Preview
1 AIMAN-SMITHOMARCY
PROFESSIONAL CORPORATION
2 Randall B. Aiman-Smith #124599
Reed W.L. Marcy #191531
3 Hallie Von Rock #233152 1/15/2021
Carey A. James #269270
4 7677 Oakport St. Suite 1150
Oakland, CA 94621
5 T 510.817.2711
F 510.562.6830
6 ras@asmlavvyers.com
rwlm@asmlawyers.com
7 hvr asmlawyers.com
ca.] asmlawyers.com
8
9 Attorneys for Plaintiff Laci Ping
10
SUPERIOR COURT OF CALIFORNIA
11 COUNTY OF BUTTE
12
LACI PING, individually and on behalf) Case No.: 20CV01023
13 of all others similarly situated, )
14 Plaintiff, Memorandum of Points and Authorities in
) Support of Motion for Final Approval of Class
15 v. Action Settlement
16 SEE'S CANDY SHOPS, INC., SEE'S )
CANDIES, INC., and DOES 1-10, )
17 inclusive, )
) Judge: Hon. Tamara L Mosbarger
18 Defendants. ) Date: February 17, 2021
) Time: 9:00 A.M.
19 )
)
20 )
)
21 )
)
22 )
)
23 )
24
25
26
27
28
Memorandum of Points and Authorities in Support of Motion for Final Approval of Class Action Settlement
Ping v. See's Candy Shop, Inc., et at. Case No. 20CV01023
1 TABLE OF CONTENTS
2 1
I. INTRODUCTION
3
II. A BRIEF HISTORY OF THE LITIGATION. 2
4
5 3
III. THE PROPOSED SETTLEMENT.
6
IV. THE CLASS RECEIVED SUFFICIENT NOTICE TO BE BOUND 5
7
8
V. THE SETTLEMENT IS FAIR, REASONABLE, AND ADEQUATE. 6
9
A. THE SETTLEMENT RESULTED FROM ARM'S-LENGTH NEGOTIATIONS. 7
10
B. THE RISKS INHERENT IN CONTINUED LITIGATION FAVOR FINAL APPROVAL OF THE
11
SETTLEMENT... 8
12
C. THE SETTLEMENT AMOUNT IS FAIR, REASONABLE, AND ADEQUATE. 9
13
D. THE CLASS WAS REPRESENTED BY COMPETENT COUNSEL. 10
14
E. THERE ARE NO OBJECTIONS TO THE SETTLEMENT, AND FEW REQUESTS FOR EXCLUSION. 10
15
VI. CLASS COUNSEL'S FEE IS REASONABLE 11
16
17 A. THE FEE IS PRESUMPTIVELY REASONABLE AS THE RESULT OF ARM'S-LENGTH NEGOTIATION. . 11
18 B. THE FEE IS —ASONABLE
P AS A PERCENTAGE OF THE BENEFIT TO THE CLASS. 11
19 C. THE CIRCUMSTANCES OF THIS CASE SUPPORT THE REQUESTED FEE AWARD 15
20 1, The Contingent Nature 15
21 2. The Experience and Ability of Counsel, and the Skill Displayed in Litigation 1
22 3. The Results Achieved 1
23 4. Preclusion of Other Employment.
24 D. THE FEE IS REASONABLE UNDER THE LODESTAR METHOD CROSS-CHECK 16
25 18
VII. CLASS COUNSEL'S LITIGATION COSTS ARE REASONABLE.
26
VIII. THE INCENTIVE AWARD TO THE NAMED PLAINTIFF IS REASONABLE 19
27
28
Memorandum of Points and Authorities in Support of Motion for Final Approval of Class Action Settlement
Ping v. See's Candy Shop, Inc., et al. Case No. 20CV01023
1 IX. CONCLUSION 21
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Memorandum of Points and Authorities in Support of Motion for Final Approval of Class Action Settlement
Ping v. See's Candy Shop, Inc., et at Case No. 20CV01023
1 TABLE OF AUTHORITIES
2
Cases
3
7-Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135 6, 11
4 15
Albrecht v. Rite Aid Corp., San Diego Superior Court Case No. 729129
5
Apple Computer, Inc. v. Superior Court (2005) 126 Ca1.App.4th 1253 14
6 12
Bank of America v. Cory (1985) 164 Cal.App.3d 66
7 13
Boeing Co. v. Van Gernert (1980) 444 U.S. 472
8 5
Cartt v. Superior Court (1975) 50 Cal.App.3d 960
9 14, 19
Cellphone Termination Fee Cases (2010) 186 Cal.App.4th 1380
10 6, 14, 17
Chavez v. Netflix, Inc. (2008) 162 Ca1.App.4th 43
11 19
Clark v. American Residential Services LLC (2009) 175 Ca1.App.4th 785
12 17
Consumer Privacy Cases, 175 Ca1.App.4th
13 15
Crandall v. U-Haul International, L.A. Superior Court Case No. BC 178775
14 12
Glendale City Employees' Assoc. v. City of Glendale (1975) 15 Ca1.3d 328
15 18
Glendora Comm. Redev. Agency v. Demeter (1984) 155 Ca1.App.3d 456
16 18
Graham v. DaimlerChrysler Corp. (2004) 34 Ca1.4th 553
17
Home Say. & Loan Assn. v. Superior Court (1974) 42 Ca1.App.3d 1006 5
18
In re American Bank Note Holographics, Inc., Securities Litigation (S.D.N.Y. 2001) 127 F.Supp.2d
19 10
418
20
In Re Anthem Inc. Data Breach Litigation (N.D.Ca1. 2018) 327 F.R.D. 299 13
21 12
In re Consumer Privacy Cases (2009) 175 Ca1.App.4th 545
22
In Re First Capital Holdings Corp. Fin. Prods. Securities Litig. (C.D.Ca1. June 10, 1992) 1992 WL
23 11
226321
24 19
In re Omnivisition Techs. (N.D. Cal. 2007) 559 F.Supp.2d 1036
25 12, 15
In re Sumitomo Copper Litig. (S.D.N.Y. 1999) 74 F.Supp.2d 393
26 (C.D. Cal. May 9, 1989) MDL No. 726, 1989 WL 73211 19
In re United Energy Corp. Sec. Litig.
27 5
Kass v. Young (1977) 67 Ca1.App.3d 100
28
Memorandum of Points and Authorities in Support of Motion for Final Approval of Class Action Settlement
Ping v. See's Candy Shop, Inc., et al. Case No. 20CV01023
1 Knoff v. City and County of San Francisco (1969) 1 Cal.App.3d 184 12
2 Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116 9
3 Laffitte v. Robert Half Int'l, Inc. (2016) 1 Ca1.5th 480 12, 17
4 Mills v. Electric Auto-Lite Co. (1970) 396 U.S. 375 12
5 Munoz v. BCI Coca-Cola Bottling Co. of Los Angeles (2010) 186 Cal.App.4th 399 9
6 Parker v. Los Angeles (1974) 44 Cal.App.3d 556 12
7 Rider v. County of San Diego (1992) 11 Ca1.App.4th 1410 12
8 Say-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319 3
9 Serrano v. Priest ("Serrano III") (1977) 20 Ca1.3d 25 12, 16, 17
10 Silva, et al. v. Ross Dress for Less, Inc., Alameda Superior Court Case Number RG19023625 15
11 Smiles v. Walgreens Co., Alameda Superior Court Case Number RG17862495 15
12 Staton v. Boeing (9th Cir. 2003) 327 F.3d 938 13, 20
13 Van Vranken v. Atlantic Richfield Co. (N.D. Cal. 1995) 901 F.Supp. 294 20
14 Vizcaino v. Micrsoft Corp. (9th Cir. 2002) 290 F.3d 1043 13, 14, 18
15 Wilson v. Bank ofAm. Natl. Trust & Says. Assn., (Cal. Sup. Ct. Aug. 16, 1982) No. 643872 18
16 Statutes
17 2
28 U.S.C. § 1332
18 California Rule of Court 3.769 11
19 Civil Code § 1781(d) 6
20 Labor Code § 2698 4
21
Rules
22
Rule of Court 3.766(f) 6
23
Treatises
24
California Judicial Council, Deskbook on the Management of Complex Civil Litigation, § 3.74
25
(Matthew Bender) 6
26
Conte & Newberg, Newberg on Class Actions (4th Ed., 2002) § 11.47 10
27
Manual for Complex Litigation, 21.7 (4th ed. 2004) 11
28
Memorandum of Points and Authorities in Support of Motion for Final Approval of Class Action Settlement
Ping v. See's Candy Shop, Inc., et al. Case No. 20CV01023
1 The California Practice Guide: Civil Trials and Evidence (The Rutter Group) at § 17.172.3 12
2 Theodore Eisenberg & Geoffrey P. Miller, Incentive Awards to Class Action Plaintiffs: An Empirical
3 Study (2006) 53 UCLA L. Rev. 1303 20
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Memorandum of Points and Authorities in Support of Motion for Final Approval of Class Action Settlement
Ping v. See's Candy Shop, Inc, et al. Case No. 20CV01023
1 I. INTRODUCTION.
Plaintiff Laci Ping ("Plaintiff' or "Class Representative") seek final approval of the Class
3 Action and PAGA Settlement Agreement ("Settlement," "Agreement," or "Settlement Agreement")
4 entered into by and between Plaintiff, individually and on behalf of all others similarly situated and
5 other aggrieved employees, on the one hand, and Defendants See's Candy Shops, Inc.; See's Candies,
6 Inc. ("See's" or "Defendant"), on the other hand. Subject to approval by the Court, Plaintiff and
7 Defendant (collectively, the "Parties") have agreed to settle the lawsuit for a Maximum Settlement
8 Amount Value of one million three hundred fifty thousand dollars and no cents ($1,350,000.00).1
9 This wage and hour class action settlement is on behalf of over 6,800 class members and would
10 put an average of $42.00 in the pockets of class members, with the highest settlement share being
11 approximately $282.00. Moreover, class members will benefit from prospective relief valued at
12 $600,000 over the next five years. The net settlement funds will be distributed by a direct mailing to
13 class members, with no claims process, and no reversion. The requested attorneys' fees are reasonable
14 with an appropriate percentage of the Settlement Value (28%). The requested reimbursement of
15 litigation costs and expenses ($11,400) and costs of settlement administration ($50,000) are also
16 reasonable. And the requested incentive award to the representative plaintiff ($3,000) is reasonable and
17 commensurate with the services that she provided, and the risks and costs assumed in this litigation.
18 On its face, the teiiiis of the settlement are fair, reasonable, and adequate, as the Court
19 concluded when it granted preliminary approval and directed issuance of formal notice to the class.
20 That notice process has now concluded and confirms that this settlement was well-received by class
21 members. Class notice proceeded smoothly via a mailing of formal notice to class members' last
22 known addresses. Not a single class member objected. Only 16 class members requested exclusion,
23 which is merely 0.2% (one-fifth of one percent) of the class. Class members' embrace of the proposed
24 settlement confiuiiis that the proposed settlement is fair, reasonable, and adequate, such that it should
25 receive final approval, and judgement should be entered pursuant to the Parties' Settlement
26 Agreement.
27
28
Memorandum of Points and Authorities in Support of Motion for Final Approval of Class Action Settlement
Ping v. See's Candy Shop, Inc., et al. Case No. 20CV01023
Page 1
1 II. A BRIEF HISTORY OF THE LITIGATION.
2 Plaintiff Laci Ping filed the Complaint initiating the Federal Litigation against Defendant in
3 United States District Court, Northern District of California, Case Number 3:19-cv-02504-RS, on May
4 9, 2019 (the "Federal Litigation"). Plaintiff asserted class action claims under the California Business
5 and Professions Code and the California Labor Code, alleging: (1) failure to reimburse expenses; (2)
6 failure to provide required uniforms; (3) failure to pay minimum wage for all hours worked; (4) failure
7 to provide accurate wage statements; (5) failure to timely pay final wages upon termination of
8 employment; and (6) unfair business practices. Plaintiff filed the Complaint with the good faith belief
9 that the federal court has jurisdiction over the matter pursuant to the Class Action Fairness Act, 28
10 U.S.C. § 1332(f), however, based on information provided after the Complaint was filed, the Parties
11 agreed that the Federal Court lacked subject matter jurisdiction pursuant to 28 U.S.C. § 1332(d)(4),
12 and stipulated to dismissing the Federal Litigation and re-filing the class action in this Court. On May
13 15, 2020, Plaintiff Laci Ping filed the Complaint initiating the Litigation against Defendant in the
14 Superior Court of California, County of Butte. In addition to the claims and conduct pleaded in the
15 Federal Litigation, Plaintiff also alleged a representative claim for penalties under the California Labor
16 Code Private Attorneys General Act ("PAGA").
17 Plaintiff was employed by Defendant in Chico, California, as a non-exempt store employee
18 from approximately October 2010 until approximately December 2018, when Plaintiff was forced to
19 move out of state because her home was destroyed by the Camp Fire.
20 Defendants See's Candy Shops, Inc., and See's Candies, Inc., are California Corporations,
21 registered to and conducting business in California, with their headquarters and principal place of
22 business in South San Francisco, California. Together, See's Candy Shops, Inc. and See's Candies,
23 Inc. own and operate more than 100 stores in California.
24 The Complaint generally alleges violations of the California Labor Code and I.W.C. Wage
25 Orders. Defendant maintained a dress code policy that required its female employees to wear a knee
26 length dress, a black bow, a white full slip, and hosiery that is a nude color. Defendant provides the
27
28
1 Settlement Agreement, attached as "EXHIBIT A" to Declaration of Hallie Von Rock ("Von Rock
Memorandum of Points and Authorities in Support of Motion for Final Approval of Class Action Settlement
Ping v. See's Candy Shop, Inc., et al. Case No. 20CV01023
Page 2
1 knee length dress and bow, but its female employees were required to purchase their own slips and
2 hosiery. Plaintiff claims that the slips and hosiery constitute uniforms because they are items specified
3 by color and design by Defendant and are integral to Defendant's expectation that its employees
4 reinforce the 1940's era shopping experience wanted by Defendant for its customers. Thus, Plaintiff
5 brought claims for unreimbursed clothing purchases, uniform expenses, resultant minimum wage
6 violations, and attendant penalties.
7 Defendant denies all the claims and contentions alleged in the Complaint. Among other
8 arguments, Defendant asserted that the items in question are common wardrobe items that could be
9 worn in non-work settings as well as thus do not constitute uniforms for purposes of California law.
10 On January 29, 2020, the Parties participated in a formal, full-day mediation conducted by
11 Michael J. Loeb, a well-regarded mediator experienced in mediating complex labor and employment
12 matters. With the aid of the mediator's evaluation, the Parties ultimately reached the Settlement
13 described herein to resolve the cases in their entirety.
14 On September 10, 2020, Plaintiff moved for preliminary approval of their proposed settlement
15 and gave notice to the Labor and Workforce Development Agency as required under Labor Code,
16 section 2699(l)(2). The Court granted preliminary approval of the settlement on October 7, 2020.
17 III. THE PROPOSED SETTLEMENT.
18 For settlement purposes, the requisites for establishing class certification are met, and the
19 Parties have stipulated to conditional certification of the Class for settlement purposes only. California
20 Code of Civil Procedure Section 382 "authorizes class actions when the question is one of a common
21 or general interest, of many persons, or when the Parties are numerous, and it is impracticable to bring
22 them all before the court." Say-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326.
23 California courts certify class actions where the plaintiff identifies "both [1] an ascertainable class and
24 [2] a well-defined community of interest among class members." Id. Here, Plaintiff provided the Court
25 with ample information to provisionally certify the Class. See, Memorandum of Points and Authorities
26 in Support of Preliminary Approval of Class Action, at Section III.
27
28
Dec."), § VI. 1.18.
Memorandum of Points and Authorities in Support of Motion for Final Approval of Class Action Settlement
Ping v. See's Candy Shop, Inc., et aL Case No. 20CV01023
Page 3
1 The Court's preliminary approval order provisionally certified the following class as defined by
2 the Settlement Agreement:
3
All female Persons who were employed by See's in California as non-
4 exempt shop employees at any time during the period from May 9, 2015,
through October 7, 2020 (i.e., the date of the Order granting preliminary
5
approval of the Settlement).
6
Given the ascertainable class and well-defined community of interest, the Court should provide final
7
certification of the Settlement Class.
8
The Class Notice was sent to 6,851 Class Members. See, Declaration of Amanda Myette
9
("Myette Dec.") at ¶ 9. Class Notice was mailed on November 6, 2020. Id. Only 114 Class Notices
10
proved undeliverable after skip tracing. Id. at ¶ 10. No objections were received by the Settlement
11
Administrator. Id. at 1113. Only 16 requests for exclusion were received. Id. at ¶ 12.
12
The Settlement Agreement provides for consideration totaling $1.35 million. The Maximum
13
Settlement Amount Value includes the following: (1) Maximum Settlement Payment Amount, and (2)
14
Prospective Relief Value. The Maximum Settlement Payment Amount means the maximum gross
15
amount that Defendant shall pay under the terms of the Settlement, which is $750,000. This amount
16
shall cover all payments associated with the settlement, except the value or cost of the Prospective
17
Relief, including (a) the Maximum Settlement Portion for Payments to Participating Class Members;
18
(b) the maximum gross amount for Plaintiffs Counsel's attorneys' fees, which is $380,000; (c) the
19
maximum gross amount for all of Plaintiff's Counsel's and the Class Representative's taxable
20
litigation costs, as well as their normal and customary expenses, which shall not exceed $11,400; (d)
21
the anticipated gross amount for claims administration costs, which is $50,000; (e) the maximum gross
22
amount for the enhancement payment to be made by Defendant to the Class Representative, which is a
23
maximum of $3,000; and (f) the maximum gross amount paid as consideration to the State of
24
California and Class Members for the release of all Released Claims under the California Private
25
Attorney Generals Act of 2004, codified at California Labor Code sections 2698 et seq., which is
26
$15,000 (75%, or $11,250, of which shall be sent to the California Labor Workforce Development
27
Agency, with the remaining 25% (or $3,750) already included in the Maximum Settlement Portion for
28
Memorandum of Points and Authorities in Support of Motion for Final Approval of Class Action Settlement
Ping v. See's Candy Shop, Inc., et al. Case No. 20CV01023
Page 4
1 Payments to Participating Claimants).
2 The Prospective Relief is the contractual agreement between Defendant and the Class
3 Representative, with the following terms: As a separately bargained for portion of the consideration
4 for entering into the Settlement, and subject to Court approval, Defendant agrees that with respect to
5 ongoing employment of Class Members in California, See's will either reimburse for, or not require,
6 hose and slips to be worn by any non-exempt shop employee for five years following entry of the
7 Judgment. The Prospective Relief Value means the value that the Parties have agreed to as the
8 valuation for settlement purposes of the Prospective Relief, which is $600,000.
9 In exchange for the consideration flowing to the class, Defendant receives a duly limited
10 release of the class claims and the PAGA claims asserted. See, Settlement Agreement at §VI., 2.7.
11 IV. THE CLASS RECEIVED SUFFICIENT NOTICE TO BE BOUND.
12 Class notice serves to protect the integrity of the class action process. Cartt v. Superior Court
13 (1975) 50 Cal.App.3d 960, 970. It effectuates the benefits of the class action device for the defendant,
14 by ensuring that "there will be but a single binding judgment against him." Kass v. Young (1977) 67
15 Cal.App.3d 100, 106. "The critical reason for notification of members of the class on whose behalf a
16 class action has been brought is that notification makes possible a binding adjudication and an
17 enforceable judgment with respect to the rights of the members of the class. Absent such notification
18 no member of the class need be bound by the result of the litigation" Home Say. & Loan Assn. v.
19 Superior Court (1974) 42 Cal.App.3d 1006, 1011 [117 Cal.Rptr. 485]). Class notice also protects class
20 members, insofar as it "prevents incompetent or unrepresentative plaintiffs from preempting for
21 themselves total representation of an unnotified class and likewise prevents collusive suits that could
22 bind members of the class to unwanted judgments unnecessarily limiting the scope of their recovery."
23 Home Say. & Loan Assn. v. Superior Court (1974) 42 Cal.App.3d 1006, 1012.
24 When a settlement is proposed, the purpose of a class notice is to give class members sufficient
25 information to decide whether they should accept the benefits offered, opt out and pursue their own
26 remedies, or object to the settlement. Wershba, 91 Cal.App.4th at 251-252.
27 Under California law, individual notice via direct mailing is regarded as sufficient, and is
28 preferred wherever possible. See, California Judicial Council, Deskbook on the Management of
Memorandum of Points and Authorities in Support of Motion for Final Approval of Class Action Settlement
Ping v. See's Candy Shop, Inc., et al. Case No. 20CV01023
Page 5
1 Complex Civil Litigation, § 3.74 (Matthew Bender); Rule of Court 3.766(f); Civil Code § 1781(d)
(CLRA). Here, the Court's order granting preliminary approval directed personal notice to issue to
3 class members via direct mailing to class members' last known address. Notice was mailed to all class
4 members and delivered to all class members except a small number whose notices were returned as
5 undeliverable after skip tracing. This notice is sufficient to bind class members under California law.
6 V. THE SETTLEMENT IS FAIR, REASONABLE, AND ADEQUATE.
7 The trial court has broad discretion to determine whether a class action settlement is fair and
8 reasonable. Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 52. To determine whether the settlement
9 is fair and reasonable, courts consider relevant factors such as:
10
the strength of plaintiffs' case, the risk, expense, complexity and likely
11 duration of further litigation, the risk of maintaining class action status
through trial, the amount offered in settlement, the extent of discovery
12
completed and the stage of the proceedings, the experience and views of
13 counsel, the presence of a governmental participant, and the reaction of
the class members to the proposed settlement.
14
Dunk, 48 Cal.App.4th at 1801. "The list of factors is not exclusive and the court is free to engage in a
15
balancing and weighing of the factors depending on the circumstances of each case." Wershba, 91
16
Cal.App.4th at 245. "Due regard should be given to what is otherwise a private consensual agreement
17
between the parties." Dunk, 48 Cal.App.4th at 1801.
18
The proponent of the settlement has the burden to show that it is fair and reasonable. Wershba,
19
91 Cal.App.4th at 245. At the final approval stage, a presumption of fairness exists where, as here: "(1)
20
the settlement is reached through aim's-length bargaining; (2) investigation and discovery are
21
sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar
22
litigation; and (4) the percentage of objectors is small." Dunk, 48 Cal.App.4th at 1802.
23
In reviewing a class settlement, the court need not reach any ultimate conclusions on the issues
24
of fact and law that underlie the merits of the dispute. 7-Eleven Owners for Fair Franchising v.
25
Southland Corp. (2000) 85 Cal.App.4th 1135, 1146. The inquiry is not whether the settlement
26
agreement is the best one that class members could have possibly obtained, but whether the settlement,
27
taken as a whole, is "fair, adequate, and reasonable." Chavez, 162 Cal.App.4th at 55. A settlement
28
Memorandum of Points and Authorities in Support of Motion for Final Approval of Class Action Settlement
Ping v. See's Candy Shop, Inc., et al. Case No. 20CV01023
Page 6
1 need not obtain 100 percent of the damages sought in order to be fair, reasonable, and ultimately,
2 meaningful. Wershba, 91 Cal.App.4th at 251. Even if the proposed settlement affords relief that is
3 substantially narrower than it would be if the cases were to be successfully litigated, that is no bar to a
4 class settlement because the public interest may indeed be served by a voluntary settlement in which
5 each side gives ground in the interest of avoiding prolonged litigation. Id.
6 A. The Settlement Resulted from Ann's-Length Negotiations.
7 The Parties actively litigated the matter since it was commenced on May 9, 2019. Both sides
8 used the pre-mediation time period to investigate the veracity, strength, and scope of the claims, and
9 Class Counsel were actively preparing the matter for class certification and trial.
10 Prior to engaging in mediation, Class Counsel conducted significant investigation and
11 discovery regarding the facts of the cases, including and not limited to, the exchange, review, and
12 analysis of all policies related to employee dress, payroll data for class members and aggrieved
13 employees, communications about the dress code policy, hourly rates and pay periods, among other
14 information and documents. Class Counsel interviewed Plaintiff to gather facts and to identify
15 potential witnesses. Counsel for the Parties also met and conferred on numerous occasions, e.g., to
16 discuss issues relating to the pleadings, discovery, and the production of documents and data prior to
17 the mediation. Class Counsel also drafted Plaintiffs mediation brief and prepared for and attended
18 court proceedings, settlement negotiations, and the mediation, among other tasks.
19 The Parties engaged in extensive settlement negotiations and participated in a formal, full-day
20 mediation conducted by Michael J. Loeb, an experienced mediator knowledgeable of both wage and
21 hour laws and class and representative claims at issue in this Litigation. Prior to and during the
22 mediation and settlement discussions, the Parties exchanged class-wide information and engaged in an
23 intensive discussion regarding their evaluations of the cases and various aspects of the matter,
24 including but not limited to, the risks and delays of further litigation, the risks to the Parties of
25 proceeding with class certification and/or representative adjudication, the law relating to uniform
26 reimbursements, penalties, and PAGA representative claims, as well as the evidence produced and
27 analyzed, and the possibility of appeals, among other things. During all settlement discussions, the
28 Parties conducted their negotiations at aim's length in an adversarial position. Arriving at a settlement
Memorandum of Points and Authorities in Support of Motion for Final Approval of Class Action Settlement
Ping v. See's Candy Shop, Inc., et al. Case No. 20CV01023
Page 7
1 that was acceptable to all Parties was not easy. Defendant and its counsel felt strongly about their
2 ability to prevail on the merits and at certification, and Plaintiff and Class Counsel believed that they
3 would be able to obtain class certification and prevail at trial. After conducting meaningful
4 investigation and with the aid of the mediator's evaluation, the Parties agreed that the matter is well-
5 suited for settlement given the legal issues relating to Plaintiff's principal claims, as well as the costs
6 and risks to both sides that would attend further litigation.
7 B. The Risks Inherent in Continued Litigation Favor Final Approval of the Settlement.
8 The Maximum Settlement Amount Value of $1,350,000 represents a fair, adequate, and
9 reasonable resolution of the claims asserted, given the risks inherent in litigating class and
10 representative claims through certification proceedings, trial, and/or appeals. The Settlement was
11 calculated using information and data uncovered through extensive case investigation, discovery, and
12 the exchange of information in the context of mediation.
13 Had the case not settled, Defendants would have vigorously challenged certifiability,
14 manageability of representative adjudication, and liability. Defendants contended that individualized
15 questions of fact predominate over any common issues, and these issues would pose challenges to
16 certification and representative adjudication. Defendants would have likely argued again at trial, if any,
17 that Plaintiff's claims were not appropriate for class-wide and/or representative adjudication. On the
18 other hand, Defendants also faced the risk of the Court certifying a class and allowing a jury to decide
19 Plaintiff's claims on a class-wide or representative basis. Additionally, preparation for trial would have
20 been expensive for all parties.
21 It is preferable to reach an early resolution of a dispute because such resolutions save time and
22 money that would otherwise go to litigation. If this matter had settled after further litigation, the
23 settlement amount would have considered the additional costs incurred, and there might have been less
24 money available for the Class Members after all was said and done. This is not just an abstract
25 contention. The risks of further litigation include a determination that the claims were unsuitable for
26 class treatment and/or representative adjudication, failure to obtain certification, class de-certification
27 after certification of a class, allowing a jury to decide the claims asserted in the cases, and the real
28 possibility of no or limited recovery after years of litigation. Additionally, the parties were moving into
Memorandum of Points and Authorities in Support of Motion for Final Approval of Class Action Settlement
Ping v. See's Candy Shop, Inc., et al. Case No. 20CV01023
Page 8
1 the phase of the litigation where they would have to conduct a significant amount of additional
2 discovery, including and not limited to, depositions of Defendant's Person Most Qualified designees,
3 expert witnesses, and percipient witnesses, such as managers, supervisors, and other current and
4 former employees throughout the State of California. Discovery disputes would have certainly arisen,
5 which would have cost the parties additional time and money. In contrast, the proposed settlement
6 provides real and significant benefits for the class here and now, while avoiding the further expenses,
7 risks, and delay of prolonged litigation with only the possibility of recovery.
8 It would be grossly inefficient for such a large class of current and former employees to bring
9 individual actions to recover from Defendant for the alleged violations of labor laws. Moreover, the
10 potential individual recovery that could be obtained by a class member would not be significant
11 enough to provide him or her with the incentive to sue. By granting final approval of the proposed
12 settlement, the Court can approve a resolution that provides a certain and substantial recovery.
13 C. The Settlement Amount Is Fair, Reasonable, and Adequate.
14 The Maximum Settlement Amount Value of $1,350,000 represents a fair, reasonable, and
15 adequate resolution of the claims asserted. The Settlement was calculated using infounation and data
16 uncovered through extensive case investigation, formal and informal discovery, and the exchange of
17 information in the context of mediation. Moreover, considering all the facts in the cases, the gross
18 settlement amount represents a considerable recovery.
19 Plaintiffs Counsel have reviewed Munoz v. BCI Coca-Cola Bottling Co. of Los Angeles (2010)
20 186 Cal.App.4th 399, and Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, and have
21 sought to set forth all of the information those courts have determined are necessary for understanding
22 whether a settlement is "within the realistic range of outcomes" for the litigation, including the amount
23 theoretically recoverable, the size of the class, information relating to the estimated expenses, the
24 scope of plaintiffs discovery and investigation, the nature of the evidence upon which plaintiff relied
25 and plaintiffs analysis of that evidence, and the strength of plaintiffs claims and See's defenses. See,
26 HVR Dec. ¶¶ 9-22. In Plaintiffs Counsel's experience in both class action and individual wage and
27 hour cases, viewed in light of the risks of litigation
Preview
1 AIMAN-SMITHOMARCY PROFESSIONAL CORPORATION 2 Randall B. Aiman-Smith #124599 Reed W.L. Marcy #191531 3 Hallie Von Rock #233152 1/15/2021 Carey A. James #269270 4 7677 Oakport St. Suite 1150 Oakland, CA 94621 5 T 510.817.2711 F 510.562.6830 6 ras@asmlavvyers.com rwlm@asmlawyers.com 7 hvr asmlawyers.com ca.] asmlawyers.com 8 9 Attorneys for Plaintiff Laci Ping 10 SUPERIOR COURT OF CALIFORNIA 11 COUNTY OF BUTTE 12 LACI PING, individually and on behalf) Case No.: 20CV01023 13 of all others similarly situated, ) 14 Plaintiff, Memorandum of Points and Authorities in ) Support of Motion for Final Approval of Class 15 v. Action Settlement 16 SEE'S CANDY SHOPS, INC., SEE'S ) CANDIES, INC., and DOES 1-10, ) 17 inclusive, ) ) Judge: Hon. Tamara L Mosbarger 18 Defendants. ) Date: February 17, 2021 ) Time: 9:00 A.M. 19 ) ) 20 ) ) 21 ) ) 22 ) ) 23 ) 24 25 26 27 28 Memorandum of Points and Authorities in Support of Motion for Final Approval of Class Action Settlement Ping v. See's Candy Shop, Inc., et at. Case No. 20CV01023 1 TABLE OF CONTENTS 2 1 I. INTRODUCTION 3 II. A BRIEF HISTORY OF THE LITIGATION. 2 4 5 3 III. THE PROPOSED SETTLEMENT. 6 IV. THE CLASS RECEIVED SUFFICIENT NOTICE TO BE BOUND 5 7 8 V. THE SETTLEMENT IS FAIR, REASONABLE, AND ADEQUATE. 6 9 A. THE SETTLEMENT RESULTED FROM ARM'S-LENGTH NEGOTIATIONS. 7 10 B. THE RISKS INHERENT IN CONTINUED LITIGATION FAVOR FINAL APPROVAL OF THE 11 SETTLEMENT... 8 12 C. THE SETTLEMENT AMOUNT IS FAIR, REASONABLE, AND ADEQUATE. 9 13 D. THE CLASS WAS REPRESENTED BY COMPETENT COUNSEL. 10 14 E. THERE ARE NO OBJECTIONS TO THE SETTLEMENT, AND FEW REQUESTS FOR EXCLUSION. 10 15 VI. CLASS COUNSEL'S FEE IS REASONABLE 11 16 17 A. THE FEE IS PRESUMPTIVELY REASONABLE AS THE RESULT OF ARM'S-LENGTH NEGOTIATION. . 11 18 B. THE FEE IS —ASONABLE P AS A PERCENTAGE OF THE BENEFIT TO THE CLASS. 11 19 C. THE CIRCUMSTANCES OF THIS CASE SUPPORT THE REQUESTED FEE AWARD 15 20 1, The Contingent Nature 15 21 2. The Experience and Ability of Counsel, and the Skill Displayed in Litigation 1 22 3. The Results Achieved 1 23 4. Preclusion of Other Employment. 24 D. THE FEE IS REASONABLE UNDER THE LODESTAR METHOD CROSS-CHECK 16 25 18 VII. CLASS COUNSEL'S LITIGATION COSTS ARE REASONABLE. 26 VIII. THE INCENTIVE AWARD TO THE NAMED PLAINTIFF IS REASONABLE 19 27 28 Memorandum of Points and Authorities in Support of Motion for Final Approval of Class Action Settlement Ping v. See's Candy Shop, Inc., et al. Case No. 20CV01023 1 IX. CONCLUSION 21 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Memorandum of Points and Authorities in Support of Motion for Final Approval of Class Action Settlement Ping v. See's Candy Shop, Inc., et at Case No. 20CV01023 1 TABLE OF AUTHORITIES 2 Cases 3 7-Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135 6, 11 4 15 Albrecht v. Rite Aid Corp., San Diego Superior Court Case No. 729129 5 Apple Computer, Inc. v. Superior Court (2005) 126 Ca1.App.4th 1253 14 6 12 Bank of America v. Cory (1985) 164 Cal.App.3d 66 7 13 Boeing Co. v. Van Gernert (1980) 444 U.S. 472 8 5 Cartt v. Superior Court (1975) 50 Cal.App.3d 960 9 14, 19 Cellphone Termination Fee Cases (2010) 186 Cal.App.4th 1380 10 6, 14, 17 Chavez v. Netflix, Inc. (2008) 162 Ca1.App.4th 43 11 19 Clark v. American Residential Services LLC (2009) 175 Ca1.App.4th 785 12 17 Consumer Privacy Cases, 175 Ca1.App.4th 13 15 Crandall v. U-Haul International, L.A. Superior Court Case No. BC 178775 14 12 Glendale City Employees' Assoc. v. City of Glendale (1975) 15 Ca1.3d 328 15 18 Glendora Comm. Redev. Agency v. Demeter (1984) 155 Ca1.App.3d 456 16 18 Graham v. DaimlerChrysler Corp. (2004) 34 Ca1.4th 553 17 Home Say. & Loan Assn. v. Superior Court (1974) 42 Ca1.App.3d 1006 5 18 In re American Bank Note Holographics, Inc., Securities Litigation (S.D.N.Y. 2001) 127 F.Supp.2d 19 10 418 20 In Re Anthem Inc. Data Breach Litigation (N.D.Ca1. 2018) 327 F.R.D. 299 13 21 12 In re Consumer Privacy Cases (2009) 175 Ca1.App.4th 545 22 In Re First Capital Holdings Corp. Fin. Prods. Securities Litig. (C.D.Ca1. June 10, 1992) 1992 WL 23 11 226321 24 19 In re Omnivisition Techs. (N.D. Cal. 2007) 559 F.Supp.2d 1036 25 12, 15 In re Sumitomo Copper Litig. (S.D.N.Y. 1999) 74 F.Supp.2d 393 26 (C.D. Cal. May 9, 1989) MDL No. 726, 1989 WL 73211 19 In re United Energy Corp. Sec. Litig. 27 5 Kass v. Young (1977) 67 Ca1.App.3d 100 28 Memorandum of Points and Authorities in Support of Motion for Final Approval of Class Action Settlement Ping v. See's Candy Shop, Inc., et al. Case No. 20CV01023 1 Knoff v. City and County of San Francisco (1969) 1 Cal.App.3d 184 12 2 Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116 9 3 Laffitte v. Robert Half Int'l, Inc. (2016) 1 Ca1.5th 480 12, 17 4 Mills v. Electric Auto-Lite Co. (1970) 396 U.S. 375 12 5 Munoz v. BCI Coca-Cola Bottling Co. of Los Angeles (2010) 186 Cal.App.4th 399 9 6 Parker v. Los Angeles (1974) 44 Cal.App.3d 556 12 7 Rider v. County of San Diego (1992) 11 Ca1.App.4th 1410 12 8 Say-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319 3 9 Serrano v. Priest ("Serrano III") (1977) 20 Ca1.3d 25 12, 16, 17 10 Silva, et al. v. Ross Dress for Less, Inc., Alameda Superior Court Case Number RG19023625 15 11 Smiles v. Walgreens Co., Alameda Superior Court Case Number RG17862495 15 12 Staton v. Boeing (9th Cir. 2003) 327 F.3d 938 13, 20 13 Van Vranken v. Atlantic Richfield Co. (N.D. Cal. 1995) 901 F.Supp. 294 20 14 Vizcaino v. Micrsoft Corp. (9th Cir. 2002) 290 F.3d 1043 13, 14, 18 15 Wilson v. Bank ofAm. Natl. Trust & Says. Assn., (Cal. Sup. Ct. Aug. 16, 1982) No. 643872 18 16 Statutes 17 2 28 U.S.C. § 1332 18 California Rule of Court 3.769 11 19 Civil Code § 1781(d) 6 20 Labor Code § 2698 4 21 Rules 22 Rule of Court 3.766(f) 6 23 Treatises 24 California Judicial Council, Deskbook on the Management of Complex Civil Litigation, § 3.74 25 (Matthew Bender) 6 26 Conte & Newberg, Newberg on Class Actions (4th Ed., 2002) § 11.47 10 27 Manual for Complex Litigation, 21.7 (4th ed. 2004) 11 28 Memorandum of Points and Authorities in Support of Motion for Final Approval of Class Action Settlement Ping v. See's Candy Shop, Inc., et al. Case No. 20CV01023 1 The California Practice Guide: Civil Trials and Evidence (The Rutter Group) at § 17.172.3 12 2 Theodore Eisenberg & Geoffrey P. Miller, Incentive Awards to Class Action Plaintiffs: An Empirical 3 Study (2006) 53 UCLA L. Rev. 1303 20 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Memorandum of Points and Authorities in Support of Motion for Final Approval of Class Action Settlement Ping v. See's Candy Shop, Inc, et al. Case No. 20CV01023 1 I. INTRODUCTION. Plaintiff Laci Ping ("Plaintiff' or "Class Representative") seek final approval of the Class 3 Action and PAGA Settlement Agreement ("Settlement," "Agreement," or "Settlement Agreement") 4 entered into by and between Plaintiff, individually and on behalf of all others similarly situated and 5 other aggrieved employees, on the one hand, and Defendants See's Candy Shops, Inc.; See's Candies, 6 Inc. ("See's" or "Defendant"), on the other hand. Subject to approval by the Court, Plaintiff and 7 Defendant (collectively, the "Parties") have agreed to settle the lawsuit for a Maximum Settlement 8 Amount Value of one million three hundred fifty thousand dollars and no cents ($1,350,000.00).1 9 This wage and hour class action settlement is on behalf of over 6,800 class members and would 10 put an average of $42.00 in the pockets of class members, with the highest settlement share being 11 approximately $282.00. Moreover, class members will benefit from prospective relief valued at 12 $600,000 over the next five years. The net settlement funds will be distributed by a direct mailing to 13 class members, with no claims process, and no reversion. The requested attorneys' fees are reasonable 14 with an appropriate percentage of the Settlement Value (28%). The requested reimbursement of 15 litigation costs and expenses ($11,400) and costs of settlement administration ($50,000) are also 16 reasonable. And the requested incentive award to the representative plaintiff ($3,000) is reasonable and 17 commensurate with the services that she provided, and the risks and costs assumed in this litigation. 18 On its face, the teiiiis of the settlement are fair, reasonable, and adequate, as the Court 19 concluded when it granted preliminary approval and directed issuance of formal notice to the class. 20 That notice process has now concluded and confirms that this settlement was well-received by class 21 members. Class notice proceeded smoothly via a mailing of formal notice to class members' last 22 known addresses. Not a single class member objected. Only 16 class members requested exclusion, 23 which is merely 0.2% (one-fifth of one percent) of the class. Class members' embrace of the proposed 24 settlement confiuiiis that the proposed settlement is fair, reasonable, and adequate, such that it should 25 receive final approval, and judgement should be entered pursuant to the Parties' Settlement 26 Agreement. 27 28 Memorandum of Points and Authorities in Support of Motion for Final Approval of Class Action Settlement Ping v. See's Candy Shop, Inc., et al. Case No. 20CV01023 Page 1 1 II. A BRIEF HISTORY OF THE LITIGATION. 2 Plaintiff Laci Ping filed the Complaint initiating the Federal Litigation against Defendant in 3 United States District Court, Northern District of California, Case Number 3:19-cv-02504-RS, on May 4 9, 2019 (the "Federal Litigation"). Plaintiff asserted class action claims under the California Business 5 and Professions Code and the California Labor Code, alleging: (1) failure to reimburse expenses; (2) 6 failure to provide required uniforms; (3) failure to pay minimum wage for all hours worked; (4) failure 7 to provide accurate wage statements; (5) failure to timely pay final wages upon termination of 8 employment; and (6) unfair business practices. Plaintiff filed the Complaint with the good faith belief 9 that the federal court has jurisdiction over the matter pursuant to the Class Action Fairness Act, 28 10 U.S.C. § 1332(f), however, based on information provided after the Complaint was filed, the Parties 11 agreed that the Federal Court lacked subject matter jurisdiction pursuant to 28 U.S.C. § 1332(d)(4), 12 and stipulated to dismissing the Federal Litigation and re-filing the class action in this Court. On May 13 15, 2020, Plaintiff Laci Ping filed the Complaint initiating the Litigation against Defendant in the 14 Superior Court of California, County of Butte. In addition to the claims and conduct pleaded in the 15 Federal Litigation, Plaintiff also alleged a representative claim for penalties under the California Labor 16 Code Private Attorneys General Act ("PAGA"). 17 Plaintiff was employed by Defendant in Chico, California, as a non-exempt store employee 18 from approximately October 2010 until approximately December 2018, when Plaintiff was forced to 19 move out of state because her home was destroyed by the Camp Fire. 20 Defendants See's Candy Shops, Inc., and See's Candies, Inc., are California Corporations, 21 registered to and conducting business in California, with their headquarters and principal place of 22 business in South San Francisco, California. Together, See's Candy Shops, Inc. and See's Candies, 23 Inc. own and operate more than 100 stores in California. 24 The Complaint generally alleges violations of the California Labor Code and I.W.C. Wage 25 Orders. Defendant maintained a dress code policy that required its female employees to wear a knee 26 length dress, a black bow, a white full slip, and hosiery that is a nude color. Defendant provides the 27 28 1 Settlement Agreement, attached as "EXHIBIT A" to Declaration of Hallie Von Rock ("Von Rock Memorandum of Points and Authorities in Support of Motion for Final Approval of Class Action Settlement Ping v. See's Candy Shop, Inc., et al. Case No. 20CV01023 Page 2 1 knee length dress and bow, but its female employees were required to purchase their own slips and 2 hosiery. Plaintiff claims that the slips and hosiery constitute uniforms because they are items specified 3 by color and design by Defendant and are integral to Defendant's expectation that its employees 4 reinforce the 1940's era shopping experience wanted by Defendant for its customers. Thus, Plaintiff 5 brought claims for unreimbursed clothing purchases, uniform expenses, resultant minimum wage 6 violations, and attendant penalties. 7 Defendant denies all the claims and contentions alleged in the Complaint. Among other 8 arguments, Defendant asserted that the items in question are common wardrobe items that could be 9 worn in non-work settings as well as thus do not constitute uniforms for purposes of California law. 10 On January 29, 2020, the Parties participated in a formal, full-day mediation conducted by 11 Michael J. Loeb, a well-regarded mediator experienced in mediating complex labor and employment 12 matters. With the aid of the mediator's evaluation, the Parties ultimately reached the Settlement 13 described herein to resolve the cases in their entirety. 14 On September 10, 2020, Plaintiff moved for preliminary approval of their proposed settlement 15 and gave notice to the Labor and Workforce Development Agency as required under Labor Code, 16 section 2699(l)(2). The Court granted preliminary approval of the settlement on October 7, 2020. 17 III. THE PROPOSED SETTLEMENT. 18 For settlement purposes, the requisites for establishing class certification are met, and the 19 Parties have stipulated to conditional certification of the Class for settlement purposes only. California 20 Code of Civil Procedure Section 382 "authorizes class actions when the question is one of a common 21 or general interest, of many persons, or when the Parties are numerous, and it is impracticable to bring 22 them all before the court." Say-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326. 23 California courts certify class actions where the plaintiff identifies "both [1] an ascertainable class and 24 [2] a well-defined community of interest among class members." Id. Here, Plaintiff provided the Court 25 with ample information to provisionally certify the Class. See, Memorandum of Points and Authorities 26 in Support of Preliminary Approval of Class Action, at Section III. 27 28 Dec."), § VI. 1.18. Memorandum of Points and Authorities in Support of Motion for Final Approval of Class Action Settlement Ping v. See's Candy Shop, Inc., et aL Case No. 20CV01023 Page 3 1 The Court's preliminary approval order provisionally certified the following class as defined by 2 the Settlement Agreement: 3 All female Persons who were employed by See's in California as non- 4 exempt shop employees at any time during the period from May 9, 2015, through October 7, 2020 (i.e., the date of the Order granting preliminary 5 approval of the Settlement). 6 Given the ascertainable class and well-defined community of interest, the Court should provide final 7 certification of the Settlement Class. 8 The Class Notice was sent to 6,851 Class Members. See, Declaration of Amanda Myette 9 ("Myette Dec.") at ¶ 9. Class Notice was mailed on November 6, 2020. Id. Only 114 Class Notices 10 proved undeliverable after skip tracing. Id. at ¶ 10. No objections were received by the Settlement 11 Administrator. Id. at 1113. Only 16 requests for exclusion were received. Id. at ¶ 12. 12 The Settlement Agreement provides for consideration totaling $1.35 million. The Maximum 13 Settlement Amount Value includes the following: (1) Maximum Settlement Payment Amount, and (2) 14 Prospective Relief Value. The Maximum Settlement Payment Amount means the maximum gross 15 amount that Defendant shall pay under the terms of the Settlement, which is $750,000. This amount 16 shall cover all payments associated with the settlement, except the value or cost of the Prospective 17 Relief, including (a) the Maximum Settlement Portion for Payments to Participating Class Members; 18 (b) the maximum gross amount for Plaintiffs Counsel's attorneys' fees, which is $380,000; (c) the 19 maximum gross amount for all of Plaintiff's Counsel's and the Class Representative's taxable 20 litigation costs, as well as their normal and customary expenses, which shall not exceed $11,400; (d) 21 the anticipated gross amount for claims administration costs, which is $50,000; (e) the maximum gross 22 amount for the enhancement payment to be made by Defendant to the Class Representative, which is a 23 maximum of $3,000; and (f) the maximum gross amount paid as consideration to the State of 24 California and Class Members for the release of all Released Claims under the California Private 25 Attorney Generals Act of 2004, codified at California Labor Code sections 2698 et seq., which is 26 $15,000 (75%, or $11,250, of which shall be sent to the California Labor Workforce Development 27 Agency, with the remaining 25% (or $3,750) already included in the Maximum Settlement Portion for 28 Memorandum of Points and Authorities in Support of Motion for Final Approval of Class Action Settlement Ping v. See's Candy Shop, Inc., et al. Case No. 20CV01023 Page 4 1 Payments to Participating Claimants). 2 The Prospective Relief is the contractual agreement between Defendant and the Class 3 Representative, with the following terms: As a separately bargained for portion of the consideration 4 for entering into the Settlement, and subject to Court approval, Defendant agrees that with respect to 5 ongoing employment of Class Members in California, See's will either reimburse for, or not require, 6 hose and slips to be worn by any non-exempt shop employee for five years following entry of the 7 Judgment. The Prospective Relief Value means the value that the Parties have agreed to as the 8 valuation for settlement purposes of the Prospective Relief, which is $600,000. 9 In exchange for the consideration flowing to the class, Defendant receives a duly limited 10 release of the class claims and the PAGA claims asserted. See, Settlement Agreement at §VI., 2.7. 11 IV. THE CLASS RECEIVED SUFFICIENT NOTICE TO BE BOUND. 12 Class notice serves to protect the integrity of the class action process. Cartt v. Superior Court 13 (1975) 50 Cal.App.3d 960, 970. It effectuates the benefits of the class action device for the defendant, 14 by ensuring that "there will be but a single binding judgment against him." Kass v. Young (1977) 67 15 Cal.App.3d 100, 106. "The critical reason for notification of members of the class on whose behalf a 16 class action has been brought is that notification makes possible a binding adjudication and an 17 enforceable judgment with respect to the rights of the members of the class. Absent such notification 18 no member of the class need be bound by the result of the litigation" Home Say. & Loan Assn. v. 19 Superior Court (1974) 42 Cal.App.3d 1006, 1011 [117 Cal.Rptr. 485]). Class notice also protects class 20 members, insofar as it "prevents incompetent or unrepresentative plaintiffs from preempting for 21 themselves total representation of an unnotified class and likewise prevents collusive suits that could 22 bind members of the class to unwanted judgments unnecessarily limiting the scope of their recovery." 23 Home Say. & Loan Assn. v. Superior Court (1974) 42 Cal.App.3d 1006, 1012. 24 When a settlement is proposed, the purpose of a class notice is to give class members sufficient 25 information to decide whether they should accept the benefits offered, opt out and pursue their own 26 remedies, or object to the settlement. Wershba, 91 Cal.App.4th at 251-252. 27 Under California law, individual notice via direct mailing is regarded as sufficient, and is 28 preferred wherever possible. See, California Judicial Council, Deskbook on the Management of Memorandum of Points and Authorities in Support of Motion for Final Approval of Class Action Settlement Ping v. See's Candy Shop, Inc., et al. Case No. 20CV01023 Page 5 1 Complex Civil Litigation, § 3.74 (Matthew Bender); Rule of Court 3.766(f); Civil Code § 1781(d) (CLRA). Here, the Court's order granting preliminary approval directed personal notice to issue to 3 class members via direct mailing to class members' last known address. Notice was mailed to all class 4 members and delivered to all class members except a small number whose notices were returned as 5 undeliverable after skip tracing. This notice is sufficient to bind class members under California law. 6 V. THE SETTLEMENT IS FAIR, REASONABLE, AND ADEQUATE. 7 The trial court has broad discretion to determine whether a class action settlement is fair and 8 reasonable. Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 52. To determine whether the settlement 9 is fair and reasonable, courts consider relevant factors such as: 10 the strength of plaintiffs' case, the risk, expense, complexity and likely 11 duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery 12 completed and the stage of the proceedings, the experience and views of 13 counsel, the presence of a governmental participant, and the reaction of the class members to the proposed settlement. 14 Dunk, 48 Cal.App.4th at 1801. "The list of factors is not exclusive and the court is free to engage in a 15 balancing and weighing of the factors depending on the circumstances of each case." Wershba, 91 16 Cal.App.4th at 245. "Due regard should be given to what is otherwise a private consensual agreement 17 between the parties." Dunk, 48 Cal.App.4th at 1801. 18 The proponent of the settlement has the burden to show that it is fair and reasonable. Wershba, 19 91 Cal.App.4th at 245. At the final approval stage, a presumption of fairness exists where, as here: "(1) 20 the settlement is reached through aim's-length bargaining; (2) investigation and discovery are 21 sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar 22 litigation; and (4) the percentage of objectors is small." Dunk, 48 Cal.App.4th at 1802. 23 In reviewing a class settlement, the court need not reach any ultimate conclusions on the issues 24 of fact and law that underlie the merits of the dispute. 7-Eleven Owners for Fair Franchising v. 25 Southland Corp. (2000) 85 Cal.App.4th 1135, 1146. The inquiry is not whether the settlement 26 agreement is the best one that class members could have possibly obtained, but whether the settlement, 27 taken as a whole, is "fair, adequate, and reasonable." Chavez, 162 Cal.App.4th at 55. A settlement 28 Memorandum of Points and Authorities in Support of Motion for Final Approval of Class Action Settlement Ping v. See's Candy Shop, Inc., et al. Case No. 20CV01023 Page 6 1 need not obtain 100 percent of the damages sought in order to be fair, reasonable, and ultimately, 2 meaningful. Wershba, 91 Cal.App.4th at 251. Even if the proposed settlement affords relief that is 3 substantially narrower than it would be if the cases were to be successfully litigated, that is no bar to a 4 class settlement because the public interest may indeed be served by a voluntary settlement in which 5 each side gives ground in the interest of avoiding prolonged litigation. Id. 6 A. The Settlement Resulted from Ann's-Length Negotiations. 7 The Parties actively litigated the matter since it was commenced on May 9, 2019. Both sides 8 used the pre-mediation time period to investigate the veracity, strength, and scope of the claims, and 9 Class Counsel were actively preparing the matter for class certification and trial. 10 Prior to engaging in mediation, Class Counsel conducted significant investigation and 11 discovery regarding the facts of the cases, including and not limited to, the exchange, review, and 12 analysis of all policies related to employee dress, payroll data for class members and aggrieved 13 employees, communications about the dress code policy, hourly rates and pay periods, among other 14 information and documents. Class Counsel interviewed Plaintiff to gather facts and to identify 15 potential witnesses. Counsel for the Parties also met and conferred on numerous occasions, e.g., to 16 discuss issues relating to the pleadings, discovery, and the production of documents and data prior to 17 the mediation. Class Counsel also drafted Plaintiffs mediation brief and prepared for and attended 18 court proceedings, settlement negotiations, and the mediation, among other tasks. 19 The Parties engaged in extensive settlement negotiations and participated in a formal, full-day 20 mediation conducted by Michael J. Loeb, an experienced mediator knowledgeable of both wage and 21 hour laws and class and representative claims at issue in this Litigation. Prior to and during the 22 mediation and settlement discussions, the Parties exchanged class-wide information and engaged in an 23 intensive discussion regarding their evaluations of the cases and various aspects of the matter, 24 including but not limited to, the risks and delays of further litigation, the risks to the Parties of 25 proceeding with class certification and/or representative adjudication, the law relating to uniform 26 reimbursements, penalties, and PAGA representative claims, as well as the evidence produced and 27 analyzed, and the possibility of appeals, among other things. During all settlement discussions, the 28 Parties conducted their negotiations at aim's length in an adversarial position. Arriving at a settlement Memorandum of Points and Authorities in Support of Motion for Final Approval of Class Action Settlement Ping v. See's Candy Shop, Inc., et al. Case No. 20CV01023 Page 7 1 that was acceptable to all Parties was not easy. Defendant and its counsel felt strongly about their 2 ability to prevail on the merits and at certification, and Plaintiff and Class Counsel believed that they 3 would be able to obtain class certification and prevail at trial. After conducting meaningful 4 investigation and with the aid of the mediator's evaluation, the Parties agreed that the matter is well- 5 suited for settlement given the legal issues relating to Plaintiff's principal claims, as well as the costs 6 and risks to both sides that would attend further litigation. 7 B. The Risks Inherent in Continued Litigation Favor Final Approval of the Settlement. 8 The Maximum Settlement Amount Value of $1,350,000 represents a fair, adequate, and 9 reasonable resolution of the claims asserted, given the risks inherent in litigating class and 10 representative claims through certification proceedings, trial, and/or appeals. The Settlement was 11 calculated using information and data uncovered through extensive case investigation, discovery, and 12 the exchange of information in the context of mediation. 13 Had the case not settled, Defendants would have vigorously challenged certifiability, 14 manageability of representative adjudication, and liability. Defendants contended that individualized 15 questions of fact predominate over any common issues, and these issues would pose challenges to 16 certification and representative adjudication. Defendants would have likely argued again at trial, if any, 17 that Plaintiff's claims were not appropriate for class-wide and/or representative adjudication. On the 18 other hand, Defendants also faced the risk of the Court certifying a class and allowing a jury to decide 19 Plaintiff's claims on a class-wide or representative basis. Additionally, preparation for trial would have 20 been expensive for all parties. 21 It is preferable to reach an early resolution of a dispute because such resolutions save time and 22 money that would otherwise go to litigation. If this matter had settled after further litigation, the 23 settlement amount would have considered the additional costs incurred, and there might have been less 24 money available for the Class Members after all was said and done. This is not just an abstract 25 contention. The risks of further litigation include a determination that the claims were unsuitable for 26 class treatment and/or representative adjudication, failure to obtain certification, class de-certification 27 after certification of a class, allowing a jury to decide the claims asserted in the cases, and the real 28 possibility of no or limited recovery after years of litigation. Additionally, the parties were moving into Memorandum of Points and Authorities in Support of Motion for Final Approval of Class Action Settlement Ping v. See's Candy Shop, Inc., et al. Case No. 20CV01023 Page 8 1 the phase of the litigation where they would have to conduct a significant amount of additional 2 discovery, including and not limited to, depositions of Defendant's Person Most Qualified designees, 3 expert witnesses, and percipient witnesses, such as managers, supervisors, and other current and 4 former employees throughout the State of California. Discovery disputes would have certainly arisen, 5 which would have cost the parties additional time and money. In contrast, the proposed settlement 6 provides real and significant benefits for the class here and now, while avoiding the further expenses, 7 risks, and delay of prolonged litigation with only the possibility of recovery. 8 It would be grossly inefficient for such a large class of current and former employees to bring 9 individual actions to recover from Defendant for the alleged violations of labor laws. Moreover, the 10 potential individual recovery that could be obtained by a class member would not be significant 11 enough to provide him or her with the incentive to sue. By granting final approval of the proposed 12 settlement, the Court can approve a resolution that provides a certain and substantial recovery. 13 C. The Settlement Amount Is Fair, Reasonable, and Adequate. 14 The Maximum Settlement Amount Value of $1,350,000 represents a fair, reasonable, and 15 adequate resolution of the claims asserted. The Settlement was calculated using infounation and data 16 uncovered through extensive case investigation, formal and informal discovery, and the exchange of 17 information in the context of mediation. Moreover, considering all the facts in the cases, the gross 18 settlement amount represents a considerable recovery. 19 Plaintiffs Counsel have reviewed Munoz v. BCI Coca-Cola Bottling Co. of Los Angeles (2010) 20 186 Cal.App.4th 399, and Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, and have 21 sought to set forth all of the information those courts have determined are necessary for understanding 22 whether a settlement is "within the realistic range of outcomes" for the litigation, including the amount 23 theoretically recoverable, the size of the class, information relating to the estimated expenses, the 24 scope of plaintiffs discovery and investigation, the nature of the evidence upon which plaintiff relied 25 and plaintiffs analysis of that evidence, and the strength of plaintiffs claims and See's defenses. See, 26 HVR Dec. ¶¶ 9-22. In Plaintiffs Counsel's experience in both class action and individual wage and 27 hour cases, viewed in light of the risks of litigation