Preview
1 Larry W. Lee (State Bar No. 228175)
Max W. Gavron (State Bar No. 291697)
2 DIVERSITY LAW GROUP, P.C.
3 515 S. Figueroa Street, Suite 1250
Los Angeles, CA 90071
4 (213) 488-6555
(213) 488-6554 facsimile
5 lwlee@diversitylaw.com
6 mgavron@diversitylaw.com
7 William L. Marder (State Bar No. 170131)
Polaris Law Group
8 501 San Benito Street, Suite 200
9 Hollister, CA 95023
(831) 531-4214
10 (831) 634-0333 facsimile
bill@polarislawgroup.com
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12 Attorneys for Plaintiff and the Class
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF SANTA BARBARA
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16 VICTORIA TICE, as an individual and on Case No. 20CV00892
behalf of all others similarly situated,
17 [Assigned to the Honorable Thomas P. Anderle,
Plaintiff, Department 3]
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19 vs. PLAINTIFF’S NOTICE OF MOTION AND
MOTION FOR FINAL APPROVAL OF
20 TRADER JOE’S COMPANY, a California CLASS ACTION SETTLEMENT;
corporation; and DOES 1 through 50, MEMORANDUM OF POINTS AND
21 inclusive, AUTHORITIES IN SUPPORT THEREOF
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Defendants. Date: September 6, 2023
23 Time: 10:00 A.M.
Dept.: 3
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25 Complaint Filed: February 14, 2020
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PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE that on September 6, 2023, at 10:00 A.M., or as soon
3 thereafter as the matter may be heard, before the Honorable Thomas P. Anderle, judge presiding,
4 in Department 3 of the above referenced Court, located at 1100 Anacapa Street, Santa Barbara,
5 California 93101, Plaintiff Victoria Tice (“Plaintiff”) will and hereby does move this Court for
6 an Order
7 1. Granting final approval to the Joint Stipulation of Class Action Settlement
8 (“Stipulation” or “Settlement Agreement”) in this action;
9 2. Approving distribution of the settlement funds to the Class Members pursuant to
10 the terms of the Settlement Agreement;
11 3. Approving Plaintiff’s request for an incentive payment of $10,000.00 to Plaintiff
12 pursuant to the terms of the Settlement Agreement;
13 4. Approving Class Counsel’s request for an award of attorneys’ fees of one-third of
14 the Gross Settlement Amount, or $113,333.33, and reimbursement of actual litigation costs of
15 $52,386.08, pursuant to the terms of the Settlement Agreement;
16 5. Approving Plaintiff’s request for payment of the settlement administration costs
17 to Phoenix Settlement Administrators in the amount of $11,000.00, pursuant to the terms of the
18 Settlement Agreement;
19 6. Approving Plaintiff’s request for payment to the California Labor & Workforce
20 Development Agency (“LWDA”) for $18,750.00, pursuant to the California Labor Code Private
21 Attorneys General Act and the terms of the Settlement Agreement; and
22 7. Entering final judgment as to all members of the settlement class in this action.
23 This Motion is made pursuant to Rule 3.769 of the California Rules of Court, which
24 provides for court approval of the settlement of a purported class action and allows the Court to
25 grant final certification of a class for settlement purposes. In light of the overwhelmingly positive
26 response, as shown by the lack of objections and single opt-out to the settlement, there is no
27 question that the settlement is fair, reasonable, and adequate and thus should be granted final
28 approval.
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PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 This Motion will be based on the attached Memorandum of Points and Authorities and
2 the supporting Declarations of Larry W. Lee, Max W. Gavron, William L. Marder, Plaintiff
3 Victoria Tice, and Taylor Mitzner of Phoenix Settlement Administrators, upon the oral
4 arguments of counsel (should there be any), and on the complete records and file herein.
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6 DATED: August 14, 2023 DIVERSITY LAW GROUP, P.C.
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By:
8 Larry W. Lee
9 Max Gavron
Attorneys for Plaintiff and the Class
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PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 TABLE OF CONTENTS
2 Page
3 I. INTRODUCTION................................................................................................................... 9
4 II. CLASS MEMBERS WERE PROVIDED PROPER NOTICE ........................................ 10
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III. THE SETTLEMENT TERMS ARE FAIR, ADEQUATE, AND REASONABLE, AND
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THE SETTLEMENT SHOULD BE GIVEN FINAL APPROVAL ...................................... 12
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A. Strength of Plaintiff’s Case and Likelihood of Certifying the Class .......................... 12
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9 1. The Class is Ascertainable.............................................................................................. 12
10 2. There is a Community of Interest.................................................................................. 12
11 B. Risks, Expenses, and Complexity of Further Litigation ............................................. 14
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C. The Terms, Negotiation, and Reception of the Settlement by Class Members All
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Strongly Support the Conclusion that the Settlement is Fair, Adequate, and
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Reasonable.................................................................................................................................14
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D. Under Well-Established Legal Principles, the Court Should Grant Final Approval
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of the Settlement ....................................................................................................................... 15
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18 1. Standard of Review ......................................................................................................... 15
19 2. The Settlement is Presumed to Be Fair ......................................................................... 16
20 3. Two-Way Costs and Other Risks Inherent in Continued Litigation Favor Final
21 Approval............... ................................................................................................................. 17
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4. The Complexity, Expense, and Likely Duration of Continued Litigation Against
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Defendant Favor Final Approval ........................................................................................ 18
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5. The Opinion of Experienced Counsel Favors Final Approval ................................... 19
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26 IV. THE PROPOSED PROCEDURE FOR UNCASHED SETLEMENT CHECKS
27 SHOULD BE APPROVED........................... ............................................................................. 19
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PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 V. THE REQUESTED CLASS REPRESENTATIVE INCENTIVE PAYMENT SHOULD
2 BE APPROVED.................................... ...................................................................................... 19
3 VI. THE REQUESTED ATTORNEYS’ FEES SHOULD BE APPROVED ......................... 21
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VII. THE COURT SHOULD APPROVE THE REQUEST FOR REIMBURSEMENT OF
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COSTS ......................................................................................................................................... 26
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VIII. THE SETTLEMENT ADMINISTRATION COSTS SHOULD BE APPROVED ..... 26
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8 IX. NOTICE TO THE LWDA ................................................................................................... 26
9 X. CONCLUSION ..................................................................................................................... 27
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PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 TABLE OF AUTHORITIES
2 Page(s)
3
State Cases
4 7-Eleven Owners for Fair Franchising v. Southland Corp., 85 Cal. App. 4th 1135, 1146 (2000)
5 .................................................................................................................................................... 16
6 City of Oakland v. Oakland Raiders, 203 Cal. App. 3d 78 (1988) ............................................... 23
7 Classen v. Weller, 145 Cal. App. 3d 27, 45 (1983) ...................................................................... 13
8 Dunk v. Ford Motor Co., 48 Cal. App. 4th 1794, 1801 (1996) .............................................. 16, 17
9 Duran v. U.S. Bank Nat’l Ass’n, 59 Cal. 4th 1 (2014) .................................................................. 14
10 Flannery v. California Highway Patrol, 61 Cal. App. 4th 629, 632-33 (1998) ........................... 24
11 Ketchum v. Moses, 24 Cal. 4th 1122, 1139 (2001) ....................................................................... 25
12 Laffitte v. Robert Half Int’l, 1 Cal. 5th 480, 503 (Aug. 11, 2016) .......................................... 21, 23
13 Lealao v. Beneficial California, Inc. 82 Cal. App. 4th 19 (2000) .......................................... 23, 25
14 Lockheed Martin Corp. v. Superior Court, 29 Cal. 4th 1096, 1104-05 (2003) ............................ 13
15 Martino v. Denevi, 182 Cal. App. 3d 553, 559 (1986) ................................................................. 24
16 PLCM Group, Inc. v. Drexler, 22 Cal. 4th 1084, 1095 (2000) ..................................................... 24
17 Reese v. Wal-Mart Stores, Inc., 73 Cal.App.4th 1225, 1234(1999) ............................................. 12
18 Reyes v. San Diego County Board of Supervisors, 196 Cal.App.3d 1263, 1271 (1987) .............. 12
19 Richmond v. Dart Industries, 29 Cal. 3d. 462, 470 (1981) ........................................................... 12
20 Serrano v. Priest, 20 Cal. 3d 25, 34 (1977) ............................................................................ 21, 25
21 Serrano v. Unruh, 32 Cal. 3d 621, 639 (1982) ............................................................................. 24
22 Simons v. Horowitz, 151 Cal.App.3d 834, 846 (1984) ................................................................. 14
23 Sutter Health Uninsured Pricing Cases, 171 Cal App.4th 495, 512 (2009) ................................ 23
24 Wershba v. Apple Computer, Inc., 91 Cal. App. 4th 224, 255 (2001) .............................. 21, 23, 25
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Federal Cases
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Ackerman v. Kassar, 1993 WL 326453 (9th Cir. 1993) ............................................................... 16
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Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980).................................................................. 21
28 Boyd v. Bank of Am. Corp., 2014 U.S. Dist. LEXIS 162880 (C.D. Cal. Nov. 18, 2014) ............. 25
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PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 Boyd v. Bechtel Corp., 485 F. Supp. 610, 616-17 (N.D. Cal. 1979)....................................... 17, 19
2 Brotherton v. Cleveland, 141 F. Supp. 2d 907, 913-14 (S.D. Ohio 2001) ................................... 20
3 Byrd v. Civil Serv. Comm’n, 459 U.S. 1217 (1983)...................................................................... 15
4 Church v. Consolidated Freightways, Inc., 1993 WL 149840 (N.D. Cal. 1993) ......................... 16
5 City of Detroit v. Grinnell Corp., 495 F. 2d 448, 470 (2d Cir. 1974)........................................... 22
6 Class Plaintiffs v. City of Seattle (9th Cir. 1992) 955 F.2d 1268, 1291 ....................................... 15
7 Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998) ................................................................. 21
8 Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 174-75 (1974) ....................................................... 11
9 Ellis v. Naval Air Rework Facility, 87 F.R.D. 15, 18 (N.D. Cal. 1980) ................................. 17, 19
10 Enter. Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240, 251-52 (S.D. Ohio
11 1991) .......................................................................................................................................... 20
12 Gaskill v. Gordon, 160 F.3d 361, 363 (7th Cir. 1998) .................................................................. 21
13 Girsh v. Jepson, 521 F.2d 1 53, 157 (3d Cir. 1975)................................................................ 17, 18
14 Glass v. UBS Fin. Servs., No. C-06-4068, 2007 U.S. Dist. LEXIS 8476, at *51-52 (N.D. Cal. Jan.
15 27, 2007) .................................................................................................................................... 21
16 Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)............................................... 13
17 In re Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366, 374 (S.D. Ohio 1990) . 20
18 In re General Motors Corp., 55 F.3d 768, 806 (3d Cir. 1995) ..................................................... 17
19 In re Rite Aid Corp. Secs. Litig., 396 F.3d 294, 306-307 (3d Cir. 2005)...................................... 23
20 In re Wash. Pub. Power Supply Sys. Sec. Litig., 720 F. Supp. 1379 (D. Ariz. 1989) ............. 16, 17
21 Linney v. Cellular Alaska P’ship, 151 F.3d 1234, 1238 (9th Cir. 1998) ................................ 16, 19
22 Martin v. AmeriPride Servs., 2011 U.S. Dist. LEXIS 61796, 23 (S.D. Cal. June 9, 2011).......... 22
23 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) ................................. 11
24 New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 62 (1980) .................................................. 24
Officers for Justice v. Civil Serv. Comm’n, 688 F.2d 615, 625 (9th Cir. 1982) ......... 15, 16, 18, 19
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Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811-12 (1985) ................................................... 11
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Swedish Hospital v. Shalala, 1 F.3d 1261, 1272 (D.C. Cir. 1993) ............................................... 22
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Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 950 (9th Cir. 1976) ..................................... 15, 19
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Van Vranken v. Atlantic Richfield Co., 901 F. Supp. 294, 299-300 (N.D. Cal. 1995) ................. 20
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PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 Vandervort v. Balboa Capital Corp., 8 F. Supp. 3d 1200, 1210 (C.D. Cal. 2014)....................... 26
2 Vincent v. Hughes Air West, Inc., 557 F. 2d 759, 769 (9th Cir. 1997) ......................................... 21
3 Young v. Katz, 447 F.2d 431, 433-34 (5th Cir. 1971) ................................................................... 18
4 Statutes
5 California Code of Civil Procedure Section 382 .................................................................... 12, 15
6 Civil Code § 1542 ......................................................................................................................... 20
7 Other Authorities
8 4 Newberg on Class Actions, 4th § 11.41 (2008) ................................................................... 15, 19
9 Eisenberg & Miller, Attorney Fees in Class Action Settlements: An Empirical Study: 1993-2008,
10 7 J. of Empirical Leg. Stud. 248, 262, fn.16 (2010) .................................................................. 22
11 Manual for Complex Litigation Fourth (Fed. Judicial Center 2004) (“MCL”), § 21.6 at 309 15, 16
12 Report of the Third Circuit Task Force, Court Awarded Attorney Fees 108 F.R.D. 237, 258
13 (1985) ......................................................................................................................................... 23
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Rules
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California Rule of Court 3.769 ..................................................................................................... 15
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PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 I. INTRODUCTION
2 Plaintiff Victoria Tice (“Plaintiff”) now seeks the Court’s final approval of the Joint
3 Stipulation of Class Action Settlement (“Stipulation” or “Settlement Agreement”). The
4 Settlement Agreement provides for a $340,000.00 non-reversionary fund to be created for the
5 benefit of the Class, from which attorneys’ fees, litigation costs, incentive payment to the named
6 Plaintiff, payment to the California Labor and Workforce Development Agency (“LWDA”), and
7 costs of settlement administration are to be paid. The entire Net Settlement Amount after these
8 deductions will be paid to all Class Members who did not opt-out of the Settlement.
9 The history of this litigation was previously detailed in Plaintiff’s Motion for Preliminary
10 Approval of Class Action Settlement. The Court preliminary approved this settlement on June 3,
11 2023, directing distribution of Notice of Class Action Settlement (“Class Notice”) and
12 scheduling the hearing for final approval of the settlement (the “Preliminary Approval Order”).
13 As directed by the Court, the Settlement Administrator selected by the Parties—Phoenix
14 Settlement Administrators—distributed the Class Notice to 951 Class Members. Declaration of
15 Taylor Mitzner on behalf of Phoenix Settlement Administrators (“Admin Decl.”) ¶ 5. To date,
16 only a single request for exclusion and zero objections to the settlement have been submitted by
17 Class Members. Id. ¶¶ 8, 9. As such, there is a 99.9% participation rate. Thus, in light of the lack
18 of objections and single opt-out, an inference can be made that the Class supports the Court’s
19 Preliminary Approval Order finding that the Settlement Agreement is fair and reasonable.
20 In addition to the results of the notice process, for the same reasons as set forth earlier in
21 Plaintiff’s Motion for Preliminary Approval of Class Action Settlement, the following represents
22 the basic points supporting final approval of the settlement:
23 The settlement provides a total settlement sum of $340,000.00, which is non-
24 reversionary;
25 The settlement is fair given that participating Class Members will receive (after
26 deductions for fees, costs, etc.) a substantial amount of money – on average, approximately
27 $135.03 to each Participating Class Member (See Admin Decl. ¶ 11);
28 Class Members did not need to submit claim forms to participate in the
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PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 settlement, but are being paid automatically;
2 The allocation reflects that the Net Settlement Amount will be evenly divided
3 among all Participating Class Members;
4 Class Counsel conducted significant investigation and litigation in this case,
5 including conducting formal and informal discovery and significant exchanges of information
6 regarding class data for the entire class, as well as documents and information pertaining to
7 Defendant Trader Joe’s Company’s (“Defendant”) policies and practices regarding payment of
8 final wages and use of paycards;
9 A highly regarded settlement administrator, Phoenix Settlement Administrators,
10 was retained to administer the settlement for approximately $11,000.00 (See Admin Decl. ¶ 15);
11 and
12 The State of California’s LWDA will also be the beneficiary of this settlement, as
13 it will receive $18,750.00 pursuant to the PAGA, should this settlement be granted final
14 approval.
15 Accordingly, the Court should grant Final Approval consistent with the Preliminary
16 Approval Order.
17 II. CLASS MEMBERS WERE PROVIDED PROPER NOTICE
18 The notice procedures required by the Preliminary Approval Order have been followed
19 and satisfy all due process rights of Class Members. Specifically, the Preliminary Approval
20 Order contemplated that the Class Notice, as approved in the Preliminary Approval Order, be
21 sent to all Class Members by first class mail, as specified in the Settlement Agreement. The
22 Preliminary Approval Order contemplated, further, that Phoenix Settlement Administrators
23 would serve as the Settlement Administrator.
24 As clearly stated in the Declaration of Taylor Mitzner, notice was provided to Class
25 Members, as required by the Preliminary Approval Order. On May 18, 2023, the Settlement
26 Administrator received a Class Member mailing list from Defendant’s counsel that included 951
27 Class Members. Admin Decl. ¶ 3. On June 5, 2023, the Settlement Administrator mailed the
28 Class Notice to all 951 Class Members on the mailing list via U.S. first class mail. Id. ¶ 5. From
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PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 the date of mailing, seven Class Notices were returned to the Settlement Administrator due to an
2 incorrect address. Id. ¶ 6. The Settlement Administrator conducted a National Change of Address
3 (“NCOA”) search to correct and/or update the Class Member addresses and re-mailed the Class
4 Notices to the updated addresses thereto. Id. As of the date of this filing, zero Class Notices
5 remain undeliverable. Id. ¶ 7.
6 Furthermore, the Class Notice provided Class Members with Class Counsel’s and the
7 Settlement Administrator’s contact information and website, where they could further seek
8 information regarding the settlement, ask questions, review pleadings in the case, and update
9 their address. Admin Decl. ¶ 5, Ex. A.
10 The provision of sending the notice to class members as described above meets the
11 requirements for the “best notice practicable” in this case as necessary to protect the due process
12 rights of class members. See, Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811-12 (1985)
13 (provision of “best notice practicable” with description of the litigation and explanation of opt-
14 out rights satisfies due process); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 174-75 (1974)
15 (individual notice must be sent to class members who can be identified through reasonable
16 means); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (best
17 practicable notice is that which is “reasonably calculated, under all the circumstances, to apprise
18 interested parties of the pendency of the action and afford them an opportunity to present their
19 objections”).
20 Here, all Class Members were provided with a mailing that explained the settlement and
21 allowed Class Members to seek information, ask questions, and exclude themselves and/or object
22 to the settlement, if so desired. As such, proper notice has been given to the Class Members.
23 Thus, the Court may determine the fairness and adequacy of the settlement and enter its Order
24 granting final approval and final judgment as to all Class Members, secure in the knowledge that
25 all absent Class Members have been given the opportunity to participate fully in the settlement,
26 exclusion, and the approval process.
27 //
28 //
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PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 III. THE SETTLEMENT TERMS ARE FAIR, ADEQUATE, AND REASONABLE,
AND THE SETTLEMENT SHOULD BE GIVEN FINAL APPROVAL
2 A. Strength of Plaintiff’s Case and Likelihood of Certifying the Class
3 The Court already addressed the requirements for certifying a class for settlement
4 purposes in its Order granting preliminary approval. Plaintiff briefly addresses the requirements
5 again here.
6 1. The Class is Ascertainable
7 Whether a class is “ascertainable” within the meaning of Code of Civil Procedure section
8 382 “is determined by examining (1) class definition, (2) the size of the class, and (3) the means
9 available for identifying the class members.” Reyes v. San Diego County Board of Supervisors,
10 196 Cal. App. 3d 1263, 1271 (1987).
11 Here, the Class includes “all former employees of Defendants who were employed in the
12 State of California at any time during the Class Period who received their final wages on a
13 paycard, but for whom Defendants do not currently have a written authorization for payment of
14 final wages via pay card.” There are 951 individuals that comprise the Class. Admin Decl. ¶ 3.
15 This is more than the minimum required to certify a class.
16 Within the context of manageability, the issue is whether there exists sufficient means for
17 identifying class members at the remedial stage. Reyes, 196 Cal. App. 3d at pp. 1274-75. Class
18 Members have already been identified by Defendant and notice was provided to all of the above
19 Class Members.
20 2. There is a Community of Interest
21 The “community of interest” requirement embodies three separate factors: (1)
22 predominant common questions of law or fact; (2) class representatives whose claims are typical
23 of the class; and (3) class representatives who can adequately represent the class. Richmond v.
24 Dart Industries, 29 Cal. 3d. 462, 470 (1981); Reese v. Wal-Mart Stores, Inc., 73 Cal. App. 4th
25 1225, 1234 (1999).
26 a. There are Predominant Common Questions of Law and Fact
27 “The ultimate question in every case of this type [class actions] is whether…the issues
28 which may be jointly tried, when compared with those requiring separate adjudication, are so
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1 numerous and substantial that the maintenance of a class action would be advantageous to the
2 judicial process and to the litigants.” Lockheed Martin Corp. v. Superior Court, 29 Cal. 4th 1096,
3 1104-05 (2003).
4 Plaintiff alleges that Defendant, as a matter of its corporate policy, practice, or procedure
5 issued payment of final wages to separating employees via paycard without authorization. As
6 these are alleged uniform corporate policies, practices, and procedures, the claims can be jointly
7 tried, and thus the predominance requirement is satisfied.
8 b. Plaintiff’s Claims are Typical of the Class Claims
9 The purported class representative’s claim must be “typical” but not necessarily identical
10 to the claims of other class members; it is sufficient that the representative is similarly situated so
11 that he or she will have the motive to litigate on behalf of the class. Classen v. Weller, 145 Cal.
12 App. 3d 27, 45 (1983). Courts look to whether class members have similar injuries, “whether the
13 action is based on conduct which is not unique to the named Plaintiff,” and whether other class
14 members were injured by the same conduct. Hanon v. Dataproducts Corp., 976 F.2d 497, 508
15 (9th Cir. 1992). The purpose of the typicality requirement “is to assure that the interest of the
16 named representative aligns with the interests of the class.” Id. at p. 508.
17 While Defendant denies the allegations, Plaintiff contends that she was subjected to the
18 same payroll policies as all other Class Members. In this regard, Plaintiff was employed by
19 Defendant from about 2011, until about January 27, 2020. Declaration of Victoria Tice (“Tice
20 Decl.”) ¶ 2. Plaintiff contends that, like other members of the Class, she was issued a paycard
21 through which she could purportedly access her final wages. Id. ¶ 3. Plaintiff contends that she
22 did not authorize Defendant to pay her wages through this method. Moreover, Plaintiff alleges
23 that she was charged a fee to use the paycard and as a result, was unable to access all wages
24 owed to her. Id. In other words, Plaintiff alleges that she was subjected to the same policies and
25 practices as other Class Members. Accordingly, Plaintiff’s claims are aligned with the interests
26 of the Class and typicality is satisfied.
27 c. Plaintiff Adequately Represented the Class
28 The class representative, through qualified counsel, must be capable of “vigorously and
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1 tenaciously” protecting the interests of the class members. Simons v. Horowitz, 151 Cal. App. 3d
2 834, 846 (1984). Here, Plaintiff does not have any interests adverse to the Class, nor have any
3 such issues been raised or presented. Tice Decl. ¶ 6. Plaintiff has taken all necessary steps to
4 represent the interests of the Class, including discussing the lawsuit with her counsel on several
5 occasions, sitting for deposition, searching for and providing information and documents to her
6 counsel, responding to discovery, and reviewing pleadings and the settlement agreement in this
7 case. Id. ¶ 5. For such reasons, Plaintiff has adequately represented the Class Members and will
8 continue to do so.
9 B. Risks, Expenses, and Complexity of Further Litigation
10 Despite the Court’s ruling originally denying certification, Plaintiff believes that a class
11 could be certified and that she would have prevailed on appeal; however, Plaintiff also believes
12 in the fairness of the settlement that is based on factoring in the uncertainty and risks to Plaintiff
13 involved in not prevailing on one or more of the causes of action or theories alleged in the
14 operative Complaint, the possibility of non-certification that has already come to fruition, and
15 potential for appeals. These risks on class certification are compounded by the California
16 Supreme Court’s holding in Duran v. U.S. Bank Nat’l Ass’n, 59 Cal. 4th 1 (2014).
17 Based on the foregoing, there were risks that the class would not be certified even on
18 remand from an eventual appeal, Plaintiff would not have obtained the total amount of penalties
19 alleged, and a substantial number of complex issues would have necessitated significant
20 expenditure of time and expenses. Therefore, the risks, expenses, and complexity of further
21 litigation warrant granting of this Motion.
22 C. The Terms, Negotiation, and Reception of the Settlement by Class Members
All Strongly Support the Conclusion that the Settlement is Fair, Adequate,
23 and Reasonable
24 Without reiterating the Parties’ showing that the Settlement Agreement and the
25 negotiation process that led up to it was fair and adequate, as set forth in detail in the Motion for
26 Preliminary Approval of Class Action Settlement, the Parties highlight the following facts. The
27 Settlement Agreement was the product of negotiations between highly able and experienced
28 attorneys on both sides who possessed the relevant data and extensive legal research which they
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1 had carefully analyzed. Declaration of Max W. Gavron (“Gavron Decl.”) ¶ 3. The Parties
2 engaged in arm’s-length negotiations at mediation with a highly experienced and well-known
3 mediator, Gig Kyriacou, Esq., which did not immediately result in settlement. Id. Following the
4 failed mediation, the Parties continued to heavily litigate the issues and ultimately arrived at a
5 settlement through continued discussions with Mr. Kyriacou. Gavron Decl. ¶ 4.
6 The results after mailing of the Class Notice support confirmation of the Court’s
7 preliminary approval of the settlement with final approval of the settlement, as evidenced by the
8 fact that only one Class Member opted out and no Class Members submitted a written objections
9 to the settlement. Admin Decl. ¶¶ 8, 9. The Court may appropriately infer that the class action
10 settlement is fair, adequate, and reasonable, given that not a single Class Member has submitted
11 an objection. See Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1291 (9th Cir. 1992).
12 D. Under Well-Established Legal Principles, the Court Should Grant Final
Approval of the Settlement
13 1. Standard of Review
14 On a motion for final approval of a class action settlement under California Code of Civil
15 Procedure § 382 and California Rule of Court 3.769, a court’s inquiry is whether the settlement
16 is “fair, adequate and reasonable.” Officers for Justice v. Civil Serv. Comm’n, 688 F.2d 615, 625
17 (9th Cir. 1982), cert. denied subnom.; Byrd v. Civil Serv. Comm’n, 459 U.S. 1217 (1983). A
18 settlement is fair, adequate, and reasonable, and therefore merits final approval, when “the
19 interests of the class are better served by the settlement than by further litigation.” See Manual
20 for Complex Litigation, Fourth § 21.6 at 309 (Fed. Jud. Ctr., 4th ed. 2004) (“MCL”). The law
21 favors settlement, particularly in class actions and other complex cases, where substantial
22 resources can be conserved by avoiding the time, cost, and rigors of formal litigation. See Alba
23 Conte & Herbert B. Newberg, 4 Newberg on Class Actions § 11.41 (4th ed. 2002); Class
24 Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992); Van Bronkhorst v. Safeco
25 Corp., 529 F.2d 943, 950 (9th Cir. 1976).
26 Although the Court possesses “broad discretion” in determining that a proposed class
27 action settlement is fair, the Court’s role must be limited to the extent necessary to reach a
28 reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion
15
PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable, and
2 adequate to all concerned. See Officers for Justice, 688 F.2d at p. 625. Accordingly, the Court
3 should give due regard to what is otherwise a “private consensual agreement” between the
4 parties. Id.; see also Church v. Consolidated Freightways, Inc., 1993 WL 149840 (N.D. Cal.
5 1993); In re Wash. Pub. Power Supply Sys. Sec. Litig., 720 F. Supp. 1379 (D. Ariz. 1989), aff’d
6 sub nom.; City of Seattle, 955 F.2d 1268; MCL § 21.6 at 309 (“The judicial role in reviewing a
7 proposed settlement is critical, but limited to approving the proposed settlement, disapproving it,
8 or imposing conditions on it. The judge cannot rewrite the agreement”).
9 A court’s approval of a class action settlement will only be reversed for a clear abuse of
10 discretion. See Dunk v. Ford Motor Co., 48 Cal. App. 4th 1794, 1801 (1996); Officers for
11 Justice, 688 F.2d at p. 626 (“reverse only upon a strong showing that the district court’s decision
12 was a clear abuse of discretion”); City of Seattle, 955 F.2d at p. 1276; Ackerman v. Kassar, 1993
13 WL 326453 (9th Cir. 1993); Linney v. Cellular Alaska P’ship, 151 F.3d 1234, 1238 (9th Cir.
14 1998).
15 As the court cautioned in 7-Eleven Owners for Fair Franchising v. Southland Corp.:
16 It cannot be overemphasized that neither the trial court in approving
the settlement nor this Court in reviewing that approval have the
17 right or duty to reach any ultimate conclusions on the issues of fact
18 and law which underlie the merits of the dispute. It is well settled
that in the judicial consideration of proposed settlements, ‘the [trial]
19 judge does not try out or attempt to decide the merits of the
controversy,’ [citation] and the appellate court ‘need not and should
20 not reach any dispositive conclusions on the admittedly unsettled
21 legal issue.
22 85 Cal. App. 4th 1135, 1146 (2000).
23 2. The Settlement is Presumed to Be Fair
24 The Court should begin its analysis with the presumption that the settlement is fair and
25 should be approved:
26 [A] presumption of fairness exists where: (1) the settlement is
reached through arm’s-length bargaining; (2) investigation and
27 discovery are sufficient to allow counsel and the court to act
28 intelligently; (3) counsel is experienced in similar litigation; and (4)
the percentage of objectors is small.
16
PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1
2 Dunk, 48 Cal. App. 4th at p. 1802; accord, Ellis v. Naval Air Rework Facility, 87 F.R.D. 15, 18
3 (N.D. Cal. 1980); In re Wash. Pub Power Supply, 720 F. Supp. at p. 1387.
4 The settlement in the case at bar warrants approval and carries a presumption of fairness.
5 As previously noted in the application for Preliminary Approval, this current settlement was
6 negotiated at arm’s-length after a full day of mediation and subsequent negotiations with an
7 experienced wage-and-hour mediator, Gig Kyriacou, Esq. Gavron Decl. ¶ 5. Additionally, Class
8 Counsel engaged in formal and informal discovery before mediation, including reviewing and
9 analyzing the production of class and payroll data, and information pertaining to Defendant’s
10 final wage policies and practices. Id. The exchange of discovery allowed Class Counsel to
11 conduct a full analysis of exposure. Id.
12 Further, Class Counsel is highly experienced in this type of litigation. As shown in the
13 supporting declarations, Class Counsel have significant experience in class actions and
14 employment wage and hour matters. Gavron Decl. ¶¶ 7-13; Declaration of Larry W. Lee (“Lee
15 Decl.”) ¶¶ 6-8; Declaration of William L. Marder (“Marder Decl.”) ¶¶ 6-12.
16 3. Two-Way Costs and Other Risks Inherent in Continued Litigation
Favor Final Approval
17 To assess the fairness, adequacy, and reasonableness of a class action settlement, the
18 Court also should weigh the immediacy and certainty of substantial settlement proceeds against
19 the risks inherent in continued litigation. See also In re General Motors Corp., 55 F.3d 768, 806
20 (3d Cir. 1995) (“present value of the damages plaintiffs would likely recover if successful,
21 appropriately discounted for the risk of not prevailing, should be compared with the amount of
22 the proposed settlement”) (internal citations omitted); Girsh v. Jepson, 521 F.2d 153, 157 (3d
23 Cir. 1975); Boyd v. Bechtel Corp., 485 F. Supp. 610, 616-17 (N.D. Cal. 1979).
24 If Plaintiff pursued this case without settlement and failed to prevail, Plaintiff would have
25 been potentially responsible for Defendant’s costs. As such, if other employees of Defendant
26 brought individual claims on the same causes of action, they would each face the uncertainty of
27 prevailing and the possibility of paying costs to Defendant. Accordingly, such claims likely
28 would not be brought by many of these individuals—thus, this lawsuit achieves a true benefit for
17
PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 the class that they might not otherwise get or seek as individuals. Here, given that a fair and
2 reasonable settlement has been reached, neither Plaintiff nor any of the Class Members will be
3 required to pay for Defendant’s litigation costs.
4 The risks of this case were weighed by Class Counsel and should be considered a
5 significant factor by the Court in its determination of final approval. Class Counsel obtained a
6 significant settlement for the Class that resulted in a fair recovery which at the same time
7 provides for finality and no risk of costs to the Class Members or the Class Representative.
8 The Settlement Agreement also affords the Class prompt, fair relief while avoiding
9 significant legal and factual battles that otherwise may have prevented the Class from obtaining
10 any recovery at all. While Class Counsel believe the Class Members’ claims are meritorious and
11 can be successfully litigated, they are experienced and fully understand the inherent risks and
12 uncertainty involved with such matters as the resolution of class certification, the outcome of a
13 potential trial, and the outcome of any appeals that would inevitably follow should the Class
14 prevail at trial. Class Counsel have also assessed the same risks in connection with the current
15 settlement. Because the settlement provides immediate and substantial relief, without the
16 attendant risks and delay of continued litigation—not to mention the threat of litigation fees and
17 costs—Class Counsel believe that the settlement warrants the Court’s final approval.
18 4. The Complexity, Expense, and Likely Duration of Continued
Litigation Against Defendant Favor Final Approval
19 Another factor considered by courts in approving a settlement is the complexity, expense,
20 and likely duration of the litigation. See Officers for Justice, 688 F.2d at p. 625; Girsh, 521 F.2d
21 at p. 157. In applying this factor, the Court must weigh the benefits of the settlement against the
22 expense and delay involved in achieving an equivalent or more favorable result at trial. Young v.
23 Katz, 447 F.2d 431, 433-34 (5th Cir. 1971).
24 As noted above, continued litigation could have led to appeals on several issues. On the
25 other hand, the settlement that was reached provides to all Class Members—regardless of their
26 means—fair relief in a prompt and efficient manner. Were the Court to deny final approval, the
27 Class Members would be left without a remedy as a practical matter and courts across the State
28 would have to address the issues presented here in a piecemeal, costly, and time-consuming
18
PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 manner. The settlement in this case is therefore consistent with the “overriding public interest in
2 settling and quieting litigation” that is “particularly true in class action suits.” See Van
3 Bronkhorst, 529 F.2d at p. 950 (footnote omitted); see also 4 Newberg § 11.41. Here, this case
4 has already involved years of litigation.
5 5. The Opinion of Experienced Counsel Favors Final Approval
6 Class Counsel supports the settlement as fair, reasonable, and adequate, and in the best
7 interest of the Class Members as a whole. Lee Decl. ¶ 4; Gavron Decl. ¶ 5; Marder Decl. ¶ 4.
8 Similarly, counsel for Defendant is in favor of this settlement. The endorsement of qualified and
9 well-informed counsel of a settlement as fair, reasonable, and adequate is entitled to significant
10 weight by the Court in its final approval determination. See Officers for Justice, 688 F.2d at p.
11 625; Ellis, 87 F.R.D. at p. 18; Boyd, 485 F. Supp. at p. 617; Linney, 151 F.3d at p. 1242.
12 IV. THE PROPOSED PROCEDURE FOR UNCASHED SETLEMENT CHECKS
SHOULD BE APPROVED
13 As referenced in the Motion for Preliminary Approval, to the extent any uncashed
14 settlement funds remain after 180 days of the mailing of the Individual Settlement Payment
15 checks, the Parties have agreed that all such uncashed settlement funds shall be distributed to
16 State Bar Justice Gap Fund as a cy pres recipient. Class Counsel provided declarations in
17 conjunction with preliminary approval demonstrating they do not have any conflicts of interest
18 with the proposed cy pres recipient. See Declarations of Max W. Gavron, Larry W. Lee, and
19 William L. Marder (filed March 13, 2023).
20 V. THE REQUESTED CLASS REPRESENTATIVE INCENTIVE PAYMENT
SHOULD BE APPROVED
21 Class Representative Victoria Tice requests an enhancement payment of $10,000.00.
22 Plaintiff had numerous discussions regarding the lawsuit with Class Counsel, searched for and
23 provided substantive documents and information regarding Defendant’s policies and practices at
24 issue in this case, and reviewed pleadings and documents in this case. Tice Decl. ¶ 5. On June 9,
25 2021, Plaintiff sat for her deposition. Tice Decl. ¶ 5. She spent significant time with her
26 attorneys discussing the deposition process and preparing for it. Id. She also reviewed and
27 responded to written discovery sent by Defendant. Id. She estimates that throughout the
28 pendency of the case she have spent between 30-35 hours assisting class counsel in litigating the
19
PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 case. Id. Accordingly, Plaintiff provided invaluable information, evidence, and documents that
2 resulted in this settlement.
3 In addition to the invaluable services that she provided, Plaintiff also took significant
4 risks, both professionally and monetarily, in acting as Class Representative, seeking benefits on
5 behalf of the Class. Tice Decl. ¶ 9. Because the claims alleged by the Class Representative
6 involved the payment of costs to the prevailing party, Plaintiff could have possibly faced paying
7 the costs of Defendant, had she not prevailed in this action. Id. Despite this, however, Plaintiff
8 agreed to pursue this case on behalf of the Class.
9 Also, given that future employers are much less likely to hire individuals who have filed
10 employment-related lawsuits, particularly cases of this nature, the Class Representative also
11 faced significant risk in not being able to find suitable employment and/or face retaliation from
12 prospective employers, all as a result of filing of this case against Defendant. Plaintiff took these
13 risks upon herself to the benefit of the Class. Tice Decl. ¶ _. Class Members did not have to file
14 individual lawsuits and bear the risks of payment of costs if they did not prevail, nor did they
15 have to face the potential for retaliation and not getting future employment had they filed a
16 lawsuit which is a public record. These are significant benefits that weigh in favor of granting the
17 requested enhancement. As such, the incentive payment should be awarded to Plaintiff for her
18 commitment, dedication, and risks taken for this litigation.
19 Finally, Plaintiff provided a general release of all claims and a waiver under California
20 Civil Code § 1542, which other Class Members did not have to do. Settlement Agreement ¶
21 III.2.a; Tice Decl. ¶ 10. This is a more extensive release than that provided by the Class at large,
22 also supporting the request for the enhancement.
23 Courts have routinely granted approval of settlements containing such enhancements. See
24 Van Vranken v. Atlantic Richfield Co., 901 F. Supp. 294, 299-300 (N.D. Cal. 1995) (incentive
25 award of $50,000); In re Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366, 374
26 (S.D. Ohio 1990) (two incentive awards of $ 55,000, and three incentive awards of $35,000);
27 Brotherton v. Cleveland, 141 F. Supp. 2d 907, 913-14 (S.D. Ohio 2001) (granting a $50,000
28 incentive award); Enter. Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240,
20
PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 251-52 (S.D. Ohio 1991) ($50,000 awarded to each class representative); Glass v. UBS Fin.
2 Servs., No. C-06-4068, 2007 U.S. Dist. LEXIS 8476, at *51-52 (N.D. Cal. Jan. 27, 2007
Preview
1 Larry W. Lee (State Bar No. 228175) Max W. Gavron (State Bar No. 291697) 2 DIVERSITY LAW GROUP, P.C. 3 515 S. Figueroa Street, Suite 1250 Los Angeles, CA 90071 4 (213) 488-6555 (213) 488-6554 facsimile 5 lwlee@diversitylaw.com 6 mgavron@diversitylaw.com 7 William L. Marder (State Bar No. 170131) Polaris Law Group 8 501 San Benito Street, Suite 200 9 Hollister, CA 95023 (831) 531-4214 10 (831) 634-0333 facsimile bill@polarislawgroup.com 11 12 Attorneys for Plaintiff and the Class 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 FOR THE COUNTY OF SANTA BARBARA 15 16 VICTORIA TICE, as an individual and on Case No. 20CV00892 behalf of all others similarly situated, 17 [Assigned to the Honorable Thomas P. Anderle, Plaintiff, Department 3] 18 19 vs. PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF 20 TRADER JOE’S COMPANY, a California CLASS ACTION SETTLEMENT; corporation; and DOES 1 through 50, MEMORANDUM OF POINTS AND 21 inclusive, AUTHORITIES IN SUPPORT THEREOF 22 Defendants. Date: September 6, 2023 23 Time: 10:00 A.M. Dept.: 3 24 25 Complaint Filed: February 14, 2020 26 27 28 1 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that on September 6, 2023, at 10:00 A.M., or as soon 3 thereafter as the matter may be heard, before the Honorable Thomas P. Anderle, judge presiding, 4 in Department 3 of the above referenced Court, located at 1100 Anacapa Street, Santa Barbara, 5 California 93101, Plaintiff Victoria Tice (“Plaintiff”) will and hereby does move this Court for 6 an Order 7 1. Granting final approval to the Joint Stipulation of Class Action Settlement 8 (“Stipulation” or “Settlement Agreement”) in this action; 9 2. Approving distribution of the settlement funds to the Class Members pursuant to 10 the terms of the Settlement Agreement; 11 3. Approving Plaintiff’s request for an incentive payment of $10,000.00 to Plaintiff 12 pursuant to the terms of the Settlement Agreement; 13 4. Approving Class Counsel’s request for an award of attorneys’ fees of one-third of 14 the Gross Settlement Amount, or $113,333.33, and reimbursement of actual litigation costs of 15 $52,386.08, pursuant to the terms of the Settlement Agreement; 16 5. Approving Plaintiff’s request for payment of the settlement administration costs 17 to Phoenix Settlement Administrators in the amount of $11,000.00, pursuant to the terms of the 18 Settlement Agreement; 19 6. Approving Plaintiff’s request for payment to the California Labor & Workforce 20 Development Agency (“LWDA”) for $18,750.00, pursuant to the California Labor Code Private 21 Attorneys General Act and the terms of the Settlement Agreement; and 22 7. Entering final judgment as to all members of the settlement class in this action. 23 This Motion is made pursuant to Rule 3.769 of the California Rules of Court, which 24 provides for court approval of the settlement of a purported class action and allows the Court to 25 grant final certification of a class for settlement purposes. In light of the overwhelmingly positive 26 response, as shown by the lack of objections and single opt-out to the settlement, there is no 27 question that the settlement is fair, reasonable, and adequate and thus should be granted final 28 approval. 2 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 This Motion will be based on the attached Memorandum of Points and Authorities and 2 the supporting Declarations of Larry W. Lee, Max W. Gavron, William L. Marder, Plaintiff 3 Victoria Tice, and Taylor Mitzner of Phoenix Settlement Administrators, upon the oral 4 arguments of counsel (should there be any), and on the complete records and file herein. 5 6 DATED: August 14, 2023 DIVERSITY LAW GROUP, P.C. 7 By: 8 Larry W. Lee 9 Max Gavron Attorneys for Plaintiff and the Class 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 TABLE OF CONTENTS 2 Page 3 I. INTRODUCTION................................................................................................................... 9 4 II. CLASS MEMBERS WERE PROVIDED PROPER NOTICE ........................................ 10 5 III. THE SETTLEMENT TERMS ARE FAIR, ADEQUATE, AND REASONABLE, AND 6 THE SETTLEMENT SHOULD BE GIVEN FINAL APPROVAL ...................................... 12 7 A. Strength of Plaintiff’s Case and Likelihood of Certifying the Class .......................... 12 8 9 1. The Class is Ascertainable.............................................................................................. 12 10 2. There is a Community of Interest.................................................................................. 12 11 B. Risks, Expenses, and Complexity of Further Litigation ............................................. 14 12 C. The Terms, Negotiation, and Reception of the Settlement by Class Members All 13 Strongly Support the Conclusion that the Settlement is Fair, Adequate, and 14 Reasonable.................................................................................................................................14 15 D. Under Well-Established Legal Principles, the Court Should Grant Final Approval 16 of the Settlement ....................................................................................................................... 15 17 18 1. Standard of Review ......................................................................................................... 15 19 2. The Settlement is Presumed to Be Fair ......................................................................... 16 20 3. Two-Way Costs and Other Risks Inherent in Continued Litigation Favor Final 21 Approval............... ................................................................................................................. 17 22 4. The Complexity, Expense, and Likely Duration of Continued Litigation Against 23 Defendant Favor Final Approval ........................................................................................ 18 24 5. The Opinion of Experienced Counsel Favors Final Approval ................................... 19 25 26 IV. THE PROPOSED PROCEDURE FOR UNCASHED SETLEMENT CHECKS 27 SHOULD BE APPROVED........................... ............................................................................. 19 28 4 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 V. THE REQUESTED CLASS REPRESENTATIVE INCENTIVE PAYMENT SHOULD 2 BE APPROVED.................................... ...................................................................................... 19 3 VI. THE REQUESTED ATTORNEYS’ FEES SHOULD BE APPROVED ......................... 21 4 VII. THE COURT SHOULD APPROVE THE REQUEST FOR REIMBURSEMENT OF 5 COSTS ......................................................................................................................................... 26 6 VIII. THE SETTLEMENT ADMINISTRATION COSTS SHOULD BE APPROVED ..... 26 7 8 IX. NOTICE TO THE LWDA ................................................................................................... 26 9 X. CONCLUSION ..................................................................................................................... 27 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 TABLE OF AUTHORITIES 2 Page(s) 3 State Cases 4 7-Eleven Owners for Fair Franchising v. Southland Corp., 85 Cal. App. 4th 1135, 1146 (2000) 5 .................................................................................................................................................... 16 6 City of Oakland v. Oakland Raiders, 203 Cal. App. 3d 78 (1988) ............................................... 23 7 Classen v. Weller, 145 Cal. App. 3d 27, 45 (1983) ...................................................................... 13 8 Dunk v. Ford Motor Co., 48 Cal. App. 4th 1794, 1801 (1996) .............................................. 16, 17 9 Duran v. U.S. Bank Nat’l Ass’n, 59 Cal. 4th 1 (2014) .................................................................. 14 10 Flannery v. California Highway Patrol, 61 Cal. App. 4th 629, 632-33 (1998) ........................... 24 11 Ketchum v. Moses, 24 Cal. 4th 1122, 1139 (2001) ....................................................................... 25 12 Laffitte v. Robert Half Int’l, 1 Cal. 5th 480, 503 (Aug. 11, 2016) .......................................... 21, 23 13 Lealao v. Beneficial California, Inc. 82 Cal. App. 4th 19 (2000) .......................................... 23, 25 14 Lockheed Martin Corp. v. Superior Court, 29 Cal. 4th 1096, 1104-05 (2003) ............................ 13 15 Martino v. Denevi, 182 Cal. App. 3d 553, 559 (1986) ................................................................. 24 16 PLCM Group, Inc. v. Drexler, 22 Cal. 4th 1084, 1095 (2000) ..................................................... 24 17 Reese v. Wal-Mart Stores, Inc., 73 Cal.App.4th 1225, 1234(1999) ............................................. 12 18 Reyes v. San Diego County Board of Supervisors, 196 Cal.App.3d 1263, 1271 (1987) .............. 12 19 Richmond v. Dart Industries, 29 Cal. 3d. 462, 470 (1981) ........................................................... 12 20 Serrano v. Priest, 20 Cal. 3d 25, 34 (1977) ............................................................................ 21, 25 21 Serrano v. Unruh, 32 Cal. 3d 621, 639 (1982) ............................................................................. 24 22 Simons v. Horowitz, 151 Cal.App.3d 834, 846 (1984) ................................................................. 14 23 Sutter Health Uninsured Pricing Cases, 171 Cal App.4th 495, 512 (2009) ................................ 23 24 Wershba v. Apple Computer, Inc., 91 Cal. App. 4th 224, 255 (2001) .............................. 21, 23, 25 25 Federal Cases 26 Ackerman v. Kassar, 1993 WL 326453 (9th Cir. 1993) ............................................................... 16 27 Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980).................................................................. 21 28 Boyd v. Bank of Am. Corp., 2014 U.S. Dist. LEXIS 162880 (C.D. Cal. Nov. 18, 2014) ............. 25 6 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 Boyd v. Bechtel Corp., 485 F. Supp. 610, 616-17 (N.D. Cal. 1979)....................................... 17, 19 2 Brotherton v. Cleveland, 141 F. Supp. 2d 907, 913-14 (S.D. Ohio 2001) ................................... 20 3 Byrd v. Civil Serv. Comm’n, 459 U.S. 1217 (1983)...................................................................... 15 4 Church v. Consolidated Freightways, Inc., 1993 WL 149840 (N.D. Cal. 1993) ......................... 16 5 City of Detroit v. Grinnell Corp., 495 F. 2d 448, 470 (2d Cir. 1974)........................................... 22 6 Class Plaintiffs v. City of Seattle (9th Cir. 1992) 955 F.2d 1268, 1291 ....................................... 15 7 Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998) ................................................................. 21 8 Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 174-75 (1974) ....................................................... 11 9 Ellis v. Naval Air Rework Facility, 87 F.R.D. 15, 18 (N.D. Cal. 1980) ................................. 17, 19 10 Enter. Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240, 251-52 (S.D. Ohio 11 1991) .......................................................................................................................................... 20 12 Gaskill v. Gordon, 160 F.3d 361, 363 (7th Cir. 1998) .................................................................. 21 13 Girsh v. Jepson, 521 F.2d 1 53, 157 (3d Cir. 1975)................................................................ 17, 18 14 Glass v. UBS Fin. Servs., No. C-06-4068, 2007 U.S. Dist. LEXIS 8476, at *51-52 (N.D. Cal. Jan. 15 27, 2007) .................................................................................................................................... 21 16 Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)............................................... 13 17 In re Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366, 374 (S.D. Ohio 1990) . 20 18 In re General Motors Corp., 55 F.3d 768, 806 (3d Cir. 1995) ..................................................... 17 19 In re Rite Aid Corp. Secs. Litig., 396 F.3d 294, 306-307 (3d Cir. 2005)...................................... 23 20 In re Wash. Pub. Power Supply Sys. Sec. Litig., 720 F. Supp. 1379 (D. Ariz. 1989) ............. 16, 17 21 Linney v. Cellular Alaska P’ship, 151 F.3d 1234, 1238 (9th Cir. 1998) ................................ 16, 19 22 Martin v. AmeriPride Servs., 2011 U.S. Dist. LEXIS 61796, 23 (S.D. Cal. June 9, 2011).......... 22 23 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) ................................. 11 24 New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 62 (1980) .................................................. 24 Officers for Justice v. Civil Serv. Comm’n, 688 F.2d 615, 625 (9th Cir. 1982) ......... 15, 16, 18, 19 25 Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811-12 (1985) ................................................... 11 26 Swedish Hospital v. Shalala, 1 F.3d 1261, 1272 (D.C. Cir. 1993) ............................................... 22 27 Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 950 (9th Cir. 1976) ..................................... 15, 19 28 Van Vranken v. Atlantic Richfield Co., 901 F. Supp. 294, 299-300 (N.D. Cal. 1995) ................. 20 7 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 Vandervort v. Balboa Capital Corp., 8 F. Supp. 3d 1200, 1210 (C.D. Cal. 2014)....................... 26 2 Vincent v. Hughes Air West, Inc., 557 F. 2d 759, 769 (9th Cir. 1997) ......................................... 21 3 Young v. Katz, 447 F.2d 431, 433-34 (5th Cir. 1971) ................................................................... 18 4 Statutes 5 California Code of Civil Procedure Section 382 .................................................................... 12, 15 6 Civil Code § 1542 ......................................................................................................................... 20 7 Other Authorities 8 4 Newberg on Class Actions, 4th § 11.41 (2008) ................................................................... 15, 19 9 Eisenberg & Miller, Attorney Fees in Class Action Settlements: An Empirical Study: 1993-2008, 10 7 J. of Empirical Leg. Stud. 248, 262, fn.16 (2010) .................................................................. 22 11 Manual for Complex Litigation Fourth (Fed. Judicial Center 2004) (“MCL”), § 21.6 at 309 15, 16 12 Report of the Third Circuit Task Force, Court Awarded Attorney Fees 108 F.R.D. 237, 258 13 (1985) ......................................................................................................................................... 23 14 Rules 15 California Rule of Court 3.769 ..................................................................................................... 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 I. INTRODUCTION 2 Plaintiff Victoria Tice (“Plaintiff”) now seeks the Court’s final approval of the Joint 3 Stipulation of Class Action Settlement (“Stipulation” or “Settlement Agreement”). The 4 Settlement Agreement provides for a $340,000.00 non-reversionary fund to be created for the 5 benefit of the Class, from which attorneys’ fees, litigation costs, incentive payment to the named 6 Plaintiff, payment to the California Labor and Workforce Development Agency (“LWDA”), and 7 costs of settlement administration are to be paid. The entire Net Settlement Amount after these 8 deductions will be paid to all Class Members who did not opt-out of the Settlement. 9 The history of this litigation was previously detailed in Plaintiff’s Motion for Preliminary 10 Approval of Class Action Settlement. The Court preliminary approved this settlement on June 3, 11 2023, directing distribution of Notice of Class Action Settlement (“Class Notice”) and 12 scheduling the hearing for final approval of the settlement (the “Preliminary Approval Order”). 13 As directed by the Court, the Settlement Administrator selected by the Parties—Phoenix 14 Settlement Administrators—distributed the Class Notice to 951 Class Members. Declaration of 15 Taylor Mitzner on behalf of Phoenix Settlement Administrators (“Admin Decl.”) ¶ 5. To date, 16 only a single request for exclusion and zero objections to the settlement have been submitted by 17 Class Members. Id. ¶¶ 8, 9. As such, there is a 99.9% participation rate. Thus, in light of the lack 18 of objections and single opt-out, an inference can be made that the Class supports the Court’s 19 Preliminary Approval Order finding that the Settlement Agreement is fair and reasonable. 20 In addition to the results of the notice process, for the same reasons as set forth earlier in 21 Plaintiff’s Motion for Preliminary Approval of Class Action Settlement, the following represents 22 the basic points supporting final approval of the settlement: 23 The settlement provides a total settlement sum of $340,000.00, which is non- 24 reversionary; 25 The settlement is fair given that participating Class Members will receive (after 26 deductions for fees, costs, etc.) a substantial amount of money – on average, approximately 27 $135.03 to each Participating Class Member (See Admin Decl. ¶ 11); 28 Class Members did not need to submit claim forms to participate in the 9 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 settlement, but are being paid automatically; 2 The allocation reflects that the Net Settlement Amount will be evenly divided 3 among all Participating Class Members; 4 Class Counsel conducted significant investigation and litigation in this case, 5 including conducting formal and informal discovery and significant exchanges of information 6 regarding class data for the entire class, as well as documents and information pertaining to 7 Defendant Trader Joe’s Company’s (“Defendant”) policies and practices regarding payment of 8 final wages and use of paycards; 9 A highly regarded settlement administrator, Phoenix Settlement Administrators, 10 was retained to administer the settlement for approximately $11,000.00 (See Admin Decl. ¶ 15); 11 and 12 The State of California’s LWDA will also be the beneficiary of this settlement, as 13 it will receive $18,750.00 pursuant to the PAGA, should this settlement be granted final 14 approval. 15 Accordingly, the Court should grant Final Approval consistent with the Preliminary 16 Approval Order. 17 II. CLASS MEMBERS WERE PROVIDED PROPER NOTICE 18 The notice procedures required by the Preliminary Approval Order have been followed 19 and satisfy all due process rights of Class Members. Specifically, the Preliminary Approval 20 Order contemplated that the Class Notice, as approved in the Preliminary Approval Order, be 21 sent to all Class Members by first class mail, as specified in the Settlement Agreement. The 22 Preliminary Approval Order contemplated, further, that Phoenix Settlement Administrators 23 would serve as the Settlement Administrator. 24 As clearly stated in the Declaration of Taylor Mitzner, notice was provided to Class 25 Members, as required by the Preliminary Approval Order. On May 18, 2023, the Settlement 26 Administrator received a Class Member mailing list from Defendant’s counsel that included 951 27 Class Members. Admin Decl. ¶ 3. On June 5, 2023, the Settlement Administrator mailed the 28 Class Notice to all 951 Class Members on the mailing list via U.S. first class mail. Id. ¶ 5. From 10 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 the date of mailing, seven Class Notices were returned to the Settlement Administrator due to an 2 incorrect address. Id. ¶ 6. The Settlement Administrator conducted a National Change of Address 3 (“NCOA”) search to correct and/or update the Class Member addresses and re-mailed the Class 4 Notices to the updated addresses thereto. Id. As of the date of this filing, zero Class Notices 5 remain undeliverable. Id. ¶ 7. 6 Furthermore, the Class Notice provided Class Members with Class Counsel’s and the 7 Settlement Administrator’s contact information and website, where they could further seek 8 information regarding the settlement, ask questions, review pleadings in the case, and update 9 their address. Admin Decl. ¶ 5, Ex. A. 10 The provision of sending the notice to class members as described above meets the 11 requirements for the “best notice practicable” in this case as necessary to protect the due process 12 rights of class members. See, Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811-12 (1985) 13 (provision of “best notice practicable” with description of the litigation and explanation of opt- 14 out rights satisfies due process); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 174-75 (1974) 15 (individual notice must be sent to class members who can be identified through reasonable 16 means); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (best 17 practicable notice is that which is “reasonably calculated, under all the circumstances, to apprise 18 interested parties of the pendency of the action and afford them an opportunity to present their 19 objections”). 20 Here, all Class Members were provided with a mailing that explained the settlement and 21 allowed Class Members to seek information, ask questions, and exclude themselves and/or object 22 to the settlement, if so desired. As such, proper notice has been given to the Class Members. 23 Thus, the Court may determine the fairness and adequacy of the settlement and enter its Order 24 granting final approval and final judgment as to all Class Members, secure in the knowledge that 25 all absent Class Members have been given the opportunity to participate fully in the settlement, 26 exclusion, and the approval process. 27 // 28 // 11 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 III. THE SETTLEMENT TERMS ARE FAIR, ADEQUATE, AND REASONABLE, AND THE SETTLEMENT SHOULD BE GIVEN FINAL APPROVAL 2 A. Strength of Plaintiff’s Case and Likelihood of Certifying the Class 3 The Court already addressed the requirements for certifying a class for settlement 4 purposes in its Order granting preliminary approval. Plaintiff briefly addresses the requirements 5 again here. 6 1. The Class is Ascertainable 7 Whether a class is “ascertainable” within the meaning of Code of Civil Procedure section 8 382 “is determined by examining (1) class definition, (2) the size of the class, and (3) the means 9 available for identifying the class members.” Reyes v. San Diego County Board of Supervisors, 10 196 Cal. App. 3d 1263, 1271 (1987). 11 Here, the Class includes “all former employees of Defendants who were employed in the 12 State of California at any time during the Class Period who received their final wages on a 13 paycard, but for whom Defendants do not currently have a written authorization for payment of 14 final wages via pay card.” There are 951 individuals that comprise the Class. Admin Decl. ¶ 3. 15 This is more than the minimum required to certify a class. 16 Within the context of manageability, the issue is whether there exists sufficient means for 17 identifying class members at the remedial stage. Reyes, 196 Cal. App. 3d at pp. 1274-75. Class 18 Members have already been identified by Defendant and notice was provided to all of the above 19 Class Members. 20 2. There is a Community of Interest 21 The “community of interest” requirement embodies three separate factors: (1) 22 predominant common questions of law or fact; (2) class representatives whose claims are typical 23 of the class; and (3) class representatives who can adequately represent the class. Richmond v. 24 Dart Industries, 29 Cal. 3d. 462, 470 (1981); Reese v. Wal-Mart Stores, Inc., 73 Cal. App. 4th 25 1225, 1234 (1999). 26 a. There are Predominant Common Questions of Law and Fact 27 “The ultimate question in every case of this type [class actions] is whether…the issues 28 which may be jointly tried, when compared with those requiring separate adjudication, are so 12 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 numerous and substantial that the maintenance of a class action would be advantageous to the 2 judicial process and to the litigants.” Lockheed Martin Corp. v. Superior Court, 29 Cal. 4th 1096, 3 1104-05 (2003). 4 Plaintiff alleges that Defendant, as a matter of its corporate policy, practice, or procedure 5 issued payment of final wages to separating employees via paycard without authorization. As 6 these are alleged uniform corporate policies, practices, and procedures, the claims can be jointly 7 tried, and thus the predominance requirement is satisfied. 8 b. Plaintiff’s Claims are Typical of the Class Claims 9 The purported class representative’s claim must be “typical” but not necessarily identical 10 to the claims of other class members; it is sufficient that the representative is similarly situated so 11 that he or she will have the motive to litigate on behalf of the class. Classen v. Weller, 145 Cal. 12 App. 3d 27, 45 (1983). Courts look to whether class members have similar injuries, “whether the 13 action is based on conduct which is not unique to the named Plaintiff,” and whether other class 14 members were injured by the same conduct. Hanon v. Dataproducts Corp., 976 F.2d 497, 508 15 (9th Cir. 1992). The purpose of the typicality requirement “is to assure that the interest of the 16 named representative aligns with the interests of the class.” Id. at p. 508. 17 While Defendant denies the allegations, Plaintiff contends that she was subjected to the 18 same payroll policies as all other Class Members. In this regard, Plaintiff was employed by 19 Defendant from about 2011, until about January 27, 2020. Declaration of Victoria Tice (“Tice 20 Decl.”) ¶ 2. Plaintiff contends that, like other members of the Class, she was issued a paycard 21 through which she could purportedly access her final wages. Id. ¶ 3. Plaintiff contends that she 22 did not authorize Defendant to pay her wages through this method. Moreover, Plaintiff alleges 23 that she was charged a fee to use the paycard and as a result, was unable to access all wages 24 owed to her. Id. In other words, Plaintiff alleges that she was subjected to the same policies and 25 practices as other Class Members. Accordingly, Plaintiff’s claims are aligned with the interests 26 of the Class and typicality is satisfied. 27 c. Plaintiff Adequately Represented the Class 28 The class representative, through qualified counsel, must be capable of “vigorously and 13 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 tenaciously” protecting the interests of the class members. Simons v. Horowitz, 151 Cal. App. 3d 2 834, 846 (1984). Here, Plaintiff does not have any interests adverse to the Class, nor have any 3 such issues been raised or presented. Tice Decl. ¶ 6. Plaintiff has taken all necessary steps to 4 represent the interests of the Class, including discussing the lawsuit with her counsel on several 5 occasions, sitting for deposition, searching for and providing information and documents to her 6 counsel, responding to discovery, and reviewing pleadings and the settlement agreement in this 7 case. Id. ¶ 5. For such reasons, Plaintiff has adequately represented the Class Members and will 8 continue to do so. 9 B. Risks, Expenses, and Complexity of Further Litigation 10 Despite the Court’s ruling originally denying certification, Plaintiff believes that a class 11 could be certified and that she would have prevailed on appeal; however, Plaintiff also believes 12 in the fairness of the settlement that is based on factoring in the uncertainty and risks to Plaintiff 13 involved in not prevailing on one or more of the causes of action or theories alleged in the 14 operative Complaint, the possibility of non-certification that has already come to fruition, and 15 potential for appeals. These risks on class certification are compounded by the California 16 Supreme Court’s holding in Duran v. U.S. Bank Nat’l Ass’n, 59 Cal. 4th 1 (2014). 17 Based on the foregoing, there were risks that the class would not be certified even on 18 remand from an eventual appeal, Plaintiff would not have obtained the total amount of penalties 19 alleged, and a substantial number of complex issues would have necessitated significant 20 expenditure of time and expenses. Therefore, the risks, expenses, and complexity of further 21 litigation warrant granting of this Motion. 22 C. The Terms, Negotiation, and Reception of the Settlement by Class Members All Strongly Support the Conclusion that the Settlement is Fair, Adequate, 23 and Reasonable 24 Without reiterating the Parties’ showing that the Settlement Agreement and the 25 negotiation process that led up to it was fair and adequate, as set forth in detail in the Motion for 26 Preliminary Approval of Class Action Settlement, the Parties highlight the following facts. The 27 Settlement Agreement was the product of negotiations between highly able and experienced 28 attorneys on both sides who possessed the relevant data and extensive legal research which they 14 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 had carefully analyzed. Declaration of Max W. Gavron (“Gavron Decl.”) ¶ 3. The Parties 2 engaged in arm’s-length negotiations at mediation with a highly experienced and well-known 3 mediator, Gig Kyriacou, Esq., which did not immediately result in settlement. Id. Following the 4 failed mediation, the Parties continued to heavily litigate the issues and ultimately arrived at a 5 settlement through continued discussions with Mr. Kyriacou. Gavron Decl. ¶ 4. 6 The results after mailing of the Class Notice support confirmation of the Court’s 7 preliminary approval of the settlement with final approval of the settlement, as evidenced by the 8 fact that only one Class Member opted out and no Class Members submitted a written objections 9 to the settlement. Admin Decl. ¶¶ 8, 9. The Court may appropriately infer that the class action 10 settlement is fair, adequate, and reasonable, given that not a single Class Member has submitted 11 an objection. See Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1291 (9th Cir. 1992). 12 D. Under Well-Established Legal Principles, the Court Should Grant Final Approval of the Settlement 13 1. Standard of Review 14 On a motion for final approval of a class action settlement under California Code of Civil 15 Procedure § 382 and California Rule of Court 3.769, a court’s inquiry is whether the settlement 16 is “fair, adequate and reasonable.” Officers for Justice v. Civil Serv. Comm’n, 688 F.2d 615, 625 17 (9th Cir. 1982), cert. denied subnom.; Byrd v. Civil Serv. Comm’n, 459 U.S. 1217 (1983). A 18 settlement is fair, adequate, and reasonable, and therefore merits final approval, when “the 19 interests of the class are better served by the settlement than by further litigation.” See Manual 20 for Complex Litigation, Fourth § 21.6 at 309 (Fed. Jud. Ctr., 4th ed. 2004) (“MCL”). The law 21 favors settlement, particularly in class actions and other complex cases, where substantial 22 resources can be conserved by avoiding the time, cost, and rigors of formal litigation. See Alba 23 Conte & Herbert B. Newberg, 4 Newberg on Class Actions § 11.41 (4th ed. 2002); Class 24 Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992); Van Bronkhorst v. Safeco 25 Corp., 529 F.2d 943, 950 (9th Cir. 1976). 26 Although the Court possesses “broad discretion” in determining that a proposed class 27 action settlement is fair, the Court’s role must be limited to the extent necessary to reach a 28 reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion 15 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable, and 2 adequate to all concerned. See Officers for Justice, 688 F.2d at p. 625. Accordingly, the Court 3 should give due regard to what is otherwise a “private consensual agreement” between the 4 parties. Id.; see also Church v. Consolidated Freightways, Inc., 1993 WL 149840 (N.D. Cal. 5 1993); In re Wash. Pub. Power Supply Sys. Sec. Litig., 720 F. Supp. 1379 (D. Ariz. 1989), aff’d 6 sub nom.; City of Seattle, 955 F.2d 1268; MCL § 21.6 at 309 (“The judicial role in reviewing a 7 proposed settlement is critical, but limited to approving the proposed settlement, disapproving it, 8 or imposing conditions on it. The judge cannot rewrite the agreement”). 9 A court’s approval of a class action settlement will only be reversed for a clear abuse of 10 discretion. See Dunk v. Ford Motor Co., 48 Cal. App. 4th 1794, 1801 (1996); Officers for 11 Justice, 688 F.2d at p. 626 (“reverse only upon a strong showing that the district court’s decision 12 was a clear abuse of discretion”); City of Seattle, 955 F.2d at p. 1276; Ackerman v. Kassar, 1993 13 WL 326453 (9th Cir. 1993); Linney v. Cellular Alaska P’ship, 151 F.3d 1234, 1238 (9th Cir. 14 1998). 15 As the court cautioned in 7-Eleven Owners for Fair Franchising v. Southland Corp.: 16 It cannot be overemphasized that neither the trial court in approving the settlement nor this Court in reviewing that approval have the 17 right or duty to reach any ultimate conclusions on the issues of fact 18 and law which underlie the merits of the dispute. It is well settled that in the judicial consideration of proposed settlements, ‘the [trial] 19 judge does not try out or attempt to decide the merits of the controversy,’ [citation] and the appellate court ‘need not and should 20 not reach any dispositive conclusions on the admittedly unsettled 21 legal issue. 22 85 Cal. App. 4th 1135, 1146 (2000). 23 2. The Settlement is Presumed to Be Fair 24 The Court should begin its analysis with the presumption that the settlement is fair and 25 should be approved: 26 [A] presumption of fairness exists where: (1) the settlement is reached through arm’s-length bargaining; (2) investigation and 27 discovery are sufficient to allow counsel and the court to act 28 intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small. 16 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 2 Dunk, 48 Cal. App. 4th at p. 1802; accord, Ellis v. Naval Air Rework Facility, 87 F.R.D. 15, 18 3 (N.D. Cal. 1980); In re Wash. Pub Power Supply, 720 F. Supp. at p. 1387. 4 The settlement in the case at bar warrants approval and carries a presumption of fairness. 5 As previously noted in the application for Preliminary Approval, this current settlement was 6 negotiated at arm’s-length after a full day of mediation and subsequent negotiations with an 7 experienced wage-and-hour mediator, Gig Kyriacou, Esq. Gavron Decl. ¶ 5. Additionally, Class 8 Counsel engaged in formal and informal discovery before mediation, including reviewing and 9 analyzing the production of class and payroll data, and information pertaining to Defendant’s 10 final wage policies and practices. Id. The exchange of discovery allowed Class Counsel to 11 conduct a full analysis of exposure. Id. 12 Further, Class Counsel is highly experienced in this type of litigation. As shown in the 13 supporting declarations, Class Counsel have significant experience in class actions and 14 employment wage and hour matters. Gavron Decl. ¶¶ 7-13; Declaration of Larry W. Lee (“Lee 15 Decl.”) ¶¶ 6-8; Declaration of William L. Marder (“Marder Decl.”) ¶¶ 6-12. 16 3. Two-Way Costs and Other Risks Inherent in Continued Litigation Favor Final Approval 17 To assess the fairness, adequacy, and reasonableness of a class action settlement, the 18 Court also should weigh the immediacy and certainty of substantial settlement proceeds against 19 the risks inherent in continued litigation. See also In re General Motors Corp., 55 F.3d 768, 806 20 (3d Cir. 1995) (“present value of the damages plaintiffs would likely recover if successful, 21 appropriately discounted for the risk of not prevailing, should be compared with the amount of 22 the proposed settlement”) (internal citations omitted); Girsh v. Jepson, 521 F.2d 153, 157 (3d 23 Cir. 1975); Boyd v. Bechtel Corp., 485 F. Supp. 610, 616-17 (N.D. Cal. 1979). 24 If Plaintiff pursued this case without settlement and failed to prevail, Plaintiff would have 25 been potentially responsible for Defendant’s costs. As such, if other employees of Defendant 26 brought individual claims on the same causes of action, they would each face the uncertainty of 27 prevailing and the possibility of paying costs to Defendant. Accordingly, such claims likely 28 would not be brought by many of these individuals—thus, this lawsuit achieves a true benefit for 17 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 the class that they might not otherwise get or seek as individuals. Here, given that a fair and 2 reasonable settlement has been reached, neither Plaintiff nor any of the Class Members will be 3 required to pay for Defendant’s litigation costs. 4 The risks of this case were weighed by Class Counsel and should be considered a 5 significant factor by the Court in its determination of final approval. Class Counsel obtained a 6 significant settlement for the Class that resulted in a fair recovery which at the same time 7 provides for finality and no risk of costs to the Class Members or the Class Representative. 8 The Settlement Agreement also affords the Class prompt, fair relief while avoiding 9 significant legal and factual battles that otherwise may have prevented the Class from obtaining 10 any recovery at all. While Class Counsel believe the Class Members’ claims are meritorious and 11 can be successfully litigated, they are experienced and fully understand the inherent risks and 12 uncertainty involved with such matters as the resolution of class certification, the outcome of a 13 potential trial, and the outcome of any appeals that would inevitably follow should the Class 14 prevail at trial. Class Counsel have also assessed the same risks in connection with the current 15 settlement. Because the settlement provides immediate and substantial relief, without the 16 attendant risks and delay of continued litigation—not to mention the threat of litigation fees and 17 costs—Class Counsel believe that the settlement warrants the Court’s final approval. 18 4. The Complexity, Expense, and Likely Duration of Continued Litigation Against Defendant Favor Final Approval 19 Another factor considered by courts in approving a settlement is the complexity, expense, 20 and likely duration of the litigation. See Officers for Justice, 688 F.2d at p. 625; Girsh, 521 F.2d 21 at p. 157. In applying this factor, the Court must weigh the benefits of the settlement against the 22 expense and delay involved in achieving an equivalent or more favorable result at trial. Young v. 23 Katz, 447 F.2d 431, 433-34 (5th Cir. 1971). 24 As noted above, continued litigation could have led to appeals on several issues. On the 25 other hand, the settlement that was reached provides to all Class Members—regardless of their 26 means—fair relief in a prompt and efficient manner. Were the Court to deny final approval, the 27 Class Members would be left without a remedy as a practical matter and courts across the State 28 would have to address the issues presented here in a piecemeal, costly, and time-consuming 18 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 manner. The settlement in this case is therefore consistent with the “overriding public interest in 2 settling and quieting litigation” that is “particularly true in class action suits.” See Van 3 Bronkhorst, 529 F.2d at p. 950 (footnote omitted); see also 4 Newberg § 11.41. Here, this case 4 has already involved years of litigation. 5 5. The Opinion of Experienced Counsel Favors Final Approval 6 Class Counsel supports the settlement as fair, reasonable, and adequate, and in the best 7 interest of the Class Members as a whole. Lee Decl. ¶ 4; Gavron Decl. ¶ 5; Marder Decl. ¶ 4. 8 Similarly, counsel for Defendant is in favor of this settlement. The endorsement of qualified and 9 well-informed counsel of a settlement as fair, reasonable, and adequate is entitled to significant 10 weight by the Court in its final approval determination. See Officers for Justice, 688 F.2d at p. 11 625; Ellis, 87 F.R.D. at p. 18; Boyd, 485 F. Supp. at p. 617; Linney, 151 F.3d at p. 1242. 12 IV. THE PROPOSED PROCEDURE FOR UNCASHED SETLEMENT CHECKS SHOULD BE APPROVED 13 As referenced in the Motion for Preliminary Approval, to the extent any uncashed 14 settlement funds remain after 180 days of the mailing of the Individual Settlement Payment 15 checks, the Parties have agreed that all such uncashed settlement funds shall be distributed to 16 State Bar Justice Gap Fund as a cy pres recipient. Class Counsel provided declarations in 17 conjunction with preliminary approval demonstrating they do not have any conflicts of interest 18 with the proposed cy pres recipient. See Declarations of Max W. Gavron, Larry W. Lee, and 19 William L. Marder (filed March 13, 2023). 20 V. THE REQUESTED CLASS REPRESENTATIVE INCENTIVE PAYMENT SHOULD BE APPROVED 21 Class Representative Victoria Tice requests an enhancement payment of $10,000.00. 22 Plaintiff had numerous discussions regarding the lawsuit with Class Counsel, searched for and 23 provided substantive documents and information regarding Defendant’s policies and practices at 24 issue in this case, and reviewed pleadings and documents in this case. Tice Decl. ¶ 5. On June 9, 25 2021, Plaintiff sat for her deposition. Tice Decl. ¶ 5. She spent significant time with her 26 attorneys discussing the deposition process and preparing for it. Id. She also reviewed and 27 responded to written discovery sent by Defendant. Id. She estimates that throughout the 28 pendency of the case she have spent between 30-35 hours assisting class counsel in litigating the 19 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 case. Id. Accordingly, Plaintiff provided invaluable information, evidence, and documents that 2 resulted in this settlement. 3 In addition to the invaluable services that she provided, Plaintiff also took significant 4 risks, both professionally and monetarily, in acting as Class Representative, seeking benefits on 5 behalf of the Class. Tice Decl. ¶ 9. Because the claims alleged by the Class Representative 6 involved the payment of costs to the prevailing party, Plaintiff could have possibly faced paying 7 the costs of Defendant, had she not prevailed in this action. Id. Despite this, however, Plaintiff 8 agreed to pursue this case on behalf of the Class. 9 Also, given that future employers are much less likely to hire individuals who have filed 10 employment-related lawsuits, particularly cases of this nature, the Class Representative also 11 faced significant risk in not being able to find suitable employment and/or face retaliation from 12 prospective employers, all as a result of filing of this case against Defendant. Plaintiff took these 13 risks upon herself to the benefit of the Class. Tice Decl. ¶ _. Class Members did not have to file 14 individual lawsuits and bear the risks of payment of costs if they did not prevail, nor did they 15 have to face the potential for retaliation and not getting future employment had they filed a 16 lawsuit which is a public record. These are significant benefits that weigh in favor of granting the 17 requested enhancement. As such, the incentive payment should be awarded to Plaintiff for her 18 commitment, dedication, and risks taken for this litigation. 19 Finally, Plaintiff provided a general release of all claims and a waiver under California 20 Civil Code § 1542, which other Class Members did not have to do. Settlement Agreement ¶ 21 III.2.a; Tice Decl. ¶ 10. This is a more extensive release than that provided by the Class at large, 22 also supporting the request for the enhancement. 23 Courts have routinely granted approval of settlements containing such enhancements. See 24 Van Vranken v. Atlantic Richfield Co., 901 F. Supp. 294, 299-300 (N.D. Cal. 1995) (incentive 25 award of $50,000); In re Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366, 374 26 (S.D. Ohio 1990) (two incentive awards of $ 55,000, and three incentive awards of $35,000); 27 Brotherton v. Cleveland, 141 F. Supp. 2d 907, 913-14 (S.D. Ohio 2001) (granting a $50,000 28 incentive award); Enter. Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240, 20 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 251-52 (S.D. Ohio 1991) ($50,000 awarded to each class representative); Glass v. UBS Fin. 2 Servs., No. C-06-4068, 2007 U.S. Dist. LEXIS 8476, at *51-52 (N.D. Cal. Jan. 27, 2007