved class 17 representative enhancement payments up to$10,000, it noted the amount appears to be excessive given 18 the facts presented of Plaintiffs involvement with the action. (Doc. 45 at 14, n. 8) (citing Alvarado, 19 2011 U.S. Dist. LEXIS 52793; Wade v. Minatta Transp. Co., 2012 U.S. Dist. LEXIS 12057 (N.D. Cal. 20 Feb. 1, 2012); In re Wells Fargo Loan Processor Overtime Pay Litig., 2011 U.S. Dist. LEXIS 84541 21 (N.D. Cal. Aug. 2, 2011)). 22 In Alvarado, the Court granted an class representative incentive payments in the amount of 23 $7,500 where the named plaintiffs: “(1) travelled from Bakersfield to Sacramento for mediation 24 sessions (2) assisted Counsel in investigating and substantiating the claims alleged in this action; (3) 25 assisted in the preparation of the complaint in this action; (4) produced evidentiary documents to 26 Counsel; and (5) assisted in the settlement of this litigation.” Id., 2011 U.S. Dist. LEXIS 52793 at *19. 27 Likewise, in Bond, the Court found incentive payments of $7,500 were appropriate for the two named 28 plaintiffs who: “(1) provided significant assistance to Class Counsel; (2) endured lengthy interviews; 24 1 (3) provided written declarations; (4) searched for and produced relevant documents; (5) and prepared 2 and evaluated the case for mediation, which was a full day session requiring very careful consideration, 3 evaluation and approval of the terms of the Settlement Agreement on behalf of the Class.” Bond, 2011 4 U.S. Dist. LEXIS 70390, at *38-39. 5 Similarly, the Northern District determined class representatives failed to justify incentive 6 awards of $10,000 although the plaintiffs reported “they were involved with the case by interacting 7 with counsel, participating in conferences, reviewing documents, and attending the day-long mediation 8 that resulted in the settlement.” Wade, 2012 U.S. Dist. LEXIS 12057, at *3. The court explained the 9 brief statements in their declarations and “vague” descriptions of counsel were insufficient to justify the 10 requested payments. Id. Here, Plaintiffs do not explain how they assisted counsel with investigating 11 the claims in the action, or how they assisted with the preparation of the complaint (especially given 12 that the complaint in Doe was filed three years prior to Fernando Rodriguez and Guadalupe Herrera 13 being identified as plaintiffs). 14 The facts presented to the Court in Alvarado are identical to those presented by plaintiffs 15 Fernando Rodriguez and Guadalupe Herrera in this action, and it does not appear greater incentive 16 awards are warranted. As in Wade, Plaintiffs provide little information regarding the tasks undertaken 17 in the action. Accordingly, an award of $10,000 appears to be excessive. However, an award of 18 $7,500 conforms with other decisions by this District. Therefore, the Court recommends Plaintiffs’ 19 request for incentive payments be GRANTED in the amount of $7,500 each. 20 FINDINGS AND RECOMMENDATIONS 21 Based upon the foregoing, the Court finds the settlement agreement is fair, adequate, and 22 reasonable. Further, the factors set forth by the Ninth Circuit weigh in favor of preliminary approval 23 of the settlement agreement. Accordingly, IT IS HEREBY RECOMMENDED: 24 1. Plaintiffs’ motion for final approval of the Settlement Agreement be GRANTED; 25 2. Plaintiffs’ request for certification of the Settlement Class be GRANTED and defined 26 27 28 as follows: All nonexempt field workers who have been employed or jointly employed by Defendant and any Farm Labor Contractor utilized on land owned by Defendant and as regular non-exempt grape worker agricultural employees between 2001 and 2006. 25 1 3. outlined in the Notice be entitled to receive a settlement share; 2 3 4. Plaintiffs’ request for incentive payments to Class Representatives Fernando Rodriguez and Guadalupe Herrera be GRANTED in the amount of $7,500 each; 4 5 All Class Members who submitted a valid Claim Form pursuant to the procedures 5. Class Counsel’s motion for attorneys fees in the amount of $202,250, which is 30% of the gross settlement amount, be GRANTED; 6 7 6. Class Counsel’s request for costs in the amount of $15,000 be GRANTED; 8 7. The request for fees for the Settlement Administrator Simpluris in the amount of $23,000 be GRANTED; 9 10 8. California in the amount of $15,000 be APPROVED; 11 12 The California Labor Code Private Attorney General Act payment to the State of 9. The action be DISMISSED with prejudice, with each side to bear its own costs and 13 attorneys’ fees except as otherwise provided by the Settlement and ordered by the 14 Court; and 15 10. connection win the Settlement. 16 17 The Court retain jurisdiction to consider any further applications arising out of or in These findings and recommendations are submitted to the United States District Judge assigned 18 to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of 19 Practice for the United States District Court, Eastern District of California. Within fourteen days after 20 being served with these findings and recommendations, any party may file written objections with the 21 court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 22 Recommendations.” The parties are advised failure to file objections within the specified time may 23 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 24 25 26 27 28 IT IS SO ORDERED. Dated: May 15, 2013 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE DEAC_Signature-END: 9j7khijed 26
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