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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
10
11 ALFRED LAX, Case No.: 18CV338652
12 Plaintiff, ORDER CONCERNING
13 PLAINTIFF’S MOTION FOR FINAL
Vv. APPROVAL OF CLASS/PAGA
14 SETTLEMENT AND JUDGMENT
ROTO-ROOTER SERVICES CoO. et al.,
15
16 Defendants.
17
18 This is a putative class and Private Attorneys General Act (“PAGA”) action on behalf of
19 employees of defendant Roto-Rooter Services Company, alleging a range of wage and hour
20 violations. The parties reached a settlement, which the Court preliminarily approved in an order
21 filed on November 23, 2020. The factual and procedural background of the action and the
22 Court’s analysis of the settlement and settlement class are set forth in that order.!
25 Before the Court are Plaintiff's motions for final approval of the settlement and for
24 approval of his attorney fees, costs, and service award. Plaintiff's motions are unopposed, and
25 no one appeared at the February 25, 2021 hearing to contest the Court’s tentative ruling. The
26 Court now issues its final order, which GRANTS final approval.
27
28
' Plaintiffs request for judicial notice of various materials filed in this action, though
unnecessary, is GRANTED. (Evid. Code, § 452, subd. (d).)
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I. LEGAL STANDARDS FOR SETTLEMENT APPROVAL
A. Class Action
Generally, “questions whether a [class action] settlement was fair and reasonable,
whether notice to the class was adequate, whether certification of the class was proper, and
whether the attorney fee award was proper are matters addressed to the trial court’s broad
discretion.” (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 234-235 (Wershba),
disapproved of on other grounds by Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th
260.)
In determining whether a class settlement is fair, adequate and reasonable, the
10 trial court should consider relevant factors, such as the strength of plaintiffs’ case,
11 the risk, expense, complexity and likely duration of further litigation, the risk of
12 maintaining class action status through trial, the amount offered in settlement, the
13 extent of discovery completed and the stage of the proceedings, the experience
14 and views of counsel, the presence of a governmental participant, and the reaction
15 of the class members to the proposed settlement.
16 (Wershba, supra, 91 Cal.App.4th at pp. 244-245, internal citations and quotations omitted.)
17 In general, the most important factor is the strength of the plaintiffs’ case on the merits,
18 balanced against the amount offered in settlement. (See Kullar v. Foot Locker Retail, Inc. (2008)
19 168 Cal.App.4th 116, 130 (Kullar).) But the trial court is free to engage in a balancing and
20 weighing of factors depending on the circumstances of each case. (Wershba, supra, 91
21 Cal.App.4th at p. 245.) The trial court must examine the “proposed settlement agreement to the
22 extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or
25 overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a
24 whole, is fair, reasonable and adequate to all concerned.” (Jbid., citation and internal quotation
25 marks omitted.)
26 The burden is on the proponent of the settlement to show that it is fair and
27 reasonable. However “a presumption of fairness exists where: (1) the settlement
28 is reached through arm’s-length bargaining; (2) investigation and discovery are
sufficient to allow counsel and the court to act intelligently; (3) counsel is
experienced in similar litigation; and (4) the percentage of objectors is small.”
(Wershba, supra, 91 Cal.App.4th at p. 245, citation omitted.) The presumption does not permit
the Court to “give rubber-stamp approval” to a settlement; in all cases, it must “independently
and objectively analyze the evidence and circumstances before it in order to determine whether
the settlement is in the best interests of those whose claims will be extinguished,” based on a
sufficiently developed factual record. (Kullar, supra, 168 Cal.App.4th at p. 130.)
B. PAGA
Labor Code section 2699, subdivision (1) provides that “[t]he superior court shall review
10 and approve any penalties sought as part of a proposed settlement agreement pursuant to”
11 PAGA. The court’s review “ensur[es] that any negotiated resolution is fair to those affected.”
12 (Williams v. Superior Court (2017) 3 Cal.Sth 531, 549.) Seventy-five percent of any penalties
13 recovered under PAGA go to the Labor and Workforce Development Agency (“LWDA”),
14 leaving the remaining twenty-five percent for the aggrieved employees. (/skanian v. CLS
15 Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 380.)
16 “[W]hen a PAGA claim is settled, the relief provided ... [should] be genuine and
17 meaningful, consistent with the underlying purpose of the statute to benefit the public ....”
18 (Villalobos v. Calandri Sonrise Farm LP (C.D. Cal., July 22, 2015, No. CV122615PSGJEMX)
19 2015 WL 12732709, at *13.) The settlement must be reasonable in light of the potential verdict
20 value. (See O’Connor v. Uber Technologies, Inc. (N.D. Cal. 2016) 201 F.Supp.3d 1110, 1135
21 [rejecting settlement of less than one percent of the potential verdict].) But a permissible
22 settlement may be substantially discounted, given that courts often exercise their discretion to
25 award PAGA penalties below the statutory maximum even where a claim succeeds at trial. (See
24 Viceral v. Mistras Group, Inc. (N.D. Cal., Oct. 11, 2016, No. 15-CV-02198-EMC) 2016 WL
25 5907869, at *8-9.)
26 IL. TERMS AND ADMINISTRATION OF SETTLEMENT
27 The non-reversionary gross settlement amount is $2,598,000. Attorney fees of up to
28 $825,000 (one-third of the gross settlement), litigation costs not to exceed $25,000, and
administration costs of approximately $15,000 will be paid from the gross settlement. $50,000
will be allocated to PAGA penalties, 75 percent of which will be paid to the LWDA. The named
plaintiff will also seek an enhancement award of $20,000.
The net settlement will be distributed to individual class members proportionally based
on their weeks worked during the class period. Class members will not be required to submit a
claim to receive their payments. For tax purposes, settlement awards will be allocated 25 percent
to wages and 75 percent to reimbursements, interest, and penalties. Funds associated with
checks uncashed after 90 days will be redistributed to class members who cashed their checks if
at least $4,500 remains; otherwise, remaining funds will be distributed to Legal Aid at Work.
10 Class members who do not opt out of the settlement will release all claims debts, etc. “of
11 every nature and description, whether known or unknown, for wages, damages, penalties,
12 liquidated damages, punitive damages, interest, attorneys’ fees, litigation costs, restitution, or
13 equitable relief arising out of the allegations set forth in the Action and Complaint to the extent
14 that such claims arise from Settlement Class Members’ employment with Defendant,” including
15 specified wage and hour claims and associated claims for PAGA penalties.
16 The notice process has now been completed. There were no objections to the settlement
17 or requests for exclusion from the class. Of 134 notice packets, 7 were re-mailed to updated
18 addresses and only one was ultimately undeliverable. The administrator estimates that the
19 average payment to class members will be $12,519 and the maximum payment will be $53,823.
20 At preliminary approval, the Court found that the proposed settlement provides a fair and
21 reasonable compromise to Plaintiff's claims, and that the PAGA settlement is genuine,
22 meaningful, and fair to those affected. It finds no reason to deviate from these findings now,
25 especially considering that there are no objections. The Court thus finds that the settlement is
24 fair and reasonable for purposes of final approval.
25 Til. ATTORNEY FEES, COSTS, AND INCENTIVE AWARD
26 Plaintiff seeks a fee award of $825,000, or just under one-third of the gross settlement,
27 which is not an uncommon contingency fee allocation in a wage and hour class action. This
28 award is facially reasonable under the “common fund” doctrine, which allows a party recovering
a fund for the benefit of others to recover attorney fees from the fund itself. Plaintiff also
provides a lodestar figure of $352,183.25, based on 595.56 hours spent on the case by counsel
with billing rates of $375—750 per hour and paralegals billing at $200 per hour. Plaintiff's
request results in a multiplier of 2.34, which is justified in light of the excellent results and high
individual recoveries achieved here. As a cross-check, the lodestar supports the percentage fee
requested, particularly given the lack of objections to the attorney fee request. (See Laffitte v.
Robert Half Intern. Inc. (Cal. 2016) 1 Cal.Sth 480, 488, 503-504 [trial court did not abuse its
discretion in approving fee award of 1/3 of the common fund, cross-checked against a lodestar
resulting in a multiplier of 2.03 to 2.13].)
10 Plaintiff's counsel also requests $22,888.03 in costs. Plaintiff's costs appear reasonable
11 based on the summary provided and are approved. Administrative costs of $15,000 also are
12 approved.
13 Finally, Plaintiff requests a service award of $20,000. To support his request, he
14 submitted a declaration describing his efforts on the case, estimating that he spent 100-150 hours
15 on the litigation. The Court finds that the class representative is entitled to an enhancement
16 award and the amount requested is reasonable, especially in light of the high number of hours
17 Plaintiff spent on the litigation.
18 IV. ORDER AND JUDGMENT
19 In accordance with the above, IT IS HEREBY ORDERED, ADJUDGED, AND
20 DECREED THAT:
21 Plaintiffs motion for final approval is GRANTED. The following class is certified for
22 settlement purposes:
25 all current and former non-exempt technicians employed by Defendant in its
24 Menlo Park and Bristol locations, which total 135 technicians, 99 technicians at
25 the Menlo Park location and 36 at the Bristol location at any time from November
26 30, 2014, through the date of Preliminary Approval of the class action settlement
27 and who do not exclude themselves from the Settlement.
28 No individuals are excluded from the class.
Judgment shall be entered through the filing of this order and judgment. (Code Civ.
Proc., § 668.5.) Plaintiff and the members of the class shall take from their complaint only the
relief set forth in the settlement agreement and this order and judgment. Pursuant to Rule
3.769(h) of the California Rules of Court, the Court retains jurisdiction over the parties to
enforce the terms of the settlement agreement and the final order and judgment.
The Court sets a compliance hearing for July 29, 2021 at 2:30 P.M. in Department 1. At
least ten court days before the hearing, class counsel and the settlement administrator shall
submit a summary accounting of the net settlement fund identifying distributions made as
ordered herein; the number and value of any uncashed checks; amounts remitted pursuant to
10 Code of Civil Procedure section 384, subdivision (b); the status of any unresolved issues; and
11 any other matters appropriate to bring to the Court’s attention. Counsel shall also submit an
12 amended judgment as described in Code of Civil Procedure section 384, subdivision (b).
13 Counsel may appear at the compliance hearing remotely.
14 IT IS SO ORDERED.
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Date:
-——___—.
The Honorable Sunil R. Kulkarni
17 Judge of the Superior Court
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Preview
SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA 10 11 ALFRED LAX, Case No.: 18CV338652 12 Plaintiff, ORDER CONCERNING 13 PLAINTIFF’S MOTION FOR FINAL Vv. APPROVAL OF CLASS/PAGA 14 SETTLEMENT AND JUDGMENT ROTO-ROOTER SERVICES CoO. et al., 15 16 Defendants. 17 18 This is a putative class and Private Attorneys General Act (“PAGA”) action on behalf of 19 employees of defendant Roto-Rooter Services Company, alleging a range of wage and hour 20 violations. The parties reached a settlement, which the Court preliminarily approved in an order 21 filed on November 23, 2020. The factual and procedural background of the action and the 22 Court’s analysis of the settlement and settlement class are set forth in that order.! 25 Before the Court are Plaintiff's motions for final approval of the settlement and for 24 approval of his attorney fees, costs, and service award. Plaintiff's motions are unopposed, and 25 no one appeared at the February 25, 2021 hearing to contest the Court’s tentative ruling. The 26 Court now issues its final order, which GRANTS final approval. 27 28 ' Plaintiffs request for judicial notice of various materials filed in this action, though unnecessary, is GRANTED. (Evid. Code, § 452, subd. (d).) 1 I. LEGAL STANDARDS FOR SETTLEMENT APPROVAL A. Class Action Generally, “questions whether a [class action] settlement was fair and reasonable, whether notice to the class was adequate, whether certification of the class was proper, and whether the attorney fee award was proper are matters addressed to the trial court’s broad discretion.” (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 234-235 (Wershba), disapproved of on other grounds by Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260.) In determining whether a class settlement is fair, adequate and reasonable, the 10 trial court should consider relevant factors, such as the strength of plaintiffs’ case, 11 the risk, expense, complexity and likely duration of further litigation, the risk of 12 maintaining class action status through trial, the amount offered in settlement, the 13 extent of discovery completed and the stage of the proceedings, the experience 14 and views of counsel, the presence of a governmental participant, and the reaction 15 of the class members to the proposed settlement. 16 (Wershba, supra, 91 Cal.App.4th at pp. 244-245, internal citations and quotations omitted.) 17 In general, the most important factor is the strength of the plaintiffs’ case on the merits, 18 balanced against the amount offered in settlement. (See Kullar v. Foot Locker Retail, Inc. (2008) 19 168 Cal.App.4th 116, 130 (Kullar).) But the trial court is free to engage in a balancing and 20 weighing of factors depending on the circumstances of each case. (Wershba, supra, 91 21 Cal.App.4th at p. 245.) The trial court must examine the “proposed settlement agreement to the 22 extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or 25 overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a 24 whole, is fair, reasonable and adequate to all concerned.” (Jbid., citation and internal quotation 25 marks omitted.) 26 The burden is on the proponent of the settlement to show that it is fair and 27 reasonable. However “a presumption of fairness exists where: (1) the settlement 28 is reached through arm’s-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.” (Wershba, supra, 91 Cal.App.4th at p. 245, citation omitted.) The presumption does not permit the Court to “give rubber-stamp approval” to a settlement; in all cases, it must “independently and objectively analyze the evidence and circumstances before it in order to determine whether the settlement is in the best interests of those whose claims will be extinguished,” based on a sufficiently developed factual record. (Kullar, supra, 168 Cal.App.4th at p. 130.) B. PAGA Labor Code section 2699, subdivision (1) provides that “[t]he superior court shall review 10 and approve any penalties sought as part of a proposed settlement agreement pursuant to” 11 PAGA. The court’s review “ensur[es] that any negotiated resolution is fair to those affected.” 12 (Williams v. Superior Court (2017) 3 Cal.Sth 531, 549.) Seventy-five percent of any penalties 13 recovered under PAGA go to the Labor and Workforce Development Agency (“LWDA”), 14 leaving the remaining twenty-five percent for the aggrieved employees. (/skanian v. CLS 15 Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 380.) 16 “[W]hen a PAGA claim is settled, the relief provided ... [should] be genuine and 17 meaningful, consistent with the underlying purpose of the statute to benefit the public ....” 18 (Villalobos v. Calandri Sonrise Farm LP (C.D. Cal., July 22, 2015, No. CV122615PSGJEMX) 19 2015 WL 12732709, at *13.) The settlement must be reasonable in light of the potential verdict 20 value. (See O’Connor v. Uber Technologies, Inc. (N.D. Cal. 2016) 201 F.Supp.3d 1110, 1135 21 [rejecting settlement of less than one percent of the potential verdict].) But a permissible 22 settlement may be substantially discounted, given that courts often exercise their discretion to 25 award PAGA penalties below the statutory maximum even where a claim succeeds at trial. (See 24 Viceral v. Mistras Group, Inc. (N.D. Cal., Oct. 11, 2016, No. 15-CV-02198-EMC) 2016 WL 25 5907869, at *8-9.) 26 IL. TERMS AND ADMINISTRATION OF SETTLEMENT 27 The non-reversionary gross settlement amount is $2,598,000. Attorney fees of up to 28 $825,000 (one-third of the gross settlement), litigation costs not to exceed $25,000, and administration costs of approximately $15,000 will be paid from the gross settlement. $50,000 will be allocated to PAGA penalties, 75 percent of which will be paid to the LWDA. The named plaintiff will also seek an enhancement award of $20,000. The net settlement will be distributed to individual class members proportionally based on their weeks worked during the class period. Class members will not be required to submit a claim to receive their payments. For tax purposes, settlement awards will be allocated 25 percent to wages and 75 percent to reimbursements, interest, and penalties. Funds associated with checks uncashed after 90 days will be redistributed to class members who cashed their checks if at least $4,500 remains; otherwise, remaining funds will be distributed to Legal Aid at Work. 10 Class members who do not opt out of the settlement will release all claims debts, etc. “of 11 every nature and description, whether known or unknown, for wages, damages, penalties, 12 liquidated damages, punitive damages, interest, attorneys’ fees, litigation costs, restitution, or 13 equitable relief arising out of the allegations set forth in the Action and Complaint to the extent 14 that such claims arise from Settlement Class Members’ employment with Defendant,” including 15 specified wage and hour claims and associated claims for PAGA penalties. 16 The notice process has now been completed. There were no objections to the settlement 17 or requests for exclusion from the class. Of 134 notice packets, 7 were re-mailed to updated 18 addresses and only one was ultimately undeliverable. The administrator estimates that the 19 average payment to class members will be $12,519 and the maximum payment will be $53,823. 20 At preliminary approval, the Court found that the proposed settlement provides a fair and 21 reasonable compromise to Plaintiff's claims, and that the PAGA settlement is genuine, 22 meaningful, and fair to those affected. It finds no reason to deviate from these findings now, 25 especially considering that there are no objections. The Court thus finds that the settlement is 24 fair and reasonable for purposes of final approval. 25 Til. ATTORNEY FEES, COSTS, AND INCENTIVE AWARD 26 Plaintiff seeks a fee award of $825,000, or just under one-third of the gross settlement, 27 which is not an uncommon contingency fee allocation in a wage and hour class action. This 28 award is facially reasonable under the “common fund” doctrine, which allows a party recovering a fund for the benefit of others to recover attorney fees from the fund itself. Plaintiff also provides a lodestar figure of $352,183.25, based on 595.56 hours spent on the case by counsel with billing rates of $375—750 per hour and paralegals billing at $200 per hour. Plaintiff's request results in a multiplier of 2.34, which is justified in light of the excellent results and high individual recoveries achieved here. As a cross-check, the lodestar supports the percentage fee requested, particularly given the lack of objections to the attorney fee request. (See Laffitte v. Robert Half Intern. Inc. (Cal. 2016) 1 Cal.Sth 480, 488, 503-504 [trial court did not abuse its discretion in approving fee award of 1/3 of the common fund, cross-checked against a lodestar resulting in a multiplier of 2.03 to 2.13].) 10 Plaintiff's counsel also requests $22,888.03 in costs. Plaintiff's costs appear reasonable 11 based on the summary provided and are approved. Administrative costs of $15,000 also are 12 approved. 13 Finally, Plaintiff requests a service award of $20,000. To support his request, he 14 submitted a declaration describing his efforts on the case, estimating that he spent 100-150 hours 15 on the litigation. The Court finds that the class representative is entitled to an enhancement 16 award and the amount requested is reasonable, especially in light of the high number of hours 17 Plaintiff spent on the litigation. 18 IV. ORDER AND JUDGMENT 19 In accordance with the above, IT IS HEREBY ORDERED, ADJUDGED, AND 20 DECREED THAT: 21 Plaintiffs motion for final approval is GRANTED. The following class is certified for 22 settlement purposes: 25 all current and former non-exempt technicians employed by Defendant in its 24 Menlo Park and Bristol locations, which total 135 technicians, 99 technicians at 25 the Menlo Park location and 36 at the Bristol location at any time from November 26 30, 2014, through the date of Preliminary Approval of the class action settlement 27 and who do not exclude themselves from the Settlement. 28 No individuals are excluded from the class. Judgment shall be entered through the filing of this order and judgment. (Code Civ. Proc., § 668.5.) Plaintiff and the members of the class shall take from their complaint only the relief set forth in the settlement agreement and this order and judgment. Pursuant to Rule 3.769(h) of the California Rules of Court, the Court retains jurisdiction over the parties to enforce the terms of the settlement agreement and the final order and judgment. The Court sets a compliance hearing for July 29, 2021 at 2:30 P.M. in Department 1. At least ten court days before the hearing, class counsel and the settlement administrator shall submit a summary accounting of the net settlement fund identifying distributions made as ordered herein; the number and value of any uncashed checks; amounts remitted pursuant to 10 Code of Civil Procedure section 384, subdivision (b); the status of any unresolved issues; and 11 any other matters appropriate to bring to the Court’s attention. Counsel shall also submit an 12 amended judgment as described in Code of Civil Procedure section 384, subdivision (b). 13 Counsel may appear at the compliance hearing remotely. 14 IT IS SO ORDERED. 15 16 Date: -——___—. The Honorable Sunil R. Kulkarni 17 Judge of the Superior Court 18 19 20 21 22 25 24 25 26 27 28