Motion-Secondary: Foster, Ind. and on behalf of others, Susan vs. Four County West, Inc Doing Business as Griswold Home Care et al

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COMMONWEALTH OF MASSACHUSETTS

HAMPSHIRE, ss SUPERIOR COURT
DEPARTMENT OF
THE TRIAL COURT

SUSAN FOSTER,
individually and on behalf of all others
similarly situated,

Plaintiff,
C. A. No. 1780CV00102
v.

FOUR COUNTY WEST, INC.
d/b/a GRISWOLD HOME CARE, and
KIRBY DETMERS,

Defendants.

ee SS SS

MEMORANDUM IN SUPPORT OF PLAINTIFF’S ASSENTED-TO MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT

HAMPSHIRE SUPERIOR COURT

SEP © 3 2019

HARRY JEKANOWSKI, JR.
CLERK/MAGISTRATEThis class action was brought on behalf of employees of the Defendants, Four County
West, Inc. d/b/a Griswold Home Care, and Kirby Detmers (hereinafter, collectively “Griswold”
or “Defendants”), and alleges that the Defendants failed to pay the Plaintiff and other caregivers
for intraday travel time and failed to reimburse them for related travel expenses, in violation of
Massachusetts law. These claims, arising out of alleged uniform policies of the defendants,
apply to 42 class members (the “Settlement Class”). Defendants dispute the allegations in the
complaint and maintain that they have strong defenses in both law and fact. Nonetheless, the
parties reached an agreement to settle this action on a class-wide basis. The Joint Stipulation of
Class Settlement and Release (“Settlement Agreement”) is attached as Exhibit 1.

The proposed Settlement will create a Settlement Fund of $64,000.00. The Fund will be
distributed to the 42 identified Class Members on a pro rata basis, after deduction for attorneys”
fees and an additional payment to the Class Representative for her contributions to this litigation,
subject to the approval of the Court. Counsel for Ms. Foster and the proposed class apply for an
award of attorneys’ fees of $21,333.33 (1/3 of the Settlement Fund) and an incentive award for
the Class Representative in the amount of $5,000, in accordance with the terms of the Settlement
Agreement.

On May 24, 2019, this Court granted the Plaintiff's Assented-To Motion for Preliminary
Approval of Class Action Settlement, in which Plaintiff requested the Court set a final approval
hearing, preliminarily certify the Class, and approve the form class notice. Docket Nos. 27-28. On
June 24, 2019, the Third Party Administrator sent a copy of the Court-approved form of notice to

42 Settlement Class Members. Exhibit 3, Declaration of Class Administrator, {6. Class Members

 

were not required to submit claim forms to participate in the Settlement. To date, of the 42 Class

Notices mailed, a total of 41 Class Notices, or 98 percent, were successfully delivered. Jd. at 6-7.After notice, there have been no objections from the class to the Settlement. Jd, at 9.
Accordingly, the $37,666.67 net Settlement Fund, after deductions for fees and an incentive
award, will be divided up among 42 Settlement Class Members, yielding an average payout of
$896.83 per class member.

For the reasons set forth below, Plaintiff requests that the Court grant approval of this
Settlement pursuant to Mass. R. Civ. P. 23(c) and enter the proposed Final Approval Order
attached hereto as Exhibit 2.

iL Statement Of The Case

The Plaintiff, a caregiver, commenced this action on June 19, 2017, on behalf of herself’
and the others similarly situated. The Plaintiff subsequently filed an Amended Complaint on
December 11, 2017. The Amended Complaint claims that Griswold failed to pay Ms. Foster and
other similarly situated employces their intraday travel time as required by Massachusetts law.
Specifically, the complaint alleges that, in violation of M.G.L. c. 149, § 148 and M.G.L. c. 151, §
1, Griswold required Ms. Foster and other hourly caregivers to travel to multiple clients’ homes
each day in order to provide services, but failed to pay them wages for their intraday travel time,
and failed to reimburse them for their travel expenses. As a result of these alleged violations, the
Plaintiff sought damages pursuant to M.G.L. c. 149, § 150, and M.G.L. ¢. 151, § 1.

In January 2018, Griswold filed a motion to dismiss two counts of Plaintiff's Amended
Complaint. On March 5, 2018, the Court held a hearing on the motion and ultimately denied it.
On April 27, 2018, Griswold answered the Amended Complaint, denying all allegations raised.
by Ms. Foster.

In January 2018, the Plaintiff served interrogatories and document requests on the
Defendants. In February 2018, Griswold responded to Plaintiff's discovery requests and
produced responsive documents. In the months that followed, the parties engaged in efforts to

2resolve the matter on a class-wide basis. In furtherance of those efforts, Defendants shared
thousands of pages of additional documents, including extensive payroll and scheduling records
of caregivers during the class period. Defendants also served interrogatories and document
tequests on Plaintiff in September 2018.

Using the class data provided by Defendants, Plaintiff was able to calculate class-wide
damages and make a settlement offer. After exchanging a few offers, the parties were able to
reach a settlement in principle and ultimately negotiated and executed the settlement agreement
that is before this Court.

On May 24, 2019, this Court granted the Plaintiff's Assented-To Motion for Preliminary
Approval of Class Action Settlement, in which the Plaintiff requested the Court set a final

approval hearing, certify the Class, and approve the form class notice. Docket Nos. 27-28.

I. Summary of The Terms of the Settlement

The key terms of the Settlement Agreement, attached as Exhibit 1, are summarized as
follows:

1. The Settlement Class: The Settlement Class: The Settlement Class is composed of all
current and former Griswold employees who worked as caregivers at any time between
June 19, 2014 and December 31, 2016, and were not compensated for intra-day travel or
reimbursed for travel expenses.

2. Relief for Class Members: The total proposed Settlement Fund is $64,000.00. The
Settlement Fund shall have the following three components: (a) the Settlement Award,
(b) any Incentive Award that the Court may direct to be paid to the Plaintiff, (c) any Fee
Award that the Court may direct to be paid to Plaintiff's Counsel. Excepting
Administration Expenses, in no event shall the total distributions made by Defendants
pursuant to this Agreement exceed the amount of the Settlement Fund. Each Class
Member will receive a pro rata share of the net Settlement Fund based on Class
Members’ number of hours of intra-day travel worked during the Class Period, as
described in the Setilement Agreement.

3. Incentive Payment: The Class Representative seeks an incentive award in the amount of
$5,000 at the final approval stage of this case, and the Defendants have agreed not fo
object and do not object to this request and such amount will be paid from the Settlement
Fund if awarded by the court, subject to the terms of the Settlement.

34. Attorneys’ Fees and Costs: Class Counsel seeks an award of $21,333.33 (1/3 of the
Settlement Fund) in attorneys’ fees, costs, and expenses, as provided in the Settlement
Agreement. The Defendants have agreed not to object and do not object to this request
and such amount will be paid from the Settlement Fund if awarded by the court, subject
to the terms of the Settlement.

5. Cy Pres Award; If there remains any residual from the Settlement Fund after all payments
are made under this Agreement because settlement checks cannot be delivered or are not
cashed within 180 calendar days after issuance, the residual shall be paid to the following
cy pres beneficiary: Fair Employment Project of Cambridge, Massachusetts.

6. Release of Claims: As a consequence of the Settlement Agreement and in exchange for
the payments made to the Class Representative and Class Members as set forth in the

Settlement Agreement, the Class Representative and Settlement Class Members have
agreed to release claims against Defendants as set forth in the Settlement Agreement.

Til. Settlement Class Members Were Given Proper And Reasonable Notice Of The

Settlement

After the Court granted the Assented-To Motion for Preliminary Approval of Settlement
Agreement, the third-party Settlement Administrator sent a copy of the Court-approved form of
Class Notice to all Settlement Class Members. Exhibit 3, Declaration of Class Administrator, §6.
The Notices were sent by first class mail on June 24, 2019 using the most current addresses for
Settlement Class Members available to the Administrator in its records. Jd. Thereafter, when two
notice packets were returned as undeliverable, the Administrator obtained an updated address for
one Class Member and re-mailed the notice to the updated address. Jd. at 7. To date, of the 42
Class Notices mailed, a total of 41 Class Notices, or 98 percent, were successfully delivered. Id.
at 6-7. No Settlement Class Members have objected to the settlement terms. /d. at 9.

Rule 23 gives the court substantial discretion in determining what notice, if any, is
required. See Spence v. Reeder, 382 Mass. 398, 408 (1981); Slaney v. Westwood Auto, Inc., 366
Mass. 688, 700, n. 16 (1975). Sending notice by first class mail to class members identifiable by
reasonable means is adequate notice. See Spence v. Reader, supra. See, ¢.g., Inre Compact Disc
Minimum Advertised Price Antitrust Litig., 216 F.R.D. 197, 218 (D. Me. 2003) (“individualized

4notice by first class mail ordinarily satisfies the requirement that class members receive the best
notice practicable under the circumstances”).

Here, the content of the Class Notice satisfies due process in that it clearly outlines the
nature of the case and the remedies offered by the Settlement Agreement, while also providing
clear and conspicuous notice of Settlement Class Members’ rights to object. See, e.g., Eldridge v.
Provident Companies Inc., No. CIV. A. 97-1099, 2000 WL 289640 (Mass. Sup. Ct. March 6,
2000) (Toomey, J.) (discussing due process requirements of notice under Rule 23); see also In re
Compact Disc. Litig., 216 F.R.D., at 203-04 (notice satisfied Rule 23 because it provided
sufficient information for class members to decide whether to file claims, opt out, seek exclusion
or object); Greenspun v. Bogan, 492 F.2d 375, 382 (D. Mass. 1974) (essential purpose of notice

is to apprise class members of settlement terms and class members’ options).

IV. The Proposed Settlement Js Fair, Reasonable And Adequate
The Settlement presented to the Court for approval represents a fair and reasonable

resolution of this dispute. It will provide appropriate financial relief to Class Members in the
form of cash payments and will relieve the parties of the burden of litigation.
A. Standard for Process of Approval

The settlement of a class action requires court approval. Mass. R. Civ. P. 23(c). In
deciding whether to approve a proposed settlement, the court must determine whether it is fair,
reasonable, and in the best interests of the class which will be affected by it. See Sniffin v.
Prudential Ins. Co., 395 Mass. 415, 419-22 (1985). Massachusetts courts use the same standard
for approval as the federal courts. /d., at 420-21; City P'shp. Co. v. Atlantic Acquisition, 100 F.3d
1041, 1043 (Ist Cir. 1996), citing Durrett v. Housing Auth. of City of Providence, 896 F.2d 600,

604 (1st Cir, 1990).There is an overriding public interest in favor of settling class actions. Lazar v. Pierce,
757 F.2d 435, 439 (1st Cir. 1985); Durrett, 896 F.2d, at 604 (noting “long-recognized policy of
encouraging settlements”), and courts should not substitute their own judgment as to settlement
terms for that of the parties. Sniffin, supra, at 421-22. This is due in part to the “strong initial
presumption” that an arms-length settlement arrived at by counsel experienced in the type of
litigation involved on the basis of sufficient information concerning the claims at issue is fair. 4
H. Newberg, A. Conte, Newberg on Class Actions, §11.42 (4th ed. 2002). Settlements “spare the
judicial system and the litigants the expense and time associated with the full panoply of pretrial,
trial and positrial proceedings.” Vermont Pure Holdings v. Berry, 23 Mass. L. Rptr. 33, 2010 WL
1665258, *11 (Mass. Sup. Ct. 2010) (Hinkle, J.). Moreover, “[c]ourts have consistently noted
that the public interest favoring the settlement of litigation is even stronger in the context of class
action litigation, where one proceeding can resolve many thousands or even millions of claims
that might otherwisc threaten to swamp the judiciary.” Jd. In evaluating a settlement, the trial
court should not decide the merits, or proceed from the assumption that victory is assured and.
that all claimed damages are properly recoverable. See In re Domestic Air Transportation
Antitrust Litigation, 148 F.R.D. 297, 312-13 (N.D. Ga. 1993).

Factors relevant to the court’s decision to approve a settlement include: (1) the strength of
the case for the plaintiff on the merits, balanced against the extent of the settlement offer; (2) the
complexity, length and expense of further litigation; (3) the nature and extent of opposition to the
settlement; and (4) the progress of the proceedings. See Sniffin, 395 Mass. 421-27, In
determining whether class action settlements should be approved courts “do not decide the
merits of the case or resolve unsettled legal questions.” Carson v. American Brands, Inc., 450

US. 79, 88 n. 14 (1981).B. The Settlement Is Fair, Reasonable, And Adequate For Class Members

1. The Settlement Resulted From Arm’s Length Negotiations Based On A Factual
Record Developed Through Discovery And Exchange of Necessary Information

The parties, through counsel, conducted both formal and informal discovery in this case,
including written discovery. The parties also engaged in motion practice before engaging in any
discussions about a possible resolution. After obtaining sufficient information to meaningfully
discuss resolution of the case, the parties engaged in extended and complex arms-length
negotiations to resolve this matter. Eventually, after months of negotiations, the parties produced
and executed the Settlement Agreement that is before the Court.

2. The Settlement Provides Significant Monetary Benefits To The Class

The proposed Settlement calls for a Settlement Fund of $64,000 to be established to
provide relief to class members and pay fees and costs. This represents a reasonable compromise.
Based on the assumption that 90-minute gaps between client appointments are compensable (i.c.,
the time spent traveling and/or waiting between appointments), the plaintiff calculates single
damages as totaling approximately $21,292.24. Under applicable law, if the: case were
successful, the plaintiff and class members would be entitled to treble damages (a total of
$63,876.72). M.G.L. c. 149, § 150. While Defendants dispute that 90-minute gaps would be
compensable, based on Plaintiff's estimate, the total settlement is 300.58% of the single
damages! and 100.19% of the potential damages? in the case. Given that wage and hour class
actions often settle for a fraction of single damages,’ this result is just and reasonable given the

inherent risks of litigation and will allow class members to receive substantial relief without

' $64,000/$21,292.24 = 3.00578.

2 $64,000/$63,876.72 = 1.0019

3 See, e.g., Bautista v. Harvest Management Sub LLC, No. CV 12-10004 FMO (CWx), 2013 WI. 12125768 (C.D.
Cal. Oct. 16, 2013) (approving wage and hour class action settlement representing 30% of the maximum possible
amount of recovery); Rodriguez v. W. Publ'g. Corp., 563 F.3d 948, 964 (9th Cir. 2009) (affirming settlement
approval where the setilement represented 30% of the damages estimated by the class expert).

7undue delay.

The amount of the fund represents a reasonable compromise given the legal risks
presented by the litigation. The central issue raised by this class action----the interpretation of
Massachusetts wage laws with regard to travel pay for caregivers traveling between client
locations during the day—has not, as far as the parties are aware, been fully litigated yet in any
Massachusetts court.

While Massachusetts law on travel pay appears to be straightforward, in that time spent
on required, non-commuting travel is considered work time,’ the practical application of this rule
is less clear, Here, caregivers were required to travel between client appointments each day, The
time between appointments varied; for example, on a given day, caregivers could have 15
minutes between two appointments in the morning and 90 minutes between two appointments in
the afternoon. This raises the question of how much of the time between appointments must be
paid time—only actual time spent traveling, or travel time plus idle time, or is the time between
appointments of sufficient length to be considered “split shifts” such that the time in between is
considered non-compensable “commuting time”? In addition, there are questions of what rate
applies to travel time. These issues have yet to be addressed by Massachusetts courts, and the
parties hold differing views on the calculation of potential damages, if any.

Furthermore, Defendant’s status as a relatively small business with modest means
militates towards approving this Settlement. If the partics continued to litigate this matter
through trial, Defendants may be ill-equipped to afford to pay, in addition to its own attorneys’

fees, a full class judgment and the attorneys’ fees of Plaintiffs counsel. Approving this

4 454 Code Mass. Regs. § 27.04(d) provides: “An employee required or directed to travel from one place to another
after the beginning of or before the close of the work day shall be compensated for all travel time and shall be
reimbursed for all transportation expenses.”Settlement will ensure Class Members substantial monetary relief without the risk of continuing
the litigation and the Court entering a judgment that proves uncollectible.

The value of the benefits provided by the Settlement is enhanced by the fact that they will
be provided to the Class now, without the delay, risks and burdens of further litigation. See
Rolland v. Cellueci, 191 F.R.D. 3, 10 (D. Mass 2000) (the certainty of recovery through
settlement in contrast to the expense, length and uncertainty of litigation, is a strong argument in
favor of settlement). There are inherent delays in any litigation—if the case had proceeded to
judgment and then appeal, Settlement Class Members would likely not obtain recovery for
several years. Morcover, the recovery through this settlement is certain, whereas continued
litigation involves the risk of lack of success, in which case the Settlement Class Members
would have received nothing, as well as risk based on Defendants’ ability to pay.

No Settlement Class Member has objected to the settlement. Exhibit 3, Declaration Of
Class Administrator, {9. When few members object to the settlement, the court may infer that the
settlement is fair. See Bussie v. Allmerica Fin. Corp., 50 F. Supp. 2d 59, 77 (D. Mass. 1999).

Based on their review and analysis of the relevant facts and legal principles, Plaintiff and
her counsel believe that, in consideration of all the circumstances and after serious arms-length
settlement negotiations with Defendant’s counsel, the terms and conditions embodied in this
Settlement are fair, reasonable, and adequate, and beneficial to and in the best interests of the
Plaintiff and the proposed Settlement Class. ‘The opinion of Plaintiff's counsel as to the
desirability of settlement is an important consideration. See Rolland, 191 F.R.D. at 10; In re
Compact Disc. Litig., 216 F.R.D., at 212 (determining fairness of settlement proposed by

counsel, the court considers the experience and level of competence of class counsel).Counsel for the Plaintiff and the Class have substantial experience in wage and hour and
class action litigation. See Exhibit 4, Affidavit Of Class Counsel. The 42 Settlement Class
Members will divide approximately $37,666.67 after deduction for attorneys’ fees and an
incentive award if approved by the Court, and the fund will be distributed proportionally based
on each Class Member’s estimated intraday travel time. The amount of the fund and the method
of distribution is fair and reasonable under the circumstances.

Vv. The Settlement Class Is Appropriately Certified

The proposed Class, and the Class Representative and Class Counsel, meet the class
action certification requirements under Mass. R. Civ. P. 23. Under Rule 23, class certification is
appropriate if: (1) the class is sufficiently numerous to make joinder of all parties impracticable,
(2) there are common questions of law and fact, (3) the claim of the named Plaintiff
representative is typical of the claims of the Class Members, and (4) the named Plaintiff will
fairly and adequately represent the interests of the Class Members. Mass. R. Civ. P. 23(a). In
addition, Plaintiffs must show that common questions of law and fact predominate over
individualized questions, and that the class action is superior to other available methods for fair
and efficient adjudication of the controversy. Mass. R. Civ. P. 23(b). All of the rule’s
requirements are met here.

i, Numerosity

Rule 23(a)(1) requires that “the class [be] so numerous the joinder of all members is
impracticable.” The standard of impracticability does not mean “impossibility” but only difficulty
or inconvenience of joining all members of the class. The issue is not the numerical size of the
class but, as explicitly stated in Rule 23(a)(1), that joinder is impracticable. Hatisherry v. Lee, 311

U.S. 32, 41 (1941). See also Reporter’s Notes to Mass. R. Civ, P. 23, 46 Mass. Gen. Laws Ann.,

10Rules of Civil Procedure, at 270 (Thomson/West 2006), quoting Demarco vy. Edens, 390 F.2d
836, 845 (2d Cir.1968) (“Determination of joinder impracticability takes into consideration ‘ali
the circumstances surrounding a case””).

The Class is sufficiently numerous. Here, the Class encompasses 42 individuals, which is
enough to make joinder impracticable. Although there is no hard-and-fast number setting a floor
for numerosity, a class of at least 40 is generally acknowledged to be sufficiently numerous under
Rule 23. See, e.g., Inre Relafen Antitrust Litig., 218 F.R.D. 337, 342 (D. Mass. 2003) (“forty
individuals fare] generally found to establish numerosity”); Calcagne v. High Country Investor,
Ine., ESCV200303-00707, slip op. 1-2 (Mass. Super. Ct. June 8, 2006) (“35-40 employees, while
not an overwhelming number ... is sufficient to satisfy the numerosity requirement particularly in
an employment case challenging a common policy.”); Jn re Relafen Antitrust Litig., 218 F.R.D.
337, 342 (D. Mass. 2003) (“forty individuals [are] generally found to establish numerosity”).
Therefore, numerosity is met.

2. Commonality

Plaintiff contends that commonality is also met. Mass. R. Civ. P. 23(a)(2).

Commonality is a “low hurdle.” Southern States Police Benevolent Ass’n v. First Choice Armor
& Equip., Inc., 241 F.R.D. 85, 87 (D. Mass. 2007). It requires the identification of only “a single
issue common to all members of the class.” Holzman y. General Motors Corp., 2007 WL
4098913 at *9 (Mass. Sup. Ct. Nov. 6, 2007) (Billings, J.) (quoting In re American Medical Sys.,
Inc., 75 F.3d 1069, 1080 (6th Cir. 1996). Here, the dispositive legal issues—whether
Defendants’ policy of allegedly failing to pay caregivers for intraday travel time and reimburse
them for transportation expenses violates the Massachusetts Wage Act and the Minimum Fair

Wage law—are substantially similar as to each class member. Therefore, the commonality

ielement is met for purposes of settlement.
3. Typicality
Plaintiff submits that her claims are typical of the Class’s claims. Mass. R. Civ. P.
23(a)(3). “Typicality is established where there is ‘a sufficient relationship . . . between the
injury to the named plaintiffs and the conduct affecting the class,’ and the claims of the named
plaintiffs and those of the class ‘are based on the same legal theory’.” Weld v. Glaxo Welcome,
Inc., 434 Mass, 81, 87 (2001), quoting Newberg On Class Actions § 3.13 at 3-76. Here, the
Plaintiff's claims are identical to those of Class Members — both she and the Class Members seek
relief for unpaid wages under the same theory of liability and the same Massachusetts wage laws.
Therefore, the typicality requirement is met.
4, Adequacy
The adequacy clement is generally characterized as an inquiry into whether the attorneys,
together with the named plaintiff, will act diligently on behalf of the class and whether any
potential conflicts of interest exist or are likely to arise between the named plaintiffs and class
members. See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 626 n. 20 (1997); Weld v. CVS
Pharmacy, No. 98-0897F, 1999 WL 494114, 10 Mass. L. Rptr. 217 (Mass. Sup. Ct. 1999)
(Freemontsmith, J.). “A class representative must be part of the class and possess the same

interest and suffer the same injury as the class members.” Amchem, 117 S.Ct. at 2251.

 

Here, undersigned Class Counsel are active practitioners experienced in employment law

and class actions. See Exhibit 4, Affidavit of Class Counsel. As to the named Plaintiff, there is

 

no conflict between her and the Class Members, and the injuries suffered by the representative
are alleged to be the same as the Class. Thus, both the Plaintiff and her Counsel meet the

adequacy requirement, and the final requisite to certification under Rule 23(a) is satisfied.

125. Predominance

Once the Rule 23(a)} requirements are satisfied, the Rule 23(b) requirements of
predominance and superiority must all be met. Plaintiff submits that the predominance
requirement under Rule 23(b) is met. Courts have routinely found predominance of common
questions where the claims relate to a common course of conduct. Waste Mgt. Holdings, Inc. v.
Mowbray, 208 F.3d 288, 296 (1st Cir. 2000) (predominance requirement satisfied by “sufficient
constellation of common issues [that] bind class members together” and “cannot be reduced to a
mechanical, single-issue test”). Here, the Plaintiff alleges a common course of conduct -- the
unlawful failure to pay for intraday travel time or reimburse travel expenses — thereby meeting
the predominance requirement.

6. Superiority

Plaintiff also contends that the superiority requirement under Rule 23(b) is met. A class
action is the superior method of resolving claims that affect a large number of individuals if it
will “achieve economies of time, effort, and expense, and promote . . . uniformity of decision as
to persons similarly situated, without sacrificing procedural fairness or bringing about other
undesirable results.” Amchem, 117 S.Ct. at 2246. A class action is also superior where the
potential damages for an individual are small compared with the costs of probibiting an
individual claim. Baker v. Lvovskiy, 2006 WI. 262577, at *3 (Mass. Super. 2006).

Plaintiff submits that, here, a class action is the superior method of adjudicating the
claims raised by this case. The complaint challenges alleged company-wide conduct that
affected Class Members in exactly the same way. Judicial economy is served by resolving these
identical claims in one proceeding, rather than in dozens of individual claims. Moreover,

multiple cases would also raise the prospect of conflicting outcomes, which could result in two

13employees providing the same services for the same company being subject to inconsistent
determinations. And many of the Class Members’ individual damages are too small to warrant
the expense of litigation. Therefore, the superiority requirement is met.

IV. The Requested Incentive Award Is Fair, Reasonable, And Adequate.

Per the parties’ Settlement Agreement, Plaintiff requests that the Court approve an
incentive award for the Class Representative of $5,000. This proposed incentive award is fair
and reasonable, given that it was this Plaintiff who initiated the lawsuit on behalf of herself
and coworkers and because it was through her initiative that this recovery was obtained. The
named Plaintiff here participated actively in the litigation and provided invaluable assistance
to Class Counsel, including providing key facts regarding the case.

Courts have widely recognized that incentive awards serve an important function in
promoting enforcement of state and federal law by private individuals, while encouraging class
action settlements. See In re Relafen Antitrust Litig., 231 F.R.D. 52, 82 (D. Mass. 2005)
(“incentive awards are recognized as serving an important function in promoting class action
settlements, particularly where, as here, the named plaintiffs participated actively in the
litigation”); In re Compact Disc Min. Adver. Price Antitrust Litig,, 292 F. Supp. 2d 184, 189 (D.
Me. 2003) (“because a named plaintiff is an essential ingredient of any class action, an incentive
award can be appropriate to encourage or induce an individual to participate in the suit”).

It is not uncommon for courts to approve incentive payments in amounts significantly
higher than that requested here. See, e.g., Godt et al. v. Anthony’s Pier Four, Inc., Suffolk Civ.
A. No. 07-3919 (Mass. Sup. Ct. 2009) ($25,000 incentive payment for lead plaintiff); Shea v.
Weston Golf Club, Middlesex Civ. A. No. 02-1826 (Mass. Sup. Ct. 2009) ($25,000 incentive

payments for lead plaintiffs); In re Janney Montgomery Scott LLC Fin. Consultant Litig., 2009

14WL 2137224, *12 (E.D.Pa. Jul.16, 2009) (approving incentive payments of $20,000 cach to three
named Plaintiffs in FLSA and Pennsylvania wage and hour case); Castagna v. Madison Square
Garden, L.P., 2011 WL 2208614, at *8 (S.D.N.Y. June 7, 2011) (incentive payments of $10,000
and $15,000 awarded to each named plaintiff in wage class action); Brotherton v. Cleveland, 141
F.Supp.2d 907, 913-14 (S.D.Ohio 2001) ($50,000 incentive award); Van Vranken v. Atlantic
Richfield Comp., 901 F.Supp. 294, 300 (N.D. Cal. 2015) ($50,000 incentive award). The
requested incentive payment is thus reasonable in light of other payments that have been
approved by courts in wage cases.

Incentive awards serve a particularly important role in employment class actions, where
the lead plaintiff may be concerned that she is risking her livelihood to bring the case forward on
behalf of her fellow coworkers. Courts have recognized the important role of class actions in the
employment context precisely because of this fear of potential retaliation. See, e.g., Overka et al.
v, American Airlines, Inc., Civil Action No. 08-10686-WGY (D. Mass.) (ECF No. 50, at 22) (in
certifying national class of skycaps challenging $2 per bag curbside check-in charges, court noted
with approval skycaps’ argument that “class adjudication is superior in the employment context
because fear of employer retaliation may have a chilling effect on employees bringing claims on
an individual basis”). For all these reasons, the requested Incentive Award is reasonable.

Iv. The Requested Attorneys’ Fee Award Is Fair And Reasonable

Per the parties’ Settlement Agreement, Plaintiff requests that the Court approve an award
of $21,333.33, for attorneys’ fees and litigation expenses, constituting one-third of the $64,000
Settlement Fund. Defendants do not object to this request.

I. The Circumstances Under Which The Parties Negotiated The Fees Provide
Substantial Evidence That The Stipulated Fees Are Reasonable.

15The parties’ agreement on fees and costs meets the Supreme Court’s guidance on this
issue, which sets out consensual resolution of attorneys’ fees as the ideal culmination of
successful litigation. In Hensley v. Eckerhart, 461 U.S. 424, 437 (1983), the Court stated: “A
request for attorney’s fees should not result in a second major litigation. Ideally, of course,
litigants will settle the amount of a fee.” A fee negotiated under circumstances where there could
be no connection between the amount of the fee and the class recovery is entitled to substantial
weight:

[T]he fee was negotiated at arms’ length with sophisticated

defendants by the attorneys who were intimately familiar with the

case, the risks, the amount and value of their time, and the nature

of the result obtained for the class. . . . [T]he Court is reluctant to

interpose its judgment as to the amount of attorneys’ fees in the

place of the amount negotiated. . . .
Inve First Capital Holdings Corp. Fin. Prods. Sec. Litig., MDL No. 901, 1992 U.S. Dist.
LEXIS 14337 at *13 (C.D. Cal. June 10, 1992); In re M.D.C. Holdings Sec. Litig., [1990
Transfer Binder] Fed. Sec. L. Rep. (CCH) {| 95,474 at 97, 487-88 (S.D. Cal. Aug. 30, 1990)
(“Because this Court believes the parties should be encouraged to settle ail their disputes as
part of the settlement . . ., including the amount of the fee, it believes that if the agreed-to fee
falls within a range of reasonableness, it should be approved as part of the negotiated
settlement between plaintiffs and defendants”).

2. The Requested Fee Is Reasonable Under the Percentage of the Fund Method.

The proposed settlement provides for a one-third share for attorney's fees and
litigation expenses, an amount that is routinely approved by courts. When a class action

settlement produces a common fund, courts generally favor an award of fees from the fund.

As the Supreme Court explained:

16[T]his Court has recognized consistently that a litigant or a lawyer
who recovers a common fund for the benefit of persons other than
himself or his client is entitled to a reasonable attorneys’ fee from
the fund as a whole. . . . Jurisdiction over the fund involved in the
litigation allows a Court to prevent . . . inequity by assessing
attorney’s fees against the entire fund, thus spreading fees
proportionately among those benefited by the suit.
Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980) (citations omitted).

When awarding fees from a common fund, the “percentage of the fund” method is
preferred over the lodestar method. As the First Circuit observed, the percentage method is less
burdensome to administer than the lodestar method. In re Thirteen Appeals Arising Out of the
San Juan Dupont Plaza Hotel Fire Lit., 56 F.3d 295, 307 (1st Cir. 1995) (percentage of common
fund more efficient and prevents perverse incentives, as the lodestar method may “encourag[e]
lawyers to expend excessive hours” and “creates a disincentive for the early settlement of cases”)
(citing Report of the Third Circuit Task Force, Court Awarded Attorney Fees, 108 F.R.D. 237,
247-48 (1985)). Moreover, the percentage method is preferable because it is “result-oriented
rather than process-oriented” and thus promotes the efficient use of attorney time. Id.

‘The negotiated fee is reasonable under the percentage of the fund method and is
consistent with fees approved in class actions in Massachusetts. The requested amount is in line
with the usual and customary practice of setting contingency fees at one-third of any recovery
and is in line with awards in class actions in the Massachusetts Superior Court. See, e.g., Settlow
y. Savin Mass Wings #1, LLC, No. 1781CV00429 (Mass. Sup. Ct. Sept. 18, 2018) (Barry-Smith,
J.) (approving fees of one-third of settlement fund in wage and hour class action); Fitzgerald v.
The Chateau Restaurant Corporation, Civ. A. No. 14-01990 (Mass. Sup. Ct. 2016) (Wall, J.)
(approving fees of 37.5 percent of settlement fund); Texeira v. Daggett-Crandall-Newcomb

Home, Inc., Civ. A. No. 15-00264 (Mass. Sup. Ct. Aug. 31, 2016) (Kane, J.) (approving class

7counsel’s request for fees constituting one-third of settlement amount); Mendez v. Job Done
LIC, C,A.No. MICV2012-04992 (Mass. Sup. Ct. Nov. 18, 2014) (Pierce, J.) (approving
$140,000 in attorneys’ fees from $430,000 settlement, one-third of common fund); Raposa v.
Mardi Gras, Hampden Civ. A. No. 09-00034 (Mass. Sup. Ct. 2014) (Sweeney, J.) (approving
fees of one-third of settlement fund); Simmons v. Kilnapp Enterprises, Civ. A. No. 13-551
(Mass. Sup. Ct. 2014) (Drechsler, J.) (finding request for fees amounting to one-third of
settlement fund was fair and reasonable).*

No Settlement Class Member has objected to the requested fee, which further supports an
award of the requested fee. See, e.g., Inve Heritage Bond Litig., No. 02-ML-1475-DT (RCX),
2005 WL 1594389, at *15 (CD. Cal. June 10, 2005) (“[t]he presence or absence of objections
from the class is also a factor in determining the proper fee award”).

Additionally, awarding a percentage of the common fund recognizes and encourages
attorneys to provide contingency fee arrangements to employees who cannot afford to pay
attorneys by the hour. As is normal in wage and hour cases, and class actions in particular,
Plaintiff's Counsel accepted this case on a full contingent fee arrangement, receiving no payment
up front and bearing all expenses, costs, and risks associated with litigating the case. While
attorneys who litigate cases on a contingency fee sometimes recover the fees and costs expended
in prosecuting a case, other times, despite investing significant time and expense into a case, they
receive nothing either because the case is unsuccessful or because a defendant becomes

insolvent, files for bankruptcy protection, or leaves the jurisdiction and works in the informal

> See also Barkley v. The Convertible Castle, Inc., Civ. A. No. 13-1078 (Mass. Sup. Ct. 2014) (Billings, J.) (issuing,
final approval of attorneys’ fees in amount of one-third of settlement fund); Rose v. Ruth’s Chris Steakhouse, C. A.
No. 07-5081-A (Mass. Sup. Ct. Dec. 4, 2008) (Connolly, J.) (finding attorneys’ fees equal to one-third of common
settlement fund were fair and reasonable and granting final approval); Banks v. SBH Corp., C.A. No. 04-3515-A
(Mass. Sup. Ct. Nov. 9, 2007) (Connolly, J.) (approving fees of one-third of common settlement fund in class
action).

18economy, Consequently, this type of practice is only viable if attorneys are able to recover their
full contingency in their successful cases. For that reason, courts have routinely approved one-
third fee awards in class settlements, recognizing “the attorneys’ fecs requested [are] entirely
contingent upon success. Proposed Class Counsel risk[s] time and effort and advance|s} costs
and expenses, with no ultimate guarantee of compensation.” Macedonia Church v. Lancaster
Hotel, LP, 2011 WL 2360138, at *14 (D. Conn, June 9, 2011); see also Hensley, 461 U.S. at 448
(noting that “[a]ttorneys who take cases on contingency, thus deferring payment of their fees
until the case has ended and taking upon themselves the risk that they will receive no payment at
all, generally receive far more in winning cases than they would if they charged an hourly rate”).

Finally, awarding attorneys a percentage of a common fund helps ensure that private
attorneys continue to play an important role in protecting the wage and hour rights of employees.
“Tn wage and hour class action lawsuits, public policy favors a common fund attorneys’ fee
award” because, “[w]here relatively small claims can only be prosecuted through aggregate
litigation ‘private attorneys general’ play an important role.” Aponte v. Comprehensive Health
Management, Inc., No. 10 Civ. 4825(JLC), 2013 WL 136427, at *6 (S.D.N.Y. Apr. 2, 2013)
(citing Frank v. Eastman Kodak Co., 228 F.R.D. 174, 189 (W.D.N.Y. 2005) and Deposit Guar.
Nat'l Bank v. Roper, 445 U.S. 326, 338-39 (1980)).

“Attorneys who fill the private attorney general role must be adequately compensated for
their efforts. If not, wage and hour abuses would go without remedy because attorneys would be
unwilling to take on the risk.” Id. (citing Goldberger v. Integrated Res. Inc., 209 F.3d 43, 51 (2d
Cir. 2000) (commending the general “sentiment in favor of providing lawyers with sufficient
incentive to bring common fund cases that serve the public interest”). Moreover, “[a]dequate

compensation for attorneys who protect wage and hour rights furthers the remedial purposes of

19[wage and hour statutes].” Jd. For these reasons, and given that courts routinely approve one-

third recovery for attorneys’ fees in class action cases, the Court should award the requested one-

third recovery.

VI. Conclusion

For the reasons set forth above, Plaintiff respectfully requests that this Court approve the

Settlement Agreement. Specifically, Plaintiff requests that the Court enter the proposed Final

Approval Order attached as Exhibit 2.

SUSAN FOSTER,

By her attorneys,

Raven Moeslinger (BBO# 687956)
Nicholas F. Ortiz (BBO# 655135)
Stephanie C. Ozahowski (BBO# 699258)
Law Office of Nicholas F. Ortiz, P.C.

99 High Street, Suite 304

Boston, MA 02110

(617) 338-9400

rm@mass-legal.com
nfo@mass-legal.com
sco@mass-legal.com

Date: August 29, 2019

ASSENTED-TO:

FOUR COUNTY WEST, INC. D/B/A
GRISWOLD HOME CARE AND KIRBY
DETMERS,

By their attorneys,

Nelo. Man

JohS. Gannon (BBO# 683845)
Erica E. Flores (BBO# 568682)
Skoler, Abbott & Presser, P.C.
One Monarch Place, Suite 2000
Springfield, MA 01144

(413) 737-4753
jgannon@skoler-abbott.com
cflores@skoler-abbott.com

20CERTIFICATE OF SERVICE

I, Raven Moeslinger, hereby certify that today I served the within document along with
any exhibits on counsel for the defendants by first class, postage pre-paid mail and email at the
following addresses:

John 8. Gannon, Esq.

Erica E. Flores, Esq.

Skoler, Abbott & Presser, P.C.
One Monarch Place, Suite 2000
Springfield, MA 01144

(413) 737-4753
jgannon@skoler-abbott.com
eflores@skoler-abbott.com

Raven Moeslinger

21