1 2 3 4 5 6 7 10 11 ANNICA B. BOWEN, on behalf of herself No. 2:20–cv–2318–KJN and all others similarly situated, 12 FINAL APPROVAL OF CLASS ACTION Plaintiffs, AND PAGA SETTLEMENT; ORDER 13 GRANTING ATTORNEYS’ FEES, COSTS, v. AND INCENTIVE AWARD 14 JEA SENIOR LIVING HEALTH AND (ECF Nos. 53, 54.) 15 WELFARE BENEFIT PLAN, LLC, et al., 16 Defendants. 17 18 Presently pending before the court is plaintiff’s unopposed motion for certification of a 19 Rule 23 class, final approval of the parties’ class action and PAGA settlement, and award of fees, 20 costs, and incentive payment in this meal- and rest-break dispute.1 (ECF Nos. 53, 54.) The court 21 held a fairness hearing on December 5, 2023, and no written or oral objections were asserted. 22 For the following reasons, the court CERTIFIES the settlement class; FINDS the class 23 notice was the best practicable; APPROVES the class action and PAGA settlement as fair, 24 reasonable, and adequate; AWARDS class counsel its attorneys’ fees; GRANTS the request for 25 reimbursement of costs and administrator expenses; and GRANTS the request for a service award 26 to the named plaintiff. 27 1 The parties previously consented to the jurisdiction of a magistrate judge for all purposes, 28 28 U.S.C. § 636(a), and the case was reassigned to the undersigned. (See ECF Nos. 48, 49, 51.) 2 A. Factual and Procedural History 3 Plaintiff alleges in the First Amended Complaint (“1AC”) that she previously worked as a 4 non-exempt hourly-wage employee for defendants Empire Ranch, Willow Springs, and Blossom 5 Grove, who jointly ran Alzheimer care centers in Northern California. (ECF No. 36 at ¶¶ 16-21.) 6 She alleges that from at least 2016 through 2021, defendants enforced policies and practices that 7 did not allow for her and other caregivers to take meal breaks despite working 5+ hours a day; 8 take rest breaks for every four hours worked; receive itemized wage statements; and receive all 9 wages owed at the conclusion of her employment. (Id. at ¶¶ 6-7; see also Harris decl., ECF No. 10 40-1 at ¶ 6 (noting the approximate date another company took over management of the 11 facilities).) Plaintiff alleges, in essence, that defendants deprived her and other caregivers of 12 breaks by requiring them to remain on site and in possession of their localized communication 13 devices at all times. (Id. at ¶ 8.) The 1AC asserts claims for failure to pay premiums on forfeited 14 rest and meal periods under Cal. Labor Code § 226.7 and 512; failure to pay timely wages under 15 Cal Labor Code § 203; and failure to provide accurate pay stubs under Cal. Labor Code § 226. 16 (Id. at 8-11.) The 1AC also asserts an ancillary claim under Cal. Bus. Code § 17200 and a claim 17 for penalties under the Private Attorneys General Act (“PAGA”), Cal. Lab. Code § 2699. (Id. at 18 11-15.) 19 Plaintiff filed a putative class action in California Superior Court, Los Angeles County on 20 April 30, 2020. (See ECF No. 1.) Defendants removed to the U.S. District Court for the Central 21 District of California and answered the complaint; the case was transferred to this district in 22 November of 2020. (See id.) After exchanging discovery, the parties participated in mediation in 23 June of 2021, executed a settlement agreement shortly thereafter, submitted an amended 24 complaint in January of 2022, and moved for preliminary approval in March of 2022. (ECF Nos. 25 36; 40; 40-1 at ¶ 4.) On June 9, 2023, the undersigned preliminarily certified the class, 26 preliminarily approved the settlement, and ordered notice to the class. (ECF No. 52.) On 27 October 30, 2023, plaintiff moved for final approval of the settlement and requested attorneys’ 28 fees, costs, and incentive awards. (ECF Nos. 53, 54.) Defendant did not oppose. (ECF No. 55.) 1 B. Terms of the Settlement 2 The Settlement Agreement contains a release of all claims that are factually supported by 3 the 1AC against defendants by the class, who are defined as “[a]ll current or former nonexempt 4 caregivers working at the Willow Springs Facility, the Empire Ranch Facility, and/or the Blossom 5 Grove Facility at any time between April 30, 2016, through September 2, 2021.” (ECF No. 40-2, 6 at ¶ 1.4.) The Agreement sets the PAGA period from April 20, 2019, to September 2, 2021. (Id. 7 at ¶ 1.27-1.29.) The class and PAGA group consists of 607 employees who worked at one of 8 these facilities during the relevant period. (ECF No. 53-1 at ¶ 9.) 9 In return for the release of claims, the Settlement Agreement provides for a non- 10 reversionary gross settlement amount of $125,000. (ECF No. 40-2 at ¶ 1.19.) This amount 11 represents approximately a quarter of the potential damages for alleged missed rest breaks (at 12 approximately $450,000), and approximately one-eighth of the potential maximum relief if 13 additional penalties were to be found cognizable. (ECF No. 53 at ¶¶ 15-16.) The estimates are 14 based on counsels’ examination of discovery documents showing the number of breaks 15 potentially at issue (13,863 work weeks) and the average hourly pay rate of class members (at 16 $12/hour). (Id. at ¶ 13.) In arguing the settlement is fair, counsel notes the significant 17 weaknesses in plaintiff’s case, including among other things that defendants’ facial policy appears 18 to allow caregivers to leave the premises during breaks. (Id. at ¶¶ 10-17.) 19 Plaintiff seeks to deduct from the $125,000 gross settlement amount (as allowed by the 20 Settlement Agreement) the following:
21 (a) Class representative incentive award of $3,000;
22 (b) Class counsels’ fees of $41,666.66 (one-third of the gross amount);
23 (c) Class counsels’ litigation costs of $10,333.50;
24 (d) Settlement Administrator costs of $9,000; and
25 (e) A PAGA payment of $3,750 to be paid to the Labor Workforce and Development Agency (“LWDA”), out of an overall PAGA award of $5,000.2 26 27 2 PAGA requires that 75% of PAGA penalties recovered go to the LWDA and 25% to the 28 aggrieved employees. Cal. Lab. Code § 2699(i). 1 (ECF No. 40-2 at ¶¶ 5.1-5.4; ECF No. 54.) The above deductions, if fully approved, would yield 2 a net settlement fund of $57,249.84. (See id.) This amount is to be divided between the 607 class 3 members ($1,250 for the PAGA aggrieved workers, who are the same as the class members, with 4 the remainder for the class), on a pro-rata basis, as determined by the number of workweeks the 5 claimants worked during the class and PAGA periods. (Id. at ¶ 5.5.) 6 C. Notice to Class and Response 7 The Settlement Agreement required the Settlement Administrator to mail out notices of 8 the class action settlement within 30 days of the court’s preliminary approval. (ECF No. 40-2 at 9 ¶ 3.4.) It then allowed 45 days from the mailing of the notice of class action settlement for class 10 members to: (a) do nothing and receive a payment after final approval, (b) request to be excluded 11 from the settlement (“opt out”), (c) object to the terms of the settlement, or (d) dispute their dates 12 of employment and estimated recovery amount. (Id. at ¶ 4.1; ECF No. 40-3 at ¶ 6 (the Class 13 Notice).) Those who opt out were notified they retained their right to sue but would receive no 14 payment under the settlement; those who remained in would ultimately receive their individual 15 settlement payment by check. (ECF No. 40-2 at ¶¶ 1.20, 4.2; ECF No. 40-3 at ¶¶ 6(a) and (c).) 16 The Settlement Agreement also contained a procedure for distribution of the PAGA settlement 17 should a class member opt out of the Rule 23 class settlement, and the class notice informed the 18 class members that opting out of the Rule 23 class would not affect the PAGA settlement. (ECF 19 No. 40-2 at ¶ 5.6.2; ECF No. 40-3 at ¶ 6(c).) 20 The claims administrator mailed the approved notice to the 607 class members in June of 21 2023. (ECF No. 53-3 at ¶ 6.) 165 notices were returned as undeliverable, but 153 of those were 22 successfully forwarded to claimants at their updated addresses. (Id. at ¶ 7.) No objections or 23 requests for exclusion were received by the administrator, class counsel, or the court, and no class 24 member appeared at the December 5, 2023 fairness hearing to object. (Id. at ¶¶ 10-12.) 25 /// 26 /// 27 /// 28 /// 2 The parties seek: (A) final certification of the Rule 23 settlement class, and reaffirmation 3 of plaintiff’s appointment as class representative and appointment of her counsel as class counsel; 4 (B) final approval of the Rule 23 class action settlement; (C) final approval of the PAGA 5 settlement; and (D) approval of the requests for attorneys’ fees, counsels’ costs, administrator’s 6 costs, and incentive award. Ancillary to this, the parties seek an order for the Administrator to 7 distribute payments to the class members and the State of California in accordance with the 8 Settlement Agreement, and order dismissing this case with prejudice. (ECF Nos. 53, 54, 55.) 9 Legal Standards – Rule 23 Class Settlements and PAGA Settlements 10 When parties seek approval of a class action settlement, courts must analyze “both the 11 propriety of the certification and the fairness of the settlement.” Staton v. Boeing Co., 327 F.3d 12 938, 952 (9th Cir. 2003); see Rule 23(e)3 (“The claims, issues, or defenses of a certified class—or 13 a class proposed to be certified for purposes of settlement—may be settled, voluntarily dismissed, 14 or compromised only with the court’s approval.”). Accordingly, the court considers whether the 15 class meets the certification requirements of Rule 23 and whether the proposed settlement is 16 “fundamentally fair, adequate, and reasonable.” Staton, 327 F.3d at 952. 17 Cases such as this often include a claim for penalties under the California Labor Code’s 18 Private Attorneys General Act, which are distinct from class claims. See Kim v. Reins Int’l Cal., 19 Inc., 9 Cal. 5th 73, 86-87 (2020) (“[A] representative action under PAGA is not a class action, 20 [but rather one] on behalf of the government.”) (quotations omitted). This distinction is because 21 “[p]laintiffs may bring a PAGA claim only as the state’s designated proxy, suing on behalf of all 22 affected employees.” Id. (emphases original); see Viking River Cruises, Inc. v. Moriana, 142 S. 23 Ct. 1906, 1914 (2022) (explaining how California law characterizes PAGA as creating a “type of 24 qui tam action” with the representative private plaintiff acting in place of the government) 25 (quoting Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal. 4th 348, 382 (2014) (overruled on 26 other grounds)). Because a PAGA claim is not “a collection of individual claims for relief” like a 27
28 3 Citations to the “Rule(s)” are to the Federal Rules of Civil Procedure, unless otherwise noted. 1 class action, Canela v. Costco Wholesale Corp., 971 F.3d 845, 855 (9th Cir. 2020) (discussing 2 Kim’s holding), PAGA claims “need not satisfy Rule 23 class certification requirements,” 3 Hamilton v. Wal-Mart Stores, Inc., 39 F.4th 575, 583 (9th Cir. 2022). However, like class action 4 settlements, PAGA settlements must be approved by the court. Cal. Lab. Code § 2699(l)(2). 5 Courts in this circuit apply “a Rule 23-like standard,” asking whether the settlement of the PAGA 6 claims is “fundamentally fair, reasonable, and adequate.” See Haralson v. U.S. Aviation Servs. 7 Corp., 383 F. Supp. 3d 959, 972 (N.D. Cal. 2019). 8 Analysis 9 A. Class Certification under Rule 23; Class Notice, Counsel, and Representative 10 The court previously found: (i) the requirements of Rule 23(a) and (b)(3) had been met 11 regarding the proposed class; (ii) plaintiff’s counsel was adequate to act as class counsel; 12 (iii) plaintiff was an appropriate representative for the class; and (iv) the proposed notice was the 13 best practicable under the circumstances. (ECF No. 52.) The court’s findings on these issues have 14 not changed, and no objections to these issues were raised. Accordingly, there is no need for the 15 court to repeat the prior analysis here. Thus, for the reasons stated in the previous order, the 16 findings on class certification, counsel, representative, and notice are reaffirmed and finalized for 17 purposes of this settlement. See, e.g., Carlin v. DairyAmerica, 380 F. Supp. 3d 998, 1008 (E.D. 18 Cal. 2019) (“As a preliminary matter, the court notes that it previously certified a Rule 23(b)(3) 19 class. Thus, it need not analyze whether the requirements for certification have been met and 20 may focus instead on whether the proposed settlement is fair, adequate, and reasonable.”) 21 (quoting Harris v. Vector Marketing, 2012 WL 381202 at *3, at *7 (N.D. Cal. Feb. 6, 2012); In re 22 Apollo Group Inc. Securities Litigation, 2012 WL 1378677 at *4 (D. Ariz. Apr. 20, 2012) (same). 23 B. Final Approval of Proposed Settlement 24 In considering whether a class action settlement is “fundamentally fair, adequate, and 25 reasonable,” Staton, 327 F.3d at 952, Rule 23 requires the court to consider whether: (1) the class 26 representatives and class counsel have adequately represented the class; (2) the proposal was 27 negotiated at arm’s length; (3) the relief provided for the class is adequate; and (4) the proposal 28 treats class members equitably relative to each other. Rule 23(e)(2). 1 Having already completed a thorough preliminary examination of the agreement, the court 2 reviews it again, mindful that the law favors the compromise and settlement of class action suits. 3 See In re Syncor ERISA Litig., 516 F.3d 1095, 1101 (9th Cir. 2008) (reminding that the Ninth 4 Circuit has declared a strong judicial policy in favor of settlement of class actions); Class 5 Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992) (same). Ultimately, “the 6 decision to approve or reject a settlement is committed to the sound discretion of the trial judge 7 [who] is exposed to the litigants and their strategies, positions, and proof.” Staton, 327 F.3d at 8 953. 9 1. Adequacy of representation 10 To determine adequacy of representation under Rule 23(e)(2), the court may consider 11 whether the interests of the named plaintiff are “aligned with the interests of the class members.” 12 See Cottle v. Plaid Inc., 340 F.R.D. 356, 376 (N.D. Cal. 2021). In addition, a finding that “class 13 counsel are experienced and competent” supports a conclusion that the class is adequately 14 represented. Id. (citing In re Pac. Enters. Sec. Litig., 47 F.3d 373, 378 (9th Cir. 1995) (“Parties 15 represented by competent counsel are better positioned than courts to produce a settlement that 16 fairly reflects each party’s expected outcome in litigation.”)). This first factor is redundant of 17 Rule 23(a)(4) and 23(g). Mandalevy v. Bofi Holding, Inc., 2022 WL 1556160, at *6 (S.D. Cal. 18 May 17, 2022); 4 William B. Rubenstein, Newberg on Class Actions § 13:48 (5th ed. 2020)). 19 Here, plaintiff’s interests are aligned with those of class members, as they share a 20 common interest in challenging the alleged wrongful wage and hour policies and seek the same 21 relief under the same set of facts and legal theories. (See ECF No. 36.) Further, class counsel are 22 clearly experienced in class action litigation. (See ECF Nos. 53-1 and 53-5 (counsels’ 23 declarations detailing other cases where they have been appointed class counsel in wage and hour 24 actions).) Because plaintiff showed the adequacy prerequisite was satisfied under Rule 23(a), the 25 court finds the requirement under Rule 23(e)(2) is also satisfied. See Flores v. Dart Container 26 Corp., 2021 WL 1985440, at *5 (E.D. Cal. May 17, 2021) (“Because the court has found that the 27 proposed class satisfies Rule 23(a)(4) for purposes of class certification, the adequacy factor 28 under Rule 23(e)(2)(A) is also met”).). 1 2. Arm’s Length Negotiation 2 The second factor requires the court to consider whether the proposed settlement was 3 negotiated at arm’s length. Rule 23(e)(2)(B); Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 965 4 (9th Cir. 2009) (noting the importance of evaluating whether the settlement was the product of 5 “an arms-length, non-collusive, negotiated resolution”). The inquiry of collusion addresses the 6 possibility that the settlement agreement is the result of either “overt misconduct by the 7 negotiators” or improper incentives of class members at the expense of others. Staton, 327 F.3d 8 at 960. The Ninth Circuit has observed that “settlement class actions present unique due process 9 concerns for absent class members” because the “inherent risk is that class counsel may collude 10 with the defendants, tacitly reducing the overall settlement in return for a higher attorneys’ fee.” 11 In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 946 (9th Cir. 2011) (internal quotation 12 marks, citations omitted). Thus, the court is to examine the agreement for “subtle signs” of self- 13 dealing by counsel, such as where: (a) “counsel receive a disproportionate distribution of the 14 settlement, or [] the class receives no monetary distribution but class counsel are amply 15 rewarded”; (b) payment of attorneys’ fees occurs “separate and apart from class funds” and goes 16 unopposed (a “clear sailing” agreement), which “carries the potential of enabling a defendant to 17 pay class counsel excessive fees and costs in exchange for counsel accepting an unfair settlement 18 on behalf of the class”; or (c) “the parties arrange for unused funds to revert to defendants rather 19 than be added to the class fund.” Id. at 947 (cleaned up). 20 Here, the proposed settlement is the product of lengthy negotiations between the parties 21 after the exchange of sufficient discovery. The court notes none of the “subtle signs” are present 22 here, as counsels’ attorney fee request is typical for these kinds of wage-and-hour claims (ECF 23 No. 54) and there is no reversion of funds to defendants (ECF No. 40-2 at ¶ 1.19). Thus, the 24 court finds adequate negotiation here. See, e.g., Chambers v. Whirlpool Corp., 980 F.3d 645, 669 25 (9th Cir. 2020) (finding no collusion where, among other things, “the parties settled via arm’s 26 length negotiations before an experienced mediator”); Fraley v. Facebook, Inc., 966 F. Supp. 2d 27 939, 942 (N.D. Cal. 2013) (holding that a settlement reached after informed negotiations “is 28 entitled to a degree of deference as the private consensual decision of the parties”). 1 3. Adequacy of Relief Provided to the Class 2 The “adequacy of relief” determination requires consideration of four sub-factors:
3 i. the costs, risks, and delay of trial and appeal; ii. the effectiveness of any proposed method of distributing relief to the 4 class, including the method of processing class-member claims; 5 iii. the terms of any proposed award of attorneys’ fees, including timing of payment; and 6 iv. any agreement required to be identified under Rule 23(e)(3). 7 See Rule 23(e)(2)(C). The amount offered in the proposed settlement agreement is generally the 8 most important consideration of any class settlement. See Bayat v. Bank of the West, 2015 WL 9 1744342, at *4 (N.D. Cal. Apr. 15, 2015) (citing In re HP Inkjet Printer Litig., 716 F.3d 1173, 10 1178–79 (9th Cir. 2013)). 11 i. Costs, risks, and delay vs. settlement amount and scope of released claims 12 In determining whether the amount offered is fair and reasonable, courts compare the 13 proposed settlement to the best possible outcome for the class. See Rodriguez, 563 F.3d at 964. 14 A “central concern” in evaluating a class settlement “relate[s] to the cost and risk involved in 15 pursuing a litigated outcome.” Feltzs v. Cox Comm’s Cal., LLC, 2022 WL 2079144 at *9 (C.D. 16 Cal. Mar. 2, 2022) (quoting Rule 23(e), 2018 Advisory Committee Notes [modification in 17 original].) The the inquiry is one of balance, and “a cash settlement amounting to only a fraction 18 of the potential recovery does not per se render the settlement inadequate or unfair.” In re Mego 19 Fin. Corp. Sec. Litig., 213 F.3d 454, 459 (9th Cir. 2000). Approval of settlement is “preferable to 20 lengthy and expensive litigation with uncertain results.” Nat’l Rural Telecomms. Coop. v. 21 DIRECTV, Inc., 221 F.R.D. 523, 526 (C.D. Cal. 2004). 22 Here, the parties agreed to settle this case for a non-reversionary sum of $125,000, 23 inclusive of the PAGA payments, for the 607 class members. (ECF No. 40-2 at ¶ 1.19.) After 24 deductions for an incentive award, attorneys’ fees, litigation costs, settlement administrator fees, 25 and the PAGA payment to the LWDA (assuming full approval of the requests), the court 26 calculates a net settlement fund of $57,249.84. (Id. at ¶¶ 5.1, 5.2, 5.3, 5.4; ECF Nos. 53, 54.) The 27 Settlement Administrator estimates the “average estimated individual participating class member 28 payment is $88.69, and the highest estimated Individual Participating Class Member payment is 1 $1,003.86.” (ECF No. 53-3 at ¶ 14.) 2 The net settlement amount represents approximately a quarter of the potential damages for 3 missed rest breaks (at just under $500,000), and approximately one-eighth to one-tenth of the 4 potential maximum relief if full penalties were to be found cognizable. (ECF No. 40-1 at ¶ 13- 5 15.) The estimates are based on counsels’ examination of discovery showing the number of 6 breaks potentially at issue (13,863 work weeks) and the average hourly pay rate of class members 7 (at $12/hour). (Id. at ¶ 13.) However, the court concurs with counsels’ analysis concerning the 8 significant weaknesses in plaintiff’s case, which includes not only the general uncertainties with 9 litigating a case through trial, but specifically that defendants’ facial policy appears to have been 10 to allow caregivers to leave the premises during breaks. (Id. at ¶¶ 10-17.) The settlement amount 11 results in a recovery that is in range of settlements that have been approved by California courts. 12 See, e.g., In re Mego, 213 F.3d at 458-59 (affirming a settlement of one-sixth the potential 13 recovery for weak and risky case); O’Connor v. Uber Techs., Inc., 201 F. Supp. 3d 1110, 1129 14 (N.D. Cal. 2016) (noting that 10% of the verdict value of non-PAGA claims is generally 15 considered “the low end of reasonable recovery.”). 16 The court also finds the settlement amount to be fair and reasonable in light of what the 17 class “actually gave up by settling.” Campbell v. Facebook, Inc., 951 F.3d 1106, 1123 (9th Cir. 18 2020). The Settlement Agreement provides that each class member, by accepting their portion of 19 the settlement and not opting out, will release defendants from: 20 [A]ny and all claims, debts, liabilities, demands, obligations, guarantees, costs, expenses, attorneys’ fees, damages, actions or 21 causes of action, contingent or accrued, that were alleged or that reasonably could have been alleged based on the facts alleged in the 22 Action, including without limitation, claims for violation of the California Labor Code, the Business & Professions Code (including 23 Section 17200, et seq.), any IWC Wage Order; claims for restitution and other equitable relief, interest, wages, off-the-clock time, meal 24 and rest period penalties, waiting time penalties, penalties for inaccurate wage statements, penalties pursuant to [PAGA], penalties 25 of any nature whatsoever, and any other benefit claimed that were alleged or that reasonably could have been alleged based on the facts 26 alleged in the Action. 27 (ECF No. 40-2 ¶ 6.1; see also ¶ 6.3 for the Class Representative release terms; ¶ 6.2 for the 28 PAGA release—regardless of whether the individual opts out of the Rule 23 class.) 1 The court previously expressed concern about portions of this release language, as the 2 parties are likely aware that they cannot release claims for any “violation of the California Labor 3 Code, the Business & Professional Code[, and] any IWC Wage Order” that is unsupported by the 4 facts of the case. Hesse v. Sprint Corp., 598 F.3d 581, 590 (9th Cir. 2010) (noting class action 5 settlement agreements cannot release claims of absent class members that are unrelated to the 6 factual allegations of the class complaint). The parties’ saving grace with the language is that it 7 explicitly ties the release to “causes of action . . . that were alleged or that reasonably could have 8 been alleged based on the facts” of the case. This language is sufficient to allow any future 9 potential litigant to raise the scope of the release so all can determine the preclusive effect of the 10 Agreement on whatever facts present themselves. Thus, the court finds the scope of release to be 11 fair and reasonable when compared to the amount of the settlement. Campbell, 951 F.3d at 1123. 12 Finally, though the parties have engaged in discovery allowing them to broadly evaluate 13 the case’s merits and defendants’ potential maximum exposure, the court recognizes that 14 significant discovery still lies ahead. When coupled with this court’s heavily impacted caseload 15 and the risk of further delay in a post-trial appeal before the Ninth Circuit, it is clear that these 16 significant delays would persist if the parties decided to take this case to trial. 17 Given the above, the costs, risks, and delay of any potential trial weigh in favor of 18 settlement. This finding is in line with approved settlements in other cases in the Ninth Circuit. 19 See, e.g., Benitez v. Western Milling, LLC, 2020 WL 309200, at *8 (E.D. Cal. Jan. 21, 2020) 20 (observing a recovery rate of 13% when PAGA penalties were included was “consistent with 21 percentage recoveries California district courts have found to be reasonable”); Deaver v. Compass 22 Bank, 2015 WL 8526982, at *7 (N.D. Cal. Dec. 11, 2015) (finding a settlement that equaled 23 “10.7 percent of the total potential liability exposure, before any deductions for fees, costs, or 24 incentive awards” was “fair and reasonable”); In re Omnivision Techs., Inc., 559 F. Supp. 2d 25 1036, 1042 (N.D. Cal. 2008) (approving a settlement that was “just over 9% of the maximum 26 potential recovery asserted by either party”). 27 /// 28 /// 1 ii. Effectiveness of proposed method of distributing relief 2 “[T]he goal of any distribution method is to get as much of the available damages remedy 3 to class members as possible and in as simple and expedient a manner as possible.” Hilsley v. 4 Ocean Spray Cranberries, Inc., 2020 WL 520616 at *7 (S.D. Cal. Jan. 31, 2020) (citing “Final 5 approval criteria— Rule 23(e)(2)(C)(ii): Distribution method,” 4 Newberg on Class Actions 6 § 13:53 (5th ed.)). “Often it will be important for the court to scrutinize the method of claims 7 processing to ensure that it facilitates filing legitimate claims.” Rule 23(e), 2018 Advisory 8 Committee Notes. The proposed method for processing claims “should deter or defeat unjustified 9 claims, but the court should be alert to whether the claims process is unduly demanding.” Id. 10 Under the Settlement Agreement, class members did not have to submit claims to receive 11 payment. Instead, they were identified through defendants’ employment records, received a 12 notice calculating each member’s potential award based on how many workweeks worked during 13 the class period (as determined by the employment records), and were given an opportunity to 14 dispute the calculations. (ECF No. 40-2 at ¶¶ 3.3, 3.4, 5.5.2.) The Settlement Administrator has 15 notified all class members in the best manner practicable, and none receiving the notice chose to 16 opt out or object to the Agreement’s terms. (ECF No. 68-2.) This method of distributing relief is 17 “simple and effective.” Loreto v. Gen. Dynamics Info. Tech., Inc., 2021 WL 1839989, at *10 18 (S.D. Cal. May 7, 2021); Jackson v. Fastenal Co., 2021 WL 5755583 at *11 (E.D. Cal. Dec. 3, 19 2021) (finding “the proposed method of distributing relief is effective and weighs in favor of a 20 finding that the settlement agreement is fair, reasonable and adequate” where the class members 21 did not have to file a claim). Thus, this factor weighs in favor of final approval of the settlement. 22 iii. Terms of proposed award of attorneys’ fees 23 When evaluating the terms of a settlement, “courts must scrutinize ‘the terms of any 24 proposed award of attorneys’ fees.’” McKinney-Drobnis v. Oreshack, 16 F.4th 594, 607 (9th Cir. 25 2021) (quoting Rule 23(e)(2)(C)(iii)). The Ninth Circuit has explained, “the new Rule 23(e) 26 makes clear that courts must balance the proposed award of attorneys’ fees vis-à-vis the relief 27 provided for the class in determining whether the settlement is ‘adequate’ for class members.” Id. 28 In settlements that produce a common fund, courts may use either the lodestar method or 1 percentage-of-recovery method to determine the reasonableness of attorneys’ fees. In re 2 Bluetooth, 654 F.3d at 942. Under the percentage method, “courts typically calculate 25% of the 3 fund as the ‘benchmark’ for a reasonable fee award.” Id. However, a departure may be justified 4 based on “special circumstances.” Id. The California Supreme Court also has endorsed fee 5 awards based on a percentage of recovery and use of a lodestar crosscheck. See Laffitte v. Robert 6 Half Internat. Inc., 1 Cal. 5th 480, 486, 504-06 (2016) (approving a fee award of one-third of the 7 gross settlement in a wage and hour class action using a percentage method). 8 Here, the Agreement provides that class counsel will request attorneys’ fees up to 33.33% 9 percent (one-third) of the gross settlement amount, valued at $41,666.00. (ECF No. 40-2 at 10 ¶ 5.2.) This is, in fact, the amount counsel now seeks. (ECF No. 54.) Counsels’ request is not so 11 disproportionate to the relief provided to the class that it calls into question the fairness of the 12 proposed settlement. Baten v. Michigan Logistics, Inc., 2022 WL 17481068, at *6 (C.D. Cal. 13 Dec. 6, 2022) (“The requested attorneys ‘ fees of one-third of the Settlement does not represent a 14 disproportionate distribution for purposes of determining collusion.”). This also comports with 15 California precedent. Laffitte, 1 Cal. 5th at 504-06. Further, as the Settlement Agreement awards 16 each class member a portion of the fund on a pro rata basis, any lowering of this amount by the 17 court would allow for those unallocated funds to be distributed to class members. Given this, the 18 court finds counsels’ fee request does not weigh against approval of the settlement. McKinney- 19 Drobnis, 16 F.4th at 607. 20 iv. Agreements made in connection with the proposal 21 The court must consider any agreement that is required to be identified under Rule 22 23(e)(3). Rule 23(e)(2)(C)(iv). Specifically, “parties seeking approval must file a statement 23 identifying any agreement made in connection with the proposal.” Rule 23(e)(3). Aside from 24 what has been identified in this order regarding class counsels’ fees and costs, administrator costs, 25 and incentive awards, the Settlement Agreement constitutes the entire agreement. (ECF No. 40-2 26 at ¶ 8.6.) Thus, this weighs in favor of approving the settlement. 27 /// 28 /// 1 4. Equitable Treatment of Class Members 2 The fourth factor addresses whether the proposed settlement agreement “treats class 3 members equitably relative to each other.” See Rule 23(e)(2)(D). “A distribution of relief that 4 favors some class members at the expense of others may be a red flag that class counsel have sold 5 out some of the class members at the expense of others, or for their own benefit.” Hilsley, 2020 6 WL 520616 at *7 (citation omitted). This inquiry considers both equity across sub-categories of 7 the class, and equity between class representatives and unnamed class members. Id. 8 Here, the Settlement Agreement does not unfairly discriminate between any member of 9 the class, as it provides for a pro rata distribution of the fund based on the number of workweeks 10 each class member worked. (ECF No. 40-2 at ¶¶ 5.5.) This proposed distribution plan supports 11 final approval. See Cooks v. TNG GP, 2021 WL 5139613 at *4 (E.D. Cal. Nov. 4, 2021) 12 (observing a calculation of payments to class members “on a pro-rata basis based on the number 13 of compensable workweeks each member worked . . . is fair and treats class members equitably”); 14 Gomez-Gasca v. Future AG Mgmt. Inc., 2020 WL 6149688 at *4 (N.D. Cal. Oct. 20, 2020) 15 (same). 16 As to equitable treatment between the class representative and the class members, the 17 court incorporates its discussion below regarding the incentive award. Given that the Settlement 18 Agreement does not attempt to strip the court of its discretion on this matter, this is not a source 19 of impermissible inequity. Staton, 327 F.3d at 977. 20 5. Reaction of Class Members to the Settlement 21 “[T]he absence of a large number of objections to a proposed class action settlement raises 22 a strong presumption that the terms of a proposed class action settlement are favorable to the class 23 members.” Nat’l Rural Telecomms., 221 F.R.D. at 529; see also Cottle, 340 F.R.D. at 376 24 (observing the court may assess the reaction of class members by considering “how many class 25 members submitted . . . objections” at the final approval stage). 26 After receiving the court-approved notice, class members reacted favorably to the 27 proposed settlement terms by not requesting exclusion or submitting objections. (ECF No. 53-3 28 at 10-12.) This “strongly supports settlement.” Chun-Hoon v. McKee Foods Corp., 716 F. Supp. 1 2d 848, 852 (N.D. Cal. 2010); see also Taylor v. Populous Group, LLC, 2023 WL 139724, at *3 2 (S.D. Cal. Jan 9, 2023) (finding the class members’ reaction to the settlement—after notice of the 3 settlement terms and “an opportunity to express their reactions”—supported final approval where 4 no objections to the settlement were filed); Manzo v. McDonalds Rests. of Cal., Inc., 2022 WL 5 4586236, at *8 (E.D. Cal. Sept. 29, 2022) (same). Accordingly, this factor weighs in favor of 6 final approval. 7 C. Settlement of PAGA Penalties Claim 8 The 1AC’s Sixth Cause of Action asserts a claim for PAGA penalties, on behalf of 9 plaintiff and all aggrieved employees, for civil penalties associated with the Labor Code 10 violations asserted in the class claims. (ECF No. 36 at 12-15.) PAGA claims and their settlement 11 are fundamentally distinct from Rule 23 class claims. See Hamilton, 39 F.4th at 583 (“Rule 23 12 class actions and PAGA actions are so conceptually distinct that class action precepts generally 13 have little salience for PAGA actions.”); Canela, 971 F.3d at 852 (noting “the different remedial 14 schemes that exist in Rule 23 class actions and PAGA suits”). 15 Legal Standards 16 Under PAGA, an “aggrieved employee” may bring an action for civil penalties for labor 17 code violations on behalf of herself and other current or former employees. Cal. Lab. Code 18 § 2699(a). “Plaintiffs may bring a PAGA claim only as the state’s designated proxy, suing on 19 behalf of all affected employees.” Kim, 9 Cal. 5th at 87 (emphasis in original). Because a PAGA 20 plaintiff serves “as the proxy or agent of the state’s labor law enforcement agencies,” “a judgment 21 in th[e] action binds all those, including nonparty aggrieved employees, who would be bound by a 22 judgment in an action brought by the government.” Arias v. Superior Ct., 46 Cal. 4th 969, 986 23 (2009). “Unlike a class action, there is no mechanism for opting out of a judgment entered on a 24 PAGA claim.” Amaro v. Anaheim Arena Mgmt., LLC, 69 Cal. App. 5th 521, 541 n.5 (4th Dist. 25 2021) (internal quotes omitted). Thus, a PAGA plaintiff owes a duty both to their “fellow 26 aggrieved workers,” who will be inalterably bound by the judgment on the PAGA claim, and to 27 the public at large because the PAGA plaintiff acts “as the statute’s name suggests, as a private 28 attorney general.” O’Connor, 201 F. Supp. 3d at 1134. 1 Under PAGA’s remedial scheme, civil penalties recovered are distributed between “the 2 aggrieved employees” (25%) and the LWDA (75%). Cal. Lab. Code § 2699(i). Any settlement 3 of PAGA claims must be approved by the court; and the proposed settlement must be sent to the 4 LWDA alongside submission to the court.4 Cal. Lab. Code § 2699(l)(2). Although the court 5 does not evaluate the settlement of PAGA claims under the Rule 23 criteria, it must still inquire 6 into the fairness of the PAGA settlement. “[I]n reviewing a settlement that includes both a Rule 7 23 class and a PAGA claim, the court must closely examine both aspects of the settlement.” 8 O’Connor, 201 F. Supp. 3d at 1133. Based on the best guidance at hand, district courts typically 9 apply “a Rule 23-like standard” asking whether the settlement of the PAGA claims is 10 “fundamentally fair, reasonable, and adequate.” Haralson, 383 F. Supp. 3d at 972; see Mondrian 11 v. Trius Trucking, Inc., 2022 WL 2306963, at *7 (E.D. Cal. June 27, 2022) (noting lack of 12 binding standard for approving PAGA settlements and adopting “fundamentally fair, reasonable, 13 and adequate” standard based on LWDA’s O’Connor commentary). 14 “While a proposed settlement must be viewed as a whole, the [c]ourt must evaluate the 15 adequacy of compensation to the class as well as the adequacy of the settlement in view of the 16 purposes and policies of PAGA. In doing so, the court may apply a sliding scale.” O’Connor, 17 201 F. Supp. 3d at 1134 (cleaned up). “For example, if the settlement for the Rule 23 class is 18 robust, the purposes of PAGA may be concurrently fulfilled.” Id. Non-monetary relief provided 19 through the settlement may also satisfy PAGA’s interests in enforcement and deterrence. Id. at 20 1134-35. Conversely, in cases where a settlement provides “relatively modest” amounts in 21 settlement of the class claims compared to their verdict value, and there is no non-monetary relief 22 provided, the PAGA aspect of the settlement must stand on its own to “substantially vindicate” 23 PAGA’s policy interests. Id. at 1135. 24 /// 25 /// 26
27 4 The complaint states the LWDA was provided with written notice of the suit in April of 2020 at the inception of this case, but the LWDA did not respond. (ECF No. 36 at ¶¶ 63-64.) Counsel 28 asserts the LWDA received a copy of the Settlement Agreement. (ECF No. 53-1 at ¶ 10.) 1 Analysis 2 Here, the Settlement Agreement provides for $5,000 in PAGA penalties, out of the gross 3 settlement amount of $125,000. (ECF No. 40-2, ¶¶ 10, 17.) Class counsel estimates, on the high 4 end, that PAGA penalties at trial could be as much as $160,000 if calculated at $100 per 5 violation. (ECF No. 40-1 at ¶ 16.) However, the court concurs with counsels’ assessment 6 regarding the uncertainty of the case and notes the cases cited in counsels’ declaration indicating 7 PAGA penalty assessments at a fraction of that amount. See, e.g., Carrington v. Starbucks Corp., 8 30 Cal. App. 5th 504, 529 (2018) (noting the trial court’s discretionary authority to award lesser 9 penalties where defendant exercised a good faith attempt to comply with the Labor Code and 10 affirming the trial court’s award of $5 per violation). The court is persuaded that PAGA’s 11 interests are satisfied given the difficulties plaintiff would have in litigating this case through trial 12 and given the parties’ participation in settlement talks after significant discovery and under the 13 guidance of a neutral mediator. O’Connor, 201 F. Supp. 3d at 1134. 14 Considering the other factors from Rule 23(e)(2), the court finds the PAGA portion of the 15 settlement to be similarly fair and adequate for the PAGA members. Though the PAGA payment 16 will be much lower than the Rule 23 payments, this will ultimately benefit the class members, as 17 PAGA’s 75%-to-25% allocation would only shift funds away from the class members—who are 18 the same set of individuals as the PAGA members. See Rodriguez v. Danell Custom Harvesting, 19 LLC, 293 F. Supp. 3d 1117, 1133 (E.D. Cal. 2018) (approving 0.6% PAGA payment because 20 LWDA did not object to terms of settlement). The LWDA did not object to the settlement. See, 21 e.g., Mancini v. W. & S. Life Ins. Co., 2018 WL 4489590, at *2 (S.D. Cal. Sept. 18, 2018) 22 (taking LWDA’s “acquiescence as indication that the settlement is presumptively reasonable”). 23 Finally, the parties have accounted for the distinction between Rule 23 opt outs and PAGA’s opt- 24 out bar, as the settlement agreement and notice inform as much. Amaro, 69 Cal. App. 5th at 541 25 n.5. 26 For these reasons, the court finds the settlement of the PAGA penalties claim to be 27 fundamentally fair, reasonable, and adequate.” See Haralson, 383 F. Supp. 3d at 972. 28 /// 1 D. Attorneys’ fees, costs, and incentive award 2 Beyond final certification of the class and approval of the class action and PAGA 3 settlements, plaintiff seeks an order granting: (1) an award of fees to class counsel; (2) 4 reimbursement of litigation costs, including the settlement administrator’s fees; and (3) an 5 incentive award for the named plaintiff. If approved, these fees would be deducted from the gross 6 settlement amount prior to the pro rata distribution of the net fund. (ECF No. 40-2 at ¶¶ 5.1-5.4.) 7 1. Class Counsels’ Fees 8 Pursuant to the Agreement, class counsel may seek attorneys’ fees up to one-third of the 9 gross settlement amount, or up to $41,666.66; counsel now seeks this amount. (ECF No. 40-2 at 10 ¶¶ 5.2.) Counsel maintains this is reasonable in light of the benefit provided to the class, similar 11 awards in this district in these kinds of cases, and counsels’ lodestar cross check ($107,700, 12 before any multiplier). (ECF No 54.) For the reasons that follow, the fees are granted. 13 Legal Standards 14 “[A] district court must carefully assess the reasonableness of a fee amount spelled out in 15 a class action settlement agreement.” Staton, 327 F.3d at 963. Thus, a court “may not 16 uncritically accept a fee request,” but must review the time billed and assess whether it is 17 reasonable in light of the work performed and the context of the case. Common Cause v. Jones, 18 235 F. Supp. 2d 1076, 1079 (C.D. Cal. 2002); see also McGrath v. County of Nevada, 67 F.3d 19 248, 254 n.5 (9th Cir. 1995) (a court may not adopt representations regarding the reasonableness 20 of time expended without independent review); Sealy, Inc. v. Easy Living, Inc., 743 F.2d 1378, 21 1385 n.3 (9th Cir. 1984) (remanding an action for a thorough inquiry on the fee request when “the 22 district court engaged in the ‘regrettable practice’ of adopting the findings drafted by the 23 prevailing party wholesale” and explaining a court should not uncritically accept counsels’ 24 representations about the time expended). 25 The court has discretion to use either a lodestar or percentage of the common fund 26 analysis to evaluate a fee request. In re Bluetooth, 654 F.3d at 942. Under a common fund 27 calculation, “the court makes a fee award on the basis of some percentage of the common fund.” 28 State of Fla. v. Dunne, 915 F.2d 542, 545 n.3 (9th Cir. 1990). “The typical range of acceptable 1 attorneys’ fees in the Ninth Circuit is one-fifth to one-third of the total settlement value, with 25% 2 considered the benchmark.” Vasquez v. Coast Valley Roofing, 266 F.R.D. 482, 491 (E.D. Cal. 3 2010). To evaluate whether the requested percentage is reasonable, courts may consider a 4 number of factors, including the results obtained for the class; the risk undertaken by class 5 counsel, including the complexity of the issues; the length of the professional relationship 6 between class counsel and the plaintiffs; and the market rate for similar cases, with a lodestar 7 cross-check.5 Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1048-50 (9th Cir. 2002). The 8 percentage of the common fund awarded as fees may be adjusted below or above the benchmark, 9 but the court’s reasons for adjustment must be clear. Paul, Johnson, Alston & Hunt v. Graulty, 10 886 F.2d 268, 272 (9th Cir. 1989). Regardless of which method is used, the fees awarded must be 11 “fundamentally fair, adequate, and reasonable.” Staton, 327 F.3d at 963 (quoting Rule 23(e)). 12 The fee applicant bears the burden of establishing that the fees and costs were reasonably 13 necessary to achieve the results obtained. See Fischer v. SJB-P.D., Inc., 214 F.3d 1115, 1121 (9th 14 Cir. 2000). This can be done with records documenting the tasks completed and the amount of 15 time spent. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Welch v. Metropolitan Life Ins. Co., 16 480 F.3d 942, 945-46 (9th Cir. 2007). “Where the documentation of hours in inadequate, the 17 district court may reduce hours accordingly.” Hensley, 461 U.S. at 433. 18 /// 19 /// 20 /// 21 5 The lodestar method calculates attorney fees by “by multiplying the number of hours reasonably 22 expended by counsel on the particular matter times a reasonable hourly rate”—the product 23 yielding a presumptively reasonable fee. Florida, 915 F.2d at 545 n. 3. A full lodestar analysis requires consideration of a host of factors—many of which either explicitly or generally align 24 with the other common-fund factors. See Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975); Quesada v. Thomason, 850 F.2d 537, 539 (9th Cir. 1988) (indicating the court should 25 “consider[ ] some or all twelve relevant criteria set forth in Kerr” to determine whether to deviate 26 from the lodestar). In the attorneys’ fee motion, counsel argues that because this case arises under the court’s 27 diversity jurisdiction under California law, the Lodestar method is the proper method. However, as noted above, the California Supreme Court has approved the use of the common fund method. 28 Laffitte, 1 Cal. 5th at 504-06. 1 Analysis 2 Here, the court finds class counsels’ request for $41,666.66 in attorneys’ fees, or one-third 3 of the common fund, to be reasonable. As this action is before this court on diversity jurisdiction 4 for alleged violations of state law, the court follows California’s instructions regarding attorneys’ 5 fees. Mangold v. Cal. Pub. Util. Comm’n, 67 F.3d 1470, 1478 (9th Cir. 1995). Attorneys fees 6 are awardable to a prevailing party in wage-and-hour disputes. Cal. Lab. Code § 218.5 (“In any 7 action brought for the nonpayment of wages . . ., the court shall award reasonable attorney s fees 8 and costs to the prevailing party.”); see also, e.g., Naranjo v. Spectrum Sec. Servs., Inc., 13 Cal. 9 5th 93, 117 (2022) (missed-break premium pay constitutes wages for purposes of California law). 10 Regarding the results obtained for the class and the risks and complexity of the issues, the 11 undersigned references Section II.B.3.i (“Costs, risks, and delay vs. settlement amount”) above. 12 Specifically, the undersigned notes the beneficial amount obtained for the class in the net 13 settlement fund of $57,249.84. (Id. at ¶¶ 5.1, 5.2, 5.3, 5.4; ECF Nos. 53, 54.) This is estimated to 14 provide an average payment of $88.69, with “the highest estimated Individual Participating Class 15 Member payment [being] $1,003.86.” (ECF No. 53-3 at ¶ 14.) While this amount is less than the 16 hypothetical maximum damages found by counsel, the court reaffirms its findings concerning the 17 significant risks and weaknesses in plaintiff’s case. (ECF No. 40-1 at ¶¶ 10-17.) Counsel’s 18 request of 33% of the common fund is in line with similar awards in this district, though above 19 the benchmark market rate. Vasquez, 266 F.R.D. at 491. The court also notes the contingency 20 fee nature of counsel’s representation in this case. Clayton v. Knight Transp., 2013 WL 5877213, 21 at *8 (E.D. Cal. Oct. 30, 2013) (acknowledging the contingent nature was “an important factor,” 22 but finding an award equal to the benchmark was appropriate where “the risks associated with 23 this case are no greater than [those] associated with any other wage and hour action”). Cross- 24 checking this award against the lodestar, the court finds the $41,666.66 amount reasonable, as 25 counsel reported 148.6 hours of attorney time. (ECF Nos. 53-5 and -7.) Even at the median rate 26 for Sacramento, the lodestar well exceeds one-third of the common fund. 27 /// 28 /// 1 2. Litigation and Settlement Administrator Costs 2 Legal Standards 3 Generally, reimbursement of taxable costs is governed by 28 U.S.C. § 1920 and Rule 54. 4 In addition, costs may be awarded under California law to an employee who prevails on a PAGA 5 claim. See Cal. Lab. Code § 2699(g). Attorneys may recover reasonable expenses that would 6 typically be billed to paying clients in non-contingency matters. See Harris v. Marhoefer, 24 F.3d 7 16, 19-20 (9th Cir. 1994). “There is no doubt that an attorney who has created a common fund 8 for the benefit of the class is entitled to reimbursement of reasonable litigation expenses from that 9 fund.” Ontiveros v. Zamora, 303 F.R.D. 356, 375 (E.D. Cal. 2014) (citation omitted). 10 Analysis 11 The Settlement Agreement allowed class counsel to seek “litigation costs and expenses 12 not to exceed $12,500.” (ECF No. 40-2 at ¶ 5.2.) However, plaintiff’s counsel only requests fees 13 in the amount of $10,333.50 for filing fees, service of process fees, court-imposed fees, an expert 14 witness fee, and a fee for mediation services. (ECF Nos. 53-7 at 6; 53-5 at ¶ 13.) These costs are 15 routinely reimbursed, and so this request is granted. See Ontiveros, 303 F.R.D. at 375 (finding 16 costs including to mediation, court fees, research, and expert fees were “reasonable litigation 17 fees” and approving class counsel’s request for costs). 18 The Settlement Agreement also allowed for reimbursement of the Settlement 19 Administrator’s costs, up to $9,000; this is the amount sought. (ECF Nos. 40-2 at ¶ 5.1; 53-3 at 20 6.) Settlement administrator costs are routinely reimbursed in class action settlements. See, e.g., 21 Rodriguez v. Nike Retail Servs., Inc., 2022 WL 254349, at *7 (N.D. Cal. Jan. 27, 2022); Local 22 Rule 292(f)(11). The court finds the requested costs to be reasonable and grants an award of 23 $9,000 to Simpluris. 24 /// 25 /// 26 /// 27 /// 28 /// 1 3. Incentive Award 2 Legal Standards 3 A class representative may receive a share of class recovery above and beyond the 4 individual claim with a service payment, also known as an “incentive payment. Staton, 327 F.3d 5 at 977 (“[N]amed plaintiffs . . . are eligible for reasonable incentive payments”). However, 6 incentive payments for class representatives are not to be given routinely. See id. at 975 (noting 7 that “[i]f class representatives expect routinely to receive special awards in addition to their share 8 of the recovery, they may be tempted to accept suboptimal settlements at the expense of the class 9 members whose interests they are appointed to guard”); Radcliffe v. Experian Info. Solutions, 10 715 F.3d 1157, 1165 (9th Cir. 2013) (“[D]istrict courts must be vigilant in scrutinizing all 11 incentive awards.”). 12 In evaluating a request for a service payment to a class representative, the court must 13 consider: “the actions the plaintiff has taken to protect the interests of the class, the degree to 14 which the class has benefitted from those actions, the amount of time and effort the plaintiff 15 expended in pursuing the litigation, and any financial or reputational risks the plaintiff faced.” In 16 re Apple Inc. Device Performance Litig., 50 F.4th 769, 786 (9th Cir. 2022) (cleaned up). Further, 17 payments may recognize a plaintiff’s “willingness to act as a private attorney general” in PAGA 18 actions. Rodriguez, 563 F.3d at 958-59. A service payment of $5,000 for the class representative 19 “is presumptively reasonable” in the Ninth Circuit. Richardson v. THD At-Home Servs., 2016 20 WL 1366952, at *13 (E.D. Cal. Apr. 6, 2016); see also Gonzalez v. NCI Group, Inc., 2023 WL 21 373252, at *9 (E.D. Cal. Jan. 24, 2023) (“Courts routinely find rewards in the amount of $5,000 22 to be reasonable”). 23 Analysis 24 Here, the Settlement Agreement allows for a class representative incentive award of 25 $3,000; that is what plaintiff now seeks. (ECF Nos. 40-2 at ¶ 5.3; 53.) Plaintiff argues this award 26 is appropriate because she voluntarily assumed the responsibilities of bringing and prosecuting 27 the action on behalf of all others similarly situated and devoted time and effort to keeping herself 28 informed of the litigation. Specifically, plaintiff states this included: “(a.) Consulting with my 1 counsel regarding their investigation into the allegations of the lawsuit relating to Defendants, 2 both on the phone and in person, including in pre-filing communications; (b.) Providing factual 3 data to my lawyers regarding my work at the Willow Springs Facility, and the working 4 conditions, rules and terms of employment at Willow Springs, including issues relating to breaks; 5 (c.) Reviewing relevant material relating to the present matter; (d.) Communicating with counsel 6 regarding the progress of the case; (e.) Discussing settlement prospects and negotiations with my 7 lawyers; ([and f.]) Being available on the date of the mediation for settlement related 8 communications, as well as being available for consultations on other dates.” Plaintiff states she 9 has “personally met with counsel (and otherwise communicated with counsel) on multiple 10 occasions,” stating she has spent “a total of 40 hours in connection with this litigation.” Plaintiff 11 asserts her participation in the case involved “significant risks to myself, including exposure to a 12 cost award if the litigation was unsuccessful.” (See ECF 53-4 at ¶¶ 5-9.) 13 The court concurs with plaintiff’s assertions. While plaintiff would have undertaken 14 many of these actions if she had brought the individual litigation, her efforts have benefitted class 15 members and PAGA aggrieved workers with an award that they may not have otherwise 16 obtained. Staton 327 F.3d at 977 (benefit to the class supports a service award); Rodriguez, 563 17 F.3d at 958-59 (willingness to act as a private attorney general supports service award). The 18 hours plaintiff spent in connection with the litigation support an award. Greer v. Dick’s Sporting 19 Goods, Inc., 2020 WL 5535399, at *4 (E.D. Cal. Sept. 15, 2020) (noting this district has awarded 20 service payments for “substantial efforts taken as a class representative when the plaintiff has 21 undertaken at least 30 to 40 hours of work”). The risk that plaintiff would have been subjected to 22 costs if she had lost at trial supports an award. See, e.g., Vasquez, 266 F.R.D. at 491 (“Class 23 representatives undertook the financial risk that, in the event of a judgment in favor of defendant 24 in this action, they could have been personally responsible for any costs awarded in favor of 25 defendant.”). The amount of plaintiff’s request is reasonable in light of her actions and the 26 standard service payment in this district. Richardson, 2016 WL 1366952 at *13. Thus, the court 27 awards the named plaintiff a service award of $3,000. 28 /// 2 For the above reasons, it is HEREBY ORDERED that: 3 1. The Class Action Settlement Agreement and the PAGA Agreement, and the settlement 4 embodied therein, is APPROVED as fair, reasonable, and adequate; 5 2. The certification of the Settlement Class as defined in this court’s order of June 9, 6 2023 (ECF No. 52) is hereby CONFIRMED for purposes of the settlement of this 7 Action; 8 3. The Notice to class members, as provided for by the Agreement, constituted the best 9 notice practicable under the circumstances, and was valid, due, and sufficient notice to 10 Class Members in full compliance with the requirements of applicable law, including 11 the Due Process Clause of the United States Constitution; 12 4. The Representative Class Plaintiff and Class Counsel have fairly and adequately 13 represented the interests of the Settlement Class members at all times in the action; 14 5. Settlement Class members who have not timely requested exclusion from the 15 Settlement Class and any of their predecessors, successors, representatives, parent 16 companies, subsidiaries, affiliates, heirs, executors, administrators, attorneys, 17 successors, and assignees are hereby enjoined and barred from instituting, filing, 18 commencing, prosecuting, maintaining, continuing to prosecute, directly or indirectly, 19 as an individual or collectively, representatively, derivatively, or on behalf of them or 20 in any other capacity whatsoever, any action in any state or federal court or any other 21 tribunal, forum, or proceeding of any kind against the Released Parties that asserts any 22 of the Released Claims as set forth in the Agreement; 23 6. Defendants are discharged from all further liability for the Released Claims to 24 Settlement Class members; 25 7. Class Counsel’s application for an award of fees of $41,666.66 and costs of 26 $10,333.50 is fair and reasonable and is hereby GRANTED, subject to the fee division 27 agreement of counsel; 28 /// 1 8. The request for an enhancement award of $3,000 to the named plaintiff is fair and 2 reasonable and is hereby GRANTED; 3 9. The $9,000.00 fees of Simpluris, the claims administrator are APPROVED; 4 10. The PAGA settlement of $5,000.00 is APPROVED, with 75% of this sum being paid 5 to the State of California, and the remainder to Class Members with a PAGA claim, 6 based on the Settlement Agreement of the parties; 7 11. The Action is hereby DISMISSED WITH PREJUDICE; 8 12. The Court RETAINS jurisdiction over this case for the limited purpose of 9 administering the settlement, enforcing the settlement, and related matters; and 10 13. The Clerk of the Court shall enter this Order as a Final Judgment in the docket of this 11 action. 12 | Dated: December 8, 2023 i Aectl Aharon UNITED STATES MAGISTRATE JUDGE 15 bowe.2318 16 17 18 19 20 21 22 23 24 25 26 27 28 25