Preview
Alejandro P. Gutierrez, SBN 107688
1 agutierrez@hathawaylaw/irm. com
HATHAWAY, PERRETT, WEBSTER, POWERS,
FILEKENDORSED
2 CHRISMAN & GUTIERREZ, APC
5450 Telegraph Road, Suite 200^ ^ NOV 1 2 2021
3 Venttira, CA 93006-3577
Telephone: (805)644-7111
4 Facsimile: (805) 644-8296 I By K. Madden. Oeniifv CIerl(
5 Daniel J. Palay, SBN 159348
djp@calemploymentcounsel. com
6 Brian D. Hefelfmger, SBN 253054
bdh@calemploymentcounsel.com
7 PALAY HEFELFINGER, APC
1746 S. Victoria Avenue, Suite 230
8 Venttira, Califomia 93001
Tel: (805) 628-8220
9 Fax: (805) 765-8600
10 Attorneys for Plaintiff JOHN BOUDREA U
and the Certified Class
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
^ 4 FOR THE COUNTY OF SACRAMENTO (UNLIMITED)
JOHN BOUDREAU, an individual, on behalfof Case No. 34-2018-00247272
himself and all others similarly situated. Complaint Filed: 12-27-18
Assigned to Dept. 41, Hon. David de Alba
Af Plaintiffs,
NOTICE OF MOTION AND UNOPPOSED
18 vs. MOTION FOR FINAL APPROVAL OF
CLASS SETTLEMENT MEMORANDUM
PRIMERITUS FINANCIAL SERVICES, INC., OF POINTS AND AUTHORITIES IN
19 a Delaware Corporation; CHRIS SUPPORT THEREOF; DECLARATIONS
20 MCGUINNESS, an individual; and DOES 1 OF ALEJANDRO P. GUTIERREZ,
through 10, inclusive. ZACHARY COOLEY, AND JOHN
21 BOUDREAU IN SUPPORT THEREOF;
Defendants. IPROPOSED] ORDER
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Date: December 3, 2021
23 Time: 9:30 a.m.
Dept: 41
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MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT
TO ALL INTERESTED PARTIES AND TO THEIR ATTORNEYS OF RECORD:
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PLEASE TAKE NOTICE that on December 3,2021 at 9:30 A.M., in Department 41 ofthe above-
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entitled Court, located at 720 Ninth Street, Sacramento, CA, 95814, Plaintiff John Boudreau, for himself
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and the Certified Class ("Plaintiffs") will and hereby does move for an order of this Court (1) granting
4 final approval of the terms of the Settlement as fair, reasonable and adequate to all Class Members; (2)
5 finally certifying the Class for settlement purposes only; (3) finding that the Notice distributed to the
6 Class pursuant to the Court's order granting preliminary approval constituted the best notice practicable
under the circumstances and satisfied due process; (4) approving the Gross Settlement Amount of $3.9
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million; (5) approving payment of attomeys' fees to Class Counsel in the amount of $1,365 million (35%
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of the Gross Settlement Amount); (6) approving payment to Class Counsel of litigation costs in the
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amount of $22,057.52; (7) approving a class representative enhancement payment to Plaintiff John
10 Boudreau in the amount of $25,000.00; (8) approving payment to the Settlement Administrator,
11 Simpluris, in the amount of $8,700.00; (9) approving settlement of claims under the Private Attomey
12 General Act to the Labor and Workforce Development Agency in the amoimt of $75,000.00, with a
13 remainder payment of $25,000.00 included in the Net Settlement Amount for distribution to the
Settlement Class; (10) directing the Parties to effectuate the Settlement according to the terms of the
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Settlement Agreement, including payment to Participating Class Members from the Gross Settlement
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Amount; and (11) entering a Final Judgment consistent with the Court's Order granting final approval of
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the Settlement. This motion is unopposed by Defendant Primeritus Financial Services, Inc.
17 This motion is made pursuant to Califomia Code of Civil Procediu-e § 382 and Rule 3.769 of the
18 Califomia Rules of Court oh the grounds that the parties have reached a proposed settlement that they
19 believe to be fair, reasonable and adequate, and in the best interests of the Class Members and parties.
20 This Motion is based upon the Memorandum of Points and Authorities, the Settlement
Agreement, the Declaration of Alejandro P. Gutierrez, the Declaration of John Boudreau, the Declaration
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of Zachary Cooley of Simpluris, the Court's July 29, 2021 Order Granting Preliminary Approval ofthe
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Class Action Settlement, as well as all other papers filed in this matter, and oral argument or other
23 evidence that the Court may consider at such hearing.
24 This request is made pursuant to Rule 3.769 of the Califomia Rules of Court. This Motion is
25 made on the grounds that the parties have reached a mediated settlement that they believe to be fair,
26 reasonable and adequate, and in the best interests ofthe Class Members and parties.
This Motion is based upon the Memorandum of Points and Authorities, the parties' Joint
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Stipulation of Class Action and PAGA Settlement, the Declaration of Alejandro P. Gutierrez, the
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MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT
Declaration of John Boudreau, the Declaration of Zachary Cooley, as well as all other papers filed in this
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matter, and oral argument or other evidence that the Court may consider at such hearing.
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Dated: November 9, 2021 HATHAWAY, PERRETT, WEBSTER, POWERS,
4 CHRISMAN & GUTIERREZ, APC
5
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7 By:
8 Alejandro P. Gutierrez
Attomeys for Plaintiff John Boudreau and the
9 Certified Class
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MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT
1 TABLE OF CONTENTS
2 Table of Authorities ii
3 I. Introduction 1
4 II. Factual and Procedural Background 1
5 III. Material Terms of the Settlement 3
6 A. Settlement Class 3
7 B. Settlement Amounts 3
8 C. Timing of Settlement Payout 3
9 D. Calculation ofthe Individual Settlement Amounts 4
10 E. Narrowly Tailored Release 4
11 IV. The Settlement Merits Final Approval 5
12 A. Legal Standard 5
13 B. Class Members Were Notified of the Settlement and Fairness Hearing 6
14 C. The Value of the Settlement Favors Final Approval 7
15 D. The Settlement is the Product of Non-Collusive, Arm's-Length and Informed
16 Negotiations..; 8
17 E. Considerable Discovery and Investigation Completed to Warrant Final Approval 9
18 F. The Risks Inherent in Continued Litigation Warrant Final Approval 9
19 G. The Complexity, Expense, and Likely Duration of Continued Litigation
20 Favors Final Approval 10
21 H. The Experience and Views of Counsel Favor Final Approval 10
22 I. The Overwhelmingly Positive Reaction of Class Members Supports Final Approval 11
23 J. Presence of Govemmental Participant 11
24 K. The Service Payment to the Named Plaintiff is Reasonable 11
25 L. Proposed Attomey's Fees are Reasonable Under the Common Fund Doctrine 13
26 V. Conclusion 13
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MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT
1 TABLE OF AUTHORITIES
2
3 Cases
4 Bell V. Farmers Ins. Exchange
5 (2004) 115 Cal.App.4th 715 11
6 Campbell v. First Investors Corp
(S.D.Cal. Oct. 29, 2012) 2012 WL 5373423 12
7
Cellphone Termination Fee Cases
8 (2010) 186 Cal. App. 4th 1380 11
9
Clark v. American Residential Services LLC
10 (2009) 175 Cal. App. 4th 785 , 11
11 Dunk V. Ford Motor Company
(1996) 48 Cal.App.4* 1794 5, 6, 9, 10, 11
12
13 Home Savings & Loan Assoc. v. Superior Court
(1974) 42 Cal.App.3d 1006 6
14
In re Consumer Privacy Cases
15 (2009) 175 Cal.App.4* 545 13
16
Laffitte v. Robert Half International Inc.
17 (2016) 1 Cal.5*480 13
18 Linder v. Thrifty Oil Co.
(2000) 23 Cal. 4* 429 : 5
19
20 Lusty V. GameStop Inc.
(N.D.Cal March 31, 2015) 2015 WL 1501095 10
21
Naranjo v. Spectrum Security Services, Inc.
22 (2019) 40 Cal. App. 5* 444 10
23
Officers for Justice v. Civil Service Com 'n of City and County of San Francisco
24 (1982) 688 F.2d615 6
25 Rodriguez v. West Publishing Corp.
(9* Cir. 2009) 563 F.3d 948 11
26
27 Smith V. CRST Van Expedited, Inc.
(S.D.Cal. Jan. 14, 2013) 2013 WL 163293 12
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MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT
Thomas V. TD Ameritrade, Inc.,
1 (N.D.Cal. Sept. 29, 2009) 2009 WL 8730175 12
2
Truly Nolen of America v. Superior Court
3 (2012) 208 Cal.App.4* 487 12
4 Wershba v. Apple Computer, Inc.
(2001) 91 Cal.App.4* 224 5, 6, 8
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Statutes
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Califomia Rule of Court 3.769 1,5
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Labor Code section 201 7
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Labor Code section 201.3 , 7
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Labor Code section 201.5 7
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Labor Code section 202 7
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Labor Code section 203 7
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Labor Code section 205.5 7
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Labor Code § 226 2
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Labor Code § 226.7 10
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Labor Code § 2698 etseq 8
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Other Authorities
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18 4 Newberg on Class Actions (4th ed. 2002) § 11.25 8
19 4 Newberg on Class Actions (4th ed. 2002) §11:38 11
20 4 Newberg on Class Actions (4* Ed. 2008) § 14:6 13
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MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT
1. INTRODUCTION
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Plaintiff John Boudreau ("Plaintiff) and the Certified Class (collectively "Plaintiffs" or
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"Settlement Class") respectfully request that the Court grant final approval of the proposed Joint
3 Stipulation of Class Action and PAGA Settlement agreement ("Settlement") that will resolve the above-
4 entitled wage-and-hour class and PAGA action against Defendant Primeritus Financial Services, Inc.
5 ("Primeritus"). The proposed Settlement satisfies all the criteria for final approval under Califomia law
6 and is fair and reasonable. Accordingly, Plaintiffs request that the Court grant this unopposed motion,
approve the proposed Settlement, and direct the Parties to effectuate the terms of the Settlement,
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including distribution of Settlement funds to Class Members.
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On July 29, 2021, the Court entered an Order preliminarily approving the proposed Settlement
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that would fully and fmally dispose of this Action as to the following Class of individuals:
10 All non-exempt current and former employees of Primeritus who were employed by
Primeritus in Califomia during the Class Period December 27, 2014 to August 12, 2019,
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and who held the position of Investigator/skip tracer" and participated in the Incentive
12 Pay Plan that was the subject of the Action.
13 The Parties provided Class Members notice of the Settlement, which requires Primeritus to pay
14 an all-inclusive, non-reversionary. Gross Settlement Amount of $3.9 million to Class Members.
15 A presumption of faimess exists because the Parties reached the proposed Settlement through
intensive, arm's-length and mediated negotiations. Class Counsel conducted sufficient investigation to
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act intelligently dtiring negotiations and are highly experienced in similar wage-and-hour class litigation.
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Significantly, not a single Class Member requested exclusionfi-omthe Settlement and no Class Member
18 objected to the proposed Settlement or disputed the number of shifts worked. The Settlement is fair,
19 reasonable, adequate and is in the best interest of the Class Members. Under the Settlement, the 165
20 Participating Class Members will receive substantial Settlement Payments with an average settlement
21 payment of $14,553.33, with the highest estimated individual settlement payment amounting to
$55,965.40', an excellent result by any estimation.
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Accordingly, pursuant to California Rule of Court 3.769, Plaintiffs request that the Court enter
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an order and judgment grantingfinalapproval of the Settlement,
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n. FACTUAL AND PROCEDURAL BACKGROUND
25 Plaintiff filed this Class Action matter on December 27, 2018. Plaintiffs Fu-st Amended
26 Complaint (filed April 12, 2019) alleges seven causes of action: (1) Failure to Pay Minimum Wage; (2)
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28 ' See Declaration of Zachary Cooley, 12
MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT
Failure to Timely Pay Wages (Waiting Time Penalities); (3) Failure to Provide Rest Periods; (4) Failure
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to Provide Meal Periods; (5) Failtire to Provide Accurate Wage Statements; (6) Violation of the Unfair
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Competifion Law; and (7) Civil Penalites under PAGA. Plaintiff seeks remedies on behalf of himself
3 and other similarly situated employees of Defendant Primeritus. Plaintiff seeks general and special
4 damages, as well as civil penalties pursuant to the Private Attomeys' General Act (PAGA). Defendant
5 denies liability for all alleged claims.
6 In December 2019, the parties participated in a full-day mediation with David Phillips, an
7 experienced employment dispute mediator. The mediation was unsuccessful. (Gutierrez Decl., ^ 7).
After Plaintiff filed a motion for class certification, the Parties executed a Stipulation on January
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10, 2020, whereby Defendant Primeritus agreed to the certification of the class defined as "All non-
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exempt current and or former employees of Primeritus who were employed by Primeritus in Califomia
10 during the class period, December 27,2014 to August 12,2019, who held the position of Investigator/skip
11 tracer." In that Stipulation, the parties agreed that Defendant Chris McGuiness would be dismissed from
12 the action without prejudice and that the parties would file Cross-Motions for Summary Adjudication on
13 the legality of the manner in which Primeritus paid Plaintiff and the Certified Class for rest periods and
nonproductive time and related legal issues including the Labor Code § 226 (paystub claim) and the
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adjudication of certain penalties. (Gutierrez Decl. ^ 8).^ The Parties duly filed their cross-motions for
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summary adjudication, which were heard by the Court on October 1, 2020. (Gutierrez Decl., ^ 9).
16 On November 5, 2020, the Court issued its mling on the Parties' cross-motions for summary
17 adjudication, finding in favor of Plaintiffs. Specifically, the Court mled that "Plaintiffs were not properly
18 compensated for rest periods," and that "they are entitled to one additional hour of pay at their regular
19 rate of compensation for each day they were not properly compensated for rest periods." The Court
fiirther mled that that Defendant's wage statements do not comply with Labor Code section 226(a).
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(Gutierrez Decl., H 10).
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On April 6, 2021, the parties participated in a mediation with Mark Rudy, a seasoned mediator
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who is considered one of the best mediators in Califomia. The mediation led to a settlement agreement
23 memorialized in the Joint Stipulation of Class Action and PAGA Settlement. (Gutierrez Decl., ^11).
24 On July 29, 2021, the Court granted preliminary approval of the Class Action and PAGA
25 Settlement. (Gutierrez Decl., ^ ) . On August 26,2021, class administrator Simpluris mailed out the Class
26 Notice to 165 putative Class Members. By the opt-out deadline of October 12, 2021, Simpluris had
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• On Febmary 3, 2020, this Court granted Class Certification pursuant to the Parties' stipulation.
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MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT
received zero opt-out forms and zero dispute forms. (Cooley Decl., 9, 10).
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m. MATERIAL TERMS OF THE SETTLEMENT
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As previously stated, the case settled after mediation with Mark Rudy, as memorialized in the
3 Joint Stipulation of Class Action and PAGA Settlement for the sum total of $3,900,000.00. The Total
4 Settlement Amount roughly equates to the potential damages for alleged rest period compensation claims,
5 and wage statement penalties, and attorneys' fees and costs, as identified in through the mediation process
6 and investigation, along with additional sums for civil penalties, administration costs and derivative
7 Labor Code penalties. The Parties' counsel and the mediator believe that the terms of the Settlement
reflect a fair and equitable compromise between the Parties. (Gutierrez Decl., ^ 12).
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A. Settlement Class
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In the Agreement, the Settlement Class is defined as:
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11 "Class" or "Settlement Class" shall include all non-exempt current and former employees
of Primeritus who were employed by Primeritus in Califomia during the Class Period as
12 defined below, and who held the position of Investigator/skip tracer and participated in
the Incentive Pay Plan that was the subject of the Action.
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14 (Gutierrez Decl., Ex. A, Definitions, subpara. (2)).
15 B. Settlement Amounts
16 This is a common fimd settlement. The common fund is $3,900,000.00 (the "Total Settiement
Amount"). Out of that fund, and subject to Court approval, the following will be paid: Administration
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costs of $8,700.00 to Simpluris; attomey's fees to Class Counsel herein of $1,365,000.00 (35% of
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common fiind); case cost of $22,057.52; a Service Payment to John Boudreau of Twenty-Five Thousand
19 Dollars ($25,000.00); One Hundred Thousand Dollars ($100,000.00) in PAGA penalties, pursuant to
20 Labor Code section 2698, et seq., with 75% of this portion being paid to the State of Califomia and the
21 remaining 25% distributed to PAGA Employees on a pro rata basis based on the number of shifts they
22 worked during the PAGA Period; and individual class settlement payments. (Ex. A, § D.).
23 Any unclaimed amount shall be paid to the State of Califomia to be placed in the State
Controller's Unclaimed Property Fund in the name of the Settlement Class member.
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C. Timing of Settlement Payout
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Defendant will pay the common fund that arises from this Settlement in two installments.
26 Payment One, in the amount of Two Million Five Himdred Thousand Dollars ($2,500,000), shall occur
27 on or before Febmary 1, 2022, and the remainder of the Total Settlement Amount, One Million Four
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MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT
Hundred Thousand Dollars ($ 1,400,000) shall be made by Payment Two, which shall be made on or
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before July 1, 2022. The PAGA payment, the Service Payment and the administrative fees incurred to
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that point shall be paid in full, from the first payment. The balance of the first payment shall be distributed
3 pro rata to the Class Members and Class Counsel. The remaining payments owed shall be paid from the
4 second payment. Defendant will pay the applicable employer-side payroll taxes on the wage portion of
5 the settlement payments separately and in addition to the Total Settlement Amount.
6 D. Calculation of the Individual Settlement Amounts
Plaintiffs and Defendant have agreed upon the following payment formula to resolve all disputes
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of the Settlement Class during the Settlement Period: After deducting for the amounts for Settlement
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Administrator's fees. Plaintiffs Service Payment, the PAGA Fund, and Class Counsel's awarded
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attomeys' fees and costs, the balance of the Total Settlement Payment (the "Net Settlement Amount")
10 will be distributed as follows:
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(a) Each Class Participant's "Individual Class Settlement Payment" for this time
12 period will be based on a ratio of the Class Participant's Individual Shifts at
13 Issue. The Individual Class Settlement Payment for this period will be
calculated by dividing the Class Participant's Individual Shifts at Issue by the
14 total shifts worked by Class Participants. A portion of this resulting amount will
be subject to tax withholdings, as described below.
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(b) Participants Who Signed Settlement Agreements during Pendency of Action
16 Class members who signed settlement agreements during the pendency of the
17 action shall receive 50% of the calculated Individual Class Settlement Payment,
less the amount previously received as a settlement payment jfrom Primeritus in
18 connection with a release; but in no event shall any individual receive less than
$250.00.
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(Ex. A,§D(4)).
20 E. Narrowly Tailored Release
21 In exchange for the benefits of the Settlement, Settlement Class Members who have not timely
22 and properly opted out of the Settlement vnll release claims that they may have relating to the facts
23 alleged in the operative Complaint, as follows:
All claims alleged or that could have been alleged based on the operative facts pled in
24 the original Complaint or operative First Amended Complaint. The release of the Class
Claims shall be effective at all times during the entirety of the Class Period. "Released
25 PAGA Claims" means all PAGA Claims that were actually alleged or could have been
26 alleged in the original Complaint or First Amended Complaint in this Action by Named
Plaintiff, on behalf of the State of Califomia, himself, and PAGA Employees. The
27 release of the Released PAGA Claims shall be effective during the entirely of the PAGA
Period.
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MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT
1 (Ex. A, § A (36)).
2
This release is narrowly tailored to the allegations asserted by Plaintiffs. In addition. Class
3 Representative John Boudreau will release any known or unknown claims he may have had against
4 PrimeriUis. (Ex. A, § D (1)).
5 rv. THE SETTLEMENT MERITS FINAL APPROVAL
6 The Parties established a fair, adequate, and reasonable settlement because it provides substantial
7 benefits to the Class. The faimess, adequacy, and reasonableness of the settlement is illustrated by the
Class Members' overwhelmingly positive response to the Settlement Notice. Significantly, out of 165
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Participating Class Members, not a single individual timely opted out of the Settlement. Additionally, no
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objections to the Settlement were received. (Cooley Decl., tH 9, 10). Such excellent results warrant final
10 approval ofthe Settlement. \
11 A. Legal Standard
12 Class actions are govemed by the Califomia Rules of Court ("CRC"), Rules 3.760 through
13 3.771. CRC Rule 3.769 govems the settlement of class actions. Specifically, CRC Rule 3.769(a) states
that Court approval after hearing is required of any settlement. Court approval of a class action
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settlement is accomplished by first conducting a preliminary approval hearing (CRC Rule 3.769(c)), and
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then conducting a subsequent final approval hearing (CRC Rule 3.769(e)), as to the faimess and adequacy
16 of the settlement reached. The Court must then conduct an inquiry into the faimess of the settlement at
17 a final approval hearing. (CRC Rule 3.769(g).)
18 Public policy favors settlement over continued class-action litigation. {See, e.g., Linder v.
19 Thrifty Oil Co. (2000) 23 Cal. 4* 429, 434 ("Courts have long acknowledged the importance ofclass
20 actions as a means to prevent a failure of justice in our judicial system.") Califomia Rules of Court, Rule
3.769(a) provides: "A settlement or compromise of an entire class action, or of a cause of action in a
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class action, or as to a party, requires the approval of the court after hearing." In determining whether a
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class settlement is fair, adequate and reasonable, the tiial court consider
23 relevant factors, such as:
24 [T]he strength of plaintiffs' case, the risk, expense, complexity and likely duration of
further litigation, the risk of maintain class action status through trial, the amount offered
25 in settlement the extent of discovery completed and the state of the proceedings, the
26 experience and views of coimsel, the presence of a govemmental participant and the
reaction of the class members to the proposed settlement.
27
{Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4* 224, 244 - 245, citing Dunk v. Ford Motor
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MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT
Company (1996) 48 Cal.App.4* 1794, 1801).
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Due regard should be given to what is otherwise a private consensual agreement between the
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parties. {Dunk, supra, 48 Cal.App. at pg. 1801). The inquiry "must be limited to the extent necessary to
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reach a reasoned judgment that the agreement is not the product offraudor overreaching by, or collusion
4 between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate
5 to all concemed." {Id., citing Officers for Justice v. Civil Service Com'n of City and County of San
6 Francisco (1982) 688 F.2d 615, 625).
There is a presumption of faimess where, as here: (1) the settlement is reached through arm's
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-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act
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intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small."
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{Dunk, supra, 48 Cal.App.4* at p. 1802).
10 The record reflects that all of these elements are present here, as discussed below. The terms of
11 the Settlement are fair; the Settlement was the product of extensive and hard-fought adversarial
12 negotiations between the parties before a well-respected neutral mediator; the parties engaged in
13 discovery for a number of months before the settlement negotiations; Plaintiffs' attomeys are experienced
in handling wage-and-hour class action litigation; and settlement Class Members overwhelmingly favor
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the Settlement.
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Accordingly, there are substantial grounds for the Court granting this motion.
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B. Class Members Were Notified of the Settlement and Fairness Hearing
17 Califoraia law requires that the best practicable means be used in notifying members of a class
18 action, depending on the particular circumstances of the case. {Home Savings & Loan Assoc. v. Superior
19 Court (1974) 42 Cal.App.3d 1006, 1012). Here, the Court specifically approved the parties' notice
20 procedure in its July 29, 2021 Order, subject to Class Counsel including specific dates in the Notice.
(Order, pg. 4).
21
In accordance with the Settlement and the Court's July 29, 2021 Order, counsel for Defendant
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provided Simpluris with the relevant Class Information on August 12, 2021. (Cooley Decl., t 5). This
23 consisted of 165 Class Member names, contact information and records of the number of shifts each
24 Class Member worked. {Id.).
25 On August 26,2021, Simpluris mailed Notice Packets via United States Postal Service First Class
26 Mail to the 165 Class Members listed on the Class List, which fairly apprised the Class Members of the
terms of the proposed compromise and the options open to dissenting class members. (Cooley
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Declaration, ^ 7). Prior to mailing Notice Packets, and in order to obtain the most current mailing address
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MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT
for Class Members, Simpluris processed the Class List addresses through the National Change of Address
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database maintained by the U.S. Postal Service. {Id.,^ 6) This process updated the addresses for the Class
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Members who filed a USPS change of address card within the last four years. {Id.). The Notice Packet
3 advised Class Members of the Objection and Request for Exclusion deadline of October 12, 2021.
4 (Cooley Decl., 19).
5 Simpluris reports that as of October 12, 2021, Simpluris received zero (0) opt-out forms. (Cooley
6 Decl., 19). Also, Simpluris did not receive any Class Member disputes regarding credited shifts worked.
7 (Cooley Decl, H 10» see Ex. B to Cooley Decl.). Simpluris reports a participation rate of 165 out of 165
Class Members, or 100% participation. (Cooley Decl., *\ 12). These Participating Class Members will,
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on average, receive $14,553.33 before taxes and withholdings, with the highest estimated Individual
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Settlement Payment amounting to $55,965.40. (Cooley Decl., t 12).
10 As demonstrated, the Class Notice met the applicable requirements of the law and court mles and
11 satisfied due process requirements. The Settlement Class received adequate notice of the proposed
12 Settlement and an opportunity to opt out or to object. The Class overwhelmingly approved the
13 Settlement.
C. The Value of the Settlement Favors Final Approval
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The Settlement herein is well within the range of reasonableness. Each Class Member's
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anticipated Settlement Payment, estimated to average about $14,553.33 per class member net of fees and
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costs, is on the order of the alleged unpaid rest break compensation and wage statement penalties
17 identified in the comprehensive audit and investigation of the amounts which were potentially at issue in
18 the litigation. (Gutierrez Decl., 19).
19 The investigation and discovery process in this matter revealed that potential rest period and
20 unproductive time liability in the matter, based on the time records and in light of the Defendant's written
policies, was tabulated to be on the order of $3,630,500.00 (Gutierrez Decl., t 18). Additionally, the
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potential wage statement liability in the matter, based on wage statements, was tabulated to be on the
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order of $217,800.00. Finally, the discovery and mediation process discemed that the other, derivative
23 and PAGA Labor Code potential Hability in the matter was in the order of $953,718.00. {Id.). These
24 categories of alleged violations are, in aggregate, around $4,802,018.00. {Id.).
25 Labor Code section 203 provides, in relevant part, that "[i]f an employer willfully fails to pay,
26 without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 202, and 205.5, any
27 wages of an employee who is discharged or who quits, the wages of the employee shall continue as a
penalty from the due date thereof at the same rate until paid or until an action therefor is commenced;
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MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT
but the wages shall not continue for more than 30 days." Cal. Lab. Code § 203 (emphasis added).
1
Further, Labor Code § 2698 et seq. (the "PAGA") provides for a mechanism for Plaintiff to seek
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an award of civil penalties on behalf of the State of Califomia, which any such penalties recovered being
3 split 75% to the State of Califoraia, and 25% to the "aggrieved employees." Cal. Lab. Code § 2699(i).
4 However, given that "a court may award a lesser amount than the maximum civil penalty amount
5 specified by [the PAGA] if, based on the facts and circumstances of the particular case, to do otherwise
6 would result in an award that is unjust, arbitrary, and oppressive, or confiscatory," there is significant
7 uncertainty regarding an award of penalties pursuant to continued litigation. The Settlement here
allocates $100,000.00 infiindsto PAGA penalties. (Ex. A, § D (3)).
8
Class Counsel believes that the Settlement is fair and reasonable. They approximate the estimated
9
damages allegedly suffered by each Class Member as identified through the discovery and investigation
10 process and provides for additional consideration above and beyond that amount for penalties alleged in
11 the action. {See further analysis of settlement valuation, Gutierrez Decl., \ 18).
12 Where a proposed settlement appears to be the product of serious, informed, non-collusive
13 negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class
14 representatives or segments of the class, and falls within the range of possible approval, then the court
should grant final approval. (See 4 Newberg on Class Actions (4th ed. 2002) § 11.25).
15
Here, the Settlement will result in a substantial benefit to all Class Members. The total settlement
16
is $3,900,000.00. The total settlement amount is in excess of eighty-one percent (81%) of the total
17 potential recovery. After deducting the requested amounts for attomey's fees, settlement administrator
18 fees, and actual costs for Class Counsel, the Service Payment to the Class Representative, and the PAGA
19 payment (including the State of Califomia's portion), the net settlement amount to be divided among the
20 class will be approximately $2,401,300.00, with each settling Class Member receiving approximately
$14,553.33.00. (Cooley Decl., t 12).
21
D. The Settlement is the Product of Non-Collusiye, Arm's-Length and Informed
22
Negotiations
23 Califomia courts recognize that "a presumption of faimess exists where ... [a] settlement is
24 reached through arm's-length bargaining.'''' {Wershba, supra, 91 Cal.App.4th at 245.) In this case, the
25 Settlement was reached after a full day of mediation with an experienced class-action mediator. Prior to
26 the mediation, the parties exchanged written discovery requests, responses, and documents. Defendant
27 produced substantial documentation including actual payroll records and data of the Class Members, for
mediation purposes. In reaching the Settlement, counsel on both sides relied on their respective
28
MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT
substantial litigation experience in similar employment class actions. Plus, information gleaned from
1
investigation and the discovery processes informed Class Counsel's assessment of the strengths and
2
weaknesses of the case and the benefits of the Settlement. (Gutierrez Decl., tH 1 14, 15, 18).
3 E. Considerable Discovery and Investigation Completed to Warrant Final Approval
4 Class Counsel have conducted investigation, discovery, and research during the prosecution of
5 the Action. Such efforts included, among other things: (a) conducting a thorough pre-filing investigation;
6 (b) propounding comprehensive sets of written discovery requests and taking multiple depositions; (c)
7 inspecting and analyzing data and documents produced by Defendants pertaining to Plaintiff and the
class members; (d) interviewing class members; (e) analyzing the legal arguments made by Defendcint;
8
(f) preparing an analysis of potential class-wide damages and constmcting a damages model;
9
(g) researching the applicable law with respect to the claims asserted in this Action and the potential
10 defenses thereto. Moreover, the Parties filed cross-motions for summary adjudication, which resolved
11 for purposes ofthe trial court proceedings a number of disputed legal issues raised in the Action relating
12 to liability. (Gutierrez Decl., t 11).
13 Thus, the Parties have engaged in sufficient investigation, discovery, and research to assess the
14 relative merits of the claims of the Class and of Defendant's defenses to them. Accordingly, this Court
may find that this Settlement was intelligently reached and grant final approval.
15
F. The Risks Inherent in Continued Litigation Warrant Final Approval
16
To assess the faimess of a class action settlement, the Court must weigh the immediacy and
17 certainty of proceeds paid under a settlement against the risks inherent in continuing the litigation.
18 {Dunk, 4S Cal App. 4th at 1801-02.) This factor supports final approval here because the
19 Settlement affords Class Members substantial, prompt relief while avoiding significant legal and factual
20 hurdles that otherwise might prevent the Class Members from obtaining any recovery. Primeritus never
admitted liability for Plaintiffs' claims and vigorously opposed such claims.
21
The Plaintiff and Class Counsel believe that the claims, allegations, and contentions asserted in
22
the action have merit. However, the Plaintiff and Class Counsel recognize and acknowledge the expense
23 and delay of the lengthy proceedings necessary to prosecute the Action against Defendant through trial
24 and appeals. Furthermore, Class Counsel have taken into account the risks inherent in any litigation, and
25 the additional risk of continued litigation in complex actions such as this, including the Defendant's
26 threatened appeal. Uncertainty in Plaintiffs' ability to secure from a jury a better outcome relative to the
27 settlement amount the parties have agreed upon, as well as a significant delay in Class Members receiving
settlement awards after a trial for damages presented significant risk in the matter.
28
-9-
MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT
Moreover, Class Counsel have also considered the potential for reduction (or elimination) of
1
penalties recoverable under PAGA, given that case law permits a discretionary reduction to said penalties
2
where "unjust, arbitrary, oppressive or confiscatory." Similarly, an award of penalties under Labor Code
3 section 203 requires a demonsfration of "willfulness" on the part of the Defendant. Moreover, an action
4 for violation of Labor Code § 226.7 for violation of rest break mandates do not entitle employees to
5 pursue the derivative waiting time and wage statement penalties. {See Naranjo v. Spectrum Security
6 Services, Inc. (2019) 40 Cal. App. 5* 444, 474).
In light of the preceding potential risks. Class Counsel believe that the Settlement confers
7
substantial benefits upon the Plaintiff and each of the members of the Certified Class, and that an
8
independent review of this Joint Stipulation of Class Action and PAGA Settlement by the Court in the
9
approval process will confirm this conclusion. Based on their own independent investigation and
10 evaluation. Class Counsel have determined that the Settlement set forth in the Stipulation is in the best
11 mterests of the Plaintiffs. (Gutierrez Decl., t 20).
12 G. The Complexity, Expense, and Likely Duration of Continued Litigation Favors Final
13 Approval of Settlement
Another factor considered by courts in determining whether a settlement warrants final
14
approval is the complexity, expense, and likely duration of the litigation in the absence of
15
settlement. (See Dunk, 48 Cal.App.4th at 1801). In applying this factor, a court should weigh the benefits
16
of the settlement against the expense and delay involved in achieving an equivalent or more favorable
17 resuU attt-ial.{SeeLusby v. GameStop Inc. (N.D.Cal. March 31, 2015) 2015 WL 1501095, *6).
18 This case has been determined by the Court to be a complex case. Class action employment cases
19 can be expensive and time-consuming to prosecute. Continued litigation of this action against Primeritus
20 would likely be complex, expensive, and of an extended duration. The Settlement averts the need for a
lengthy trial process and possible appeal.
21
H. The Experience and Views of Counsel Favor Final Approval
22
Class Counsel support the Settlement as fair, adequate, reasonable, and in the best interests of the
23 Classes as a whole. As previously detailed to this Court, Class Counsel believe this Settlement is a fair
24 and proper result for Class Members. Class Counsel has experience not only in class actions and
25 employment litigation, but specifically in wage and hour class actions. (Gutierrez Decl., T] 21, 26 - 32).
26 Plaintiffs' lawyers have been appointed Class Counsel in many wage-and-hour class action cases. {Id.)
27 Furthermore, Defendant was represented by Littler Mendelson, a law firm with a significant wage and
hour defense practice in Califoraia and nationally. Counsel's experience supports the Court's final
28
-10-
MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT
approval of the settlement agreement.
1
The proposed settlement provides substantial benefit to the Class and was reach after substantial
2
litigation. The opinions of the parties' attomeys, as qualified and well-informed counsel, are entitied to
3 significant weight. {See Dunk 4S Cal. App. 4th at 1802).
4 I. The Overwhelmingly Positive Reaction of Class Members Supports Final Approval
5 Courts also evaluate the reaction of class members to defendants the reasonableness of the
6 settlement, and whether it should be approved as fair, adequate, and reasonable. In this action, not a single
7 class member has opted out or objected to the Settlement. (Cooley Decl., H 9,10). This overwhelmingly
positive response from the class leads to a presumption that the settlement is fair and strongly supports
8
final approval of the Settlement. {Dunk supra, 48 Cal.App.4* at 1801 - 1802).
9
J. Presence of Governmental Participant
10 There is no govemmental "participant" per se to this litigation, because no govemmental entity
11 is a party to the action. However, on October 21, 2021, Plaintiffs' counsel submitted the proposed
12 settlement to the LWDA pursuant to Labor Code section 2699(1)(2). (Gutierrez Decl., t). The LWDA
13 has not objected to the settlement. {Id.) Without an objection by the LWDA to the settlement, this factor
14 weighs in favor of granting final approval.
K. The Service Payment to the Named Plaintiff is Reasonable
15
Enhancement payments "are fairly typical in class action cases." {Cellphone Termination Fee
16
Cases (2010) 186 Cal. App. 4th 1380, 1393 (affirming incentive awards of $10,000); Rodriguez v. West
17 Publishing Corp. (9* Cir. 2009) 563 F.3d 948, 958, citing 4 Newberg on Class Actions (4th ed. 2002) §
18 11:38, and Eisenberg & Miller, Incentive Awards to Class Action Plaintiffs: An Empirical Study, 53
19 UCLA L. Rev. 1303 (2006). Enhancement payments "are intended to compensate class representatives
20 for work done on behalf of the class, to make up for financial or reputational risk undertaken in bringing
the action, and, sometimes, to recognize their willingness to act as a private attomey
21
general." Rodriguez, 563 F.3d at 958-59. "[T]he rationale for making enhancement or incentive awards
22
to named plaintiffs is that they should be compensated for the expense or risk they have incurred in
23 conferring a benefit on other members of the class." Clark v. American Residential Services LLC (2009)
24 175 Cal. App. 4th 785. Courts routinely approve incentive awards to compensate plaintiffs for the
25 services they provide and the risks they incur during class action litigation. (See Bell v. Farmers Ins.
26 Exchange (2004) 115 Cal.App.4th 715, 726 (upholding "service payments" to named plaintiffs for their
27 efforts in bringing the case).)
Here, the proposed service payment of $25,000 to John Boudreau is intended to recognize his
28
-11-
MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT
substantial initiative, risk, and effort on behalf of the Class. The 165 current and former Primeritus
1
employees who make up the Certified Class will share a $3.9 million settlement fund due entirely to the
2
efforts and commitment of John Boudreau and Class Counsel. It is also reflective of the amount of time
3 Mr. Boudreau spent engaged in the case and acting as a class and PAGA representative.
4 Such awards are particularly appropriate in employment class actions because the plaintiff is
5 frequently a present or past employee whose present position or employment credentials or
6 recommendation may be at risk by reason of having prosecuted the suit, who therefore lends his or her
7 name and efforts to the prosecution of litigation at some personal peril. {See Truly Nolen of America v.
Superior Court (2012) 208 Cal.App.4* 487,508 - 509) ("Class and representative actions are not brought
8
by the faint of heart. It takes courage to stand up to a large employer; this is especially so when the
9
employee challenges his or her current employer. Employers often retaliate against current and former
10 employees."); see also Thomas v.
Preview
Alejandro P. Gutierrez, SBN 107688 1 agutierrez@hathawaylaw/irm. com HATHAWAY, PERRETT, WEBSTER, POWERS, FILEKENDORSED 2 CHRISMAN & GUTIERREZ, APC 5450 Telegraph Road, Suite 200^ ^ NOV 1 2 2021 3 Venttira, CA 93006-3577 Telephone: (805)644-7111 4 Facsimile: (805) 644-8296 I By K. Madden. Oeniifv CIerl( 5 Daniel J. Palay, SBN 159348 djp@calemploymentcounsel. com 6 Brian D. Hefelfmger, SBN 253054 bdh@calemploymentcounsel.com 7 PALAY HEFELFINGER, APC 1746 S. Victoria Avenue, Suite 230 8 Venttira, Califomia 93001 Tel: (805) 628-8220 9 Fax: (805) 765-8600 10 Attorneys for Plaintiff JOHN BOUDREA U and the Certified Class 11 [2 SUPERIOR COURT OF THE STATE OF CALIFORNIA ^ 4 FOR THE COUNTY OF SACRAMENTO (UNLIMITED) JOHN BOUDREAU, an individual, on behalfof Case No. 34-2018-00247272 himself and all others similarly situated. Complaint Filed: 12-27-18 Assigned to Dept. 41, Hon. David de Alba Af Plaintiffs, NOTICE OF MOTION AND UNOPPOSED 18 vs. MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT MEMORANDUM PRIMERITUS FINANCIAL SERVICES, INC., OF POINTS AND AUTHORITIES IN 19 a Delaware Corporation; CHRIS SUPPORT THEREOF; DECLARATIONS 20 MCGUINNESS, an individual; and DOES 1 OF ALEJANDRO P. GUTIERREZ, through 10, inclusive. ZACHARY COOLEY, AND JOHN 21 BOUDREAU IN SUPPORT THEREOF; Defendants. IPROPOSED] ORDER 22 Date: December 3, 2021 23 Time: 9:30 a.m. Dept: 41 24 25 26 27 28 -1- MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT TO ALL INTERESTED PARTIES AND TO THEIR ATTORNEYS OF RECORD: 1 PLEASE TAKE NOTICE that on December 3,2021 at 9:30 A.M., in Department 41 ofthe above- 2 entitled Court, located at 720 Ninth Street, Sacramento, CA, 95814, Plaintiff John Boudreau, for himself 3 and the Certified Class ("Plaintiffs") will and hereby does move for an order of this Court (1) granting 4 final approval of the terms of the Settlement as fair, reasonable and adequate to all Class Members; (2) 5 finally certifying the Class for settlement purposes only; (3) finding that the Notice distributed to the 6 Class pursuant to the Court's order granting preliminary approval constituted the best notice practicable under the circumstances and satisfied due process; (4) approving the Gross Settlement Amount of $3.9 7 million; (5) approving payment of attomeys' fees to Class Counsel in the amount of $1,365 million (35% 8 of the Gross Settlement Amount); (6) approving payment to Class Counsel of litigation costs in the 9 amount of $22,057.52; (7) approving a class representative enhancement payment to Plaintiff John 10 Boudreau in the amount of $25,000.00; (8) approving payment to the Settlement Administrator, 11 Simpluris, in the amount of $8,700.00; (9) approving settlement of claims under the Private Attomey 12 General Act to the Labor and Workforce Development Agency in the amoimt of $75,000.00, with a 13 remainder payment of $25,000.00 included in the Net Settlement Amount for distribution to the Settlement Class; (10) directing the Parties to effectuate the Settlement according to the terms of the 14 Settlement Agreement, including payment to Participating Class Members from the Gross Settlement 15 Amount; and (11) entering a Final Judgment consistent with the Court's Order granting final approval of 16 the Settlement. This motion is unopposed by Defendant Primeritus Financial Services, Inc. 17 This motion is made pursuant to Califomia Code of Civil Procediu-e § 382 and Rule 3.769 of the 18 Califomia Rules of Court oh the grounds that the parties have reached a proposed settlement that they 19 believe to be fair, reasonable and adequate, and in the best interests of the Class Members and parties. 20 This Motion is based upon the Memorandum of Points and Authorities, the Settlement Agreement, the Declaration of Alejandro P. Gutierrez, the Declaration of John Boudreau, the Declaration 21 of Zachary Cooley of Simpluris, the Court's July 29, 2021 Order Granting Preliminary Approval ofthe 22 Class Action Settlement, as well as all other papers filed in this matter, and oral argument or other 23 evidence that the Court may consider at such hearing. 24 This request is made pursuant to Rule 3.769 of the Califomia Rules of Court. This Motion is 25 made on the grounds that the parties have reached a mediated settlement that they believe to be fair, 26 reasonable and adequate, and in the best interests ofthe Class Members and parties. This Motion is based upon the Memorandum of Points and Authorities, the parties' Joint 27 Stipulation of Class Action and PAGA Settlement, the Declaration of Alejandro P. Gutierrez, the 28 -2- MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT Declaration of John Boudreau, the Declaration of Zachary Cooley, as well as all other papers filed in this 1 matter, and oral argument or other evidence that the Court may consider at such hearing. 2 3 Dated: November 9, 2021 HATHAWAY, PERRETT, WEBSTER, POWERS, 4 CHRISMAN & GUTIERREZ, APC 5 6 7 By: 8 Alejandro P. Gutierrez Attomeys for Plaintiff John Boudreau and the 9 Certified Class 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT 1 TABLE OF CONTENTS 2 Table of Authorities ii 3 I. Introduction 1 4 II. Factual and Procedural Background 1 5 III. Material Terms of the Settlement 3 6 A. Settlement Class 3 7 B. Settlement Amounts 3 8 C. Timing of Settlement Payout 3 9 D. Calculation ofthe Individual Settlement Amounts 4 10 E. Narrowly Tailored Release 4 11 IV. The Settlement Merits Final Approval 5 12 A. Legal Standard 5 13 B. Class Members Were Notified of the Settlement and Fairness Hearing 6 14 C. The Value of the Settlement Favors Final Approval 7 15 D. The Settlement is the Product of Non-Collusive, Arm's-Length and Informed 16 Negotiations..; 8 17 E. Considerable Discovery and Investigation Completed to Warrant Final Approval 9 18 F. The Risks Inherent in Continued Litigation Warrant Final Approval 9 19 G. The Complexity, Expense, and Likely Duration of Continued Litigation 20 Favors Final Approval 10 21 H. The Experience and Views of Counsel Favor Final Approval 10 22 I. The Overwhelmingly Positive Reaction of Class Members Supports Final Approval 11 23 J. Presence of Govemmental Participant 11 24 K. The Service Payment to the Named Plaintiff is Reasonable 11 25 L. Proposed Attomey's Fees are Reasonable Under the Common Fund Doctrine 13 26 V. Conclusion 13 27 28 MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT 1 TABLE OF AUTHORITIES 2 3 Cases 4 Bell V. Farmers Ins. Exchange 5 (2004) 115 Cal.App.4th 715 11 6 Campbell v. First Investors Corp (S.D.Cal. Oct. 29, 2012) 2012 WL 5373423 12 7 Cellphone Termination Fee Cases 8 (2010) 186 Cal. App. 4th 1380 11 9 Clark v. American Residential Services LLC 10 (2009) 175 Cal. App. 4th 785 , 11 11 Dunk V. Ford Motor Company (1996) 48 Cal.App.4* 1794 5, 6, 9, 10, 11 12 13 Home Savings & Loan Assoc. v. Superior Court (1974) 42 Cal.App.3d 1006 6 14 In re Consumer Privacy Cases 15 (2009) 175 Cal.App.4* 545 13 16 Laffitte v. Robert Half International Inc. 17 (2016) 1 Cal.5*480 13 18 Linder v. Thrifty Oil Co. (2000) 23 Cal. 4* 429 : 5 19 20 Lusty V. GameStop Inc. (N.D.Cal March 31, 2015) 2015 WL 1501095 10 21 Naranjo v. Spectrum Security Services, Inc. 22 (2019) 40 Cal. App. 5* 444 10 23 Officers for Justice v. Civil Service Com 'n of City and County of San Francisco 24 (1982) 688 F.2d615 6 25 Rodriguez v. West Publishing Corp. (9* Cir. 2009) 563 F.3d 948 11 26 27 Smith V. CRST Van Expedited, Inc. (S.D.Cal. Jan. 14, 2013) 2013 WL 163293 12 28 -11- MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT Thomas V. TD Ameritrade, Inc., 1 (N.D.Cal. Sept. 29, 2009) 2009 WL 8730175 12 2 Truly Nolen of America v. Superior Court 3 (2012) 208 Cal.App.4* 487 12 4 Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4* 224 5, 6, 8 5 Statutes 6 Califomia Rule of Court 3.769 1,5 7 Labor Code section 201 7 8 Labor Code section 201.3 , 7 9 Labor Code section 201.5 7 10 Labor Code section 202 7 11 Labor Code section 203 7 12 Labor Code section 205.5 7 13 Labor Code § 226 2 14 Labor Code § 226.7 10 15 Labor Code § 2698 etseq 8 16 Other Authorities 17 18 4 Newberg on Class Actions (4th ed. 2002) § 11.25 8 19 4 Newberg on Class Actions (4th ed. 2002) §11:38 11 20 4 Newberg on Class Actions (4* Ed. 2008) § 14:6 13 21 22 23 24 25 26 27 28 MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT 1. INTRODUCTION 1 Plaintiff John Boudreau ("Plaintiff) and the Certified Class (collectively "Plaintiffs" or 2 "Settlement Class") respectfully request that the Court grant final approval of the proposed Joint 3 Stipulation of Class Action and PAGA Settlement agreement ("Settlement") that will resolve the above- 4 entitled wage-and-hour class and PAGA action against Defendant Primeritus Financial Services, Inc. 5 ("Primeritus"). The proposed Settlement satisfies all the criteria for final approval under Califomia law 6 and is fair and reasonable. Accordingly, Plaintiffs request that the Court grant this unopposed motion, approve the proposed Settlement, and direct the Parties to effectuate the terms of the Settlement, 7 including distribution of Settlement funds to Class Members. 8 On July 29, 2021, the Court entered an Order preliminarily approving the proposed Settlement 9 that would fully and fmally dispose of this Action as to the following Class of individuals: 10 All non-exempt current and former employees of Primeritus who were employed by Primeritus in Califomia during the Class Period December 27, 2014 to August 12, 2019, 11 and who held the position of Investigator/skip tracer" and participated in the Incentive 12 Pay Plan that was the subject of the Action. 13 The Parties provided Class Members notice of the Settlement, which requires Primeritus to pay 14 an all-inclusive, non-reversionary. Gross Settlement Amount of $3.9 million to Class Members. 15 A presumption of faimess exists because the Parties reached the proposed Settlement through intensive, arm's-length and mediated negotiations. Class Counsel conducted sufficient investigation to 16 act intelligently dtiring negotiations and are highly experienced in similar wage-and-hour class litigation. 17 Significantly, not a single Class Member requested exclusionfi-omthe Settlement and no Class Member 18 objected to the proposed Settlement or disputed the number of shifts worked. The Settlement is fair, 19 reasonable, adequate and is in the best interest of the Class Members. Under the Settlement, the 165 20 Participating Class Members will receive substantial Settlement Payments with an average settlement 21 payment of $14,553.33, with the highest estimated individual settlement payment amounting to $55,965.40', an excellent result by any estimation. 22 Accordingly, pursuant to California Rule of Court 3.769, Plaintiffs request that the Court enter 23 an order and judgment grantingfinalapproval of the Settlement, 24 n. FACTUAL AND PROCEDURAL BACKGROUND 25 Plaintiff filed this Class Action matter on December 27, 2018. Plaintiffs Fu-st Amended 26 Complaint (filed April 12, 2019) alleges seven causes of action: (1) Failure to Pay Minimum Wage; (2) 27 28 ' See Declaration of Zachary Cooley, 12 MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT Failure to Timely Pay Wages (Waiting Time Penalities); (3) Failure to Provide Rest Periods; (4) Failure 1 to Provide Meal Periods; (5) Failtire to Provide Accurate Wage Statements; (6) Violation of the Unfair 2 Competifion Law; and (7) Civil Penalites under PAGA. Plaintiff seeks remedies on behalf of himself 3 and other similarly situated employees of Defendant Primeritus. Plaintiff seeks general and special 4 damages, as well as civil penalties pursuant to the Private Attomeys' General Act (PAGA). Defendant 5 denies liability for all alleged claims. 6 In December 2019, the parties participated in a full-day mediation with David Phillips, an 7 experienced employment dispute mediator. The mediation was unsuccessful. (Gutierrez Decl., ^ 7). After Plaintiff filed a motion for class certification, the Parties executed a Stipulation on January 8 10, 2020, whereby Defendant Primeritus agreed to the certification of the class defined as "All non- 9 exempt current and or former employees of Primeritus who were employed by Primeritus in Califomia 10 during the class period, December 27,2014 to August 12,2019, who held the position of Investigator/skip 11 tracer." In that Stipulation, the parties agreed that Defendant Chris McGuiness would be dismissed from 12 the action without prejudice and that the parties would file Cross-Motions for Summary Adjudication on 13 the legality of the manner in which Primeritus paid Plaintiff and the Certified Class for rest periods and nonproductive time and related legal issues including the Labor Code § 226 (paystub claim) and the 14 adjudication of certain penalties. (Gutierrez Decl. ^ 8).^ The Parties duly filed their cross-motions for 15 summary adjudication, which were heard by the Court on October 1, 2020. (Gutierrez Decl., ^ 9). 16 On November 5, 2020, the Court issued its mling on the Parties' cross-motions for summary 17 adjudication, finding in favor of Plaintiffs. Specifically, the Court mled that "Plaintiffs were not properly 18 compensated for rest periods," and that "they are entitled to one additional hour of pay at their regular 19 rate of compensation for each day they were not properly compensated for rest periods." The Court fiirther mled that that Defendant's wage statements do not comply with Labor Code section 226(a). 20 (Gutierrez Decl., H 10). 21 On April 6, 2021, the parties participated in a mediation with Mark Rudy, a seasoned mediator 22 who is considered one of the best mediators in Califomia. The mediation led to a settlement agreement 23 memorialized in the Joint Stipulation of Class Action and PAGA Settlement. (Gutierrez Decl., ^11). 24 On July 29, 2021, the Court granted preliminary approval of the Class Action and PAGA 25 Settlement. (Gutierrez Decl., ^ ) . On August 26,2021, class administrator Simpluris mailed out the Class 26 Notice to 165 putative Class Members. By the opt-out deadline of October 12, 2021, Simpluris had 27 • On Febmary 3, 2020, this Court granted Class Certification pursuant to the Parties' stipulation. 28 MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT received zero opt-out forms and zero dispute forms. (Cooley Decl., 9, 10). 1 m. MATERIAL TERMS OF THE SETTLEMENT 2 As previously stated, the case settled after mediation with Mark Rudy, as memorialized in the 3 Joint Stipulation of Class Action and PAGA Settlement for the sum total of $3,900,000.00. The Total 4 Settlement Amount roughly equates to the potential damages for alleged rest period compensation claims, 5 and wage statement penalties, and attorneys' fees and costs, as identified in through the mediation process 6 and investigation, along with additional sums for civil penalties, administration costs and derivative 7 Labor Code penalties. The Parties' counsel and the mediator believe that the terms of the Settlement reflect a fair and equitable compromise between the Parties. (Gutierrez Decl., ^ 12). 8 A. Settlement Class 9 In the Agreement, the Settlement Class is defined as: 10 11 "Class" or "Settlement Class" shall include all non-exempt current and former employees of Primeritus who were employed by Primeritus in Califomia during the Class Period as 12 defined below, and who held the position of Investigator/skip tracer and participated in the Incentive Pay Plan that was the subject of the Action. 13 14 (Gutierrez Decl., Ex. A, Definitions, subpara. (2)). 15 B. Settlement Amounts 16 This is a common fimd settlement. The common fund is $3,900,000.00 (the "Total Settiement Amount"). Out of that fund, and subject to Court approval, the following will be paid: Administration 17 costs of $8,700.00 to Simpluris; attomey's fees to Class Counsel herein of $1,365,000.00 (35% of 18 common fiind); case cost of $22,057.52; a Service Payment to John Boudreau of Twenty-Five Thousand 19 Dollars ($25,000.00); One Hundred Thousand Dollars ($100,000.00) in PAGA penalties, pursuant to 20 Labor Code section 2698, et seq., with 75% of this portion being paid to the State of Califomia and the 21 remaining 25% distributed to PAGA Employees on a pro rata basis based on the number of shifts they 22 worked during the PAGA Period; and individual class settlement payments. (Ex. A, § D.). 23 Any unclaimed amount shall be paid to the State of Califomia to be placed in the State Controller's Unclaimed Property Fund in the name of the Settlement Class member. 24 C. Timing of Settlement Payout 25 Defendant will pay the common fund that arises from this Settlement in two installments. 26 Payment One, in the amount of Two Million Five Himdred Thousand Dollars ($2,500,000), shall occur 27 on or before Febmary 1, 2022, and the remainder of the Total Settlement Amount, One Million Four 28 MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT Hundred Thousand Dollars ($ 1,400,000) shall be made by Payment Two, which shall be made on or 1 before July 1, 2022. The PAGA payment, the Service Payment and the administrative fees incurred to 2 that point shall be paid in full, from the first payment. The balance of the first payment shall be distributed 3 pro rata to the Class Members and Class Counsel. The remaining payments owed shall be paid from the 4 second payment. Defendant will pay the applicable employer-side payroll taxes on the wage portion of 5 the settlement payments separately and in addition to the Total Settlement Amount. 6 D. Calculation of the Individual Settlement Amounts Plaintiffs and Defendant have agreed upon the following payment formula to resolve all disputes 7 of the Settlement Class during the Settlement Period: After deducting for the amounts for Settlement 8 Administrator's fees. Plaintiffs Service Payment, the PAGA Fund, and Class Counsel's awarded 9 attomeys' fees and costs, the balance of the Total Settlement Payment (the "Net Settlement Amount") 10 will be distributed as follows: 11 (a) Each Class Participant's "Individual Class Settlement Payment" for this time 12 period will be based on a ratio of the Class Participant's Individual Shifts at 13 Issue. The Individual Class Settlement Payment for this period will be calculated by dividing the Class Participant's Individual Shifts at Issue by the 14 total shifts worked by Class Participants. A portion of this resulting amount will be subject to tax withholdings, as described below. 15 (b) Participants Who Signed Settlement Agreements during Pendency of Action 16 Class members who signed settlement agreements during the pendency of the 17 action shall receive 50% of the calculated Individual Class Settlement Payment, less the amount previously received as a settlement payment jfrom Primeritus in 18 connection with a release; but in no event shall any individual receive less than $250.00. 19 (Ex. A,§D(4)). 20 E. Narrowly Tailored Release 21 In exchange for the benefits of the Settlement, Settlement Class Members who have not timely 22 and properly opted out of the Settlement vnll release claims that they may have relating to the facts 23 alleged in the operative Complaint, as follows: All claims alleged or that could have been alleged based on the operative facts pled in 24 the original Complaint or operative First Amended Complaint. The release of the Class Claims shall be effective at all times during the entirety of the Class Period. "Released 25 PAGA Claims" means all PAGA Claims that were actually alleged or could have been 26 alleged in the original Complaint or First Amended Complaint in this Action by Named Plaintiff, on behalf of the State of Califomia, himself, and PAGA Employees. The 27 release of the Released PAGA Claims shall be effective during the entirely of the PAGA Period. 28 -4- MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT 1 (Ex. A, § A (36)). 2 This release is narrowly tailored to the allegations asserted by Plaintiffs. In addition. Class 3 Representative John Boudreau will release any known or unknown claims he may have had against 4 PrimeriUis. (Ex. A, § D (1)). 5 rv. THE SETTLEMENT MERITS FINAL APPROVAL 6 The Parties established a fair, adequate, and reasonable settlement because it provides substantial 7 benefits to the Class. The faimess, adequacy, and reasonableness of the settlement is illustrated by the Class Members' overwhelmingly positive response to the Settlement Notice. Significantly, out of 165 8 Participating Class Members, not a single individual timely opted out of the Settlement. Additionally, no 9 objections to the Settlement were received. (Cooley Decl., tH 9, 10). Such excellent results warrant final 10 approval ofthe Settlement. \ 11 A. Legal Standard 12 Class actions are govemed by the Califomia Rules of Court ("CRC"), Rules 3.760 through 13 3.771. CRC Rule 3.769 govems the settlement of class actions. Specifically, CRC Rule 3.769(a) states that Court approval after hearing is required of any settlement. Court approval of a class action 14 settlement is accomplished by first conducting a preliminary approval hearing (CRC Rule 3.769(c)), and 15 then conducting a subsequent final approval hearing (CRC Rule 3.769(e)), as to the faimess and adequacy 16 of the settlement reached. The Court must then conduct an inquiry into the faimess of the settlement at 17 a final approval hearing. (CRC Rule 3.769(g).) 18 Public policy favors settlement over continued class-action litigation. {See, e.g., Linder v. 19 Thrifty Oil Co. (2000) 23 Cal. 4* 429, 434 ("Courts have long acknowledged the importance ofclass 20 actions as a means to prevent a failure of justice in our judicial system.") Califomia Rules of Court, Rule 3.769(a) provides: "A settlement or compromise of an entire class action, or of a cause of action in a 21 class action, or as to a party, requires the approval of the court after hearing." In determining whether a 22 class settlement is fair, adequate and reasonable, the tiial court consider 23 relevant factors, such as: 24 [T]he strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintain class action status through trial, the amount offered 25 in settlement the extent of discovery completed and the state of the proceedings, the 26 experience and views of coimsel, the presence of a govemmental participant and the reaction of the class members to the proposed settlement. 27 {Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4* 224, 244 - 245, citing Dunk v. Ford Motor 28 -5- MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT Company (1996) 48 Cal.App.4* 1794, 1801). 1 Due regard should be given to what is otherwise a private consensual agreement between the 2 parties. {Dunk, supra, 48 Cal.App. at pg. 1801). The inquiry "must be limited to the extent necessary to 3 reach a reasoned judgment that the agreement is not the product offraudor overreaching by, or collusion 4 between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate 5 to all concemed." {Id., citing Officers for Justice v. Civil Service Com'n of City and County of San 6 Francisco (1982) 688 F.2d 615, 625). There is a presumption of faimess where, as here: (1) the settlement is reached through arm's 7 -length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act 8 intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small." 9 {Dunk, supra, 48 Cal.App.4* at p. 1802). 10 The record reflects that all of these elements are present here, as discussed below. The terms of 11 the Settlement are fair; the Settlement was the product of extensive and hard-fought adversarial 12 negotiations between the parties before a well-respected neutral mediator; the parties engaged in 13 discovery for a number of months before the settlement negotiations; Plaintiffs' attomeys are experienced in handling wage-and-hour class action litigation; and settlement Class Members overwhelmingly favor 14 the Settlement. 15 Accordingly, there are substantial grounds for the Court granting this motion. 16 B. Class Members Were Notified of the Settlement and Fairness Hearing 17 Califoraia law requires that the best practicable means be used in notifying members of a class 18 action, depending on the particular circumstances of the case. {Home Savings & Loan Assoc. v. Superior 19 Court (1974) 42 Cal.App.3d 1006, 1012). Here, the Court specifically approved the parties' notice 20 procedure in its July 29, 2021 Order, subject to Class Counsel including specific dates in the Notice. (Order, pg. 4). 21 In accordance with the Settlement and the Court's July 29, 2021 Order, counsel for Defendant 22 provided Simpluris with the relevant Class Information on August 12, 2021. (Cooley Decl., t 5). This 23 consisted of 165 Class Member names, contact information and records of the number of shifts each 24 Class Member worked. {Id.). 25 On August 26,2021, Simpluris mailed Notice Packets via United States Postal Service First Class 26 Mail to the 165 Class Members listed on the Class List, which fairly apprised the Class Members of the terms of the proposed compromise and the options open to dissenting class members. (Cooley 27 Declaration, ^ 7). Prior to mailing Notice Packets, and in order to obtain the most current mailing address 28 -6- MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT for Class Members, Simpluris processed the Class List addresses through the National Change of Address 1 database maintained by the U.S. Postal Service. {Id.,^ 6) This process updated the addresses for the Class 2 Members who filed a USPS change of address card within the last four years. {Id.). The Notice Packet 3 advised Class Members of the Objection and Request for Exclusion deadline of October 12, 2021. 4 (Cooley Decl., 19). 5 Simpluris reports that as of October 12, 2021, Simpluris received zero (0) opt-out forms. (Cooley 6 Decl., 19). Also, Simpluris did not receive any Class Member disputes regarding credited shifts worked. 7 (Cooley Decl, H 10» see Ex. B to Cooley Decl.). Simpluris reports a participation rate of 165 out of 165 Class Members, or 100% participation. (Cooley Decl., *\ 12). These Participating Class Members will, 8 on average, receive $14,553.33 before taxes and withholdings, with the highest estimated Individual 9 Settlement Payment amounting to $55,965.40. (Cooley Decl., t 12). 10 As demonstrated, the Class Notice met the applicable requirements of the law and court mles and 11 satisfied due process requirements. The Settlement Class received adequate notice of the proposed 12 Settlement and an opportunity to opt out or to object. The Class overwhelmingly approved the 13 Settlement. C. The Value of the Settlement Favors Final Approval 14 The Settlement herein is well within the range of reasonableness. Each Class Member's 15 anticipated Settlement Payment, estimated to average about $14,553.33 per class member net of fees and 16 costs, is on the order of the alleged unpaid rest break compensation and wage statement penalties 17 identified in the comprehensive audit and investigation of the amounts which were potentially at issue in 18 the litigation. (Gutierrez Decl., 19). 19 The investigation and discovery process in this matter revealed that potential rest period and 20 unproductive time liability in the matter, based on the time records and in light of the Defendant's written policies, was tabulated to be on the order of $3,630,500.00 (Gutierrez Decl., t 18). Additionally, the 21 potential wage statement liability in the matter, based on wage statements, was tabulated to be on the 22 order of $217,800.00. Finally, the discovery and mediation process discemed that the other, derivative 23 and PAGA Labor Code potential Hability in the matter was in the order of $953,718.00. {Id.). These 24 categories of alleged violations are, in aggregate, around $4,802,018.00. {Id.). 25 Labor Code section 203 provides, in relevant part, that "[i]f an employer willfully fails to pay, 26 without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 202, and 205.5, any 27 wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; 28 MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT but the wages shall not continue for more than 30 days." Cal. Lab. Code § 203 (emphasis added). 1 Further, Labor Code § 2698 et seq. (the "PAGA") provides for a mechanism for Plaintiff to seek 2 an award of civil penalties on behalf of the State of Califomia, which any such penalties recovered being 3 split 75% to the State of Califoraia, and 25% to the "aggrieved employees." Cal. Lab. Code § 2699(i). 4 However, given that "a court may award a lesser amount than the maximum civil penalty amount 5 specified by [the PAGA] if, based on the facts and circumstances of the particular case, to do otherwise 6 would result in an award that is unjust, arbitrary, and oppressive, or confiscatory," there is significant 7 uncertainty regarding an award of penalties pursuant to continued litigation. The Settlement here allocates $100,000.00 infiindsto PAGA penalties. (Ex. A, § D (3)). 8 Class Counsel believes that the Settlement is fair and reasonable. They approximate the estimated 9 damages allegedly suffered by each Class Member as identified through the discovery and investigation 10 process and provides for additional consideration above and beyond that amount for penalties alleged in 11 the action. {See further analysis of settlement valuation, Gutierrez Decl., \ 18). 12 Where a proposed settlement appears to be the product of serious, informed, non-collusive 13 negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class 14 representatives or segments of the class, and falls within the range of possible approval, then the court should grant final approval. (See 4 Newberg on Class Actions (4th ed. 2002) § 11.25). 15 Here, the Settlement will result in a substantial benefit to all Class Members. The total settlement 16 is $3,900,000.00. The total settlement amount is in excess of eighty-one percent (81%) of the total 17 potential recovery. After deducting the requested amounts for attomey's fees, settlement administrator 18 fees, and actual costs for Class Counsel, the Service Payment to the Class Representative, and the PAGA 19 payment (including the State of Califomia's portion), the net settlement amount to be divided among the 20 class will be approximately $2,401,300.00, with each settling Class Member receiving approximately $14,553.33.00. (Cooley Decl., t 12). 21 D. The Settlement is the Product of Non-Collusiye, Arm's-Length and Informed 22 Negotiations 23 Califomia courts recognize that "a presumption of faimess exists where ... [a] settlement is 24 reached through arm's-length bargaining.'''' {Wershba, supra, 91 Cal.App.4th at 245.) In this case, the 25 Settlement was reached after a full day of mediation with an experienced class-action mediator. Prior to 26 the mediation, the parties exchanged written discovery requests, responses, and documents. Defendant 27 produced substantial documentation including actual payroll records and data of the Class Members, for mediation purposes. In reaching the Settlement, counsel on both sides relied on their respective 28 MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT substantial litigation experience in similar employment class actions. Plus, information gleaned from 1 investigation and the discovery processes informed Class Counsel's assessment of the strengths and 2 weaknesses of the case and the benefits of the Settlement. (Gutierrez Decl., tH 1 14, 15, 18). 3 E. Considerable Discovery and Investigation Completed to Warrant Final Approval 4 Class Counsel have conducted investigation, discovery, and research during the prosecution of 5 the Action. Such efforts included, among other things: (a) conducting a thorough pre-filing investigation; 6 (b) propounding comprehensive sets of written discovery requests and taking multiple depositions; (c) 7 inspecting and analyzing data and documents produced by Defendants pertaining to Plaintiff and the class members; (d) interviewing class members; (e) analyzing the legal arguments made by Defendcint; 8 (f) preparing an analysis of potential class-wide damages and constmcting a damages model; 9 (g) researching the applicable law with respect to the claims asserted in this Action and the potential 10 defenses thereto. Moreover, the Parties filed cross-motions for summary adjudication, which resolved 11 for purposes ofthe trial court proceedings a number of disputed legal issues raised in the Action relating 12 to liability. (Gutierrez Decl., t 11). 13 Thus, the Parties have engaged in sufficient investigation, discovery, and research to assess the 14 relative merits of the claims of the Class and of Defendant's defenses to them. Accordingly, this Court may find that this Settlement was intelligently reached and grant final approval. 15 F. The Risks Inherent in Continued Litigation Warrant Final Approval 16 To assess the faimess of a class action settlement, the Court must weigh the immediacy and 17 certainty of proceeds paid under a settlement against the risks inherent in continuing the litigation. 18 {Dunk, 4S Cal App. 4th at 1801-02.) This factor supports final approval here because the 19 Settlement affords Class Members substantial, prompt relief while avoiding significant legal and factual 20 hurdles that otherwise might prevent the Class Members from obtaining any recovery. Primeritus never admitted liability for Plaintiffs' claims and vigorously opposed such claims. 21 The Plaintiff and Class Counsel believe that the claims, allegations, and contentions asserted in 22 the action have merit. However, the Plaintiff and Class Counsel recognize and acknowledge the expense 23 and delay of the lengthy proceedings necessary to prosecute the Action against Defendant through trial 24 and appeals. Furthermore, Class Counsel have taken into account the risks inherent in any litigation, and 25 the additional risk of continued litigation in complex actions such as this, including the Defendant's 26 threatened appeal. Uncertainty in Plaintiffs' ability to secure from a jury a better outcome relative to the 27 settlement amount the parties have agreed upon, as well as a significant delay in Class Members receiving settlement awards after a trial for damages presented significant risk in the matter. 28 -9- MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT Moreover, Class Counsel have also considered the potential for reduction (or elimination) of 1 penalties recoverable under PAGA, given that case law permits a discretionary reduction to said penalties 2 where "unjust, arbitrary, oppressive or confiscatory." Similarly, an award of penalties under Labor Code 3 section 203 requires a demonsfration of "willfulness" on the part of the Defendant. Moreover, an action 4 for violation of Labor Code § 226.7 for violation of rest break mandates do not entitle employees to 5 pursue the derivative waiting time and wage statement penalties. {See Naranjo v. Spectrum Security 6 Services, Inc. (2019) 40 Cal. App. 5* 444, 474). In light of the preceding potential risks. Class Counsel believe that the Settlement confers 7 substantial benefits upon the Plaintiff and each of the members of the Certified Class, and that an 8 independent review of this Joint Stipulation of Class Action and PAGA Settlement by the Court in the 9 approval process will confirm this conclusion. Based on their own independent investigation and 10 evaluation. Class Counsel have determined that the Settlement set forth in the Stipulation is in the best 11 mterests of the Plaintiffs. (Gutierrez Decl., t 20). 12 G. The Complexity, Expense, and Likely Duration of Continued Litigation Favors Final 13 Approval of Settlement Another factor considered by courts in determining whether a settlement warrants final 14 approval is the complexity, expense, and likely duration of the litigation in the absence of 15 settlement. (See Dunk, 48 Cal.App.4th at 1801). In applying this factor, a court should weigh the benefits 16 of the settlement against the expense and delay involved in achieving an equivalent or more favorable 17 resuU attt-ial.{SeeLusby v. GameStop Inc. (N.D.Cal. March 31, 2015) 2015 WL 1501095, *6). 18 This case has been determined by the Court to be a complex case. Class action employment cases 19 can be expensive and time-consuming to prosecute. Continued litigation of this action against Primeritus 20 would likely be complex, expensive, and of an extended duration. The Settlement averts the need for a lengthy trial process and possible appeal. 21 H. The Experience and Views of Counsel Favor Final Approval 22 Class Counsel support the Settlement as fair, adequate, reasonable, and in the best interests of the 23 Classes as a whole. As previously detailed to this Court, Class Counsel believe this Settlement is a fair 24 and proper result for Class Members. Class Counsel has experience not only in class actions and 25 employment litigation, but specifically in wage and hour class actions. (Gutierrez Decl., T] 21, 26 - 32). 26 Plaintiffs' lawyers have been appointed Class Counsel in many wage-and-hour class action cases. {Id.) 27 Furthermore, Defendant was represented by Littler Mendelson, a law firm with a significant wage and hour defense practice in Califoraia and nationally. Counsel's experience supports the Court's final 28 -10- MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT approval of the settlement agreement. 1 The proposed settlement provides substantial benefit to the Class and was reach after substantial 2 litigation. The opinions of the parties' attomeys, as qualified and well-informed counsel, are entitied to 3 significant weight. {See Dunk 4S Cal. App. 4th at 1802). 4 I. The Overwhelmingly Positive Reaction of Class Members Supports Final Approval 5 Courts also evaluate the reaction of class members to defendants the reasonableness of the 6 settlement, and whether it should be approved as fair, adequate, and reasonable. In this action, not a single 7 class member has opted out or objected to the Settlement. (Cooley Decl., H 9,10). This overwhelmingly positive response from the class leads to a presumption that the settlement is fair and strongly supports 8 final approval of the Settlement. {Dunk supra, 48 Cal.App.4* at 1801 - 1802). 9 J. Presence of Governmental Participant 10 There is no govemmental "participant" per se to this litigation, because no govemmental entity 11 is a party to the action. However, on October 21, 2021, Plaintiffs' counsel submitted the proposed 12 settlement to the LWDA pursuant to Labor Code section 2699(1)(2). (Gutierrez Decl., t). The LWDA 13 has not objected to the settlement. {Id.) Without an objection by the LWDA to the settlement, this factor 14 weighs in favor of granting final approval. K. The Service Payment to the Named Plaintiff is Reasonable 15 Enhancement payments "are fairly typical in class action cases." {Cellphone Termination Fee 16 Cases (2010) 186 Cal. App. 4th 1380, 1393 (affirming incentive awards of $10,000); Rodriguez v. West 17 Publishing Corp. (9* Cir. 2009) 563 F.3d 948, 958, citing 4 Newberg on Class Actions (4th ed. 2002) § 18 11:38, and Eisenberg & Miller, Incentive Awards to Class Action Plaintiffs: An Empirical Study, 53 19 UCLA L. Rev. 1303 (2006). Enhancement payments "are intended to compensate class representatives 20 for work done on behalf of the class, to make up for financial or reputational risk undertaken in bringing the action, and, sometimes, to recognize their willingness to act as a private attomey 21 general." Rodriguez, 563 F.3d at 958-59. "[T]he rationale for making enhancement or incentive awards 22 to named plaintiffs is that they should be compensated for the expense or risk they have incurred in 23 conferring a benefit on other members of the class." Clark v. American Residential Services LLC (2009) 24 175 Cal. App. 4th 785. Courts routinely approve incentive awards to compensate plaintiffs for the 25 services they provide and the risks they incur during class action litigation. (See Bell v. Farmers Ins. 26 Exchange (2004) 115 Cal.App.4th 715, 726 (upholding "service payments" to named plaintiffs for their 27 efforts in bringing the case).) Here, the proposed service payment of $25,000 to John Boudreau is intended to recognize his 28 -11- MOTION FOR FINAL APPROVAL OF CLASS ACTION AND PAGA SETTLEMENT substantial initiative, risk, and effort on behalf of the Class. The 165 current and former Primeritus 1 employees who make up the Certified Class will share a $3.9 million settlement fund due entirely to the 2 efforts and commitment of John Boudreau and Class Counsel. It is also reflective of the amount of time 3 Mr. Boudreau spent engaged in the case and acting as a class and PAGA representative. 4 Such awards are particularly appropriate in employment class actions because the plaintiff is 5 frequently a present or past employee whose present position or employment credentials or 6 recommendation may be at risk by reason of having prosecuted the suit, who therefore lends his or her 7 name and efforts to the prosecution of litigation at some personal peril. {See Truly Nolen of America v. Superior Court (2012) 208 Cal.App.4* 487,508 - 509) ("Class and representative actions are not brought 8 by the faint of heart. It takes courage to stand up to a large employer; this is especially so when the 9 employee challenges his or her current employer. Employers often retaliate against current and former 10 employees."); see also Thomas v.