Preview
DOUGLAS HAN (SBN 232858) Electronically Filed
1
SHUNT TATAVOS-GHARAJEH (SBN 272164) Superior Court of California
2 ARSINÉ GRIGORYAN (SBN 319517) County of San Joaquin
2022-01-10 14:27:07
JUSTICE LAW CORPORATION
3 751 N. Fair Oaks Avenue, Suite 101
Clerk: Kristy Kobus
4 Pasadena, California 91103 Motion for Approval of Class Settlement
Tel: (818) 230-7502 02/04/2022 09:00 AM in 10D
5 Fax: (818) 230-7259
6 ROBERT J. WASSERMAN (SBN 258538)
WILLIAM J. GORHAM (SBN 151773)
7 JENNY D. BAYSINGER (SBN 251014)
MAYALL HURLEY P.C.
8 2453 Grand Canal Boulevard
9 Stockton, California 95207-8253
Telephone: (209) 477-3833
10 Facsimile: (209) 473-4818
11 Attorneys for Plaintiffs
SUPERIOR COURT OF THE STATE OF CALIFORNIA
12
FOR THE COUNTY OF SAN JOAQUIN
13
14
JANET UGALE and JOBANY Case No.: STK-CV-UOE-2020-0005807
15
RODRIGUEZ, individually, and on behalf of
Honorable Barbara Kronlund
16 other members of the general public similarly Department 10D
situated and on behalf of aggrieved
17 employees pursuant to the Private Attorneys CLASS ACTION
General Act (“PAGA”); PLAINTIFFS’ NOTICE OF MOTION
18 AND MOTION FOR FINAL APPROVAL
Plaintiffs, OF CLASS ACTION SETTLEMENT,
19 ATTORNEYS’ FEES AND COSTS, AND
CLASS/PAGA REPRESENTATIVE
20 v. ENHANCEMENT PAYMENTS;
MEMORANDUM OF POINTS AND
21 ALLEN DISTRIBUTION, LP, a AUTHORITIES IN SUPPORT THEREOF
Pennsylvania limited partnership; and DOES [Declarations of Class Counsel (Douglas
22 1 through 100, inclusive; Han and Jenny D. Baysinger);
Declarations of Class Representatives
23 (Jobany Rodriguez and Janet Ugale);
Defendants. Declaration of Settlement Administrator
24 (Taylor Mitzner); and [Proposed] Order
of Final Approval and Judgment filed
concurrently herewith]
25
Hearing Date: February 4, 2022
26 Hearing Time: 9:00 a.m.
Hearing Place: Department 10D
27
Complaint Filed: July 8, 2020
28 FAC Filed: August 3, 2021
Trial Date: None Set
1
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 PLEASE TAKE NOTICE that on February 4, 2022 at 9:00 a.m., or as soon thereafter
2 as the matter may be heard, before Judge Barbara Kronlund in Department 10D of the San
3 Joaquin County Superior Court, located at 180 East Weber Avenue Stockton, CA 95202,
4 Plaintiffs Jobany Rodriguez and Janet Ugale (“Plaintiffs,” “Plaintiff Rodriguez,” and “Plaintiff
5 Ugale”) will, and hereby do, move this Court to approve:
6 1. The Joint Stipulation of Class and Representative Action Settlement and Release
7 (“Settlement Agreement” “Settlement,” or “Agreement) on the grounds that the Settlement
8 Agreement is fair, adequate, and reasonable because:
9 • Three hundred fifty-five (355) Class Members who did not submit timely and
10 valid requests for exclusion (“Participating Class Members”) will receive a
11 portion of the Net Settlement Amount based on the settlement calculation formula
12 set forth in the Settlement;
13 • As of January 6, 2022, no objections were submitted to the Settlement by Class
14 Members;
15 • As of January 6, 2022, no requests for exclusion were submitted to the Settlement
16 by a Class Member;
17 • As of January 6, 2022, there are no outstanding disputes;
18 2. The payment of the attorneys’ fees in the amount of $230,643 to Justice Law
19 Corporation and Mayall Hurley P.C. (“Class Counsel”) for 499.15 collective hours of attorney
20 time spent working on the case from pre-filing investigation to the final fairness hearing;
21 3. The payment of the attorneys’ costs in the amount of $10,736.76 to Class Counsel
22 for actual litigation costs and expenses incurred ($2,168.31 by Justice Law Corporation and
23 $8,568.45 by Mayall Hurley P.C.);
24 4. The payment of $6,975 to the Settlement Administrator, Phoenix Class Action
25 Administration Solutions (“Phoenix”) as the Settlement Administration Costs;
26 5. The payment of the Class/PAGA Representative Enhancement Payments in the
27 amount of $7,500 to each Plaintiff;
28 ///
2
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 6. The payment of $40,000 for the Private Attorneys General Act of 2004 (“PAGA”)
2 penalties, pursuant to Labor Code section 2699, seventy-five percent (75%) of which ($30,000)
3 will be paid to the California Labor and Workforce Development Agency (“LWDA”) (“LWDA
4 Payment”) and twenty-five percent (25%) of which ($10,000) will be paid to Class Members
5 who employed during the period of time from June 11, 2019 through May 4, 2021 (“PAGA
6 Settlement Amount” and “PAGA Settlement Period”).
7 This Motion is based on the following Memorandum of Points and Authorities;
8 Declarations of Class Counsel (Douglas Han and Jenny D. Baysinger), Declarations of Class
9 Representatives (Jobany Rodriguez and Janet Ugale), and Declaration of Settlement
10 Administrator (Taylor Mitzner) in support thereof; as well as upon the pleadings and other
11 records on file with the Court; and upon such documentary evidence and oral argument as may
12 be presented at the hearing on this motion.
13
14 Dated: January 10, 2022 JUSTICE LAW CORPORATION
15
16
By: ______________________________
17 Douglas Han
Attorneys for Plaintiffs
18
19
20
21
22
23
24
25
26
27
28
3
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 TABLE OF CONTENTS
2 I. SUMMARY OF MOTION ............................................................................................. 10
3 II. PROCEDURAL HISTORY AND FACTUAL BACKGROUND ................................. 11
4 III. SUMMARY OF THE SETTLEMENT TERMS AND PLAN OF DISTRIBUTION.... 12
5 IV. CLASS NOTICE AND RESPONSE .............................................................................. 13
6 V. THE COURT SHOULD GRANT FINAL APPROVAL OF THE CLASS ACTION
7 SETTLEMENT ............................................................................................................... 14
8 A. The Proposed Settlement Resulted from Arm’s-Length Negotiations Based Upon
9 Extensive Investigation and Discovery ............................................................... 15
10 B. The Risks in Continued Litigation Favor Final Approval of the Settlement ...... 16
11 C. The Settlement is Fair, Reasonable, and Adequate............................................. 17
12 D. The Settlement Class Was Represented by Competent Counsel ........................ 18
13 E. There Are No Objections to the Settlement ........................................................ 18
14 VI. THE ATTORNEYS’ FEES REQUESTED BY CLASS COUNSEL SHOULD BE
15 APPROVED ................................................................................................................... 19
16 A. Legal Standard for Attorneys’ Fees in a Class Action Settlement...................... 19
17 B. A Fee Award of a Percentage of the Entire Fund is Appropriate ....................... 20
18 C. The Requested Attorneys’ Fees and Costs is Within the Range of Fees Approved
19 in Comparable Common Fund Cases ................................................................. 22
20 D. The Attorneys’ Fees Requested by Class Counsel are Reasonable Based on the
21 Factors Considered in the Determination of Fee Awards ................................... 25
22 1. Time & Labor.......................................................................................... 25
23 2. The Skill Required to Perform Legal Services Properly ......................... 26
24 3. The Value of the Settlement for the Class Members ............................... 26
25 4. Whether the Fee is Fixed or Contingent ................................................. 27
26 5. The Amount Involved and the Result Achieved ....................................... 28
27 6. The Reputation and Ability of the Attorneys ........................................... 28
28 5
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 E. The Lodestar Methodology Also Justifies Approval of the Requested Fee ....... 28
2 1. Class Counsel Performed Work for a Reasonable Number of Hours .... 28
3 2. The Fees Requested Represent a Reasonable Hourly Rate of
4 Compensation in Light of Class Counsel’s Efforts and Experience ....... 29
5 VII. COSTS TO BE REIMBURSED TO CLASS COUNSEL ARE FAIR AND
6 REASONABLE .............................................................................................................. 30
7 VIII. PAYMENT TO THE SETTLEMENT ADMINISTRATOR IS FAIR AND
8 REASONABLE .............................................................................................................. 31
9 IX. CLASS/PAGA REPRESENTATIVE ENHANCEMENT PAYMENTS ARE FAIR AND
10 REASONABLE .............................................................................................................. 31
11 X. CONCLUSION ............................................................................................................... 33
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 TABLE OF AUTHORITIES
2 Cases
3 7-Eleven Owners for Fair Franchising v. Southland Corp.,
4 85 Cal.App.4th 1135 (2000) ..................................................................................... 14, 18
5 In re American Bank Note Holographics, Inc. Securities Litigation,
6 127 F.Supp.2d 418 (S.D.N.Y. 2001) .............................................................................. 18
7 Apple Computer, Inc. v. Superior Court,
8 126 Cal.App.4th 1253 (2005) ......................................................................................... 19
9 Boeing Co. v. Van Gemert,
10 444 U.S. 472 (1980) .................................................................................................. 20, 22
11 Camden I Condominium Association, Inc. v. Dunkel,
12 946 F.2d 768 (11th Cir. 1991) ........................................................................................ 25
13 Cates v. Chiang,
14 213 Cal.App.4th 791 (2013) ..................................................................................... 25, 27
15 Cellphone Termination Fee Cases,
16 180 Cal.App.4th 1110 (2009) ......................................................................................... 19
17 Chavez v. Netflix, Inc.,
18 162 Cal.App.4th 43 (2008) ................................................................................. 14, 15, 23
19 Consumer Privacy Cases,
20 175 Cal.App.4th 545 (2009) ........................................................................................... 19
21 Crampton v. Takegoshi,
22 17 Cal.App.4th 308 (1993) ............................................................................................. 20
23 Dennis v. Kellogg Co.,
24 09-CV-1786-L WMC, 2013 WL 6055326 (S.D. Cal. Nov. 14, 2013) ........................... 23
25 Dunk v. Ford Motor Co.,
26 48 Cal.App.4th 1794 (1996) ..................................................................................... 14, 19
27 Green v. Obledo,
28 29 Cal.3d 126 (1981) ...................................................................................................... 20
7
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 Ketchum v. Moses,
2 24 Cal.4th 1122 (2001) ....................................................................................... 19, 28, 29
3 Laffitte v. Robert Half Internat., Inc.,
4 1 Cal.5th 580 (August 11, 2016)..................................................................................... 20
5 Lealao v. Beneficial Cal., Inc.,
6 82 Cal.App.4th 19 (2000) ......................................................................................... 19, 22
7 Paul, Johnson, Alston & Hunt v. Graulty,
8 886 F.2d 268 (1989)........................................................................................................ 20
9 Serrano v. Priest,
10 20 Cal.3d 25 (1977) .................................................................................................. 20, 30
11 Smith v. CRST Van Expedited, Inc.
12 10-CV-1116- IEG WMC, 2013 WL 163293 (S.D. Cal. Jan. 14, 2013) ......................... 23
13 Vasquez v. Superior Court,
14 4 Cal.3d 800 (1971) ........................................................................................................ 20
15 Vincent v. Hughes Air West, Inc.,
16 557 F.2d 759 (9th Cir. 1977) .......................................................................................... 20
17 Vo v. Las Virgenes Municipal Water Dist.,
18 79 Cal.App.4th 440 (2000) ....................................................................................... 28, 29
19 Vranken v. Atlantic Richfield Co.,
20 901 F. Supp. 294 (N.D. Cal. 1995) ................................................................................. 31
21 Wershba v. Apple Computer, Inc.,
22 91 Cal.App.4th 224 (2001) ........................................................................... 14, 15, 18, 22
23 Winslow v. Harold G. Ferguson Corp.,
24 25 Cal.2d 274 (1944) ...................................................................................................... 22
25 Statutes
26 Labor Code § 2699. ..................................................................................................................... 3
27 Other Authorities
28 A. Conte, Attorney Fee Awards (2nd Ed. 1993) ....................................................................... 20
8
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 Conte & Newberg, Newberg on Class Actions §11.47 (4th Ed.) .............................................. 18
2 H. Newberg, Attorney Fee Awards (1986) ............................................................................... 25
3 R. Pearle, California Attorney Fee Awards (CEB, 1993) ......................................................... 20
4 Reagan W. Wilber and Frank E. Goodrich, Common Funds and Common Problems: Fee
5 Objections and Class Counsel’s Response................................................................................ 23
6 T. Willging, L. Hooper and R. Niemic, Empirical Study of Class Actions in Four Federal
7 District Courts: Final Report to the Advisory Committee on Civil Rules (1996) .................... 23
8 Weil and Brown, California Practice Guide, Civil Procedure Before Trial ............................. 19
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. SUMMARY OF MOTION
3 Plaintiffs seek final approval of the Maximum Settlement Amount of $658,980
4 consisting of the following: (1) all Individual Settlement Payments to Participating Class
5 Members; (2) the attorneys’ fees in the amount of $230,643 to Class Counsel; (3) the attorneys’
6 costs to Class Counsel in the sum of $10,736.76; (4) the Settlement Administration Costs to
7 Phoenix in the amount of $6,975; (5) the Class/PAGA Representative Enhancement Payment in
8 the sum of $7,500 to each Plaintiff; (6) the LWDA Payment sum of $30,000 to the LWDA; and
9 (7) $250 to each participating Former Employee Sub-Class Member (defined below).
10 This case required about 499.15 collective hours of attorney time from Class Counsel,
11 and this case is seeking relief for three hundred fifty-five (355) (a) current and former non-
12 exempt employees employed directly by Defendant Allen Distribution, L.P. (“Defendant”) at
13 any time between June 16, 2016 and May 4, 2021 (“Class Members” and “Class Period”); and
14 (b) Class Members whose employment with Defendant ended between June 16, 2017 and May
15 4, 2021 (“Former Employee Sub-Class Member”) (collectively, the “Class”). The case involved
16 extensive investigation, the informal exchange of information, and mediation.
17 Plaintiffs move for final approval of the Class/PAGA Representative Enhancement
18 Payments in the amount of $7,500 to each Plaintiff for the time they spent on this case. Plaintiffs
19 move for final approval of Settlement Administration Costs to Phoenix in the sum of $6,975.
20 The requested amount of the Attorneys’ Fees and Costs, the Settlement Administration
21 Costs, and the Class/PAGA Representative Enhancement Payments were fully disclosed to the
22 Class Members when the Notice of Class Action Settlement (“Class Notice”) was mailed to
23 them on September 28, 2021. As of January 6, 2022, not a single Class Member objected to the
24 request for the Attorneys’ Fees and Costs, the Settlement Administration Costs, or the
25 Class/PAGA Representative Enhancement Payments. Thus, the Settlement is fair, adequate, and
26 reasonable, and is the product of arm’s-length, good faith negotiations by experienced counsel,
27 presided over by a highly qualified mediator specializing in wage-and-hour class actions.
28 ///
10
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 II. PROCEDURAL HISTORY AND FACTUAL BACKGROUND
2 On June 11, 2020, Plaintiff Rodriguez, represented by Mayall Hurley P.C., provided
3 written notice to the LWDA. On June 16, 2020, Plaintiff Rodriguez filed his wage-and-hour
4 class action lawsuit in the United States District Court, Eastern District of California (Case No.
5 2:20-cv-01202-KJM-CKD). On August 21, 2020, Plaintiff Rodriguez filed a First Amended
6 Complaint. Afterwards, on October 8, 2020, Plaintiff Rodriguez and Defendant agreed to stay
7 proceedings for Plaintiff Rodriguez’s case pending private mediation.
8 On July 8, 2020, Plaintiff Ugale, represented by Justice Law Corporation, filed her wage-
9 and-hour class action lawsuit in the Superior Court of California, County of San Joaquin (Case
10 No. STK-CV-UOE-2020-0005807). On August 26, 2020, Defendant removed Plaintiff Ugale’s
11 case to the United States District Court, Eastern District of California (Case No. 2:20-cv-01710-
12 KJM-CKD). On September 25, 2020, Plaintiff Ugale filed a Motion to Remand her case back
13 to the Superior Court of California, County of San Joaquin. Before the Court made any ruling,
14 Plaintiff Ugale and Defendant agreed on February 18, 2021 to stay proceedings for Plaintiff
15 Ugale’s case pending private mediation.
16 The Parties attended mediation on Plaintiffs’ claims on March 4, 2021 under the auspices
17 of the mediator Marc J. Feder. Under the auspices of the mediator, the Parties were eventually
18 able to reach a settlement for both cases via a mediator’s proposal.
19 Pursuant to the settlement, the Parties stipulated to: (1) granting the pending Motion to
20 Remand Plaintiff Ugale’s case; (2) filing a First Amended Complaint in Plaintiff Ugale’s case
21 to add Plaintiff Rodriguez as an additional plaintiff and incorporate the allegations in Plaintiff
22 Rodriguez’s case; and (3) staying Plaintiff Rodriguez’s case until final approval has been
23 granted. On June 23, 2021, Plaintiff Ugale’s case was remanded back to the Superior Court of
24 California, County of San Joaquin (Case No. STK-CV-UOE-2020-0005807) and filed the First
25 Amended Complaint on August 3, 2021.
26 On September 2, 2021, the Court granted Preliminary Approval of the Settlement. The
27 Parties now seek Final Approval of the Settlement.
28 ///
11
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 III. SUMMARY OF THE SETTLEMENT TERMS AND PLAN OF DISTRIBUTION
2 Subject to the terms and conditions of the Agreement, the Maximum Settlement Amount
3 that Defendant is obligated to pay pursuant to the Agreement is $658,980.1
4 The Net Settlement Amount will be calculated by deducting the following amounts from
5 the Maximum Settlement Amount: (1) $230,643 to Class Counsel as the attorneys’ fees;
6 (2) $10,736.76 to Class Counsel as the attorneys’ costs; (3) $7,500 to each Plaintiff as their
7 Class/PAGA Representative Enhancement Payments; (4) $30,000 to the LWDA as the LWDA
8 Payment; and (5) $6,975 to Phoenix as the Settlement Administration Costs.2 The Parties agreed
9 Phoenix will handle the notice and Settlement Administration.
10 The Maximum Settlement Amount shall be deposited into the Qualified Settlement Fund
11 (“QSF”) within ten (10) calendar days of the Effective Date. The Maximum Settlement Amount
12 does not include the Employer Taxes, which also must be paid by Defendant. The Settlement
13 Administrator shall make the LWDA Payment, mail the Class/PAGA Representative
14 Enhancement Payments to Plaintiffs, and distribute the Attorneys’ Fees and Costs awarded to
15 Class Counsel within ten (10) days after Defendant funds the QSF. Furthermore, the Settlement
16 Administrator shall mail the Individual Settlement Payments to Class Members within twenty
17 (20) calendar days of the Effective Date or within twenty (20) calendar days of the funding of
18 the QSF, whichever is later.3
19 The Net Settlement Amount of approximately $365,625.24 will be made available to the
20 three hundred fifty-five (355) Participating Class Members.4 The Individual Settlement
21 Payments that will be calculated by the Settlement Administrator will be proportionally based
22 upon the number of Workweeks worked by Participating Class Members during the Class
23
1
(See the Settlement Agreement that was attached as Exhibit 1 to the Declaration of Jenny
24
D. Baysinger In Support of Plaintiffs’ Unopposed Motion for Preliminary Approval of Class
25 Action Settlement that was filed on August 3, 2021, at ¶¶ 28, 51.)
2
26 (Id. at ¶¶ 14, 19, 27, 29, 35, 48, 52, 54-57.)
27 3
(Id. at ¶¶ 51, 55-57, 63, 68.)
28 4
(Declaration of Taylor Mitzner (“Mitzner Decl.”), at ¶ 12.)
12
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 Period. The Workweeks worked by each Participating Class Member shall be divided by the
2 total Workweeks worked by all Participating Class Members resulting in a payment ratio for
3 each Participating Class Member. Each Participating Class Member’s Payment Ratio is then
4 multiplied by the Net Settlement Amount, less the Former Employee Set-Aside, to determine
5 his or her Individual Settlement Payment.5
6 (1) One hundred percent (100%) of the portion of the Individual Settlement Payment
7 resulting from membership in the Former Employee Sub-Class shall constitute penalties; (2)
8 twenty-five percent (25%) of each Individual Settlement Payment resulting from membership
9 in the Class shall constitute wages; and (3) seventy-five percent (75%) shall constitute penalties
10 and interest.6
11 If any checks mailed to Participating Class Members remain uncashed after the
12 expiration of one hundred eighty (180) days from mailing, or an envelope mailed to a
13 Participating Class Member is returned and no forwarding address can be located for the
14 Participating Class Member after reasonable efforts have been made, then any such funds shall
15 be transmitted to the Settlement Administrator and distributed as follows in accordance with
16 California Code of Civil Procedure section 384: one hundred percent (100%) to Court Appointed
17 Special Advocates for Children of San Joaquin (serving San Joaquin County).7
18 IV. CLASS NOTICE AND RESPONSE
19 The court-appointed Settlement Administrator, Case Manager Taylor Mitzner of
20 Phoenix, took all necessary steps to effectuate the settlement administration process.
21 On September 23, 2021, Phoenix received the Court-approved Class Notice. On
22 September 17, 2021, Defendant provided Phoenix with the Class List that contained data for
23 three hundred fifty-five (355) Class Members.8
24
5
25 (Settlement Agreement, supra, at ¶ 68.)
6
26 (Id. at ¶ 58.)
27 7
(Id. at ¶ 60.)
28 8
(Mitzner Decl., supra, at ¶¶ 4-5.)
13
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 On September 28, 2021, Phoenix mailed Class Notices to three hundred fifty-five (355)
2 Class Members via first-class mail. The Class Notices informed Class Members that the
3 Response Deadline was November 12, 2021.9
4 As of January 6, 2022, twenty-three (23) Class Notices were returned, twenty-two (22)
5 Class Notices were remailed, and two (2) Class Notices are left undelivered. Finally, there are
no written disputes, no objections, or no requests for exclusion.10
6
V. THE COURT SHOULD GRANT FINAL APPROVAL OF THE CLASS ACTION SETTLEMENT
7
The trial court has broad discretion to determine whether a class action settlement is fair
8
and reasonable. Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 52. To determine whether
9
the settlement is fair, courts consider relevant factors such as “the strength of plaintiffs’ case,
10
the risk, expense, complexity and likely duration of further litigation, the risk of maintaining
11
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 counsel, the presence
13
of a governmental participant, and the reaction of the class members to the proposed settlement.”
14
Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801. “The list of factors is not exclusive,
15
and the court is free to engage in a balancing and weighing of the factors depending on the
16
circumstances of each case.” Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 245.
17
“Due regard should be given to what is otherwise a private consensual agreement between the
18
parties.” Dunk, supra, 48 Cal.App.4th at 1801.
19
The burden is on the proponent of the settlement to show that it is fair and reasonable.
20
Wershba, supra, 91 Cal.App.4th at 245. A presumption of fairness exists where: “(1) the
21
settlement is reached through arm’s-length bargaining; (2) investigation and discovery are
22
sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar
23
litigation; and (4) the percentage of objectors is small.” Dunk, supra, 48 Cal.App.4th at 1802.
24
In considering the class settlement, the court need not reach any ultimate conclusions on the
25
issues of fact and law that underlie the merits of the dispute. 7-Eleven Owners for Fair
26
27 9
(Mitzner Decl., supra, at ¶ 6.)
28 10
(Id. at ¶¶ 8-11.)
14
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1146. The inquiry is not whether
2 the settlement agreement is the best one that class members could have possibly obtained, but
3 whether the settlement taken as a whole is “fair, adequate, and reasonable.” Chavez, supra, 162
4 Cal.App.4th at 55. A settlement need not obtain 100 percent of the damages sought to be fair
5 and reasonable. Wershba, supra, 91 Cal.App.4th at 251. Even if the relief afforded by the
6 proposed settlement is substantially narrower than it would be if the lawsuit was to be
7 successfully litigated, that is no bar to a class settlement because the public interest may be
8 served by a voluntary settlement where each side gives ground to avoid litigation. Id.
9 A. The Proposed Settlement Resulted from Arm’s-Length Negotiations Based
10 Upon Extensive Investigation and Discovery.
11 Class Counsel have been actively engaged in this litigation since it was initially filed
12 July 8, 2020, as have other attorneys and staff members in of Class Counsel. Justice Law
13 Corporation and Mayall Hurley P.C. have worked cooperatively in seeking expeditious and fair
14 resolution of this matter. The Parties conducted significant investigation and discovery of the
15 facts and law both before and after the case was filed. The investigation entailed, among other
16 things, the exchange of information pursuant to formal and informal discovery. Using
17 information obtained, Class Counsel determined: (i) the total number of former and current
18 employees who worked during the Class Period; (ii) the total number of Class Members
19 employed during the PAGA Settlement Period; and (iii) the total number of shifts worked by all
20 Class Members during the Class Period.11
21 During the litigation, the Parties analyzed numerous documents either produced by
22 Defendant or obtained by Class Counsel through other sources. Class Counsel also interviewed
23 Class Members who worked for Defendant during the Class Period. This enabled Class Counsel
24 to determine the extent and frequency of Labor Code violations.12
25
11
26 (Declaration of Douglas Han in Support of Plaintiffs’ Motion for Final Approval of Class
Action Settlement (“Han Decl.”), ¶ 4; Declaration of Jenny Baysinger in Support of Plaintiffs’
27 Motion for Final Approval of Class Action Settlement (“Baysinger Decl.”), ¶¶ 18-19.)
28 12
(Han Decl., supra, at ¶ 5; Baysinger Decl., supra, at ¶ 19.)
15
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
1 The documents analyzed by Class Counsel provided a critical understanding of the
2 nature of the work performed by Class Members and Defendant’s policies and procedures. They
3 were used in analyzing potential liability and damages issues in connection with all phases of
4 the litigation, and ultimately with the mediation process. Overall, Class Counsel performed an
5 exhaustive investigation into the claims at issue. The extensive document and data exchanges
6 have allowed Class Counsel to appreciate the strengths and weaknesses of the claims against
7 Defendant, as well as the benefits of the Settlement Agreement.13
8 After the exchange of relevant information and evidence, the Parties agreed to enter
9 private mediation to attempt to resolve the claims in the case. On March 4, 2021, the Parties
10 participated in a full-day mediation with Mark J. Feder, a respected mediator of wage-and-hour
11 class actions. Under the auspices of the mediator, the Parties eventually reached a settlement via
12 a mediator’s proposal, the terms of which were memorialized in the Settlement Agreement. At
13 all times, the Parties’ negotiations were adversarial and non-collusive, and there was no fraud
14 or collusion at mediation with Mr. Feder.14 The Settlement was based on this large volume of
15 facts, evidence, and investigation. Class Counsel also have extensive experience in employment
16 class actions, including extensive experience in California wage-and-hour litigat
Preview
DOUGLAS HAN (SBN 232858) Electronically Filed 1 SHUNT TATAVOS-GHARAJEH (SBN 272164) Superior Court of California 2 ARSINÉ GRIGORYAN (SBN 319517) County of San Joaquin 2022-01-10 14:27:07 JUSTICE LAW CORPORATION 3 751 N. Fair Oaks Avenue, Suite 101 Clerk: Kristy Kobus 4 Pasadena, California 91103 Motion for Approval of Class Settlement Tel: (818) 230-7502 02/04/2022 09:00 AM in 10D 5 Fax: (818) 230-7259 6 ROBERT J. WASSERMAN (SBN 258538) WILLIAM J. GORHAM (SBN 151773) 7 JENNY D. BAYSINGER (SBN 251014) MAYALL HURLEY P.C. 8 2453 Grand Canal Boulevard 9 Stockton, California 95207-8253 Telephone: (209) 477-3833 10 Facsimile: (209) 473-4818 11 Attorneys for Plaintiffs SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 FOR THE COUNTY OF SAN JOAQUIN 13 14 JANET UGALE and JOBANY Case No.: STK-CV-UOE-2020-0005807 15 RODRIGUEZ, individually, and on behalf of Honorable Barbara Kronlund 16 other members of the general public similarly Department 10D situated and on behalf of aggrieved 17 employees pursuant to the Private Attorneys CLASS ACTION General Act (“PAGA”); PLAINTIFFS’ NOTICE OF MOTION 18 AND MOTION FOR FINAL APPROVAL Plaintiffs, OF CLASS ACTION SETTLEMENT, 19 ATTORNEYS’ FEES AND COSTS, AND CLASS/PAGA REPRESENTATIVE 20 v. ENHANCEMENT PAYMENTS; MEMORANDUM OF POINTS AND 21 ALLEN DISTRIBUTION, LP, a AUTHORITIES IN SUPPORT THEREOF Pennsylvania limited partnership; and DOES [Declarations of Class Counsel (Douglas 22 1 through 100, inclusive; Han and Jenny D. Baysinger); Declarations of Class Representatives 23 (Jobany Rodriguez and Janet Ugale); Defendants. Declaration of Settlement Administrator 24 (Taylor Mitzner); and [Proposed] Order of Final Approval and Judgment filed concurrently herewith] 25 Hearing Date: February 4, 2022 26 Hearing Time: 9:00 a.m. Hearing Place: Department 10D 27 Complaint Filed: July 8, 2020 28 FAC Filed: August 3, 2021 Trial Date: None Set 1 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 PLEASE TAKE NOTICE that on February 4, 2022 at 9:00 a.m., or as soon thereafter 2 as the matter may be heard, before Judge Barbara Kronlund in Department 10D of the San 3 Joaquin County Superior Court, located at 180 East Weber Avenue Stockton, CA 95202, 4 Plaintiffs Jobany Rodriguez and Janet Ugale (“Plaintiffs,” “Plaintiff Rodriguez,” and “Plaintiff 5 Ugale”) will, and hereby do, move this Court to approve: 6 1. The Joint Stipulation of Class and Representative Action Settlement and Release 7 (“Settlement Agreement” “Settlement,” or “Agreement) on the grounds that the Settlement 8 Agreement is fair, adequate, and reasonable because: 9 • Three hundred fifty-five (355) Class Members who did not submit timely and 10 valid requests for exclusion (“Participating Class Members”) will receive a 11 portion of the Net Settlement Amount based on the settlement calculation formula 12 set forth in the Settlement; 13 • As of January 6, 2022, no objections were submitted to the Settlement by Class 14 Members; 15 • As of January 6, 2022, no requests for exclusion were submitted to the Settlement 16 by a Class Member; 17 • As of January 6, 2022, there are no outstanding disputes; 18 2. The payment of the attorneys’ fees in the amount of $230,643 to Justice Law 19 Corporation and Mayall Hurley P.C. (“Class Counsel”) for 499.15 collective hours of attorney 20 time spent working on the case from pre-filing investigation to the final fairness hearing; 21 3. The payment of the attorneys’ costs in the amount of $10,736.76 to Class Counsel 22 for actual litigation costs and expenses incurred ($2,168.31 by Justice Law Corporation and 23 $8,568.45 by Mayall Hurley P.C.); 24 4. The payment of $6,975 to the Settlement Administrator, Phoenix Class Action 25 Administration Solutions (“Phoenix”) as the Settlement Administration Costs; 26 5. The payment of the Class/PAGA Representative Enhancement Payments in the 27 amount of $7,500 to each Plaintiff; 28 /// 2 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 6. The payment of $40,000 for the Private Attorneys General Act of 2004 (“PAGA”) 2 penalties, pursuant to Labor Code section 2699, seventy-five percent (75%) of which ($30,000) 3 will be paid to the California Labor and Workforce Development Agency (“LWDA”) (“LWDA 4 Payment”) and twenty-five percent (25%) of which ($10,000) will be paid to Class Members 5 who employed during the period of time from June 11, 2019 through May 4, 2021 (“PAGA 6 Settlement Amount” and “PAGA Settlement Period”). 7 This Motion is based on the following Memorandum of Points and Authorities; 8 Declarations of Class Counsel (Douglas Han and Jenny D. Baysinger), Declarations of Class 9 Representatives (Jobany Rodriguez and Janet Ugale), and Declaration of Settlement 10 Administrator (Taylor Mitzner) in support thereof; as well as upon the pleadings and other 11 records on file with the Court; and upon such documentary evidence and oral argument as may 12 be presented at the hearing on this motion. 13 14 Dated: January 10, 2022 JUSTICE LAW CORPORATION 15 16 By: ______________________________ 17 Douglas Han Attorneys for Plaintiffs 18 19 20 21 22 23 24 25 26 27 28 3 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 TABLE OF CONTENTS 2 I. SUMMARY OF MOTION ............................................................................................. 10 3 II. PROCEDURAL HISTORY AND FACTUAL BACKGROUND ................................. 11 4 III. SUMMARY OF THE SETTLEMENT TERMS AND PLAN OF DISTRIBUTION.... 12 5 IV. CLASS NOTICE AND RESPONSE .............................................................................. 13 6 V. THE COURT SHOULD GRANT FINAL APPROVAL OF THE CLASS ACTION 7 SETTLEMENT ............................................................................................................... 14 8 A. The Proposed Settlement Resulted from Arm’s-Length Negotiations Based Upon 9 Extensive Investigation and Discovery ............................................................... 15 10 B. The Risks in Continued Litigation Favor Final Approval of the Settlement ...... 16 11 C. The Settlement is Fair, Reasonable, and Adequate............................................. 17 12 D. The Settlement Class Was Represented by Competent Counsel ........................ 18 13 E. There Are No Objections to the Settlement ........................................................ 18 14 VI. THE ATTORNEYS’ FEES REQUESTED BY CLASS COUNSEL SHOULD BE 15 APPROVED ................................................................................................................... 19 16 A. Legal Standard for Attorneys’ Fees in a Class Action Settlement...................... 19 17 B. A Fee Award of a Percentage of the Entire Fund is Appropriate ....................... 20 18 C. The Requested Attorneys’ Fees and Costs is Within the Range of Fees Approved 19 in Comparable Common Fund Cases ................................................................. 22 20 D. The Attorneys’ Fees Requested by Class Counsel are Reasonable Based on the 21 Factors Considered in the Determination of Fee Awards ................................... 25 22 1. Time & Labor.......................................................................................... 25 23 2. The Skill Required to Perform Legal Services Properly ......................... 26 24 3. The Value of the Settlement for the Class Members ............................... 26 25 4. Whether the Fee is Fixed or Contingent ................................................. 27 26 5. The Amount Involved and the Result Achieved ....................................... 28 27 6. The Reputation and Ability of the Attorneys ........................................... 28 28 5 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 E. The Lodestar Methodology Also Justifies Approval of the Requested Fee ....... 28 2 1. Class Counsel Performed Work for a Reasonable Number of Hours .... 28 3 2. The Fees Requested Represent a Reasonable Hourly Rate of 4 Compensation in Light of Class Counsel’s Efforts and Experience ....... 29 5 VII. COSTS TO BE REIMBURSED TO CLASS COUNSEL ARE FAIR AND 6 REASONABLE .............................................................................................................. 30 7 VIII. PAYMENT TO THE SETTLEMENT ADMINISTRATOR IS FAIR AND 8 REASONABLE .............................................................................................................. 31 9 IX. CLASS/PAGA REPRESENTATIVE ENHANCEMENT PAYMENTS ARE FAIR AND 10 REASONABLE .............................................................................................................. 31 11 X. CONCLUSION ............................................................................................................... 33 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 TABLE OF AUTHORITIES 2 Cases 3 7-Eleven Owners for Fair Franchising v. Southland Corp., 4 85 Cal.App.4th 1135 (2000) ..................................................................................... 14, 18 5 In re American Bank Note Holographics, Inc. Securities Litigation, 6 127 F.Supp.2d 418 (S.D.N.Y. 2001) .............................................................................. 18 7 Apple Computer, Inc. v. Superior Court, 8 126 Cal.App.4th 1253 (2005) ......................................................................................... 19 9 Boeing Co. v. Van Gemert, 10 444 U.S. 472 (1980) .................................................................................................. 20, 22 11 Camden I Condominium Association, Inc. v. Dunkel, 12 946 F.2d 768 (11th Cir. 1991) ........................................................................................ 25 13 Cates v. Chiang, 14 213 Cal.App.4th 791 (2013) ..................................................................................... 25, 27 15 Cellphone Termination Fee Cases, 16 180 Cal.App.4th 1110 (2009) ......................................................................................... 19 17 Chavez v. Netflix, Inc., 18 162 Cal.App.4th 43 (2008) ................................................................................. 14, 15, 23 19 Consumer Privacy Cases, 20 175 Cal.App.4th 545 (2009) ........................................................................................... 19 21 Crampton v. Takegoshi, 22 17 Cal.App.4th 308 (1993) ............................................................................................. 20 23 Dennis v. Kellogg Co., 24 09-CV-1786-L WMC, 2013 WL 6055326 (S.D. Cal. Nov. 14, 2013) ........................... 23 25 Dunk v. Ford Motor Co., 26 48 Cal.App.4th 1794 (1996) ..................................................................................... 14, 19 27 Green v. Obledo, 28 29 Cal.3d 126 (1981) ...................................................................................................... 20 7 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 Ketchum v. Moses, 2 24 Cal.4th 1122 (2001) ....................................................................................... 19, 28, 29 3 Laffitte v. Robert Half Internat., Inc., 4 1 Cal.5th 580 (August 11, 2016)..................................................................................... 20 5 Lealao v. Beneficial Cal., Inc., 6 82 Cal.App.4th 19 (2000) ......................................................................................... 19, 22 7 Paul, Johnson, Alston & Hunt v. Graulty, 8 886 F.2d 268 (1989)........................................................................................................ 20 9 Serrano v. Priest, 10 20 Cal.3d 25 (1977) .................................................................................................. 20, 30 11 Smith v. CRST Van Expedited, Inc. 12 10-CV-1116- IEG WMC, 2013 WL 163293 (S.D. Cal. Jan. 14, 2013) ......................... 23 13 Vasquez v. Superior Court, 14 4 Cal.3d 800 (1971) ........................................................................................................ 20 15 Vincent v. Hughes Air West, Inc., 16 557 F.2d 759 (9th Cir. 1977) .......................................................................................... 20 17 Vo v. Las Virgenes Municipal Water Dist., 18 79 Cal.App.4th 440 (2000) ....................................................................................... 28, 29 19 Vranken v. Atlantic Richfield Co., 20 901 F. Supp. 294 (N.D. Cal. 1995) ................................................................................. 31 21 Wershba v. Apple Computer, Inc., 22 91 Cal.App.4th 224 (2001) ........................................................................... 14, 15, 18, 22 23 Winslow v. Harold G. Ferguson Corp., 24 25 Cal.2d 274 (1944) ...................................................................................................... 22 25 Statutes 26 Labor Code § 2699. ..................................................................................................................... 3 27 Other Authorities 28 A. Conte, Attorney Fee Awards (2nd Ed. 1993) ....................................................................... 20 8 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 Conte & Newberg, Newberg on Class Actions §11.47 (4th Ed.) .............................................. 18 2 H. Newberg, Attorney Fee Awards (1986) ............................................................................... 25 3 R. Pearle, California Attorney Fee Awards (CEB, 1993) ......................................................... 20 4 Reagan W. Wilber and Frank E. Goodrich, Common Funds and Common Problems: Fee 5 Objections and Class Counsel’s Response................................................................................ 23 6 T. Willging, L. Hooper and R. Niemic, Empirical Study of Class Actions in Four Federal 7 District Courts: Final Report to the Advisory Committee on Civil Rules (1996) .................... 23 8 Weil and Brown, California Practice Guide, Civil Procedure Before Trial ............................. 19 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. SUMMARY OF MOTION 3 Plaintiffs seek final approval of the Maximum Settlement Amount of $658,980 4 consisting of the following: (1) all Individual Settlement Payments to Participating Class 5 Members; (2) the attorneys’ fees in the amount of $230,643 to Class Counsel; (3) the attorneys’ 6 costs to Class Counsel in the sum of $10,736.76; (4) the Settlement Administration Costs to 7 Phoenix in the amount of $6,975; (5) the Class/PAGA Representative Enhancement Payment in 8 the sum of $7,500 to each Plaintiff; (6) the LWDA Payment sum of $30,000 to the LWDA; and 9 (7) $250 to each participating Former Employee Sub-Class Member (defined below). 10 This case required about 499.15 collective hours of attorney time from Class Counsel, 11 and this case is seeking relief for three hundred fifty-five (355) (a) current and former non- 12 exempt employees employed directly by Defendant Allen Distribution, L.P. (“Defendant”) at 13 any time between June 16, 2016 and May 4, 2021 (“Class Members” and “Class Period”); and 14 (b) Class Members whose employment with Defendant ended between June 16, 2017 and May 15 4, 2021 (“Former Employee Sub-Class Member”) (collectively, the “Class”). The case involved 16 extensive investigation, the informal exchange of information, and mediation. 17 Plaintiffs move for final approval of the Class/PAGA Representative Enhancement 18 Payments in the amount of $7,500 to each Plaintiff for the time they spent on this case. Plaintiffs 19 move for final approval of Settlement Administration Costs to Phoenix in the sum of $6,975. 20 The requested amount of the Attorneys’ Fees and Costs, the Settlement Administration 21 Costs, and the Class/PAGA Representative Enhancement Payments were fully disclosed to the 22 Class Members when the Notice of Class Action Settlement (“Class Notice”) was mailed to 23 them on September 28, 2021. As of January 6, 2022, not a single Class Member objected to the 24 request for the Attorneys’ Fees and Costs, the Settlement Administration Costs, or the 25 Class/PAGA Representative Enhancement Payments. Thus, the Settlement is fair, adequate, and 26 reasonable, and is the product of arm’s-length, good faith negotiations by experienced counsel, 27 presided over by a highly qualified mediator specializing in wage-and-hour class actions. 28 /// 10 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 II. PROCEDURAL HISTORY AND FACTUAL BACKGROUND 2 On June 11, 2020, Plaintiff Rodriguez, represented by Mayall Hurley P.C., provided 3 written notice to the LWDA. On June 16, 2020, Plaintiff Rodriguez filed his wage-and-hour 4 class action lawsuit in the United States District Court, Eastern District of California (Case No. 5 2:20-cv-01202-KJM-CKD). On August 21, 2020, Plaintiff Rodriguez filed a First Amended 6 Complaint. Afterwards, on October 8, 2020, Plaintiff Rodriguez and Defendant agreed to stay 7 proceedings for Plaintiff Rodriguez’s case pending private mediation. 8 On July 8, 2020, Plaintiff Ugale, represented by Justice Law Corporation, filed her wage- 9 and-hour class action lawsuit in the Superior Court of California, County of San Joaquin (Case 10 No. STK-CV-UOE-2020-0005807). On August 26, 2020, Defendant removed Plaintiff Ugale’s 11 case to the United States District Court, Eastern District of California (Case No. 2:20-cv-01710- 12 KJM-CKD). On September 25, 2020, Plaintiff Ugale filed a Motion to Remand her case back 13 to the Superior Court of California, County of San Joaquin. Before the Court made any ruling, 14 Plaintiff Ugale and Defendant agreed on February 18, 2021 to stay proceedings for Plaintiff 15 Ugale’s case pending private mediation. 16 The Parties attended mediation on Plaintiffs’ claims on March 4, 2021 under the auspices 17 of the mediator Marc J. Feder. Under the auspices of the mediator, the Parties were eventually 18 able to reach a settlement for both cases via a mediator’s proposal. 19 Pursuant to the settlement, the Parties stipulated to: (1) granting the pending Motion to 20 Remand Plaintiff Ugale’s case; (2) filing a First Amended Complaint in Plaintiff Ugale’s case 21 to add Plaintiff Rodriguez as an additional plaintiff and incorporate the allegations in Plaintiff 22 Rodriguez’s case; and (3) staying Plaintiff Rodriguez’s case until final approval has been 23 granted. On June 23, 2021, Plaintiff Ugale’s case was remanded back to the Superior Court of 24 California, County of San Joaquin (Case No. STK-CV-UOE-2020-0005807) and filed the First 25 Amended Complaint on August 3, 2021. 26 On September 2, 2021, the Court granted Preliminary Approval of the Settlement. The 27 Parties now seek Final Approval of the Settlement. 28 /// 11 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 III. SUMMARY OF THE SETTLEMENT TERMS AND PLAN OF DISTRIBUTION 2 Subject to the terms and conditions of the Agreement, the Maximum Settlement Amount 3 that Defendant is obligated to pay pursuant to the Agreement is $658,980.1 4 The Net Settlement Amount will be calculated by deducting the following amounts from 5 the Maximum Settlement Amount: (1) $230,643 to Class Counsel as the attorneys’ fees; 6 (2) $10,736.76 to Class Counsel as the attorneys’ costs; (3) $7,500 to each Plaintiff as their 7 Class/PAGA Representative Enhancement Payments; (4) $30,000 to the LWDA as the LWDA 8 Payment; and (5) $6,975 to Phoenix as the Settlement Administration Costs.2 The Parties agreed 9 Phoenix will handle the notice and Settlement Administration. 10 The Maximum Settlement Amount shall be deposited into the Qualified Settlement Fund 11 (“QSF”) within ten (10) calendar days of the Effective Date. The Maximum Settlement Amount 12 does not include the Employer Taxes, which also must be paid by Defendant. The Settlement 13 Administrator shall make the LWDA Payment, mail the Class/PAGA Representative 14 Enhancement Payments to Plaintiffs, and distribute the Attorneys’ Fees and Costs awarded to 15 Class Counsel within ten (10) days after Defendant funds the QSF. Furthermore, the Settlement 16 Administrator shall mail the Individual Settlement Payments to Class Members within twenty 17 (20) calendar days of the Effective Date or within twenty (20) calendar days of the funding of 18 the QSF, whichever is later.3 19 The Net Settlement Amount of approximately $365,625.24 will be made available to the 20 three hundred fifty-five (355) Participating Class Members.4 The Individual Settlement 21 Payments that will be calculated by the Settlement Administrator will be proportionally based 22 upon the number of Workweeks worked by Participating Class Members during the Class 23 1 (See the Settlement Agreement that was attached as Exhibit 1 to the Declaration of Jenny 24 D. Baysinger In Support of Plaintiffs’ Unopposed Motion for Preliminary Approval of Class 25 Action Settlement that was filed on August 3, 2021, at ¶¶ 28, 51.) 2 26 (Id. at ¶¶ 14, 19, 27, 29, 35, 48, 52, 54-57.) 27 3 (Id. at ¶¶ 51, 55-57, 63, 68.) 28 4 (Declaration of Taylor Mitzner (“Mitzner Decl.”), at ¶ 12.) 12 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 Period. The Workweeks worked by each Participating Class Member shall be divided by the 2 total Workweeks worked by all Participating Class Members resulting in a payment ratio for 3 each Participating Class Member. Each Participating Class Member’s Payment Ratio is then 4 multiplied by the Net Settlement Amount, less the Former Employee Set-Aside, to determine 5 his or her Individual Settlement Payment.5 6 (1) One hundred percent (100%) of the portion of the Individual Settlement Payment 7 resulting from membership in the Former Employee Sub-Class shall constitute penalties; (2) 8 twenty-five percent (25%) of each Individual Settlement Payment resulting from membership 9 in the Class shall constitute wages; and (3) seventy-five percent (75%) shall constitute penalties 10 and interest.6 11 If any checks mailed to Participating Class Members remain uncashed after the 12 expiration of one hundred eighty (180) days from mailing, or an envelope mailed to a 13 Participating Class Member is returned and no forwarding address can be located for the 14 Participating Class Member after reasonable efforts have been made, then any such funds shall 15 be transmitted to the Settlement Administrator and distributed as follows in accordance with 16 California Code of Civil Procedure section 384: one hundred percent (100%) to Court Appointed 17 Special Advocates for Children of San Joaquin (serving San Joaquin County).7 18 IV. CLASS NOTICE AND RESPONSE 19 The court-appointed Settlement Administrator, Case Manager Taylor Mitzner of 20 Phoenix, took all necessary steps to effectuate the settlement administration process. 21 On September 23, 2021, Phoenix received the Court-approved Class Notice. On 22 September 17, 2021, Defendant provided Phoenix with the Class List that contained data for 23 three hundred fifty-five (355) Class Members.8 24 5 25 (Settlement Agreement, supra, at ¶ 68.) 6 26 (Id. at ¶ 58.) 27 7 (Id. at ¶ 60.) 28 8 (Mitzner Decl., supra, at ¶¶ 4-5.) 13 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 On September 28, 2021, Phoenix mailed Class Notices to three hundred fifty-five (355) 2 Class Members via first-class mail. The Class Notices informed Class Members that the 3 Response Deadline was November 12, 2021.9 4 As of January 6, 2022, twenty-three (23) Class Notices were returned, twenty-two (22) 5 Class Notices were remailed, and two (2) Class Notices are left undelivered. Finally, there are no written disputes, no objections, or no requests for exclusion.10 6 V. THE COURT SHOULD GRANT FINAL APPROVAL OF THE CLASS ACTION SETTLEMENT 7 The trial court has broad discretion to determine whether a class action settlement is fair 8 and reasonable. Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 52. To determine whether 9 the settlement is fair, courts consider relevant factors such as “the strength of plaintiffs’ case, 10 the risk, expense, complexity and likely duration of further litigation, the risk of maintaining 11 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 counsel, the presence 13 of a governmental participant, and the reaction of the class members to the proposed settlement.” 14 Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801. “The list of factors is not exclusive, 15 and the court is free to engage in a balancing and weighing of the factors depending on the 16 circumstances of each case.” Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 245. 17 “Due regard should be given to what is otherwise a private consensual agreement between the 18 parties.” Dunk, supra, 48 Cal.App.4th at 1801. 19 The burden is on the proponent of the settlement to show that it is fair and reasonable. 20 Wershba, supra, 91 Cal.App.4th at 245. A presumption of fairness exists where: “(1) the 21 settlement is reached through arm’s-length bargaining; (2) investigation and discovery are 22 sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar 23 litigation; and (4) the percentage of objectors is small.” Dunk, supra, 48 Cal.App.4th at 1802. 24 In considering the class settlement, the court need not reach any ultimate conclusions on the 25 issues of fact and law that underlie the merits of the dispute. 7-Eleven Owners for Fair 26 27 9 (Mitzner Decl., supra, at ¶ 6.) 28 10 (Id. at ¶¶ 8-11.) 14 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1146. The inquiry is not whether 2 the settlement agreement is the best one that class members could have possibly obtained, but 3 whether the settlement taken as a whole is “fair, adequate, and reasonable.” Chavez, supra, 162 4 Cal.App.4th at 55. A settlement need not obtain 100 percent of the damages sought to be fair 5 and reasonable. Wershba, supra, 91 Cal.App.4th at 251. Even if the relief afforded by the 6 proposed settlement is substantially narrower than it would be if the lawsuit was to be 7 successfully litigated, that is no bar to a class settlement because the public interest may be 8 served by a voluntary settlement where each side gives ground to avoid litigation. Id. 9 A. The Proposed Settlement Resulted from Arm’s-Length Negotiations Based 10 Upon Extensive Investigation and Discovery. 11 Class Counsel have been actively engaged in this litigation since it was initially filed 12 July 8, 2020, as have other attorneys and staff members in of Class Counsel. Justice Law 13 Corporation and Mayall Hurley P.C. have worked cooperatively in seeking expeditious and fair 14 resolution of this matter. The Parties conducted significant investigation and discovery of the 15 facts and law both before and after the case was filed. The investigation entailed, among other 16 things, the exchange of information pursuant to formal and informal discovery. Using 17 information obtained, Class Counsel determined: (i) the total number of former and current 18 employees who worked during the Class Period; (ii) the total number of Class Members 19 employed during the PAGA Settlement Period; and (iii) the total number of shifts worked by all 20 Class Members during the Class Period.11 21 During the litigation, the Parties analyzed numerous documents either produced by 22 Defendant or obtained by Class Counsel through other sources. Class Counsel also interviewed 23 Class Members who worked for Defendant during the Class Period. This enabled Class Counsel 24 to determine the extent and frequency of Labor Code violations.12 25 11 26 (Declaration of Douglas Han in Support of Plaintiffs’ Motion for Final Approval of Class Action Settlement (“Han Decl.”), ¶ 4; Declaration of Jenny Baysinger in Support of Plaintiffs’ 27 Motion for Final Approval of Class Action Settlement (“Baysinger Decl.”), ¶¶ 18-19.) 28 12 (Han Decl., supra, at ¶ 5; Baysinger Decl., supra, at ¶ 19.) 15 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 1 The documents analyzed by Class Counsel provided a critical understanding of the 2 nature of the work performed by Class Members and Defendant’s policies and procedures. They 3 were used in analyzing potential liability and damages issues in connection with all phases of 4 the litigation, and ultimately with the mediation process. Overall, Class Counsel performed an 5 exhaustive investigation into the claims at issue. The extensive document and data exchanges 6 have allowed Class Counsel to appreciate the strengths and weaknesses of the claims against 7 Defendant, as well as the benefits of the Settlement Agreement.13 8 After the exchange of relevant information and evidence, the Parties agreed to enter 9 private mediation to attempt to resolve the claims in the case. On March 4, 2021, the Parties 10 participated in a full-day mediation with Mark J. Feder, a respected mediator of wage-and-hour 11 class actions. Under the auspices of the mediator, the Parties eventually reached a settlement via 12 a mediator’s proposal, the terms of which were memorialized in the Settlement Agreement. At 13 all times, the Parties’ negotiations were adversarial and non-collusive, and there was no fraud 14 or collusion at mediation with Mr. Feder.14 The Settlement was based on this large volume of 15 facts, evidence, and investigation. Class Counsel also have extensive experience in employment 16 class actions, including extensive experience in California wage-and-hour litigat