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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
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12 WADE SHUMWAY, an individual, JOHANNA Case No. 18CV330368
TOVAR, an individual, on behalf of themselves,
13 and on behalf of others similarly situated, ORDER RE: MOTION FOR FINAL
APPROVAL OF CLASS ACTION
14 Plaintiffs, SETTLEMENT; JUDGMENT
15 ene
16 INTUIT, INC., a Delaware corporation, and
DOES 1-100, inclusive,
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Defendants.
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19 The above-entitled matter came on for hearing on Friday, June 26, 2020, at 9:00 a.m. in
20 Department 3, the Honorable Patricia M. Lucas presiding. The Court reviewed and considered
21 the written submissions filed by the parties and issued a tentative ruling on Thursday, June 25,
22 2020. No party contested the tentative ruling. Furthermore, although Department 3 was open at
25 the time of the hearing so that class members could appear and object to the settlement, no one
24 appeared. Plaintiffs’ counsel appeared by telephone and confirmed that, to counsel’s knowledge,
25 no class members had objected. Therefore, in accordance with the tentative ruling as modified
26 by information requested by the Court and provided by counsel after the hearing concerning cy
27 pres recipients and the names of class members who requested exclusion, the Court hereby
28 orders, adjudges, and decrees:
ORDER RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; JUDGMENT
I. INTRODUCTION
This is a putative class action arising out of various alleged Labor Code violations
brought by plaintiffs Wade Shumway (“Shumway”) and Johanna Tovar (“Tovar”) (collectively,
“Plaintiffs”). According to the allegations of the Second Amended Class Action Complaint
(“SAC”), filed on April 2, 2019, defendant Intuit, Inc. (“Defendant”) has a program of
unlawfully rounding employee time to the nearest five minutes, resulting in underpayment of all
wages owed. (SAC, § 16.) Intuit also has a program in which it sets aside a percentage of base
payroll totaling millions of dollars to fund its “Spotlight Program.” (Jd. at § 18.) The Spotlight
Program is an employee recognition program pursuant to which certain employees receive
10 bonuses. (Id. at § 19.) Defendant does not include these bonuses in the regular rate of pay. (Id.
11 at§ 22.)
12 The SAC sets forth the following causes of action: (1) Failure to Pay all Minimum and
13 Overtime Wages (by Shumway and Tovar); (2) Failure to Pay all Overtime Wages Due to
14 Miscalculation of the Regular Rate of Pay (by Shumway and Tovar); (3) Failure to Provide
15 Accurate Itemized Wage Statements (by Shumway); (4) Failure to Pay all Wages When Due (by
16 Shumway and Tovar); (5) Violation of California’s UCL (by Shumway and Tovar); and
17 (6) PAGA (by “Plaintiff”).
18 The parties have reached a settlement. On February 14, 2020, the court granted
19 preliminary approval of the settlement. Plaintiffs now move for final approval of the settlement.
20 Il. LEGAL STANDARD
21 Generally, “questions whether a settlement was fair and reasonable, whether notice to the
22 class was adequate, whether certification of the class was proper, and whether the attorney fee
25 award was proper are matters addressed to the trial court’s broad discretion.” (Wershba v. Apple
24 Computer, Inc. (2001) 91 Cal.App.4th 224, 234-235, citing Dunk v. Ford Motor Co. (1996) 48
25 Cal.App.4th 1794.)
26 In determining whether a class settlement is fair, adequate and reasonable, the
trial court should consider relevant factors, such as “the strength of plaintiffs’
27 case, the risk, expense, complexity and likely duration of further litigation, the
risk of maintaining class action status through trial, the amount offered in
28 settlement, the extent of discovery completed and the stage of the proceedings, the
ORDER RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; JUDGMENT
experience and views of counsel, the presence of a governmental participant, and
the reaction of the class members to the proposed settlement.”
(Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at pp. 244-245, citing Dunk, supra, 48
Cal.App.4th at p. 1801 and Officers
for Justice v. Civil Service Com’n, etc. (9th Cir. 1982) 688
F.2d 615, 624.)
“The list of factors is not exclusive and the court is free to engage in a balancing and
weighing of factors depending on the circumstances of each case.” (Wershba v. Apple
Computer, Inc., supra, 91 Cal.App.4th at p. 245.) The court must examine the “proposed
settlement agreement to the extent necessary to reach a reasoned judgment that the agreement is
not the product of fraud or overreaching by, or collusion between, the negotiating parties, and
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that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.” (/bid.,
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quoting Dunk, supra, 48 Cal.App.4th at p. 1801 and Officers for Justice v. Civil Service Com’n,
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etc., supra, 688 F.2d at p. 625, internal quotation marks omitted.)
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The burden is on the proponent of the settlement to show that it is fair and
14 reasonable. However “a presumption of fairness exists where: (1) the settlement
is reached through arm’s-length bargaining; (2) investigation and discovery are
15 sufficient to allow counsel and the court to act intelligently; (3) counsel is
experienced in similar litigation; and (4) the percentage of objectors is small.”
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(Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 245, citing Dunk, supra, 48
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Cal.App.4th at p. 1802.)
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Til. DISCUSSION
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The case has been settled on behalf of the following two subclasses:
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1 “Prior Release” subclass (“PR Class Members”) comprised of 211 former
21 hourly, non-exempt employees who worked for Defendant in California
and signed release agreements sent by Defendant in February 2019 related
22 to some of the claims in this lawsuit in exchange for a $150 payment; and
25 “No Prior Release” subclass (“NPR Class Members”), comprised of all
hourly, non-exempt employees employed by Intuit in California from June
24 20, 2014, through the Preliminary Approval Date who have not previously
signed any release covering the claims alleged in the Action.
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As discussed in connection with preliminary approval, Defendant will pay a total of
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$2,400,000. This amount includes a monetary payment component totaling $1,864,650 to be
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paid by Defendant, a prior payment component of $235,350 that Defendant previously paid in
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February 2019 in an effort to resolve the case, and a prospective relief component valued by the
ORDER RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; JUDGMENT
parties at $300,000 attributable to Defendant’s decision to include the value of spotlight awards
in its employees’ regular rate calculations from and after January 2019. The monetary payment
component of the settlement includes attorneys’ fees of $800,000, costs of $20,000, settlement
administration costs of $30,000, service awards of $20,000 ($10,000 for each class
representative), and a PAGA award of $60,000 ($45,000 of which will be paid to the LWDA).
Checks not cashed for 120 days from the date of issuance will become void and the unclaimed
funds will be transmitted as follows: 50% to Kupanda and 50% to Race Forward.
The settlement administrator mailed class notices to all class members. (Declaration of
Amanda J. Myette [in] Support of Plaintiffs’ Motion for Final Approval of Class Settlement
10 (“Myette Decl.”), 49.) Ultimately, 37 notice packets remain undeliverable. (/d. at 911.) As of
11 June 1, 2020, there have been no objections to the settlement and six requests for exclusion from
12 the following individuals: Jessica Parker Bartlett, David Gonzalez, Nicholas Maltbie, Jessica
13 Ann Sepulveda, Tiffiny Shortino, and Michael Tullio. (Myette Decl., §§ 16 and 18;
14 Supplemental Declaration of Craig Nicholas, { 6.)
15 The average settlement payment is estimated to be $264.32 and the highest payment will
16 be approximately $1,683.35. (Myette Decl., § 17.) The Court previously found the proposed
17 settlement is fair, and continues to make that finding for purposes of final approval.
18 Plaintiffs request class representative incentive awards of $10,000 for each of the two
19 class representatives, Wade Shumway and Johanna Tovar.
20 The rationale for making enhancement or incentive awards to named plaintiffs is
that they should be compensated for the expense or risk they have incurred in
21 conferring a benefit on other members of the class. An incentive award is
appropriate if it is necessary to induce an individual to participate in the suit.
22 Criteria courts may consider in determining whether to make an incentive award
include: 1) the risk to the class representative in commencing suit, both financial
25 and otherwise; 2) the notoriety and personal difficulties encountered by the class
representative; 3) the amount of time and effort spent by the class representative;
24 4) the duration of the litigation and; 5) the personal benefit (or lack thereof)
enjoyed by the class representative as a result of the litigation. These “incentive
25 awards” to class representatives must not be disproportionate to the amount of
time and energy expended in pursuit of the lawsuit.
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27 (Cellphone Termination Fee Cases (2010) 186 Cal.App.4th 1380, 1394-1395, quotation marks,
28 brackets, ellipses, and citations omitted.)
ORDER RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; JUDGMENT
The class representatives have submitted declarations detailing their participation in the
lawsuit. Shumway states that he spent a considerable amount of time of the case, with activities
including giving class counsel information regarding Defendant’s policies and practices,
preparing for and attending deposition, assisting with discovery, and participating in two full-day
mediations. (Declaration of Wade Shumway in Support of Motion for Final Approval of Class
Settlement, 6.) Tovar states the same, with the exception that she only participated in one day
of mediation. (Declaration of Johanna Tovar in Support of Motion for Final Approval of Class
Settlement, § 6.) The Court finds that the incentive awards are warranted and they are approved.
The Court also has an independent right and responsibility to review the requested
10 attorneys’ fees and only award so much as it determines reasonable. (See Garabedian v. Los
11 Angeles Cellular Telephone Co. (2004) 118 Cal.App.4th 123, 127-128.) Plaintiffs’ counsel
12 requests attorneys’ fees in the amount of $800,000 (one-third of the total settlement fund).
13 Plaintiffs’ counsel provides evidence demonstrating a lodestar of $875,000, which results in a
14 negative multiplier. (Declaration of Noam Glick in Support of Plaintiffs Wade Shumway and
15 Johanna Tovar’s Motion for Final Approval of Class Settlement (“Glick Decl.”), § 4.) Therefore
16 the attorneys’ fees are reasonable and they are approved.
17 Plaintiffs request $20,000 for costs. This is slightly less than the actual incurred costs of
18 $20,065.31. (Glick Decl., {] 8; Declaration of Craig Nicholas in Support of Plaintiffs Wade
19 Shumway and Johanna Tovar’s Motion for Final Approval of Class Settlement, J 17.) The
20 requested costs are approved. The court also approves the $30,000 requested for settlement
21 administration costs. (See Myette Decl., § 19)
22 The motion for final approval of class action settlement is GRANTED.
25 Pursuant to Rule 3.769, subdivision (h), of the California Rules of Court, this Court
24 retains jurisdiction over the parties to enforce the terms of the Settlement Agreement, and the
25 final Order and Judgment.
26 The court sets a compliance hearing for December 18, 2020 at 10:00 A.M. in Department
27 3. At least ten court days before the hearing, class counsel and the settlement administrator shall
28 submit a summary accounting of the net settlement fund identifying distributions made as
ORDER RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; JUDGMENT
ordered herein, the number and value of any uncashed checks, amounts remitted to Defendant,
the status of any unresolved issues, and any other matters appropriate to bring to the Court’s
attention. Counsel may appear at the compliance hearing telephonically.
Dated: June 30, 2020 ne vee Om Che cag
Patricia M. Lucas
Judge of the Superior Court
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ORDER RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; JUDGMENT
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SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA 10 11 12 WADE SHUMWAY, an individual, JOHANNA Case No. 18CV330368 TOVAR, an individual, on behalf of themselves, 13 and on behalf of others similarly situated, ORDER RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION 14 Plaintiffs, SETTLEMENT; JUDGMENT 15 ene 16 INTUIT, INC., a Delaware corporation, and DOES 1-100, inclusive, 17 Defendants. 18 19 The above-entitled matter came on for hearing on Friday, June 26, 2020, at 9:00 a.m. in 20 Department 3, the Honorable Patricia M. Lucas presiding. The Court reviewed and considered 21 the written submissions filed by the parties and issued a tentative ruling on Thursday, June 25, 22 2020. No party contested the tentative ruling. Furthermore, although Department 3 was open at 25 the time of the hearing so that class members could appear and object to the settlement, no one 24 appeared. Plaintiffs’ counsel appeared by telephone and confirmed that, to counsel’s knowledge, 25 no class members had objected. Therefore, in accordance with the tentative ruling as modified 26 by information requested by the Court and provided by counsel after the hearing concerning cy 27 pres recipients and the names of class members who requested exclusion, the Court hereby 28 orders, adjudges, and decrees: ORDER RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; JUDGMENT I. INTRODUCTION This is a putative class action arising out of various alleged Labor Code violations brought by plaintiffs Wade Shumway (“Shumway”) and Johanna Tovar (“Tovar”) (collectively, “Plaintiffs”). According to the allegations of the Second Amended Class Action Complaint (“SAC”), filed on April 2, 2019, defendant Intuit, Inc. (“Defendant”) has a program of unlawfully rounding employee time to the nearest five minutes, resulting in underpayment of all wages owed. (SAC, § 16.) Intuit also has a program in which it sets aside a percentage of base payroll totaling millions of dollars to fund its “Spotlight Program.” (Jd. at § 18.) The Spotlight Program is an employee recognition program pursuant to which certain employees receive 10 bonuses. (Id. at § 19.) Defendant does not include these bonuses in the regular rate of pay. (Id. 11 at§ 22.) 12 The SAC sets forth the following causes of action: (1) Failure to Pay all Minimum and 13 Overtime Wages (by Shumway and Tovar); (2) Failure to Pay all Overtime Wages Due to 14 Miscalculation of the Regular Rate of Pay (by Shumway and Tovar); (3) Failure to Provide 15 Accurate Itemized Wage Statements (by Shumway); (4) Failure to Pay all Wages When Due (by 16 Shumway and Tovar); (5) Violation of California’s UCL (by Shumway and Tovar); and 17 (6) PAGA (by “Plaintiff”). 18 The parties have reached a settlement. On February 14, 2020, the court granted 19 preliminary approval of the settlement. Plaintiffs now move for final approval of the settlement. 20 Il. LEGAL STANDARD 21 Generally, “questions whether a settlement was fair and reasonable, whether notice to the 22 class was adequate, whether certification of the class was proper, and whether the attorney fee 25 award was proper are matters addressed to the trial court’s broad discretion.” (Wershba v. Apple 24 Computer, Inc. (2001) 91 Cal.App.4th 224, 234-235, citing Dunk v. Ford Motor Co. (1996) 48 25 Cal.App.4th 1794.) 26 In determining whether a class settlement is fair, adequate and reasonable, the trial court should consider relevant factors, such as “the strength of plaintiffs’ 27 case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in 28 settlement, the extent of discovery completed and the stage of the proceedings, the ORDER RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; JUDGMENT experience and views of counsel, the presence of a governmental participant, and the reaction of the class members to the proposed settlement.” (Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at pp. 244-245, citing Dunk, supra, 48 Cal.App.4th at p. 1801 and Officers for Justice v. Civil Service Com’n, etc. (9th Cir. 1982) 688 F.2d 615, 624.) “The list of factors is not exclusive and the court is free to engage in a balancing and weighing of factors depending on the circumstances of each case.” (Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 245.) The court must examine the “proposed settlement agreement to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and 10 that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.” (/bid., 11 quoting Dunk, supra, 48 Cal.App.4th at p. 1801 and Officers for Justice v. Civil Service Com’n, 12 etc., supra, 688 F.2d at p. 625, internal quotation marks omitted.) 13 The burden is on the proponent of the settlement to show that it is fair and 14 reasonable. However “a presumption of fairness exists where: (1) the settlement is reached through arm’s-length bargaining; (2) investigation and discovery are 15 sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.” 16 (Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 245, citing Dunk, supra, 48 17 Cal.App.4th at p. 1802.) 18 Til. DISCUSSION 19 The case has been settled on behalf of the following two subclasses: 20 1 “Prior Release” subclass (“PR Class Members”) comprised of 211 former 21 hourly, non-exempt employees who worked for Defendant in California and signed release agreements sent by Defendant in February 2019 related 22 to some of the claims in this lawsuit in exchange for a $150 payment; and 25 “No Prior Release” subclass (“NPR Class Members”), comprised of all hourly, non-exempt employees employed by Intuit in California from June 24 20, 2014, through the Preliminary Approval Date who have not previously signed any release covering the claims alleged in the Action. 25 As discussed in connection with preliminary approval, Defendant will pay a total of 2 $2,400,000. This amount includes a monetary payment component totaling $1,864,650 to be 2 paid by Defendant, a prior payment component of $235,350 that Defendant previously paid in 2 February 2019 in an effort to resolve the case, and a prospective relief component valued by the ORDER RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; JUDGMENT parties at $300,000 attributable to Defendant’s decision to include the value of spotlight awards in its employees’ regular rate calculations from and after January 2019. The monetary payment component of the settlement includes attorneys’ fees of $800,000, costs of $20,000, settlement administration costs of $30,000, service awards of $20,000 ($10,000 for each class representative), and a PAGA award of $60,000 ($45,000 of which will be paid to the LWDA). Checks not cashed for 120 days from the date of issuance will become void and the unclaimed funds will be transmitted as follows: 50% to Kupanda and 50% to Race Forward. The settlement administrator mailed class notices to all class members. (Declaration of Amanda J. Myette [in] Support of Plaintiffs’ Motion for Final Approval of Class Settlement 10 (“Myette Decl.”), 49.) Ultimately, 37 notice packets remain undeliverable. (/d. at 911.) As of 11 June 1, 2020, there have been no objections to the settlement and six requests for exclusion from 12 the following individuals: Jessica Parker Bartlett, David Gonzalez, Nicholas Maltbie, Jessica 13 Ann Sepulveda, Tiffiny Shortino, and Michael Tullio. (Myette Decl., §§ 16 and 18; 14 Supplemental Declaration of Craig Nicholas, { 6.) 15 The average settlement payment is estimated to be $264.32 and the highest payment will 16 be approximately $1,683.35. (Myette Decl., § 17.) The Court previously found the proposed 17 settlement is fair, and continues to make that finding for purposes of final approval. 18 Plaintiffs request class representative incentive awards of $10,000 for each of the two 19 class representatives, Wade Shumway and Johanna Tovar. 20 The rationale for making enhancement or incentive awards to named plaintiffs is that they should be compensated for the expense or risk they have incurred in 21 conferring a benefit on other members of the class. An incentive award is appropriate if it is necessary to induce an individual to participate in the suit. 22 Criteria courts may consider in determining whether to make an incentive award include: 1) the risk to the class representative in commencing suit, both financial 25 and otherwise; 2) the notoriety and personal difficulties encountered by the class representative; 3) the amount of time and effort spent by the class representative; 24 4) the duration of the litigation and; 5) the personal benefit (or lack thereof) enjoyed by the class representative as a result of the litigation. These “incentive 25 awards” to class representatives must not be disproportionate to the amount of time and energy expended in pursuit of the lawsuit. 26 27 (Cellphone Termination Fee Cases (2010) 186 Cal.App.4th 1380, 1394-1395, quotation marks, 28 brackets, ellipses, and citations omitted.) ORDER RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; JUDGMENT The class representatives have submitted declarations detailing their participation in the lawsuit. Shumway states that he spent a considerable amount of time of the case, with activities including giving class counsel information regarding Defendant’s policies and practices, preparing for and attending deposition, assisting with discovery, and participating in two full-day mediations. (Declaration of Wade Shumway in Support of Motion for Final Approval of Class Settlement, 6.) Tovar states the same, with the exception that she only participated in one day of mediation. (Declaration of Johanna Tovar in Support of Motion for Final Approval of Class Settlement, § 6.) The Court finds that the incentive awards are warranted and they are approved. The Court also has an independent right and responsibility to review the requested 10 attorneys’ fees and only award so much as it determines reasonable. (See Garabedian v. Los 11 Angeles Cellular Telephone Co. (2004) 118 Cal.App.4th 123, 127-128.) Plaintiffs’ counsel 12 requests attorneys’ fees in the amount of $800,000 (one-third of the total settlement fund). 13 Plaintiffs’ counsel provides evidence demonstrating a lodestar of $875,000, which results in a 14 negative multiplier. (Declaration of Noam Glick in Support of Plaintiffs Wade Shumway and 15 Johanna Tovar’s Motion for Final Approval of Class Settlement (“Glick Decl.”), § 4.) Therefore 16 the attorneys’ fees are reasonable and they are approved. 17 Plaintiffs request $20,000 for costs. This is slightly less than the actual incurred costs of 18 $20,065.31. (Glick Decl., {] 8; Declaration of Craig Nicholas in Support of Plaintiffs Wade 19 Shumway and Johanna Tovar’s Motion for Final Approval of Class Settlement, J 17.) The 20 requested costs are approved. The court also approves the $30,000 requested for settlement 21 administration costs. (See Myette Decl., § 19) 22 The motion for final approval of class action settlement is GRANTED. 25 Pursuant to Rule 3.769, subdivision (h), of the California Rules of Court, this Court 24 retains jurisdiction over the parties to enforce the terms of the Settlement Agreement, and the 25 final Order and Judgment. 26 The court sets a compliance hearing for December 18, 2020 at 10:00 A.M. in Department 27 3. At least ten court days before the hearing, class counsel and the settlement administrator shall 28 submit a summary accounting of the net settlement fund identifying distributions made as ORDER RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; JUDGMENT ordered herein, the number and value of any uncashed checks, amounts remitted to Defendant, the status of any unresolved issues, and any other matters appropriate to bring to the Court’s attention. Counsel may appear at the compliance hearing telephonically. Dated: June 30, 2020 ne vee Om Che cag Patricia M. Lucas Judge of the Superior Court 10 11 12 13 14 15 16 17 18 19 20 21 22 25 24 25 26 27 28 ORDER RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; JUDGMENT