Sawyer vs. Retail Data, LLC

Motion Other

Cal. Super. - 4th Dist.October 30, 2014

OO 0 J N nn B R A W N = N N D N D N ND ND = = e m e s e s em ee s e 0 N N N Ln A W N 2, O Y B R E W ND = O AEGIS LAW FIRM, PC Kashif Haque (State Bar No. 218672) Samuel A. Wong (State Bar No. 217104) Jessica L. Campbell (State Bar No. 280626) 9811 Irvine Center Drive, Suite 100 Irvine, California 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 THE COOPER LAW FIRM, P.C. Scott B. Cooper (State Bar No. 174520) Samantha A. Smith (State Bar No. 233331) 4000 Barranca Parkway, Suite 250 Irvine, CA 92604 Telephone: (949) 724-9200 Facsimile: (949) 724-9255 scott@cooper-firm.com ELECTRONICALLY FILED Superior Court of California, County of Orange 11/29/2016 at 11:24:00 PM Clerk of the Superior Court By Sarah Loose Deputy Clerk Attorneys for Plaintiff Vanessa Sawyer individually, and on behalf of others similarly situated SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE VANESSA SAWYER, individually and on behalf of all others similarly situated and on behalf of the general public, Plaintiff, V. RETAIL DATA, LLC, a California limited liability company, and DOES 1 through 10, inclusive, Defendants. Case No. 30-2014-00753767-CU-OE-CXC CLASS ACTION Assigned for all purposes to: Hon. Kim G. Dunning Department CX104 MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARD Date: December 21, 2016 Time: 1:30 p.m. Dept: CX104 Judge: Hon. Kim G. Dunning Complaint Filed: October 30, 2014 Trial Date: Not Set PLAINTIFF'S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARD = V E TS N N N N N N N N N = e e e m md p m p m e d e m pe a p m 0 N N N hh B R A W N = O R N N N E W N Rm IL III. IV. TABLE OF CONTENTS INTRODUCTION ....occviiiciriiiiiiinineeniniecissessss esses teens sss sesss esos essnss ses es assness seseon es 1 THE SETTLEMENT MEETS THE REQUIREMENTS FOR FINAL APPROVAL.......... 2 A. The Court Found a Presumption of Fairness Exists at Preliminary Approval ......2 B. Other Factors Support Final Approval.......... Jrerer eset aes etae rae etaneen 3 1. The Strength of Plaintiff's Claims Weighed Against the Risks, = = Po 6. Expense, Complexity, and Likely Duration of Further Litigation, Including the Risk of Maintaining Class Action Status through Trial......... 3 The Amount Offered in Settlement.............c.cvevvvrvereieveeeeererreeeeesssn 5 The Extent of Discovery Completed and the Stage of the Proceedings ......5 The Experience and Views of Counsel ........cccccoevevivienieeneeeincsneesreeennns 6 The Presence of a Governmental Participant ............coveeveevvveeeeiieverssonnnn, 6 The Reaction of Class Members to the Settlement ............cocvveeevirrernnnnen.. 6 THE COURT-APPROVED NOTICE PROCEDURE SATISFIED DUE PROCESS......... 7 DS T Ss comurunsmsnnnnwassn ermmomiaenssstens HRs Sheidaraansnasmsmssnges spams yes swT assis oon EES SHAW ERE AVES SRS REA EES 8 A. The Requested Fee Award is Fair and Reasonable Calculated as a Percentage 0f' a Common FUN ........cocriiiiiinieee eee essen eae 9 B. A Lodestar Cross-Check Confirms the Reasonableness of the Requested Fee .....10 1. The Results Achieved on Behalf of the Settlement Class........................ 11 2. The Novelty and Difficulty of the Questions Involved and the Skill Displayed in Presenting Them ..........cccovevvvernnereeseccieeeiseeececr vens 12 3. The Response of Class Members and Lack of Objections to the Settlement and the Fee Award ..........ccoocccveniiiveeriviieeeecc e , 13 4, Class Counsel’s Experience, Reputation, and Ability........ccccceornnnnnrnn... 13 BN Class Counsel’s Preclusion From Other Work........cooeevvevevviveevirinnnnnen, 14 6. The Contingent Nature of the Fee Award..........cccocooveveeveeeercenenerennn. 14 PLAINTIFF’S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARD “wv Be W N O w x 10 11 12 13 14 15 16 17 18 19 20 21 93 23 24 25 26 27 28 VIL VIL VIIL CLASS COUNSEL’S REQUESTED COST AWARD IS REASONABLE AND SHOULD RECEIVE FINAL APPROVAL...ccsusssusseusssasssseassssassassssssssssssssn s v nson ssas sss -1- PLAINTIFF'S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARD wn W N O e 0 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES CASES Bell v. Farmers Ins. Exchange, 115 Cal. App. 4th 715 (2004) ........coocrvereeemeeiieieeiesereeseresseesns 16 Cellphone Termination Fee Cases, 186 Cal. App. 4th 1380 (2010).....c...ccevvrerrerereeveeeerrererennnan. 16 Chavez v. Netflix, Inc., 162 Cal. App. 4th 43 (2008) ......coeeeiiieirrerieeeeeeeeeeeeeeeeeereeereereee sess eres 9 Clark v. American Residential Services LLC, 175 Cal. App. 4th 785 (2009)......cccverveeeereererrnnnn, 16 Dunk v. Ford Motor Co., 48 Cal. App. 4th 1794 (1996)......coeecererieeeieeseeeeeeeeeeeeeeesens 2,3,4 Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) c..cveeeeereeeeeeeereteetrerere cess cesisse sees eres e es 7 Graciano v. Robinson Ford Sales, Inc., 144 Cal. App. 4th 140 (2000) ....cccevvvevvreenereererneinen, 14 Graham v. DaimlerChrysler Corp., 34 Cal. 4th 553 (2004) .....cuceeverieerereereereeeesieiseesssesnnns 14, 15 Horsford v. Board of Trustees of Calif. State Univ., 132 Cal. App. 4th 359 (2005) ............... 14, 15 In re Consumer Privacy Cases, 175 Cal. App. 4th 545 (2014) .cveceeeireeeecieeiceeeieeeese seer e esenes 10 Ketchum v. Moses, 24 Cal. 4th 1122 (2001) ....cuoueueveiieeerieieerecver eee sees seessess snes s an, 10, 14 Kullar v. Foot Locker Retail, Inc., 168 Cal. App. 4th 116 (2008).......c.ccceveveereerereereeeereneeeseereranns 4 Laffitte v. Robert Half International, Inc., 1 Cal. 5th 480 (2016).....covvveererrrerereerrerennnnn. 9,10,11 Lealao v. Beneficial Cal. Inc., 82 Cal. App. 4th 19 (2000) ..cceverivieiveieeiceecceeeectseeeeee e s n 9 Lealao v. Beneficial California, Inc., 82 Cal. App. 4th 19 (2000)......ccccvvvvemreerirrerceeenresrereerese eens 7 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) ..ccovrvreeiicrererreeeereenn, 7 Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) u..eceveeereerereeeteesieerrereisneseeseeeneneseseseeseeens 7 PLCM Group v. Drexler, 22 Cal. 4th 1084 (2000) ......covcevriieirererrereeeerereeeseieresieseveneeeeeeeerereenas 11 Rebney v. Wells Fargo Bank, 220 Cal. App. 3d 1117 (1991) ...oovevvieiieeieeiiiereeee ieee seers 11 Sav-on Drug Stores, Inc. v. Super. Ct. (Rocher), 34 Cal. 4th 319 (2004)........ccocevevercerrrrerennn. 16 Serrano v. Priest, 20 Cal. 3d 25 (1977) oer eeieceieeseesreee ste sveese sre sensensssesssass ss sea ens 9,11 Sutter Health Uninsured Pricing Cases, 171 Cal. App. 4th 495 (2009) ...c.ocvvevveveevereereerannn, 11 Wershba v. Apple Computer, Inc., 91 Cal. App. 4th 224 (2001) ...c.coovvervecrierrcernennn, 2,3,9,11,12 STATUTES Cal. Lab. Code § 226.2........c.ccovrrerrnieieieiereresssssessssss s es esss bosses as essere sees 5,12 Coll; Lab, COE § 2098 ixnsunsiscocsms cassaiisiinssinivessninromernensusessssessesenssensesessses pas or sess mses sa sy ei passim PLAINTIFF'S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARD NO 0 Na A N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 29 26 27 28 OTHER AUTHORITIES Alba Conte, Attorney Fee Awards § 2:08 at 50-51 ....ccvvvereerreireeerereriecierereeeieee sneer e ne as Eisenberg & Miller, Attorney Fees in Class Action Settlements: An Empirical Study, J. of Empirical Legal Studies, Vol. 1, Issue 1, 27-78, March 2004 ........ccocveerrveeerunnnn. Herr, Manual for Complex Litigation, § 14.122 (1984) ....cccccoevirieeercieieeeeierrenreteteevceee evee -1- PLAINTIFF'S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARD LO 0 N Y nn RAR W N = N O N N N N N O N O N O N m m o m e m e m e m p m p t e m p m e m «0 N N N nn B R A W N = O ND N S N nn BE W N =, L INTRODUCTION This motion seeks final approval of a proposed non-reversionary Class Action Settlement, preliminarily approved by this Court on September 21, 2016. The Settlement will release claims that defendant Retail Data, LLC (“Defendant” or “Retail Data™) failed to pay wages for all hours worked, reimburse business expenses, timely pay wages upon termination, and provide accurate wage statements to Plaintiff Vanessa Sawyer (“Plaintiff”) and other Data Scanners who were employed by Defendant in the State of California during the class period of October 31, 2010 through March 31, 2016 (“Class Members”). The Settlement provides that the Gross Settlement Amount of $940,000.00 will be distributed as follows: (a) Net Settlement Amount of $584,346.73 distributed to Class Members who do not opt out of the Settlement (“Participating Class Members”) based on the amount of weeks worked during the class period; (b) attorneys’ fees of $313,333.33; (c) litigation costs of $11,319.94; (d) Plaintiff’s Incentive Award of $5,000.00; (e) Settlement Administration expenses of $11,000.00; and (f) payment of $15,000.00 for the Labor and Workforce Development Agency’s (“LWDA?”) share of penalties under the California Labor Code Private Attorneys General Act (“PAGA”). The proposed Settlement is a product of diligent efforts and extensive arms’ length negotiations by Class Counsel to obtain the best possible result for the Class. By resolving this matter now, Class Members will receive a guaranteed recovery without risk of nonpayment, delay, or an adverse judgment at trial. In response to the Notice of Class Action Settlement (“Class Notice”), no objections were filed and only two Class Members opted out. The funds designated for Class Members who opt out will be redistributed to the Participating Class Members in proportion to their number of weeks worked during the class period. Participating Class Members will receive an average PLAINTIFF'S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARD NO o e N Y O N dn B R A W N DN DN N N N N N N N mm e m e m e m e m p m p d e m p d pe © ~~ ON UL BE W N =m, OO VW © N N WL bh W O N m o e settlement payment of approximately $540.08, with the highest payout reaching $5,020.38 and the lowest payment being $17.74. In light of the Class’ favorable response, the facts and law set forth below as well as in the motion for preliminary approval, Plaintiff respectfully requests that the Court now enter an order that (1) grants final approval of the proposed class action settlement; (2) enters final judgment; (3) orders distribution of the proportionate shares of the Settlement to Participating Class Members pursuant to the terms of the Settlement; and (4) approves payments for attorneys’ fees, litigation costs, Plaintiff’s Incentive Award, Settlement Administration expenses, and payment to the LWDA, as requested herein, IL THE SETTLEMENT MEETS THE REQUIREMENTS FOR FINAL APPROVAL In deciding whether to grant final approval for a class action settlement, California courts consider whether the settlement is “fair, adequate and reasonable.” Wershba v. Apple Computer, Inc., 91 Cal. App. 4th 224, 244-45 (2004); Dunk v. Ford Motor Co., 48 Cal. App. 4th 1794, 1801 (1996). “[A] presumption of fairness exists where: (1) the settlement 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.” Dunk, 48 Cal. App. 4th at 1802. A, The Court Found a Presumption of Fairness Exists at Preliminary Approval On September 21, 2016, the Court granted Plaintiff’s Motion for Preliminary Approval of Class Action Settlement, appointed Phoenix Settlement Administrators as the Settlement Administrator, appointed Plaintiff Vanessa Sawyer as the Class Representative, appointed Aegis Law Firm, PC and The Cooper Law Firm, PC as Class Counsel, approved the Class Notice and directed that the Class Notice be mailed to the Class. (Declaration of Kashif Haque in Support of Motion for Final Approval (“Haque Decl.”), Exhibit 1 (Order Granting Preliminary Approval of Class Action Settlement and Conditional Certification of Class dated September 21, 2016).) At preliminary approval, Plaintiff presented evidence that the instant Settlement is entitled to a presumption of fairness because (1) the Settlement was reached through arms-length bargaining after a formal mediation, (2) Plaintiff conducted formal and informal discovery, 2- PLAINTIFFS MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARD NO N N RN W N N N DN N N N N N N = m e m e m pe d e m p m e m p m pe d © N N N A W N = O Y N N R W Rm including a motion to compe! discovery and analysis of Class Members’ time and payroll records, and (3) Plaintiff's counsel are sufficiently experienced to be appointed Class Counsel. (See Plaintiff's Motion for Preliminary Approval (“MPA”) filed August 12, 2016.) The Court granted preliminary approval after two hearings and one supplemental filing. (Haque Decl. 1 26.) Since then, the final Dunk factor has been satisfied: no class members objected to the settlement. See Dunk, 48 Cal. App. 4th at 1802. Accordingly, this Court can comfortably presume that the Settlement is worthy of final approval. B. Other Factors Support Final Approval In addition to the presumption above, a court’s inquiry at final approval can include several other factors, including: (1) the strength of the plaintiffs case weighed against the risk, expense, complexity and likely duration of further litigation as well as the risk of maintaining class action status through trial, (2) the amount offered in settlement, (3) the extent of discovery completed and the stage of the proceedings when settlement was reached; (4) the experience and views of counsel, (5) the presence of a governmental participant, and (6) the reaction of class members. Wershba, 91 Cal. App. 4th at 244-45. 1. The Strength of Plaintiff's Claims Weighed Against the Risks, Expense, Complexity, and Likely Duration of Further Litigation, Including the Risk of Maintaining Class Action Status through Trial Plaintiff alleged that Defendant’s piece rate system failed to compensate Class Members for time spent on mandatory “non-productive” tasks (such as reviewing emails, responding to emails from supervisors, downloading assignments from the company portal, and uploading completed assignments on the same day they performed the work) and for time spent in rest breaks. Plaintiff further alleged Defendant required Class Members to maintain internet access at home and on smartphones, but failed to authorize reimbursements for these necessary business expenses. Finally, Plaintiff alleged Defendant failed to provide Class Members with itemized wage statements showing the number of piece-rate units earned, the applicable piece rate, and the employer’s address. (Haque Decl. §Y 27 — 29.) 3 PLAINTIFF’S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARD Oo 0 S N nn Rh W N N O N N N N N N N N m m mm e d e m e m p m p m mm e d XX 2 A N Wn hk W N = C O N N N N R W N = o While Plaintiff believed and continues to believe this is a strong case for certification, there were significant risks and expenses associated with class certification and liability proceedings. To assess the inherent risks, the Court must weigh the immediacy and certainty of substantial settlement proceeds against the risks inherent in continued litigation. Dunk, 48 Cal. App. 4th at 1801-02. Kullar requires a showing of “basic information about the nature and magnitude of the claims in question and the basis for concluding that the consideration being paid for the release of those claims represents a reasonable compromise.” Kullar v. Foot Locker Retail, Inc., 168 Cal. App.4th 116, 133 (2008). Here, Class Counsel calculated Defendant’s potential exposure assuming Plaintiff prevailed on all aspects of her claims at trial, but weighed that value against the chance of succeeding at class certification and trial. (Haque Decl. § 30.) In addition to the exposure analysis and risks described in Plaintiff's Motion for Preliminary Approval, Class Counsel considered the following risks: e The great discretion afforded to trial courts in electing to grant or deny class certification, meaning it is entirely possible that this Court would deny certification of the proposed Class, resulting in no recovery whatsoever for the unnamed Class Members; e Defendant’s likely argument that common issues do not predominate, based on Class Members’ failure to track time worked off-the-clock and expenses incurred for work purposes; e Defendant’s likely arguments that the named plaintiff's claims are not typical of those of the Class and that she is an inadequate class representative, which Plaintiff expects would be based on the testimony of her supervisors and/or coworkers; e Defendant’s argument that Plaintiff lacked standing to bring her PAGA claims; eo The relative lack of written evidence for the Class Members’ off-the-clock time and business expenses, other than their declarations; e Defendant’s likely argument that, even if found liable for unpaid wages, the Class lacked sufficient evidence to legally establish their damages; e Defendant’s likely argument that Plaintiff's estimate of the maximum damages available to the Class is vastly overstated and does not comport with the actual damages suffered by Class Members; and e The possibility that the Class could proceed all the way to trial and be victorious in this case and still find themselves unable to actually enforce their ultimate judgment owing to Defendant’s ultimate insolvency or other unforeseen intervening circumstances. -4- PLAINTIFF’S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARD SH W N O e N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 e The great discretion given to the courts to reduce PAGA penalties based on whether the amount of the award would be “unjust, arbitrary and oppressive, or confiscatory.” Cal. Labor Code § 2699(¢e)(2). Plaintiff expected Defendant’s August 2015 policy changes and willingness to cure past violations would significantly affect the PAGA award. (Haque Decl. § 31.) Although the amount of the Class” maximum potential damages — if proven — is substantial, the legitimate and serious risks above compelled a considerable discount for settlement. 2, The Amount Offered in Settlement The Settlement creates a Gross Settlement Fund of $940,000.00 for 828 Participating Class Members. Although the class size increased by 18 people from the original estimate at mediation (810), this increase did not exceed the 10% cap in the Settlement Agreement. (Settlement Agreement (“SA”), 1 3.04(f).) In addition to the settlement shares for the 828 Participating Class Members, 335 Class Members received full value for their AB 1513 claims (which cover a shorter time period than the class period). Defendant agreed to pay a total of $128,480 for these claims, which is exactly the amount required to cure under Cal. Lab. Code § 226.2. (Declaration of Andrew C. Crane in Support of Motion for Preliminary Approval of Class Action Settlement (“Crane Decl”), 19 12.) Further, Defendant implemented all prospective statutory employee-related pay and reporting requirements under AB 1513. (Crane Decl., J 12.) The estimated average recovery for Participating Class Members from the Net Settlement Amount is $540.08. Class Members who worked during the entire class period will receive $5,020.38. (Meade Decl. § 24.) No portion of the Gross Settlement Amount will revert to Defendant. Thus, the amount offered in settlement provides sufficient relief in light of the potential risks associated with seeking a judgement for a larger amount. 3 The Extent of Discovery Completed and the Stage of the Proceedings Class Counsel thoroughly investigated the Class Members’ claims, applicable law, and potential defenses using formal and informal discovery. In particular, Plaintiff served discovery requests seeking, inter alia, class member contact information, evidence of Defendant’s class-wide policies and practices, time records, and payroll records. After Plaintiffs deposition, the parties reached an impasse regarding certain discovery issues, and were forced to seek guidance from the Court. The Court partially granted Plaintiff’s motion to compel further discovery responses, and -5- PLAINTIFF’S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARD + e e a9 O N in 10 1 12 13 14 15 16 17 18 19 20 21 99 23 24 25 26 27 28 Defendant produced additional discovery as ordered. (Haque Decl. 9 33.) After the passage of AB 1513, which significantly affected the value of the case, the parties agreed to mediate with Mark Rudy, Esq. Defendant produced additional information informally for mediation, including calculations of what it would owe Class Members if it took advantage of the AB 1513 affirmative defense. The parties ultimately settled after a full-day mediation session. They spent the next three months negotiating the terms of the Settlement, which was finalized in July of 2016. (Haque Decl. § 34.) Thus, the extent of discovery completed, along with the motion work and mediation preparation indicate the case was ripe for an adequate settlement. 4. The Experience and Views of Counsel Class Counsel are experienced litigators who focus their practices on wage and hour class actions. They have extensive experience litigating wage and hour class actions through certification and on the merits. They have cumulatively been appointed as class counsel or co- class counsel in many class actions, most of which were wage and hour cases similar to the present case, and have obtained substantial recoveries for thousands of employees through these cases. (Haque Decl., 9 3 — 17; Declaration of Scott Cooper (“Cooper Decl.”), 19 3-13, 15-19.) They have the requisite skill and experience to justify their evaluation of this case. 5. The Presence of a Governmental Participant There is no active governmental participant in this settlement. On September 2, 2014 Plaintiff notified the LWDA of her claims as part of her obligations under PAGA. The LWDA did not indicate that it intended to investigate the claims. (Haque Decl. 4 35.) The Settlement calls for the payment of $15,000 in PAGA penalties to the LWDA, which the Settlement Administrator will make after final approval of the Settlement. 6. The Reaction of Class Members to the Settlement The 828 Participating Class Members will receive the benefits of the entire $584,346.73 Net Settlement Fund, since no funds will revert to Defendant. In response to the Settlement Notice, only two Class Members opted out. Most importantly, no Class Members objected to the Settlement. (Meade Decl. 9 21-22.) A court may properly infer that a class action settlement is fair, adequate and reasonable when few class members object to it. Lealao v. Beneficial California, -6- PLAINTIFF'S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARD BS ~ o N wn 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Inc., 82 Cal. App. 4th 19, 51 (2000). As such, after full disclosure, the Class Members’ favorable reaction to the Settlement supports the conclusion that it is fair, adequate and reasonable. III. THE COURT-APPROVED NOTICE PROCEDURE SATISFIED DUE PROCESS When the Court granted preliminary approval, it also approved the method of providing notice to Class Members. Following a National Change of Address search of the U.S. Postal Service database, the Settlement Administrator mailed the Class Notice to all Class Members on October 11, 2016. The Notice advised Class Members of (1) the terms of the settlement, (2) their rights to participate in the settlement, object to the settlement, or request exclusion from the settlement, (3) the procedures and timing for doing any of these acts, and (4) the date, time, and place scheduled for the Final Approval Hearing and instructions in the event a Class Member wished to be heard at that hearing. The Notice included each Class Member’s individualized information upon which his or her share of the settlement would be calculated, i.¢., the number of weeks he or she worked during the Class Period according to Defendant’s records, as well as the estimated amount of his or her respective settlement payment. (Meade Decl., Exhibit E at p.4.) From the initial mailing, the Settlement Administrator received 125 returned envelopes. Through additional searches, the Administrator re-sent Notices to the 122 updated addresses available through skip tracing. Only nine additional Notice Packets were ultimately returned with no updated addresses, leaving 12 undeliverable notices total. (Meade Decl., § 20.) This mailing provided the best practicable means of notice. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811-12 (1985); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 174-76 (1974) (individual notice must be sent to all class members who can be identified through reasonable efforts); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (best practicable notice is that which is “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections”). On October 20, 2016, the Settlement Administrator sent the AB 1513 payments to Class Members. However, the AB 1513 payments were sent with the wrong tax allocation — only 13.5% wages rather than 100% wages. Before notifying Class Counsel, Defendant and the Settlement Administrator sent notices to Class Members and stopped payment on the AB 1513 checks without -7- PLAINTIFF'S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARD Ww Oo 0 a 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Class Counsel’s approval. (Haque Decl., J 36; Meade Decl. Y 7, 8, 11, Exhibits B and C.) Once Class Counsel found out about the unauthorized communications with Class Members, they set an informal conference with the Court to discuss potential solutions on November 14, 2016. (Haque Decl., 37.) After meeting with the Court, the parties agreed to send an additional notice asking Class Members to notify the Settlement Administrator of any fees they incurred as a result of the stop payments and giving Class Members a chance to submit claims for reimbursement. (Meade Decl., 9 12, Exhibit D.) Four Class Members have submitted claims for reimbursement of stop-payment fees totaling $48.00. (Meade Decl., § 13.) To the extent additional reimbursements are requested, Class Counsel will submit additional evidence related to the reimbursement requests before the final approval hearing. Additionally, to the extent taxes were underwithheld and Class Members who cashed checks did not send refunds to the Administrator, Class Counsel understands Defendant has agreed that either Defendant or the Settlement Administrator will cover the underwithholding of taxes to avoid burdening the Class Members. (Haque Decl., § 38.) The parties also realized that the tax allocation in the Settlement Agreement did not reflect their original intent. They obtained Court approval of an amendment to the Settlement Agreement and sent an additional notice to the Class Members explaining the proper tax allocation, which should have designated the AB 1513 payment as wages and the remaining settlement share as penalties and interest. (Haque Decl., § 39, Exhibit 3 (Stipulation re Amendment); Meade Decl. 9 19, Exhibit F.) The deadline to respond to the Class Notice expired on November 21, 2016. In response to the Class Notice, the Settlement Administrator received two request for exclusion and no objections. (Meade Decl. 21-22.) Accordingly, the Class has been given an adequate opportunity to participate in the Settlement. IV. THE COURT SHOULD APPROVE THE REQUESTED ATTORNEYS’ FEES AND COSTS California courts recognize two standard methods for calculating attorney fee awards in class actions. The more prevalent “percentage of the fund” (also known as the “common fund” or PLAINTIFF'S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARD wn RR W N O L I DN 10 11 12 13 14 3 16 17 18 19 20 21 22 23 24 25 26 27 28 “common benefit”) method calculates attorneys’ fees based on a percentage of the common benefit bestowed upon the class. The “lodestar-plus-multiplier” method uses class counsel’s “lodestar” as a basis — determined by multiplying the hours counsel expended by their hourly rates — which the Court may then enhance by a multiplier, based on a variety of factors. Here, Class Counsel seeks an award of attorneys’ fees in the amount of $313,333.33, or rather one-third of the proposed Settlement Fund. No Class Members have objected to the fee request. Class Counsel’s fee request is reasonable under either of these methods, as explained below. A. The Requested Fee Award is Fair and Reasonable Calculated as a Percentage of a Common Fund Both California and federal courts have recognized that an appropriate method for awarding attorney’s fees in class actions is to award a percentage of the “common fund” created as a result of the settlement. Laffitte v. Robert Half International, Inc., 1 Cal. 5th 480, 489 (2016) (recognizing both the “percentage or recovery” and “lodestar/multiplier” methods). The common fund doctrine is applicable where, as here, “a class settlement agreement establishes a relief fund from which the attorney fee is to be drawn.” Laffitte, 1 Cal. Sth at 489; Serrano v. Priest, 20 Cal. 3d 25, 35-40 (1977). The key advantage of the common-fund method is that it focuses on the total benefit conferred on the class resulting from the efforts of counsel. Lealao, 82 Cal. App. 4th at 48. The common fund doctrine is “frequently applied in class actions when the efforts of the attorney for the named class representatives produce monetary benefits for the entire class.” Wershba, 91 Cal. App. 4th at 254. In applying the common fund doctrine, California courts routinely award attorneys’ fees equaling one-third of the common fund’s total potential value. See, e.g., Chavez v. Netflix, Inc., 162 Cal.App.4th 43, 66, n.11 (2008) (“Empirical studies show that, regardless of whether the percentage method or the lodestar method is used, fee awards in class actions average around one-third of the recovery”); Eisenberg & Miller, Attorney Fees in Class Action Settlements: An Empirical Study, J. of Empirical Legal Studies, Vol. 1, Issue 1, 27-78, March 2004, at 35 (independent studies of class action litigation nationwide conclude that a one- third fee is consistent with market rates). The Laffitte case recently confirmed “[t]he recognized -9- PLAINTIFF’S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARD NO 8 N N nn BA W N BN N N N N N N N N = m = e m e s em es e e e s © N N nn B A W N = , O O N N R W N = advantages” of the method, such as “ease of calculation, alignment of incentives between counsel and the class, a better approximation of market conditions in a contingency case, and the encouragement it provides counsel to seek an early settlement and avoid unnecessarily prolonging the litigation.” Laffitte, 1 Cal. 5th at 489 (citations omitted). Because the negotiated fee structure mimics the marketplace, it is reasonable and should be approved. Here, as in Laffitte, we have a true common fund where the percentage is calculated based on the overall fund with no reversion to Defendant and no claims process. The requested fee in this case is fair compensation for obtaining an excellent result for the Class and, in doing so, undertaking complex, risky, expensive, and time-consuming litigation on a contingent basis. Class Counsel has undertaken representation at their own expense, with compensation contingent on providing a benefit to the class. (Haque Decl., § 40.) Because there is a defined and clearly traceable benefit to the class, the Court can base an award of attorneys’ fee on the Class Members’ benefit, using a common fund approach to establish the compensation of counsel. In short, the percentage of fees sought by Class Counsel is in line with awards in similar cases in California and is reasonable for the benefit obtained for Class Members in this case. B. A Lodestar Cross-Check Confirms the Reasonableness of the Requested Fee California’s lodestar/multiplier method is a two-step process of fee calculation under which the Court first determines a lodestar value for the fees by multiplying the time reasonably spent by the plaintiffs’ counsel on the case by a reasonable hourly rate. In re Consumer Privacy Cases, 175 Cal. App. 4th 545, 556-557 (2014). The Court may then enhance or reduce the lodestar by applying a multiplier to take into account multiple factors, including the contingent nature of the fee agreement, the risk associated with the action, the degree of skill required and the ultimate success achieved. See Ketchum v. Moses, 24 Cal. 4th 1122, 1132 (2001) (also explaining that the “purpose of a fee enhancement, or so-called multiplier, for contingent risk is to bring the financial incentives for attorneys enforcing important... rights”). Where the lodestar method is used as a cross-check, trial courts “have generally not been required to closely scrutinize each claimed attorney-hour, but have instead used information on attorney time spent to ‘focus on the general question of whether -10- PLAINTIFF'S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARD C 0 0 N N D W N em D o N N N N N N N N ee e m e m e m e m e m p m e d p m KR NN O y nn A W N = O 0 N N D R A W N = o the fee award appropriately reflects the degree of time and effort expended by the attorneys.’” Laffitte, 1 Cal. 5th at 505 (citations omitted). The starting point in determining the appropriate hourly fee is to discern the prevailing rate for similar work in the pertinent geographic region. PLCM Group v. Drexler, 22 Cal. 4th 1084, 1096-97 (2000) (using prevailing hourly rate in community for comparable legal services even though party used in-house counsel); see also Herr, Manual for Complex Litigation, § 14.122 (1984) (“reasonable fees . . . are to be calculated according to the prevailing market rates in the relevant community.”). Here, Class Counsel’s hourly rates are comparable to those charged by other class action plaintiff's counsel and the firms defending class actions. (Cooper Decl., 9 17- 18; Haque Decl., §18.) Further, the total attorney hours expended on this action are reasonable and in line with comparable cases. Class Counsel billed a total of 525.7 hours prosecuting this case. (Haque Decl., 9 23; Cooper Decl., § 20, Exhibit A.) Multiplying the total hours billed by Class Counsel to the litigation by their reasonable hourly rates yields a lodestar of $292,527.50. (1d.) The lodestar is just $20,805.83 (or 7%) less than the fees sought by Class Counsel in this case, meaning Class Counsel are requesting almost no multiplier, which further supports the reasonableness of the fee request. As stated above, once the court establishes the lodestar amount, it may enhance the fee award by a multiplier in order to make an appropriate fee award. Serrano, 20 Cal. 3d at 48. “Multipliers can range from 2 to 4 or even higher.” Wershba, 91 Cal. App. 4th 255; Sutter Health Uninsured Pricing Cases, 171 Cal. App. 4th 495, 512 (2009) (multiplier “of 2.52 is fair and reasonable”). Accordingly, Class Counsel request a 1.07 multiplier to reach the fee amount provided in the Settlement. 1. The Results Achieved on Behalf of the Settlement Class As a result of Class Counsel’s efforts, Class Members will receive immediate and reasonable payment for their claims. A settlement does not have to provide 100% of the damages sought to be considered a fair and reasonable settlement. Rebney v. Wells Fargo Bank, 220 Cal. App.3d 1117, 1139 (1991). Rather, compromise is expected: -11- PLAINTIFF'S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARD Oo 0 N N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Compromise is inherent and necessary in the settlement process . . . even if “the relief afforded by the proposed settlement is substantially narrower than it would be if the suits were to be successfully litigated,” this is no bar to a class settlement because “the public interest may indeed be served by a voluntary settlement in which each side gives ground in the interest of avoiding litigation.” Wershba, 91 Cal. App. 4th at 250. Here, if Plaintiff prevailed at trial, the total recovery could reach around $1.7 million, as explained in the preliminary approval motion. The gross settlement amount is roughly 55% of the exposure amount, which is extremely reasonable given the risk factors at all stages of the litigation. (Haque Decl. §§ 41.) The payment to Class Members avoids the risk and expense of losing on some or all of the claims at trial. Class Counsel found it preferable here to reach a resolution at this stage of the case to save time and money that would otherwise go to litigation. For example, if this action had settled following additional litigation, the settlement amount would likely have taken into account the additional costs incurred, and there may have been less money available for Class Members. Moreover, if the putative Class had not been certified, the value of Plaintiff’s case would have been considerably reduced; indeed, Defendant would have likely offered no money to settle the class-wide claims. Even if Plaintiff prevailed at class certification, she would have faced arguably compelling defenses to the merits of the claims, including the recoverability of penalties. (Haque Decl. § 42.) Accordingly, the cumulative benefits achieved by Class Counsel favor approval of the requested fees. 2, The Novelty and Difficulty of the Questions Involved and the Skill Displayed in Presenting Them In resolving this case, Class Counsel faced many hurdles. After partial success in moving to compel further discovery responses, the most significant hurdle was the passage of AB 1513 (now, Cal. Lab. Code § 226.2). As explained in Plaintiff’s preliminary approval motion, AB 1513 provides a “safe harbor” affirmative defense against claims for wages, damages, and penalties for failure to pay for non-productive work time and rest breaks to employees who performed some work on a piece rate basis between July 1, 2012 and December 31, 2015. In this case, Defendant planned to take advantage of this potential affirmative defense. Class Counsel -12- PLAINTIFF’S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARD wm RA W N N o e N y 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 researched this novel issue and negotiated a settlement that included the AB 1513 payments for all eligible Class Members. (Haque Decl., 13.) As for the wage statement claims, Defendant had argued no liability existed for the wage statement claim because the piece rate and breakdown for each project was electronically accessible on Defendant’s intranet. Class Counsel briefed this issue at mediation and ultimately obtained significant value despite the risks that the Court would agree with Defendant and bar any recovery for this claim. (Haque Decl., § 13.) Additionally, Defendant argued Plaintiff lacked standing to bring the PAGA claim. Defendant claimed Plaintiff had no wage and hour related damages that were incurred during the PAGA one-year statute of limitations because Plaintiff’s last day of work was on October 5, 2013 — more than one year before she filed her complaint on October 30, 2014. Although Plaintiff argued that the statute of limitations was tolled for 33 days when she sent her LWDA letter on September 2, 2014, and therefore she had two pay periods of PAGA damages, Class Counsel took this issue into consideration and briefed it for mediation. (Haque Decl., § 17.) Finally, Defendant added a rest break policy and an expense reimbursement policy in August 15, 2015, likely as a result of the class action. These benefits, although not quantifiable, support the propriety of the requested fee award. 3. The Response of Class Members and Lack of Objections to the Settlement and the Fee Award Again, as explained above, the response from Class Members was completely positive. No Class Members objected to the attorneys’ fees provision or any other aspect of the settlement. Such a positive response from Class Members supports approval of the fee award. 4. Class Counsel’s Experience, Reputation, and Ability Class Counsel submit that their skill contributed to the efficient resolution of this case. Class Counsel are experienced litigators who focus their practices on wage and hour class actions. They have extensive experience in litigating wage and hour class actions. They have been appointed as class counsel or co-class counsel in many class actions, most of which were wage and hour cases similar to the present case, and have obtained substantial recoveries for -13- PLAINTIFF’S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARD ~ N S N nn BR W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 thousands of employees through these cases. (See Haque Decl., 19 3 — 17; Cooper Decl., 49 3/13, 15-19.) They have the requisite skill and experience to justify the requested fee in this case. 5. Class Counsel’s Preclusion From Other Work During the action’s pendency, Class Counsel thoroughly investigated and researched the claims in controversy, their defenses, and the developing body of law. Overall, Class Counsel performed extensive work for a relatively small class and obtained a favorable result through participating in a full day of mediation and continuing to carefuily negotiate the terms of the final Settlement Agreement for many months after mediation. This time could have been spent on other potentially lucrative cases. (Haque Decl., § 43.) Accordingly, Class Counsel’s time should be compensated. 6. The Contingent Nature of the Fee Award The California Supreme Court has recognized that attorney fee awards should be enhanced to compensate attorneys for the risks of loss involved in contingency cases. See Graciano v. Robinson Ford Sales, Inc., 144 Cal. App. 4th 140, 154 (2006). The main criterion for risk is the risk of complete loss, which would leave counsel unable to recover fees. See Graham v. DaimlerChrysler Corp., 34 Cal. 4th 553, 583 (2004) (explaining that a multiplier corresponds to risk of loss, with the risk of not being the successful party ranking highest). In Ketchum, the California Supreme Court instructed courts to adjust fee compensation to ensure that the fees account for contingency risk: A lawyer who both bears the risk of not being paid and provides legal services is not receiving the fair market value of his work if he is paid only for the second of these functions. If he is paid no more, competent counsel will be reluctant to accept fee award cases. Ketchum, 24 Cal. 4th at 1132-33. A fee award that adjusts for contingency fee risk “constitutes earned compensation; unlike a windfall, it is neither unexpected or fortuitous.” Id. at 1138. The contingent risk factor is the single most important enhancement factor under California law even for actions where statutory fees are available. See Horsford v. Board of Trustees of Calif. State Univ., 132 Cal. App. 4th 359, 399 (2005) (reversing a trial court order for failure to consider contingent risk for statutory fees pursuant to the Fair Employment and Housing Act). The main criterion for risk is the risk of -14- PLAINTIFF'S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARD OW © 3 O N Wn A WwW ND = D o N N N N N N N N e m e m e m e m p m p m e m p m p e d p e © N N N hh BR W N = D D N Y B R A W N em Oo complete loss, which would leave counsel unable to recover fees. See Graham, 34 Cal. 4th at 583 (explaining that a multiplier corresponds to risk of loss, with the risk of not being the successful party ranking highest). This risk is particularly acute for contingency fee attorneys because they “must use savings or incur debt to keep their offices afloat and their families fed during the years- long litigation.” Horsford, 132 Cal. App. 4th at 400. Here, Class Counsel bore the entire risk of recovery. Class Counsel took this case on a pure contingency basis, with no guarantee of any payment. Before mediation, Class Counsel spent significant time on discovery and motion work despite the risk of recovering nothing. Had the litigation continued, Defendant would have mounted an aggressive defense, at the certification stage, and at the merits stage. A defeat at any one of these stages could have foreclosed the possibility of Class Counsel recovering any remuneration for their time and effort. (Haque Decl. 144.) Yet, in spite of these considerable challenges that enhanced the already-high contingency risk, Class Counsel was able to obtain a settlement fund of $940,000.00. A fee award in the amount totaling one-third of the gross settlement fund is thus fair and reasonable. V. CLASS COUNSEL’S REQUESTED COST AWARD IS REASONABLE AND SHOULD RECEIVE FINAL APPROVAL The Settlement Agreement allows Class Counsel to seek reimbursement of litigation costs in an amount not to exceed $20,000. Class Counsel request reimbursement of their actual litigation costs in the sum of $11,319.44 for items such as filing fees, copies, postage, mediation fees, travel, and other fees related to the litigation. (Haque Decl., 9 45, Exhibit 4.) See Alba Conte, Attorney Fee Awards § 2:08 at 50-51 (“The prevailing view is that expenses are awarded in addition to the fee percentage.”). Since Class Counsel’s costs did not reach the maximum of $20,000, the remaining $8,680.56 will revert to and increase the Net Settlement Fund. All of the costs were reasonable and necessary for the prosecution of this case. (Haque Decl., J 46; Cooper Decl., 21.) VI. THE CLASS REPRESENTATIVE INCENTIVE AWARD IS REASONABLE Plaintiff seeks an incentive award for accepting the responsibilities of representing the interests of all Class Members and assuming the risks and potential costs that were not borne by any other Class Members. A named plaintiff is eligible for payment that reasonably compensates -15- PLAINTIFF'S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARD No OO 0 NN NN nn B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 him or her for undertaking and fulfilling a fiduciary duty to represent absent class members. Cellphone Termination Fee Cases, 186 Cal. App. 4th 1380, 1393 (Cal. App. 1st Dist. 2010); Bell v. Farmers Ins. Exch., 115 Cal. App.4th 715, 726 (2004). “[ T]he rationale for making enhancement or incentive awards to named plaintiffs is that they should be compensated for the expense or risk they have incurred in conferring a benefit on other members of the class.” Clark v. American Residential Services LLC, 175 Cal. App. 4th 785 (2009). By actively pursuing this action, Plaintiff has furthered the California public policy goal of enforcing the State’s wage and hour laws. See Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal.4th 319, 340 (2004). Here, the requested award is appropriate and reasonable in light of the initiation of the action, the work performed, risks for payment of costs in the event of an unsuccessful outcome, and for a release broader than that given by the Class. As Class Representative, Ms. Sawyer sat for a full-day deposition while seven months pregnant, assisted counsel in gathering the evidence necessary to prosecute the claims on behalf of the Class, responded to Defendant’s written discovery, gathered documents in response to discovery requests, helped Class Counsel evaluate the claims for mediation, and regularly sought reports on the status of the case. (Declaration of Vanessa Sawyer in Support of Final Approval of Class Action Settlement, § 8-11.) Ms. Sawyer estimates that she spent at least 20 hours on tasks related to this case. (Id. at § 8.) No action likely would have been taken by Class Members individually, and no compensation would have been recovered for them, but for Plaintiffs service on behalf of the Class. Thus, Plaintiff should be adequately compensated for signing a general release of all potential claims as part of this class Settlement. No Class Members objected to the amount of additional compensation sought by Ms. Sawyer, which represents less than 1% of the Net Settlement Value. As such, the award is reasonable in light of the substantial benefits Plaintiff conferred upon the settlement class. VII. THE SETTLEMENT ADMINISTRATION COSTS ARE REASONABLE The Parties agreed to hire Phoenix Settlement Administrators as the Settlement Administrator, and the Court approved this choice at the time of the Preliminary Approval hearing. The Settlement Administrator was responsible for and performed the duties of updating the mailing -16- PLAINTIFF'S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARD SS OO XX NN O N wn Bb 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 addresses of the Class Members, mailing the Class Notice to each Class Member, responding to Class Member inquiries, providing weekly status reports, answering questions posed by Counsel for the Parties, and providing a declaration to document its duties and responsibilities under the Settlement. (Meade Decl., § 2.) Following the granting of final approval, the Settlement Administrator’s duties will continue in order to calculate and to mail the settlement payments to Class Members, disburse other payments as ordered by the Court, and to perform such other duties as described in the Agreement. The Settlement Administrator’s fee of $11,000 for services rendered and to be rendered is fair and reasonable and should be granted. VIII. CONCLUSION Based on the foregoing, Class Counsel respectfully requests the Court grant final approval of the Class Action Settlement, attorneys’ fees, costs, the Incentive Award, and the Settlement Administrator fee. Dated: November 29, 2016 AEGIS LAW FIRM, P.C. By: 2c Jssica L. Campbell Attorneys for Plaintiff Vanessa Sawyer <7 PLAINTIFF'S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARD