Opinion
2:21-cv-0885 WBS KJN
06-05-2023
TRICILLA GRIFFIN, individually, and on behalf of other members of the general public similarly situated and on behalf of other aggrieved employees pursuant to the California Private Attorneys General Act, Plaintiff, v. CONSOLIDATED COMMUNICATIONS, an unknown business entity; and DOES 1 through 100, inclusive, Defendants.
ORDER RE: PLAINTIFF'S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND MOTION FOR ATTORNEYS' FEES, COSTS, AND REPRESENTATIVE SERVICE PAYMENT
WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE.
Plaintiff Tricilla Griffin, individually and on behalf of all other similarly situated employees, brought this putative class action against defendant Consolidated Communications alleging wage and hour violations under California law. (See First Am. Compl. (Docket No. 1-1).) Before the court are plaintiff's motion for final approval of a class action settlement (See Mot. for Final Approval (“Mot.”) (Docket No. 33)) and motion for attorneys' fees, costs, and enhancement payment (Docket No. 34), both of which are unopposed.
The Ninth Circuit has declared a strong judicial policy favoring settlement of class actions. Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992); see also Rodriguez v. W. Publ'g Corp., 563 F.3d 948, 965 (9th Cir. 2009) (“We put a good deal of stock in the product of an arms-length, non-collusive, negotiated resolution[.]”) (citation omitted). Rule 23(e) provides that “[t]he claims, issues, or defenses of a certified class may be settled . . . only with the court's approval.” Fed.R.Civ.P. 23(e).
“Approval under 23(e) involves a two-step process in which the Court first determines whether a proposed class action settlement deserves preliminary approval and then, after notice is given to class members, whether final approval is warranted.” Nat'l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 525 (C.D. Cal. 2004) (citing Manual for Complex Litig. (Third), § 30.41 (1995)). This court satisfied step one by granting plaintiff's unopposed motion for preliminary approval of class action settlement on November 9, 2022. (Order Granting Prelim.
Approval (Docket No. 32).) The Settlement Administrator subsequently mailed notice of the settlement to the class members. A final fairness hearing was held on May 30, 2023. No class members appeared at the hearing to object to the settlement. The court will now consider whether final approval is merited by evaluating: (1) the treatment of this litigation as a class action and (2) the terms of the settlement. See Diaz v. Tr. Territory of Pac. Islands, 876 F.2d 1401, 1408 (9th Cir. 989).
I. Class Certification
The parties define the class as “[a]ll current and former hourly-paid or non-exempt employees who worked for Defendant within the State of California at any time during the period from February 24, 2017 through March 23, 2022 [“Class Period”].” (Settlement Agreement (Docket No. 27-1 at 24-53) at 2.) For purposes of the PAGA claim, the relevant time period is February 19, 2020 to March 23, 2022 (“PAGA Period”). (Settlement Agreement at 5.)
To be certified, the putative class must satisfy the requirements of Federal Rules of Civil Procedure 23(a) and 23(b). Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th Cir. 2013).
A. Rule 23(a)
Rule 23(a) restricts class actions to cases where: “(1) the class is so numerous that joinder of all members is impracticable [numerosity]; (2) there are questions of law or fact common to the class [commonality]; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class [typicality]; and (4) the representative parties will fairly and adequately protect the interests of the class [adequacy of representation].” See Fed.R.Civ.P. 23(a).
In the court's order granting preliminary approval of the settlement, the court found that the putative class satisfied the Rule 23(a) requirements. (See Order Granting Prelim. Approval at 5-10.) The court is unaware of any changes that would affect its conclusion that the putative class satisfies the Rule 23(a) requirements, and the parties have not indicated that they are aware of any such developments. The court therefore finds that the class definition proposed by plaintiff meets the requirements of Rule 23(a).
B. Rule 23(b)
After fulfilling the threshold requirements of Rule 23(a), the proposed class must satisfy the requirements of one of the three subdivisions of Rule 23(b). Leyva, 716 F.3d at 512. Plaintiff seeks certification under Rule 23(b)(3), which provides that a class action may be maintained only if (1) “the court finds that questions of law or fact common to class members predominate over questions affecting only individual members” and (2) “that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3).
In its order granting preliminary approval of the settlement, the court found that both the predominance and superiority prerequisites of Rule 23(b)(3) were satisfied. (Order Granting Prelim. Approval at 10-12.) The court is unaware of any changes that would affect its conclusion that Rule 23(b)(3) is satisfied. Because the settlement class satisfies both Rule 23(a) and 23(b)(3), the court will grant final class certification of this action.
C. Rule 23(c)(2) Notice Requirements
If the court certifies a class under Rule 23(b)(3), it “must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” Fed.R.Civ.P. 23(c)(2)(B). Rule 23(c)(2) governs both the form and content of a proposed notice. See Ravens v. Iftikar, 174 F.R.D. 651, 658 (N.D. Cal. 1997) (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 172-77 (1974)). Although that notice must be “reasonably certain to inform the absent members of the plaintiff class,” actual notice is not required. Silber v. Mabon, 18 F.3d 1449, 1454 (9th Cir. 1994) (citation omitted).
The notice explains the proceedings, defines the scope of the class, and explains what the settlement provides and how much each class member can expect to receive in compensation. (Settlement Notice (Docket No. 33-3 at 6-11) at 1-3.) The notice further explains the opt-out procedure, the procedure for objecting to the settlement, and the date and location of the final approval hearing. (See id. at 4-5.) The content of the notice therefore satisfies Rule 23(c)(2)(B). See Fed.R.Civ.P. 23(c)(2)(B); Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004) (“Notice is satisfactory if it ‘generally describes the terms of the settlement in sufficient detail to alert those with adverse viewpoints to investigate and to come forward and be heard.'”) (quoting Mendoza v. Tucson Sch. Dist. No. 1, 623 F.2d 1338, 1352 (9th Cir. 1980)).
The parties selected ILYM Group (“ILYM”) to serve as the Settlement Administrator. (Settlement Agreement at 13.) Defendant timely provided ILYM with the class contact information and data, which included the class members' full names, social security numbers, last known mailing addresses, and the total number of applicable workweeks. (See Decl. of Madely Nava (Docket No. 33-3) ¶ 5.) The class list contained 279 members. (Id.) The Settlement Administrator delivered notice of the settlement via mail. (Id. ¶ 7.) Of the twenty notices returned as undeliverable, the Settlement Administrator acquired sixteen new mailing addresses via computerized skip trace, leaving four of the 279 notices undelivered. (Id. ¶¶ 8-10.) The Settlement Administrator did not receive any objections or requests for exclusion. (Id. ¶¶ 11-12.)
Although the court maintains the belief that counsel could have been more thorough in devising procedures for providing notice to class members, following oral argument the court is satisfied by the Settlement Administrator's efforts.
II. Final Settlement Approval
Having determined that class treatment is warranted, the court must now address whether the terms of the parties' settlement appear fair, adequate, and reasonable. See Fed.R.Civ.P. 23(e)(2). To determine the fairness, adequacy, and reasonableness of the agreement, Rule 23(e) requires the court to consider four factors: “(1) the class representatives and class counsel have adequately represented the class; (2) the proposal was negotiated at arm's length; (3) the relief provided for the class is adequate; and (4) the proposal treats class members equitably relative to each other.” Id. The Ninth Circuit has also identified eight additional factors the court may consider, many of which overlap substantially with Rule 23(e)'s four factors:
The strength of the 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; and the reaction of the class members to the proposed settlement.Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998).
Because claims under PAGA are “a type of qui tam action” in which an employee brings a claim as an agent or proxy of the state's labor law enforcement agencies, the court must also “review and approve” settlement of plaintiff's and other class members' PAGA claims along with their class claims. See Cal. Lab. Code § 2669(k)(2); Sakkab v. Luxottica Retail N. Am., Inc., 803 F.3d 425, 435-36 (9th Cir. 2015). Though “PAGA does not establish a standard for evaluating PAGA settlements,” Rodriguez v. RCO Reforesting, Inc., No. 2:16-CV-2523 WBS DMC, 2019 WL 331159, at *4 (E.D. Cal. Jan. 25, 2019) (citing Smith v. H.F.D. No. 55, Inc., No. 2:15-cv-01293 KJM KJN, 2018 WL 1899912, at *2 (E.D. Cal. Apr. 20, 2018)), a number of district courts have applied the eight Hanlon factors, listed above, to evaluate PAGA settlements. See, e.g., Smith, 2018 WL 1899912, at *2; Ramirez v. Benito Valley Farms, LLC, No. 16-cv-04708 LHK, 2017 WL 3670794, at *3 (N.D. Cal. Aug. 25, 2017); O'Connor v. Uber Techs., 201 F.Supp.3d 1110, 1134 (N.D. Cal. 2016). “Many of these factors are not unique to class action lawsuits and bear on whether a settlement is fair and has been reached through an adequate adversarial process.” See Ramirez, 2017 WL 3670794, at *3. Thus, the court finds that these factors will also govern its review of the PAGA settlement. See id.
A. Adequate Representation
The court must first consider whether “the class representatives and class counsel have adequately represented the class.” Fed.R.Civ.P. 23(e)(2)(A). This analysis is “redundant of the requirements of Rule 23(a)(4) . . . .” Hudson v. Libre Tech., Inc., No. 3:18-cv-1371 GPC KSC, 2020 WL 2467060, at *5 (S.D. Cal. May 13, 2020) (quoting 4 Newberg on Class Actions § 13:48 (5th ed.)); see also In re GSE Bonds Antitr. Litig., 414 F.Supp.3d 686, 701 (S.D.N.Y. 2019) (noting similarity of inquiries under Rule 23(a)(4) and Rule 23(e)(2)(A)).
Because the Court has found that the proposed class satisfies Rule 23(a)(4) for purposes of class certification, the adequacy factor under Rule 23(e)(2)(A) is also met. See Hudson, 2020 WL 2467060, at *5.
B. Negotiation of the Settlement Agreement
Following substantial investigations and informal discovery, the parties engaged in a full-day mediation with a mediator experienced in complex labor and employment matters. (See Decl. of Edwin Aiwazian (“Aiwazian Decl.”) (Docket No. 33-1) ¶ 8.) Plaintiff's counsel represents that the parties analyzed “a large volume of information, documents, and data” obtained from plaintiff and defendant, and that settlement negotiations involved “discussion of all aspects of the case, including but not limited to, the risks and delays of further litigation, the risks to the parties of proceeding with class certification and trial, the law [applicable to the claims] . . ., the evidence produced and analyzed, and the possibility of appeals . . . . ” (See id.) Plaintiff's counsel further represents that the settlement was the result of arms-length bargaining. (See id.)
Given counsel's representation that the settlement reached was the product of arms-length bargaining following extensive informal discovery and with the help of an experienced mediator, this factor weighs in favor of final approval. See La Fleur v. Med. Mgmt. Int'l, Inc., No. 5:13-cv-00398, 2014 WL 2967475, at *4 (N.D. Cal. June 25, 2014) (“Settlements reached with the help of a mediator are likely non-collusive.”).
C. Adequate Relief
In determining whether a settlement agreement provides adequate relief for the class, the court must “take into account (i) the costs, risks, and delay of trial and appeal; (ii) the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims; (iii) the terms of any proposed award of attorney's fees, including timing of payment; and (iv) any [other] agreement[]”' made in connection with the proposal. See Fed.R.Civ.P. 23(e)(2)(C); Baker v. SeaWorld Entm't, Inc., No. 14-cv-02129-MMA-AGS, 2020 WL 4260712, at *6-8 (S.D. Cal. Jul. 24, 2020).
The court notes that, in evaluating whether the settlement provides adequate relief, it must consider several of the same factors as outlined in Hanlon, including the strength of the plaintiff's case, the risk, expense, complexity, and likely duration of further litigation, the risk of maintaining class action status throughout the trial, and the amount offered in settlement. See Hanlon, 150 F.3d at 1026.
In determining whether a settlement agreement is substantively fair to class members, the court must balance the value of expected recovery against the value of the settlement offer. See In re Tableware Antitrust Litig., 484 F.Supp.2d 1078, 1080 (N.D. Cal. 2007). When a settlement was reached prior to class certification, it is subject to heightened scrutiny for purposes of final approval. See In re Apple Inc. Device Performance Litig., 50 F.4th 769, 782 (9th Cir. 2022) . The recommendations of plaintiff's counsel will not be given a presumption of reasonableness, but rather will be subject to close review. See id. at 782-83. The court will particularly scrutinize “any subtle signs that class counsel have allowed pursuit of their own self-interests to infect the negotiations.” See id. at 782 (quoting Roes, 1-2 v. SFBSC Mgmt., LLC, 944 F.3d 1035, 1043 (9th Cir. 2019)).
The parties propose a gross settlement amount of $800,000, which includes the following: (1) a $7,500 incentive award to plaintiff; (2) attorneys' fees of 35% of the gross settlement amount, or $280,000, and reimbursement of litigation costs and expenses of $8,863; (3) settlement administration costs of $15,000; and (4) $200,000 for PAGA penalties, of which 75% will be distributed to the Labor and Workforce Development Agency (“LWDA”) and 25% will be distributed to individual aggrieved employees based on their number of workweeks during the PAGA period. (See Mot. at 4; Settlement Agreement.) This leaves a net settlement amount of $288,636.27 to be distributed to class members based on their number of workweeks. (See id.)
Based on these figures, the average payment per class member will be $1,065.08. Plaintiff estimates that the claims are worth up to $9,663,057.16. (See Suppl. Decl. of Edwin Aiwazian (Docket No. 36).) The gross settlement amount constitutes approximately 8.3% of that maximum valuation. While this percentage is on the lower end of the range of typical approval, plaintiff has adequately justified this figure.
Plaintiff faced numerous risks in the litigation, including proving all elements of the claims, obtaining and maintaining class certification, establishing liability, and the costliness of litigation on these issues. (See id. at 4.) Defendant “vigorously challenged” the likelihood of plaintiff succeeding on any of her claims and contended that its employment practices were fully compliant with California law. (See id. at 14.) Defendant also argued, inter alia, that individual issues predominated such that class certification would be inappropriate on certain claims; that plaintiff lacked standing and was an inadequate class representative; that many class members executed valid meal period waivers, which defendant produced; that defendant did not “willfully” fail to pay wages such that waiting-time penalties were due; that class members were not injured by any recordkeeping violations; and that unreimbursed business expenses were not “necessary” such that it was required to pay them. (See id. at 5-13.) Defendant also represented that approximately 36.13% of the class members were covered by arbitration agreements. (See id. at 4.)
Investigation uncovered specific factual weaknesses in plaintiff's case. For instance, with respect to the claim for failure to pay wages, plaintiff's investigation revealed that 95.09% of the shifts analyzed gave no indication of unpaid work time. (Id. at 3.) With respect to the claim for noncompliant meal periods, plaintiff's investigation revealed that 97.83% of shifts analyzed had a meal period (whether fully compliant or not), and 84.14% of shifts had no recorded meal period violations. (Id.) The UCL and PAGA claims are derivative of the underlying wage and hour violations, and thus are subject to the same risks and weaknesses discussed above.
In light of the risks associated with further litigation and the relative strength of defendants' arguments, the court finds that the value of the settlement counsels in favor of granting final approval. The court further finds the method of processing class member claims to be adequate. Each class member's individual share of the settlement is proportional to the number of weeks worked for defendant during the time period covered by the Settlement Agreement. The court is also satisfied that counsel's requested fees are reasonable and support approval of the settlement, which it will address in greater detail below.
D. Equitable Treatment of Class Members
Finally, the court must consider whether the Settlement Agreement “treats class members equitably relative to each other.” See Fed.R.Civ.P. 23(e)(2)(D). In doing so, the court determines whether the settlement “improperly grant[s] preferential treatment to class representatives or segments of the class.” Hudson, 2020 WL 2467060, at *9 (quoting Tableware, 484 F.Supp. at 1079.
Here, the Settlement Agreement does not improperly discriminate between any segments of the class, as all class members are entitled to monetary relief based on the number of compensable workweeks they spent working for defendants. (See Settlement Agreement at 5-6.)
While the Settlement Agreement allows plaintiff to seek an incentive award of $7,500, plaintiff has submitted evidence documenting her time and effort spent on this case, which, as discussed further below, has satisfied the court that her additional compensation above other class members is justified. See Hudson, 2020 WL 2467060, at *9. The court therefore finds that the settlement treats class members equitably. See Fed.R.Civ.P. 23(e)(D).
E. Remaining Staton Factors
In addition to the Staton factors already considered as part of the court's analysis under Rule 23(e)(A)-(D), the court must also examine “the extent of the discovery completed . . ., the presence of government participation, and the reaction of class members to the proposed settlement.” Staton, 327 F.3d at 959.
Through investigation and informal discovery, plaintiffs obtained “a large volume of information, documents, and data,” including employment records, payroll records, employee handbooks, job descriptions, internal memoranda and policies, arbitration agreements, meal period waivers, wage statements, and reimbursement forms, that appear to have allowed the parties to adequately assess the value of the claims. (See Aiwazian Decl. ¶ 6.) This factor thus weighs in favor of final approval of the settlement.
The seventh Staton factor, pertaining to government participation, also weighs in favor of approval. See Staton, 327 F.3d at 959. Under PAGA, “[t]he proposed settlement [must be] submitted to the [LWDA] at the same time that it is submitted to the court.” Cal. Lab. Code § 2669(k)(2). As of the date of this order, the LWDA has not sought to intervene or otherwise objected to the PAGA settlement. This factor therefore weights in favor of final approval of the settlement.
The eighth Staton factor, the reaction of the class members to the proposed settlement, also weighs in favor of final approval, as there have been no objections or requests for exclusion from class members. See Staton, 327 F.3d at 959.
In sum, the four factors that the court must evaluate under Rule 23(e) and the eight Staton factors, taken as a whole, weigh in favor of approving the settlement. The court will therefore grant final approval of the Settlement Agreement.
III. Attorneys' Fees
Federal Rule of Civil Procedure 23(h) provides, “[i]n a certified class action, the court may award reasonable attorney's fees and nontaxable costs that are authorized by law or by the parties' agreement.” Fed.R.Civ.P. 23(h). If a negotiated class action settlement includes an award of attorneys' fees, that fee award must be evaluated in the overall context of the settlement. Knisley v. Network Assocs., 312 F.3d 1123, 1126 (9th Cir. 2002); Monterrubio v. Best Buy Stores, L.P., 291 F.R.D. 443, 455 (E.D. Cal. 2013) (England, J.). The court “ha[s] an independent obligation to ensure that the award, like the settlement itself, is reasonable, even if the parties have already agreed to an amount.” Bluetooth Headset, 654 F.3d at 941.
“Under the ‘common fund' doctrine, ‘a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable [attorneys'] fee from the fund as a whole.'” Staton v. Boeing Co., 327 F.3d 938, 969 (9th Cir. 2003) (quoting Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980)). In common fund cases, the district court has discretion to determine the amount of attorneys' fees to be drawn from the fund by employing either the percentage method or the lodestar method. Id. The court may also use one method as a “cross-check[ ]” upon the other method. See Bluetooth Headset, 654 F.3d at 944.
Counsel represents that the settlement amount, which averages $1,065.08 per class member, represents a favorable result for the class that will bring meaningful relief. A review of wage and hour class action settlements in this district confirms that this appears to be a favorable recovery for class members that will be available without further delay. See, e.g., Cooley v. Indian River Transp. Co., No. 1:18-cv-00491 WBS, 2019 WL 2077029 (E.D. Cal. May 10, 2019) (finding that $450.14 recovery per truck driver class member was a “favorable” result); Ontiveros v. Zamora, No. 2:08-cv-00567 WBS DAD, 2014 WL 3057506 (E.D. Cal. July 7, 2014) (observing that an average recovery of $6,000 was “a generous amount” and citing cases approving lower per-class-member averages between $601.91 and $1,000.00).
Like other complex employment class actions, this case presented both counsel and the class with a risk of no recovery at all, as already discussed above. Plaintiff's counsel took on this matter on a contingency basis. (See Aiwazian Decl. ¶ 9.) The nature of contingency work inherently carries risks that counsel will sometimes recovers very little to nothing at all, even for cases that may be meritorious. See Kimbo v. MXD Group, Inc., No. 2:19-cv-00166 WBS KNJ, 2021 WL 492493, at *7 (E.D. Cal. Feb. 10, 2021). Where counsel do succeed in vindicating statutory and employment rights on behalf of a class of employees, they depend on recovering a reasonable percentage-of-the-fund fee award to enable them to take on similar risks in future cases. See id. Plaintiff's counsel argues that, in light of the strong result and substantial risk taken in this case, a 35% fee, as requested here, is reasonable.
The Ninth Circuit has established 25% of the fund as the “benchmark” award that should be given in common fund cases. Six (6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1311 (9th Cir. 1990). As this court has explained, “a review of California cases . . . reveals that courts usually award attorneys' fees in the 30-40% range in wage and hour class actions that result in recovery of a common fun[d] under $10 million.” Watson v. Tennant Co., No. 2:18-cv-02462 WBS DB, 2020 WL 5502318, at *7 (E.D. Cal. Sep. 11, 2020) (awarding 33.33% of settlement fund); see also Osegueda v. N. Cal. Inalliance, No. 18-cv-00835 WBS EFB, 2020 WL 4194055, at *16 (E.D. Cal. July 21, 2020) (same); Cooley, 2019 WL 2077029, at *20 (fee award of 33% of the common fund in class action alleging missed meal and rest breaks for class of truck drivers). Given that the requested fee is in line with the typical practice in the Ninth Circuit and in this district, the court agrees that plaintiff's counsel's requested percentage of the common fund is reasonable, especially when viewed in light of the recovery obtained on behalf of the class and the risks undertaken by plaintiff's counsel in this case.
“Calculation of the lodestar, which measures the lawyers' investment of time in the litigation, provides a check on the reasonableness of the percentage award.” Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1050 (9th Cir. 2002).
Here, a lodestar cross-check confirms the reasonableness of the requested award. Plaintiff's counsel maintained contemporaneous billing logs which reflect time billed in one-tenth of an hour increments. (See Ex. A to Aiwazian Decl.) Counsel represents that attorneys at Lawyers for Justice, PC have dedicated 391.3 hours of work to this case. (See Aiwazian Decl. ¶ 11.) Counsel applies a blended rate of $725 per hour to arrive at the lodestar figure. (See id. ¶ 12.) The firm specializes in wage and hour matters and class action cases, and counsel represents that comparable hourly rates have been approved by multiple federal and state courts in California. (See id. ¶ 12.) Based on 391.3 hours billed at an hourly rate of $725, the lodestar figure is $283,692.50. (See Mot. at 16; Aiwazian Decl. ¶ 11-12.) This figure is nearly identical to the requested percentage-of-the-fund fees without the application of a multiplier, confirming the reasonableness of the requested award. Cf. Vizcaino, 290 F.3d at 1051 (affirming fee award with lodestar cross-check multiplier of 3.65).
Accordingly, the court finds the requested fees to be reasonable and will grant counsel's motion for attorneys' fees.
D. Costs
“There is no doubt that an attorney who has created a common fund for the benefit of the class is entitled to reimbursement of reasonable litigation expenses from that fund.” In re Heritage Bond Litig., No. 02-cv-1475, 2005 WL 1594403, at *23 (C.D. Cal. June 10, 2005). Here, the parties agreed that plaintiff's counsel shall be entitled to recover reasonable litigation costs, not to exceed $24,000. (Settlement Agreement at 23.) Counsel's litigation expenses and costs are $8,863.75. (Aiwazian Decl. ¶ 19.) These expenses include mailing and postage, filing fees, and document service. (See Ex. B to Aiwazian Decl.) The court finds these are reasonable litigation expenses. Therefore, the court will grant class counsel's request for costs in the amount of $8,863.75.
E. Representative Service Award
“Incentive awards are fairly typical in class action cases.” Rodriguez, 563 F.3d at 958. “[They] are intended to compensate class representatives for work done on behalf of the class, to make up for financial or reputational risk undertaken in bringing the action, and, sometimes, to recognize their willingness to act as a private attorney general.” Id. at 95859.
Nevertheless, the Ninth Circuit has cautioned that “district courts must be vigilant in scrutinizing all incentive awards to determine whether they destroy the adequacy of the class representatives . . . . ” Radcliffe v. Experian Info. Solutions, Inc., 715 F.3d 1157, 1164 (9th Cir. 2013). In assessing the reasonableness of incentive payments, the court should consider “the actions the plaintiff has taken to protect the interests of the class, the degree to which the class has benefitted from those actions” and “the amount of time and effort the plaintiff expended in pursuing the litigation.” Staton, 327 F.3d at 977 (citation omitted). The court must balance “the number of named plaintiffs receiving incentive payments, the proportion of the payments relative to the settlement amount, and the size of each payment.” Id.
In the Ninth Circuit, an incentive award of $5,000 is presumptively reasonable. Davis v. Brown Shoe Co., Inc., No. 1:13-cv-01211 LJO BAM, 2015 WL 6697929, at *11 (E.D. Cal. Nov. 3, 2015) (citing Harris v. Vector Marketing Corp., No. 08-cv-5198 EMC, 2012 WL 381202, at *7 (N.D. Cal. Feb. 6, 2012) (collecting cases)). The single named plaintiff seeks an incentive payment of $7,500.
Plaintiff represents that she has expended approximately 50 hours of her time in bringing this action and seeing it through to settlement. (See Decl. of Tricilla Griffin (Docket No. 33-2).) In light of plaintiff's efforts and the risks incurred in bringing this action, the court finds her requested incentive award of $7,500 to be reasonable and will approve the award. II. Conclusion
Based on the foregoing, the court will grant final certification of the settlement class and will approve the settlement set forth in the Settlement Agreement as fair, reasonable, and adequate. The Settlement Agreement shall be binding upon all participating class members who did not exclude themselves.
IT IS THEREFORE ORDERED that plaintiff's unopposed motion for final approval of the parties' class action settlement (Docket No. 33) and motion for attorneys' fees, costs, and class representative service payment (Docket No. 34) be, and the same hereby are, GRANTED.
IT IS FURTHER ORDERED THAT:
(1) Solely for the purpose of this settlement, and pursuant to Federal Rule of Civil Procedure 23, the court hereby certifies the following class: all current and former hourly-paid or non-exempt employees who worked for defendant within the state of California at any time during the period from February 24, 2017 through March 23, 2022.
(2) The court appoints the named plaintiff Tricilla Griffin as class representative and finds that she meets the requirements of Rule 23;
(3) The court appoints the law firm of Lawyers for Justice, PC as class counsel and finds that it meets the requirements of Rule 23;
(4) The settlement agreement's plan for class notice satisfies the requirements of due process and Rule 23. The plan is approved and adopted. The notice to the class complies with Rule 23(c)(2) and Rule 23(e) and is approved and adopted;
(5) The court finds that the parties and their counsel took appropriate efforts to locate and inform all class members of the settlement. No employees have requested to be excluded from the class. Given that no class member filed an objection to the settlement, the court finds that no additional notice to the class is necessary;
(6) As of the date of the entry of this order, plaintiff and all class members who have not timely opted out of this settlement hereby do and shall be deemed to have fully, finally, and forever released, settled, compromised, relinquished, and discharged defendants of and from any and all settled claims, pursuant to the release provisions stated in the parties' settlement agreement;
(7) Plaintiff's counsel is entitled to fees in the amount of $280,000, and litigation costs in the amount of $8,863.75;
(8) ILYM Group is entitled to administration costs in the amount of $15,000;
(9) Plaintiff Tricilla Griffin is entitled to an incentive award in the amount of $7,500;
(10) $150,000 from the gross settlement amount shall be paid to the California Labor and Workforce Development Agency in satisfaction of defendant's alleged penalties under the Private Attorneys General Act;
(11) The remaining settlement funds shall be paid to participating class members and aggrieved employees in accordance with the terms of the Settlement Agreement; and
(12) This action is dismissed with prejudice. However, without affecting the finality of this Order, the court shall retain continuing jurisdiction over the interpretation, implementation, and enforcement of the Settlement Agreement with respect to all parties to this action and their counsel of record.