1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 DORCAS-COTHY KABASELE, KATIA No. 2:21-cv-1639 WBS KJN ARRELLANO, ANGEL GONZALEZ, MINDY 13 MIRANDA, SARYNA DE JESUS, TATIANA BRENAL, FLOR CRUZ, 14 JULISSA PEREZ, ELISSA PADILLA, MEMORANDUM AND ORDER RE: IAN LAMAR, CLAUDIA BENITEZ, PLAINTIFFS’ MOTION FOR FINAL 15 BRITTNEY HUGHES, GEORGE MADDOX, APPROVAL OF CLASS ACTION AND VICTORIA HENKES, ALLEXANDRA TAN, PAGA SETTLEMENT AND MOTION 16 DANIELLE QUAID, JERRICA LABIAN, FOR ATTORNEYS’ FEES, COSTS, RYAN GUFFEY, KIERSTEN WONG, AND ENHANCEMENT PAYMENTS 17 BRITTANI HERENA, JANET SANCHEZ, BRITTANY SOMMERS, CHEYENNE 18 LOPEZ, TALIA CASTENEDA, NOHELY LLAMAS, RHONDA PRICKETT, and 19 DEBBIE HARRISON,1 20 Plaintiffs, 21 v. 22 ULTA SALON, COSMETICS & FRAGRANCE, INC.; and DOES 1-100, 23 inclusive, 24 Defendants. 25 26
27 1 Although the caption on the operative complaint does not state as such, plaintiffs assert claims both individually and 28 on behalf of similarly situated Ulta employees. 1 ----oo0oo---- 2 Plaintiffs Dorcas-Cothy Kabasele,2 Angel Gonzalez, 3 Mindy Miranda, Saryna De Jesus, Tatiana Brenal, Flor Cruz, 4 Julissa Perez, Elissa Padilla, Ian Lamar, Claudia Benitez, 5 Brittney Hughes, George Maddox, Victoria Henkes, Allexandra Tan, 6 Danielle Quaid, Jerrica Labian, Ryan Guffey, Kiersten Wong, 7 Brittani Herena, Janet Sanchez, Brittany Sommers, Cheyenne Lopez, 8 Talia Casteneda, Nohely Llamas, Rhonda Prickett, Debbie Harrison, 9 and Katia Arellano, individually and on behalf of similarly 10 situated individuals, brought this putative class action against 11 defendant Ulta Salon, Cosmetics, & Fragrance, Inc. (“Ulta”), 12 alleging violations of California wage and hour laws. (See 13 Fourth Am. Compl. (“FAC”) (Docket No. 48).) 14 This is one of four actions against defendant Ulta 15 covering similar class and PAGA claims. The other actions are 16 Gonzalez v. Ulta Salon Cosmetics & Fragrance, Inc., No. 2:22-cv- 17 00363 AB RAO (C.D. Cal.), a federal class and PAGA action; 18 Arellano v. Ulta Salon, Cosmetics and Fragrance, Inc., No. 5:22- 19 cv-00639 JGB KK (C.D. Cal.), a federal class action; and Arellano 20 v. Ulta Salon, Cosmetics and Fragrance, Inc., No. CIVSB2209151 21 (San Bernardino Super. Ct.), a state PAGA action. 22 The settlement disposes of all four actions. All 23 parties agreed to seek settlement approval only in this action; 24 once the settlement receives final approval in this action and 25 all class payments are distributed, counsel in the Gonzalez and 26 Arellano actions (state and federal) will voluntarily dismiss 27 2 The court is informed by plaintiff’s counsel that the 28 first named plaintiff, Dorcas-Cothy Kabasele, is deceased. 1 their cases. (See Settlement Agreement (Docket No. 49-5 at 24- 2 59) ¶ 9.8.) 3 Before the court are plaintiffs’ motion for final 4 approval of class action settlement (Docket No. 49) and motion 5 for attorneys’ fees, costs, and enhancement payments (Docket No. 6 49-4). Defendant does not oppose the motions. (See Docket No. 7 50.) 8 The Ninth Circuit has declared a strong judicial policy 9 favoring settlement of class actions. Class Plaintiffs v. City 10 of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992); see also 11 Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 965 (9th Cir. 2009) 12 (“We put a good deal of stock in the product of an arms-length, 13 non-collusive, negotiated resolution[.]”) (citation omitted). 14 Rule 23(e) provides that “[t]he claims, issues, or defenses of a 15 certified class may be settled . . . only with the court’s 16 approval.” Fed. R. Civ. P. 23(e). 17 “Approval under 23(e) involves a two-step process in 18 which the Court first determines whether a proposed class action 19 settlement deserves preliminary approval and then, after notice 20 is given to class members, whether final approval is warranted.” 21 Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 22 525 (C.D. Cal. 2004) (citing Manual for Complex Litig. (Third), 23 § 30.41 (1995)). This court satisfied step one by granting 24 plaintiffs’ unopposed motion for preliminary approval of class 25 action settlement on July 25, 2023. (Order Granting Prelim. 26 Approval (Docket No. 47).) Now, following notice to the class 27 members, the court will consider whether final approval is 28 merited by evaluating: (1) the treatment of this litigation as a 1 class action and (2) the terms of the settlement. See Diaz v. 2 Tr. Territory of Pac. Islands, 876 F.2d 1401, 1408 (9th Cir. 3 1989). 4 I. Class Certification 5 The putative class consists of all current and former 6 hourly-paid or non-exempt employees who worked for defendant Ulta 7 within California between October 12, 2019 and November 8, 2022. 8 (Settlement Agreement ¶ 1.6.) 9 To be certified, the putative class must satisfy the 10 requirements of Federal Rules of Civil Procedure 23(a) and 23(b). 11 Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th Cir. 2013). 12 A. Rule 23(a) 13 Rule 23(a) restricts class actions to cases where: “(1) 14 the class is so numerous that joinder of all members is 15 impracticable [numerosity]; (2) there are questions of law or 16 fact common to the class [commonality]; (3) the claims or 17 defenses of the representative parties are typical of the claims 18 or defenses of the class [typicality]; and (4) the representative 19 parties will fairly and adequately protect the interests of the 20 class [adequacy of representation].” See Fed. R. Civ. P. 23(a). 21 In the court’s order granting preliminary approval of 22 the settlement, the court found that the putative class satisfied 23 the Rule 23(a) requirements. (See Order Granting Prelim. 24 Approval at 6-12.) The court is unaware of any changes that 25 would affect its conclusion that the putative class satisfies the 26 Rule 23(a) requirements, and the parties have not indicated that 27 they are aware of any such developments. The court therefore 28 finds that the class definition proposed by plaintiffs meets the 1 requirements of Rule 23(a). 2 B. Rule 23(b) 3 After fulfilling the threshold requirements of Rule 4 23(a), the proposed class must satisfy the requirements of one of 5 the three subdivisions of Rule 23(b). Leyva, 716 F.3d at 512. 6 Plaintiffs seek certification under Rule 23(b)(3), which provides 7 that a class action may be maintained only if (1) “the court 8 finds that questions of law or fact common to class members 9 predominate over questions affecting only individual members” and 10 (2) “that a class action is superior to other available methods 11 for fairly and efficiently adjudicating the controversy.” Fed. 12 R. Civ. P. 23(b)(3). 13 In its order granting preliminary approval of the 14 settlement, the court found that both the predominance and 15 superiority prerequisites of Rule 23(b)(3) were satisfied. 16 (Order Granting Prelim. Approval at 12-14.) The court is unaware 17 of any changes that would affect its conclusion that Rule 18 23(b)(3) is satisfied. Because the settlement class satisfies 19 both Rule 23(a) and 23(b)(3), the court will grant final class 20 certification of this action. 21 C. Rule 23(c)(2) Notice Requirements 22 If the court certifies a class under Rule 23(b)(3), it 23 “must direct to class members the best notice that is practicable 24 under the circumstances, including individual notice to all 25 members who can be identified through reasonable effort.” Fed. 26 R. Civ. P. 23(c)(2)(B). Rule 23(c)(2) governs both the form and 27 content of a proposed notice. See Ravens v. Iftikar, 174 F.R.D. 28 651, 658 (N.D. Cal. 1997) (citing Eisen v. Carlisle & Jacquelin, 1 417 U.S. 156, 172–77 (1974)). Although that notice must be 2 “reasonably certain to inform the absent members of the plaintiff 3 class,” actual notice is not required. Silber v. Mabon, 18 F.3d 4 1449, 1454 (9th Cir. 1994) (citation omitted). 5 The notice explains the proceedings, defines the scope 6 of the class, and explains what the settlement provides and how 7 much each class member can expect to receive in compensation. 8 (See Notice of Class Action Settlement (Docket No. 49-2 at 7-12) 9 at 1-5.) The notice further explains the opt-out procedure, the 10 procedure for objecting to the settlement, and the date and 11 location of the final approval hearing. (See id. at 5-6.) The 12 content of the notice therefore satisfies Rule 23(c)(2)(B). See 13 Fed. R. Civ. P. 23(c)(2)(B); Churchill Vill., L.L.C. v. Gen. 14 Elec., 361 F.3d 566, 575 (9th Cir. 2004) (“Notice is satisfactory 15 if it ‘generally describes the terms of the settlement in 16 sufficient detail to alert those with adverse viewpoints to 17 investigate and to come forward and be heard.’”) (quoting Mendoza 18 v. Tucson Sch. Dist. No. 1, 623 F.2d 1338, 1352 (9th Cir. 1980)). 19 The parties selected Simpluris, Inc. to serve as the 20 Settlement Administrator. (See Settlement Agreement ¶ 1.30.) 21 Defendant timely provided Simpluris with the class contact 22 information and data, which included the name, last known 23 address, Social Security Number, email address, telephone number, 24 and pertinent employment information for each class member. (See 25 Docket No. 49-2 ¶ 6.) The class list contained 18,705 members. 26 (Id. ¶ 6.) The Settlement Administrator updated the mailing 27 addresses using the National Change of Address Database 28 maintained by the U.S. Postal Service. (Id. ¶ 7.) 1 The Settlement Administrator delivered notice of the 2 settlement via mail on August 18, 2023. (Id. ¶ 8.) 880 notices 3 were returned as undeliverable. (Id. ¶ 9.) For those without a 4 forwarding address, the Settlement Administrator performed a skip 5 trace address search to locate updated addresses. (Id.) Of the 6 880 notices returned as undeliverable, 726 notices were remailed 7 to new addresses. Following these efforts, a total of 154 8 notices were ultimately undeliverable by mail. (Id.) Of those 9 154 class members, the Settlement Administrator obtained email 10 addresses for 106 individuals and complete notice via email. 11 (Id.) This constitutes a 99.74% successful notice rate. (Id.) 12 The Settlement Administrator received five requests for exclusion 13 and zero objections. (Id. ¶¶ 11-12.) 14 The court appreciates the thorough efforts taken by the 15 Settlement Administrator to effectuate notice and is satisfied 16 that the notice procedure was “reasonably calculated, under all 17 the circumstances,” to apprise all class members of the proposed 18 settlement. See Roes, 1-2 v. SFBSC Mgmt., LLC, 944 F.3d 1035, 19 1045–46 (9th Cir. 2019). 20 II. Final Settlement Approval 21 Having determined that class treatment is warranted, 22 the court must now address whether the terms of the parties’ 23 settlement appear fair, adequate, and reasonable. See Fed. R. 24 Civ. P. 23(e)(2). To determine the fairness, adequacy, and 25 reasonableness of the agreement, Rule 23(e) requires the court to 26 consider four factors: “(1) the class representatives and class 27 counsel have adequately represented the class; (2) the proposal 28 was negotiated at arm’s length; (3) the relief provided for the 1 class is adequate; and (4) the proposal treats class members 2 equitably relative to each other.” Id. The Ninth Circuit has 3 also identified eight additional factors the court may consider, 4 many of which overlap substantially with Rule 23(e)’s four 5 factors: 6 The strength of the plaintiff’s case; the risk, expense, complexity, and likely duration of 7 further litigation; the risk of maintaining class action status throughout the trial; the amount 8 offered in settlement; the extent of discovery completed and the stage of the proceedings; the 9 experience and views of counsel; the presence of a governmental participant; and the reaction of 10 the class members to the proposed settlement. 11 Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998).3 12 A. Adequate Representation 13 The court must first consider whether “the class 14 representatives and class counsel have adequately represented the 15 class.” Fed. R. Civ. P. 23(e)(2)(A). This analysis is
16 3 Because claims under PAGA are “a type of qui tam action” in which an employee brings a claim as an agent or proxy 17 of the state’s labor law enforcement agencies, the court must 18 also “review and approve” settlement of plaintiff’s and other class members’ PAGA claims along with their class claims. See 19 Cal. Lab. Code § 2669(k)(2); Sakkab v. Luxottica Retail N. Am., Inc., 803 F.3d 425, 435-36 (9th Cir. 2015). 20 Though “PAGA does not establish a standard for evaluating PAGA settlements,” Rodriguez v. RCO Reforesting, Inc., No. 2:16- 21 CV-2523 WBS DMC, 2019 WL 331159, at *4 (E.D. Cal. Jan. 25, 2019) 22 (citing Smith v. H.F.D. No. 55, Inc., No. 2:15-cv-01293 KJM KJN, 2018 WL 1899912, at *2 (E.D. Cal. Apr. 20, 2018)), a number of 23 district courts have applied the eight Hanlon factors, listed above, to evaluate PAGA settlements. See, e.g., Smith, 2018 WL 24 1899912, at *2; Ramirez v. Benito Valley Farms, LLC, No. 16-cv- 04708 LHK, 2017 WL 3670794, at *3 (N.D. Cal. Aug. 25, 2017); 25 O’Connor v. Uber Techs., 201 F. Supp. 3d 1110, 1134 (N.D. Cal. 2016). “Many of these factors are not unique to class action 26 lawsuits and bear on whether a settlement is fair and has been 27 reached through an adequate adversarial process.” See Ramirez, 2017 WL 3670794, at *3. Thus, the court finds that these factors 28 will also govern its review of the PAGA settlement. See id. 1 “redundant of the requirements of Rule 23(a)(4) . . . .” Hudson 2 v. Libre Tech., Inc., No. 3:18-cv-1371 GPC KSC, 2020 WL 2467060, 3 at *5 (S.D. Cal. May 13, 2020) (quoting 4 Newberg on Class 4 Actions § 13:48 (5th ed.)); see also In re GSE Bonds Antitr. 5 Litig., 414 F. Supp. 3d 686, 701 (S.D.N.Y. 2019) (noting 6 similarity of inquiries under Rule 23(a)(4) and Rule 7 23(e)(2)(A)). 8 Because the Court has found that the proposed class 9 satisfies Rule 23(a)(4) for purposes of class certification, the 10 adequacy factor under Rule 23(e)(2)(A) is also met. See Hudson, 11 2020 WL 2467060, at *5. 12 B. Negotiation of the Settlement Agreement 13 Prior to settlement negotiations, counsel engaged in 14 thorough investigation of the claims and informal discovery, 15 including securing employee records and policy documents, 16 obtaining declarations from multiple plaintiffs, and retaining an 17 expert to analyze the documents provided by defendant. (See 18 Decl. of Robert J. Wasserman (“Wasserman Decl.”) (Docket No. 49- 19 5) ¶ 7.) 20 On September 8, 2022, the parties participated in a 21 full-day private medication with an experienced wage and hour 22 class action mediator. (See id. ¶ 8.) The parties were unable 23 to reach a settlement on that day, but continued negotiations 24 over the next two weeks. (Id. ¶ 9.) The parties accepted a 25 mediator’s proposal on September 22, 2022. (Id.) The parties 26 spent several months negotiating the final terms of the 27 Settlement Agreement, executing the agreement on January 18, 28 2023. (Id. ¶ 10.) Counsel represents that that the settlement 1 negotiations were adversarial and conducted at arms’ length. 2 (Id. ¶ 11.) 3 Given that the settlement reached was the product of 4 arms-length bargaining following extensive informal discovery and 5 with the help of an experienced mediator, this factor weighs in 6 favor of final approval. See La Fleur v. Med. Mgmt. Int’l, Inc., 7 No. 5:13-cv-00398, 2014 WL 2967475, at *4 (N.D. Cal. June 25, 8 2014) (“Settlements reached with the help of a mediator are 9 likely non-collusive.”). The court is satisfied that the outcome 10 of the negotiations was not infected by counsel’s pursuit of 11 their own self-interests. See In re Apple Inc. Device 12 Performance Litig., 50 F.4th 769, 782 (9th Cir. 2022). 13 C. Adequate Relief 14 In determining whether a settlement agreement provides 15 adequate relief for the class, the court must “take into account 16 (i) the costs, risks, and delay of trial and appeal; (ii) the 17 effectiveness of any proposed method of distributing relief to 18 the class, including the method of processing class-member 19 claims; (iii) the terms of any proposed award of attorney’s fees, 20 including timing of payment; and (iv) any [other] agreement[s]” 21 made in connection with the proposal. See Fed. R. Civ. P. 22 23(e)(2)(C); Baker v. SeaWorld Entm’t, Inc., No. 14-cv-02129-MMA- 23 AGS, 2020 WL 4260712, at *6-8 (S.D. Cal. Jul. 24, 2020). 24 The court notes that, in evaluating whether the 25 settlement provides adequate relief, it must consider several of 26 the same factors outlined in Hanlon, including the strength of 27 the plaintiffs’ case; the risk, expense, complexity, and likely 28 duration of further litigation; the risk of maintaining class 1 action status throughout the trial; and the amount offered in 2 settlement. See Hanlon, 150 F.3d at 1026. 3 In determining whether a settlement agreement is 4 substantively fair to class members, the court must balance the 5 value of expected recovery against the value of the settlement 6 offer. See In re Tableware Antitrust Litig., 484 F. Supp. 2d 7 1078, 1080 (N.D. Cal. 2007). When a settlement was reached prior 8 to class certification, it is subject to heightened scrutiny for 9 purposes of final approval. See In re Apple Inc., 50 F.4th at 10 782. The recommendations of plaintiffs’ counsel will not be 11 given a presumption of reasonableness, but rather will be subject 12 to close review. See id. at 782-83. The court will particularly 13 scrutinize “any subtle signs that class counsel have allowed 14 pursuit of their own self-interests to infect the negotiations.” 15 See id. at 782 (quoting Roes, 1-2 v. SFBSC Mgmt., LLC, 944 F.3d 16 1035, 1043 (9th Cir. 2019)). 17 The Settlement Agreement provides for a gross 18 settlement amount of $1,500,000, which covers all four actions 19 and includes the following: (1) $5,000 incentive awards for the 20 lead plaintiffs and $500 for each remaining named plaintiff, for 21 a total of $22,000 in plaintiff incentive awards;4 (2) maximum 22 attorneys’ fees of $500,000, or 33.33% of the gross settlement 23 amount, plus reasonable documented costs; (3) settlement 24 administration costs of approximately $65,000; and (4) $50,000 25 for PAGA penalties, of which 75% (i.e., $37,500) will be 26 4 The incentive awards originally totaled $27,000, but 27 this figure has been reduced by the $5,000 that was provided for Ms. Kabasele’s incentive award, which will be divided among the 28 class members, as explained below. 1 distributed to the Labor and Workforce Development Agency 2 (“LWDA”) and the remaining 25% will be distributed to individual 3 aggrieved employees. (See Settlement Agreement ¶¶ 1.5, 1.13, 4 1.16, 1.21, 1.31.) The remaining net settlement amount will be 5 distributed to the class members and aggrieved employees based on 6 their number of pay periods. (See id. ¶¶ 1.18, 6.1-6.3.) 7 Plaintiffs estimate that the claims are worth up to 8 $5,327,023.36. (See Wasserman Decl. ¶ 45.) The portion of the 9 gross settlement amount allocated to class claims -- $1,450,000 10 -- constitutes approximately 27.22% of the $5,327,023.36 maximum 11 valuation. This amount is comfortably within the range of 12 percentage recoveries that California courts have found to be 13 reasonable. See Cavazos v. Salas Concrete, Inc., No. 1:19-cv- 14 00062 DAD EPG, 2022 WL 2918361, at *6 (E.D. Cal. July 25, 2022) 15 (collecting cases). 16 Plaintiffs faced numerous hurdles in the litigation, 17 including proving all elements of the claims, obtaining and 18 maintaining class certification, establishing liability, and the 19 costliness of litigation on these issues. Investigation 20 uncovered specific factual weaknesses in plaintiffs’ case, 21 including defendant’s use of facially valid timekeeping policies 22 and sophisticated timekeeping software; very low rates of unpaid 23 wages and sick pay based on analyzed payroll records; high rates 24 of meal and rest break premiums actually paid by defendant; 25 facially valid policies for reimbursement of business expenses; 26 significant reimbursements given to class members for cell phone 27 usage; and large amounts of waiting time penalties paid to class 28 members. (See Wasserman Decl. ¶¶ 17-41.) Plaintiffs’ counsel 1 represents that, given the strength of plaintiffs’ claims and 2 defendant’s potential exposure, the settlement and resulting 3 distribution provides a strong result for the class. (See id. ¶ 4 52.) 5 In light of the risks associated with further 6 litigation and the relative strength of defendant’s arguments, 7 the court finds that the value of the settlement counsels in 8 favor of granting final approval. The court further finds the 9 method of processing class member claims to be adequate. Each 10 class member’s individual share of the settlement is 11 proportional to the number of pay periods worked for defendant 12 during the time period covered by the Settlement Agreement. The 13 court is also satisfied that counsel’s requested fees are 14 reasonable and support approval of the settlement, which it will 15 address in greater detail below. 16 D. Equitable Treatment of Class Members 17 Finally, the court must consider whether the Settlement 18 Agreement “treats class members equitably relative to each 19 other.” See Fed. R. Civ. P. 23(e)(2)(D). In doing so, the court 20 determines whether the settlement “improperly grant[s] 21 preferential treatment to class representatives or segments of 22 the class.” Hudson, 2020 WL 2467060, at *9 (quoting Tableware, 23 484 F. Supp. at 1079. 24 Here, the Settlement Agreement does not improperly 25 discriminate between any segments of the class, as all class 26 members are entitled to monetary relief based on the number of 27 pay periods they spent working for defendants. (See Settlement 28 Agreement ¶ 6.1.) 1 While the Settlement Agreement allows plaintiffs to 2 seek incentive payments, plaintiffs have submitted evidence 3 documenting their time and effort spent on this case, which, as 4 discussed further below, has satisfied the court that their 5 additional compensation above other class members is justified. 6 See Hudson, 2020 WL 2467060, at *9. The court therefore finds 7 that the settlement treats class members equitably. See Fed. R. 8 Civ. P. 23(e)(D). 9 E. Remaining Hanlon Factors 10 In addition to the factors already considered as part 11 of the court’s analysis under Rule 23(e)(A)-(D), the court must 12 also examine “the extent of the discovery completed . . ., the 13 presence of government participation, and the reaction of class 14 members to the proposed settlement.” Hanlon, 150 F.3d at 1026. 15 As explained above, counsel engaged in thorough 16 informal discovery. This factor thus weighs in favor of final 17 approval of the settlement. 18 The seventh Hanlon factor, pertaining to government 19 participation, also weighs in favor of approval. See Hanlon, 150 20 F.3d at 1026. Under PAGA, “[t]he proposed settlement [must be] 21 submitted to the [LWDA] at the same time that it is submitted to 22 the court.” Cal. Lab. Code § 2669(k)(2). As of the date of this 23 order, the LWDA has not sought to intervene or otherwise objected 24 to the PAGA settlement. This factor therefore weighs in favor of 25 final approval of the settlement. 26 The eighth Hanlon factor, the reaction of the class 27 members to the proposed settlement, also weighs in favor of final 28 approval, as only five of the 18,705 class members requested to 1 be excluded and no class members objected. See Hanlon, 150 F.3d 2 at 1026. 3 In sum, the four factors that the court must evaluate 4 under Rule 23(e) and the eight Hanlon factors, taken as a whole, 5 weigh in favor of approving the settlement. The court will 6 therefore grant final approval of the Settlement Agreement. 7 III. Attorneys’ Fees 8 Federal Rule of Civil Procedure 23(h) provides, “[i]n a 9 certified class action, the court may award reasonable attorney’s 10 fees and nontaxable costs that are authorized by law or by the 11 parties’ agreement.” Fed. R. Civ. P. 23(h). If a negotiated 12 class action settlement includes an award of attorneys’ fees, 13 that fee award must be evaluated in the overall context of the 14 settlement. Knisley v. Network Assocs., 312 F.3d 1123, 1126 (9th 15 Cir. 2002); Monterrubio v. Best Buy Stores, L.P., 291 F.R.D. 443, 16 455 (E.D. Cal. 2013) (England, J.). The court “ha[s] an 17 independent obligation to ensure that the award, like the 18 settlement itself, is reasonable, even if the parties have 19 already agreed to an amount.” In re Bluetooth Headset Prod. 20 Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011). “Under the 21 ‘common fund’ doctrine, ‘a litigant or a lawyer who recovers a 22 common fund for the benefit of persons other than himself or his 23 client is entitled to a reasonable [attorneys’] fee from the fund 24 as a whole.’” Staton v. Boeing Co., 327 F.3d 938, 969 (9th Cir. 25 2003) (quoting Boeing Co. v. Van Gemert, 444 U.S. 472, 478 26 (1980)). In common fund cases, the district court has discretion 27 to determine the amount of attorneys’ fees to be drawn from the 28 fund by employing either the percentage method or the lodestar 1 method. Id. The court may also use one method as a “cross- 2 check[ ]” upon the other method. See Bluetooth Headset, 654 F.3d 3 at 944. 4 As explained above, the settlement agreement appears to 5 provide adequate recovery for the class members. Further, the 6 payments will be quickly available to class members without the 7 delay associated with further litigation. 8 Like other complex employment class actions, this case 9 presented both counsel and the class with a risk of no recovery 10 at all, as already discussed above. Plaintiffs’ counsel took on 11 this matter on a contingency basis. (See Wasserman Decl. ¶ 64.) 12 The nature of contingency work inherently carries risks that 13 counsel will sometimes recovers very little to nothing at all, 14 even for cases that may be meritorious. See Kimbo v. MXD Group, 15 Inc., No. 2:19-cv-00166 WBS KNJ, 2021 WL 492493, at *7 (E.D. Cal. 16 Feb. 10, 2021). Where counsel do succeed in vindicating 17 statutory and employment rights on behalf of a class of 18 employees, they depend on recovering a reasonable percentage-of- 19 the-fund fee award to enable them to take on similar risks in 20 future cases. See id. Plaintiffs’ counsel argues that, in light 21 of the result obtained and substantial risk taken in this case, a 22 $500,000 fee constituting 33.33% of the fund, as requested here, 23 is reasonable. 24 The Ninth Circuit has established 25% of the fund as 25 the “benchmark” award that should be given in common fund cases. 26 Six (6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 27 1311 (9th Cir. 1990). As this court has explained, “a review of 28 California cases . . . reveals that courts usually award 1 attorneys’ fees in the 30-40% range in wage and hour class 2 actions that result in recovery of a common fun[d] under $10 3 million.” Watson v. Tennant Co., No. 2:18-cv-02462 WBS DB, 2020 4 WL 5502318, at *7 (E.D. Cal. Sep. 11, 2020) (awarding 33.33% of 5 settlement fund); see also Osegueda v. N. Cal. Inalliance, No. 6 18-cv-00835 WBS EFB, 2020 WL 4194055, at *16 (E.D. Cal. July 21, 7 2020) (same). Given that the requested fee is in line with the 8 typical practice in the Ninth Circuit and in this district, the 9 court agrees that plaintiffs’ counsel’s requested percentage of 10 the common fund is reasonable. 11 “Calculation of the lodestar, which measures the 12 lawyers’ investment of time in the litigation, provides a check 13 on the reasonableness of the percentage award.” Vizcaino v. 14 Microsoft Corp., 290 F.3d 1043, 1050 (9th Cir. 2002). 15 Here, a lodestar cross-check confirms the 16 reasonableness of the requested award. Counsel represent that 17 they have dedicated 738.6 hours of work to these cases. (See 18 Wasserman Decl. ¶ 72.) Counsel states that their customary 19 hourly rates in class actions range from $675 to $997. (See id. 20 ¶ 70; Docket No. 49-6 ¶¶ 17, 19; Docket No. 49-7 ¶ 13.) The 21 firms specialize in wage and hour matters and class action cases, 22 and counsel represents that comparable hourly rates have been 23 approved by multiple federal and state courts in California. 24 (See Wasserman Decl. ¶¶ 65, 69.) For purposes of the lodestar 25 calculation, the court will apply the rate at the lower end of 26 the range provided by counsel. Based on 738.6 hours billed at an 27 hourly rate of $675, the lodestar figure is $498,555. This 28 figure is nearly identical to the $500,000 award requested, with 1 a multiplier of 1.003, confirming the reasonableness of the 2 requested award. Cf. Vizcaino, 290 F.3d at 1051 (affirming fee 3 award with lodestar cross-check multiplier of 3.65). 4 Accordingly, the court finds the requested fees to be 5 reasonable and will grant counsel’s motion for attorneys’ fees. 6 IV. Costs 7 “There is no doubt that an attorney who has created a 8 common fund for the benefit of the class is entitled to 9 reimbursement of reasonable litigation expenses from that fund.” 10 In re Heritage Bond Litig., No. 02-cv-1475, 2005 WL 1594403, at 11 *23 (C.D. Cal. June 10, 2005). Here, the parties agreed that 12 plaintiffs’ counsel shall be entitled to recover reasonable, 13 documented litigation costs. (See Settlement Agreement ¶ 1.5.) 14 Counsel’s litigation expenses and costs total $24,667.33, though 15 they only seek $20,000. (See Wasserman Decl. ¶ 78.) These 16 expenses include copying and mailing expenses, filing fees, 17 mediation fees, expert fees, and travel expenses. (See Docket 18 No. 49-5 at 103-05; Docket No. 49-6 at 17-18; Docket No. 49-7 at 19 11.) The court finds these are reasonable litigation expenses. 20 Therefore, the court will grant class counsel’s request for costs 21 in the amount of $20,000. 22 V. Representative Service Award 23 “Incentive awards are fairly typical in class action 24 cases.” Rodriguez, 563 F.3d at 958. “[They] are intended to 25 compensate class representatives for work done on behalf of the 26 class, to make up for financial or reputational risk undertaken 27 in bringing the action, and, sometimes, to recognize their 28 willingness to act as a private attorney general.” Id. at 958- 1 59. 2 Nevertheless, the Ninth Circuit has cautioned that 3 “district courts must be vigilant in scrutinizing all incentive 4 awards to determine whether they destroy the adequacy of the 5 class representatives . . . .” Radcliffe v. Experian Info. 6 Solutions, Inc., 715 F.3d 1157, 1164 (9th Cir. 2013). In 7 assessing the reasonableness of incentive payments, the court 8 should consider “the actions the plaintiff has taken to protect 9 the interests of the class, the degree to which the class has 10 benefitted from those actions” and “the amount of time and effort 11 the plaintiff expended in pursuing the litigation.” Staton, 327 12 F.3d at 977 (citation omitted). The court must balance “the 13 number of named plaintiffs receiving incentive payments, the 14 proportion of the payments relative to the settlement amount, and 15 the size of each payment.” Id. 16 In the Ninth Circuit, an incentive award of $5,000 is 17 presumptively reasonable. Davis v. Brown Shoe Co., Inc., No. 18 1:13-cv-01211 LJO BAM, 2015 WL 6697929, at *11 (E.D. Cal. Nov. 3, 19 2015) (citing Harris v. Vector Marketing Corp., No. 08-cv-5198 20 EMC, 2012 WL 381202, at *7 (N.D. Cal. Feb. 6, 2012) (collecting 21 cases)). 22 Plaintiffs seek $5,000 incentive awards for the two 23 lead plaintiffs, Katia Arellano and Angel Gonzalez, and $500 for 24 each remaining named plaintiff. The efforts of the plaintiffs 25 included interviewing and selecting counsel, providing documents 26 to counsel, providing statements to counsel, reviewing documents 27 and discovery responses, participating in mediation, and 28 reviewing the settlement agreement. (See Docket Nos. 49-8 1 through 49-31.) In light of plaintiffs’ efforts and the risks 2 incurred in bringing this action, the court finds the requested 3 incentive awards to be reasonable. 4 The settlement originally provided a $5,000 incentive 5 award for Ms. Kabasele. However, in light of Ms. Kabasele’s 6 death, the court orders that her incentive award remain part of 7 the net settlement funds, to be distributed to the class members 8 and aggrieved employees in accordance with the terms of the 9 settlement. At oral argument, counsel for both sides consented 10 to this arrangement. The court also considered giving the 11 incentive award to Ms. Kabasele’s heirs or dividing it among the 12 other named plaintiffs, but concluded that distributing it among 13 the entire class was the most beneficial for the class. 14 VI. Conclusion 15 Based on the foregoing, the court will grant final 16 certification of the settlement class and will approve the 17 settlement set forth in the Settlement Agreement as fair, 18 reasonable, and adequate. The Settlement Agreement shall be 19 binding upon all participating class members who did not exclude 20 themselves. 21 IT IS THEREFORE ORDERED that plaintiffs’ unopposed 22 motion for final approval of the parties’ class action settlement 23 (Docket No. 49) and motion for attorneys’ fees, costs, and 24 enhancement payments (Docket No. 49-4) be, and the same hereby 25 are, GRANTED. 26 IT IS FURTHER ORDERED THAT: 27 (1) Solely for the purpose of this settlement, and 28 pursuant to Federal Rule of Civil Procedure 23, the court hereby 1 certifies the following class: all current and former hourly-paid 2 or non-exempt employees who worked for defendant Ulta within 3 California between October 12, 2019 and November 8, 2022. 4 (2) The court appoints Angel Gonzalez, Mindy Miranda, 5 Saryna De Jesus, Tatiana Brenal, Flor Cruz, Julissa Perez, Elissa 6 Padilla, Ian Lamar, Claudia Benitez, Brittney Hughes, George 7 Maddox, Victoria Henkes, Allexandra Tan, Danielle Quaid, Jerrica 8 Labian, Ryan Guffey, Kiersten Wong, Brittani Herena, Janet 9 Sanchez, Brittany Sommers, Cheyenne Lopez, Talia Casteneda, 10 Nohely Llamas, Rhonda Prickett, Debbie Harrison, and Katia 11 Arellano as class representatives and finds that they meet the 12 requirements of Rule 23; 13 (3) The court appoints the law firms of Mayall Hurley, 14 P.C., SW Employment Law Group, APC, and Lavi & Ebrahimian, LLP, 15 as class counsel and finds that they meet the requirements of 16 Rule 23; 17 (4) The settlement agreement’s plan for class notice 18 satisfies the requirements of due process and Rule 23. The plan 19 is approved and adopted. The notice to the class complies with 20 Rule 23(c)(2) and Rule 23(e) and is approved and adopted; 21 (5) The court finds that the parties and their counsel 22 took appropriate efforts to locate and inform all class members 23 of the settlement. Five employees have requested to be excluded 24 from the class. Given that no class member filed an objection to 25 the settlement, the court finds that no additional notice to the 26 class is necessary; 27 (6) As of the date of the entry of this order, 28 plaintiffs and all class members who have not timely opted out of 1 this settlement hereby do and shall be deemed to have fully, 2 finally, and forever released, settled, compromised, 3 relinquished, and discharged defendants of and from any and all 4 settled claims, pursuant to the release provisions stated in the 5 parties’ settlement agreement; 6 (7) Plaintiffs’ counsel is entitled to fees in the 7 amount of $500,000, and litigation costs in the amount of 8 $20,000; 9 (8) Simpluris, Inc. is entitled to administration costs 10 in the amount of $65,000; 11 (9) Plaintiffs Katia Arellano and Angel Gonzalez are 12 entitled to incentive awards in the amount of $5,000, and 13 plaintiffs Mindy Miranda, Saryna De Jesus, Tatiana Brenal, Flor 14 Cruz, Julissa Perez, Elissa Padilla, Ian Lamar, Claudia Benitez, 15 Brittney Hughes, George Maddox, Victoria Henkes, Allexandra Tan, 16 Danielle Quaid, Jerrica Labian, Ryan Guffey, Kiersten Wong, 17 Brittani Herena, Janet Sanchez, Brittany Sommers, Cheyenne Lopez, 18 Talia Casteneda, Nohely Llamas, Rhonda Prickett, and Debbie 19 Harrison are entitled to incentive awards in the amount of $500; 20 (10) $37,500 from the gross settlement amount shall be 21 paid to the California Labor and Workforce Development Agency in 22 satisfaction of defendant’s alleged penalties under the Private 23 Attorneys General Act; 24 (11) The remaining settlement funds shall be paid to 25 participating class members and aggrieved employees in accordance 26 with the terms of the Settlement Agreement; and 27 (12) This action is dismissed with prejudice. However, 28 without affecting the finality of this Order, the court shall nen en nen enn en nnn EE ES eee
1 retain continuing jurisdiction over the interpretation, 2 implementation, and enforcement of the Settlement Agreement with 3 respect to all parties to this action and their counsel of 4 record. hitter Hh. (hi. 5 Dated: February 6, 2024 WILLIAMB SHUBB.....—T 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23