Osegueda v. Northern California Inalliance

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 JOSEPH OSEGUEDA, individually No. 18-cv-00835 WBS EFB and on behalf of all similarly 13 situated and/or aggrieved employees of Defendants in the 14 State of California, MEMORANDUM AND ORDER RE: MOTION FOR FINAL APPROVAL OF 15 Plaintiff, CLASS ACTION SETTLEMENT AND MOTION FOR ATTORNEYS’ FEES, 16 v. COSTS, AND REPRESENTATIVE SERVICE PAYMENT 17 NORTHERN CALIFORNIA INALLIANCE; and DOES 1 through 50, 18 inclusive, 19 Defendants. 20 21 ----oo0oo---- 22 Plaintiff Joseph Osegueda, individually and on behalf 23 of all other similarly situated employees, brought this putative 24 class action against Defendant Northern California InAlliance 25 (“InAlliance”) alleging violations of state and federal wage and 26 hour laws. (First Am. Compl. (“FAC”) (Docket No. 14).) Before 27 the court now are plaintiff’s unopposed motions for final 28 approval of the parties’ class action settlement and attorneys’ 1 fees, costs, and a class representative service payment. (Docket 2 Nos. 28, 29.) 3 I. Discussion1 4 The Ninth Circuit has declared a strong judicial policy 5 favoring settlement of class actions. Class Plaintiffs v. City 6 of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992); see also 7 Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 965 (9th Cir. 2009) 8 (“We put a good deal of stock in the product of an arms-length, 9 non-collusive, negotiated resolution[.]”) (citation omitted). 10 Rule 23(e) provides that “[t]he claims, issues, or defenses of a 11 certified class may be settled . . . only with the court’s 12 approval.” Fed. R. Civ. P. 23(e). 13 “Approval under 23(e) involves a two-step process in 14 which the Court first determines whether a proposed class action 15 settlement deserves preliminary approval and then, after notice 16 is given to class members, whether final approval is warranted.” 17 Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 18 525 (C.D. Cal. 2004) (citing Manual for Complex Litig. (Third), § 19 30.41 (1995)). This court satisfied step one by granting 20 plaintiff’s unopposed motion for preliminary approval of class 21 action settlement on January 15, 2020. (Docket No. 25.) Now, 22 following notice to the class members, the court will consider 23 whether final approval is merited by evaluating: (1) the 24 treatment of this litigation as a class action and (2) the terms 25

1 The court already recited the factual and procedural 26 background in its order granting plaintiff’s unopposed motion for 27 preliminary approval of the class action settlement. (See Order Granting Preliminary Approval at 2-4 (Docket No. 25).) 28 1 of the settlement. See Diaz v. Tr. Territory of Pac. Islands, 2 876 F.2d 1401, 1408 (9th Cir. 1989). 3 A. Class Certification 4 A class action will be certified only if it meets the 5 requirements of Rule 23(a)’s four prerequisites and fits within 6 one of Rule 23(b)’s three subdivisions. Fed. R. Civ. P. 23(a)- 7 (b). Although a district court has discretion in determining 8 whether the moving party has satisfied each Rule 23 requirement, 9 the court must conduct a rigorous inquiry before certifying a 10 class. See Califano v. Yamasaki, 442 U.S. 682, 701 (1979); Gen. 11 Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982). 12 1. Rule 23(a)

13 Rule 23(a) restricts class actions to cases where: (1) the class is so numerous that joinder of all 14 members is impracticable; (2) there are questions 15 of law or fact common to the class; (3) the claims or defenses of the representative parties are 16 typical of the claims or defenses of the class; and (4) the representative parties will fairly and 17 adequately protect the interests of the class. 18 Fed. R. Civ. P. 23(a). These requirements are commonly referred 19 to as numerosity, commonality, typicality, and adequacy of 20 representation. In the court’s order granting preliminary 21 approval of the settlement, the court found that the putative 22 class satisfied the Rule 23(a) requirements. (Order Granting 23 Preliminary Approval at 5-12.) The court is unaware of any 24 changes that would affect this conclusion, and the parties 25 indicated that they were aware of no such developments. (Mot. 26 for Final Approval at 11 (Docket No. 28).) Because the court is 27 not aware of any facts that would alter its initial Rule 23(a) 28 1 analysis, the court finds that the class definition proposed by 2 plaintiff meets the requirements of Rule 23(a).2 3 2. Rule 23(b) 4 An action that meets all the prerequisites of Rule 5 23(a) may be certified as a class action only if it also 6 satisfies the requirements of one of the three subdivisions of 7 Rule 23(b). Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th 8 Cir. 2013). In its order granting preliminary approval of the 9 settlement, the court found that both the predominance and 10 superiority prerequisites of Rule 23(b)(3) were satisfied. 11 (Order Granting Preliminary Approval at 12-15.) The court is 12 unaware of any changes that would affect this conclusion. 13 Because the settlement class satisfies both Rule 23(a) and 14 23(b)(3), the court will grant final class certification of this 15 action. 16 3. Rule 23(c)(2) Notice Requirements 17 If the court certifies a class under Rule 23(b)(3), it 18 “must direct to class members the best notice that is practicable 19 under the circumstances, including individual notice to all 20 members who can be identified through reasonable effort.” Fed. 21 R. Civ. P. 23(c)(2)(B). Rule 23(c)(2) governs both the form and 22 content of a proposed notice. See Ravens v. Iftikar, 174 F.R.D. 23 651, 658 (N.D. Cal. 1997) (citing Eisen v. Carlisle & Jacquelin, 24 417 U.S. 156, 172–77 (1974)). Although that notice must be 25

26 2 In its preliminary approval, noted that the numerosity requirement had been satisfied because defendant had identified 27 350 potential class members. That number has since decreased to 271, but numerosity is still met. 28 1 “reasonably certain to inform the absent members of the plaintiff 2 class,” actual notice is not required. Silber v. Mabon, 18 F.3d 3 1449, 1454 (9th Cir. 1994) (citation omitted). 4 The parties selected ILYM Group, Inc. (“ILYM”) to serve 5 as the Settlement Administrator. (Decl. of Graham S.P. Hollis in 6 Supp. of Final Approval (“Hollis Decl. in Supp. of Final 7 Approval”) ¶ 9 (Docket No. 28-2).) Defendant timely provided 8 ILYM with the class list, including the class members’ names, 9 social security numbers, last known addresses, and total number 10 of applicable workweeks worked.3 (Id. ¶ 11; Decl. of Madely Nava 11 (“Nava Decl.”) ¶ 5 (Docket No. 28-3).) 12 To ensure delivery of the notice packets, ILYM 13 processed the class members’ addresses through an Accurint skip 14 trace system and the United States Postal Service’s National 15 Change of Address Database. (Id. ¶¶ 6-7.) Notice packets were 16 mailed to all class members by First Class Mail on April 17, 17 2020. (Id. ¶ 8.) Initially, 25 packets were returned as 18 undeliverable, but 13 were eventually re-mailed and successfully 19 delivered. (Id. ¶¶ 9-11.) The June 16, 2020 deadline to request 20 exclusion came and passed without any class member objecting to 21 the settlement. (Id. ¶¶ 12-13.) 22 “Notice is satisfactory if it ‘generally describes the 23 3 Defendant originally anticipated there would be 24 approximately 375 class members following plaintiff’s response to special interrogatories. Following the preliminary approval 25 motion, defendant confirmed 271 class members after a diligent record search, 195 of which are also members of the Waiting Time 26 Penalties Subclass. (Hollis Decl. in Supp. of Final Approval ¶ 27 11.) Additionally, 204 of the settlement class members are PAGA employees who will receive a portion of the PAGA allocation. 28 1 terms of the settlement in sufficient detail to alert those with 2 adverse viewpoints to investigate and to come forward and be 3 heard.’” Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 4 575 (9th Cir. 2004) (quoting Mendoza v. Tucson Sch. Dist. No. 1, 5 623 F.2d 1338, 1352 (9th Cir. 1980)). The notice identifies the 6 parties, explains the nature of the proceedings, defines the 7 class, provides the terms of the settlement, and explains the 8 procedure for objecting or opting out of the class. (Nava Decl. 9 ¶ 8, Ex. A.) The notice also explains how class members’ 10 individual settlement awards will be calculated, and the amount 11 that class members can expect to receive. (Id.) Accordingly, 12 the notice complies with Rule 23(c)(2)(B)’s requirements.

13 B. Rule 23(e): Fairness, Adequacy, and Reasonableness of Proposed Settlement 14 15 Having determined that class treatment is warranted, 16 the court must now address whether the terms of the parties’ 17 settlement appear fair, adequate, and reasonable. See Fed. R. 18 Civ. P. 23(e)(2). To determine the fairness, adequacy, and 19 reasonableness of the agreement, the court must consider “a 20 number of factors,” including: 21 Strength of the plaintiff’s case; the risk, expense, complexity, and likely duration of 22 further litigation; the risk of maintaining class action status throughout the trial; the amount 23 offered in settlement; the extent of discovery completed and the stage of the proceedings; the 24 experience and views of counsel; the presence of 25 a governmental participant; and the reaction of the class members to the proposed settlement. 26 27 Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998). 28 However, “[t]he factors in a court’s fairness assessment will 1 naturally vary from case to case.” In re Bluetooth Headset 2 Prods. Liab. Litig., 654 F.3d 935, 946 (9th Cir. 2011). 3 1. Strength of the Plaintiff’s Case 4 One particularly important consideration is the 5 strength of plaintiff’s case on the merits compared to the 6 settlement amount offered. See DIRECTV, 221 F.R.D. at 526. The 7 court, however, is not required to resolve the underlying 8 merits, “for it is the very uncertainty of outcome in litigation 9 and avoidance of wastefulness and expensive litigation that 10 induce consensual settlements.” Officers for Justice v. Civ. 11 Serv. Comm’n of City & County of San Francisco, 688 F.2d 615, 12 625 (9th Cir. 1982). 13 Although plaintiff maintains his claims are meritorious 14 and he would have prevailed at trial, he acknowledges that 15 defendant possesses legitimate defenses to both liability and 16 class certification. (See Initial Decl. of Graham S.P. Hollis 17 (“Initial Hollis Decl.”) ¶¶ 26-30 (Docket No. 23-2).) For 18 example, plaintiff’s main claim for failure to pay overtime wages 19 for hours worked during “sleep time” and the ninth hour of the 20 workday would be precluded if InAlliance is exempt from 21 California’s Domestic Worker Bill of Rights, as defendant 22 contends. (Mot. for Final Approval at 17.) In addition, as 23 defendant acknowledges, if plaintiff’s claims were to succeed, 24 defendant would unlikely be unable to satisfy a judgment against 25 it. (Initial Hollis Decl. ¶ 64 (“Absent a Settlement, the 26 precarious financial situation of the corporate Defendant would 27 have likely lead to a bankruptcy filing, further delay, and the 28 real possibility of recovering $0 for Plaintiff and the putative 1 class.”).) Accordingly, the court finds the proposed settlement 2 is a fair resolution of the issues in this case and will prevent 3 potential uncertainty. This factor weighs in favor of 4 settlement. 5 2. Risk, Expense, Complexity, and Further Litigation 6 Formal discovery in this case is still in its early 7 stages. Absent settlement, the parties most likely would have 8 had to litigate class certification and summary judgment, both of 9 which would cause additional expense and substantially reduce, 10 delay, or eliminate class members’ recovery. (Initial Hollis 11 Decl. ¶¶ 62, 64.) Furthermore, defendant would have been likely 12 to appeal a favorable judgment for plaintiff, resulting in 13 further expense and exacerbating defendant’s potential 14 bankruptcy. (Id. ¶¶ 64-65.) Accordingly, this factor also 15 weighs in favor of settlement. 16 3. Risk of Maintaining Class Action Status 17 If this case had proceeded to trial, plaintiff 18 admittedly would have faced several risks regarding the 19 maintenance of class status, mostly in regard to his off-the- 20 clock claims. (Mot. for Final Approval at 20.) Plaintiff also 21 acknowledges that, if the parties had continued to litigate this 22 matter, defendant could have moved to decertify the FLSA 23 collective action at any time prior to trial. See Campbell v. 24 City of Los Angeles, 903 F.3d 1090, 1105 (9th Cir. 2018). 25 Accordingly, this factor also weighs in favor of settlement. 26 4. Amount Offered in the Settlement 27 In assessing the amount offered in settlement, “[i]t is 28 the complete package taken as a whole, rather than the individual 1 component parts, that must be examined for overall fairness.” 2 Officers for Justice, 688 F.2d at 628. “It is well-settled law 3 that a cash settlement amounting to only a fraction of the 4 potential recovery will not per se render the settlement 5 inadequate or unfair.” Id. 6 Here, the gross settlement fund is $225,000. (Nava 7 Decl. ¶ 16.) The total net settlement fund is estimated to be 8 $116,043.42, following distribution of the gross amount as 9 follows: (1) $75,000 for class counsel fees; (2) $8,869.33 for 10 litigation costs; (3) $5,000 for plaintiff as an incentive award; 11 (4) $8,801.25 for ILYM’s administration fees; (5) $8,473.50 for 12 California Labor & Workforce Development Agency payments; and (5) 13 $2,812.50 in PAGA allocations. (Id.) The distribution of the 14 net settlement fund will occur on a pro rata basis, based on the 15 ratio of the applicable workweeks worked by each class member 16 during the class period to the total number of applicable 17 workweeks worked by all class members during the class period. 18 (Id. ¶ 18.) The average recovery per class member is estimated 19 to be $406.79. (Id. ¶ 21.) Additionally, each class member who 20 opted into the FLSA portion of the settlement will receive an 21 additional $118.41. (Id. ¶ 19.) 22 While this amount will undoubtedly “be less than what 23 some class members feel they deserve” but will likely be “more 24 than the defendants feel they are entitled to,” the amount 25 represents a reasonable compromise on plaintiff’s wage and hour 26 claims. See Officers for Justice, 688 F.2d at 615. Generally, 27 “unless the settlement is clearly inadequate, its acceptance and 28 approval are preferable to lengthy and expensive litigation with 1 uncertain results.” DIRECTV, Inc., 221 F.R.D. at 526. This 2 settlement avoids the potential to incur great litigation 3 expenses for both parties and provides a non-insignificant 4 benefit to class members. In light of the risks and expense of 5 further litigation, the court finds the settlement amount to be 6 fair and adequate. 7 5. Extent of Discovery Completed 8 While formal discovery in this action had only begun, 9 settlement discussions between the two parties occurred after 10 exchanging substantial relevant information and engaging in 11 extensive arms-length negotiations under the supervision of David 12 L. Perrault, a mediator well-versed in wage and hour class action 13 matters. (Initial Hollis Decl. ¶ 31.) Given the plaintiff’s 14 sophisticated representation and the parties’ joint agreement 15 that the settlement reached was the product of arms-length 16 bargaining, the court finds the discovery conducted adequately 17 informed the settlement negotiation. See Fraley v. Facebook, 18 Inc., 966 F. Supp. 2d 939, 942 (N.D. Cal. 2013) (holding that a 19 settlement reached after informed negotiations “is entitled to a 20 degree of deference as the private consensual decision of the 21 parties” (citing Hanlon, 150 F.3d at 1027)). 22 6. The Experience and Views of Counsel 23 “When approving class action settlements, the court 24 must give considerable weight to class counsel’s opinions due to 25 counsel’s familiarity with the litigation and its previous 26 experience with class action lawsuits.” Murillo v. Pac. Gas & 27 Elec. Co., Civ. No. 2:08-1974 WBS GGH, 2010 WL 2889728, at *8 28 (E.D. Cal. July 21, 2010). Here, plaintiff has provided evidence 1 that class counsel has substantial experience in prosecuting 2 class actions, including employment actions and wage-and-hour 3 matters. (Hollis Decl. in Supp. of Final Approval ¶¶ 5-8, Ex. 4 C.) Based on his experience, plaintiff’s counsel believes the 5 proposed settlement is fair, reasonable, and adequate to the 6 class under the circumstances, as it reflects a reasoned 7 compromise which not only takes into consideration the inherent 8 risks in wage and hour class litigation, but the various issues 9 in this case which had the potential to substantially reduce or 10 completely eliminate recovery by class members. (Mot. for Final 11 Approval at 21.) This factor supports approval of the settlement 12 agreement. 13 7. Presence of Government Participant 14 No governmental entity participated in this matter. 15 Accordingly, this factor is irrelevant to the court’s analysis. 16 8. Reaction of the Class Members to the Settlement 17 Not a single class member submitted requests for 18 exclusion prior to the June 16, 2020 deadline. (Nava Decl. ¶¶ 8, 19 12.) No class members have objected to the settlement. (Id. ¶ 20 13.) “It is established that the absence of a large number of 21 objections to a proposed class action settlement raises a strong 22 presumption that the terms of a proposed class settlement action 23 are favorable to the class members.” DIRECTV, 221 F.R.D. at 529. 24 Accordingly, this factor weighs in favor of the court’s approval 25 of the settlement. 26 9. Conclusion 27 Having considered the foregoing factors, the court 28 finds that the settlement is fair, adequate, and reasonable 1 pursuant to Rule 23(e). See Hanlon, 150 F.3d at 1026. 2 C. Attorneys’ Fees4 3 Federal Rule of Civil Procedure 23(h) provides, “[i]n a 4 certified class action, the court may award reasonable attorney’s 5 fees and nontaxable costs that are authorized by law or by the 6 parties’ agreement.” Fed. R. Civ. P. 23(h). If a negotiated 7 class action settlement includes an award of attorneys’ fees, 8 that fee award must be evaluated in the overall context of the 9 settlement. Knisley v. Network Assocs., 312 F.3d 1123, 1126 (9th 10 Cir. 2002); Monterrubio v. Best Buy Stores, L.P., 291 F.R.D. 443, 11 455 (E.D. Cal. 2013) (England, J.). The court “ha[s] an 12 independent obligation to ensure that the award, like the 13 settlement itself, is reasonable, even if the parties have 14 already agreed to an amount.” Bluetooth Headset, 654 F.3d at 15 941. 16 “Under the ‘common fund’ doctrine, ‘a litigant or a 17 lawyer who recovers a common fund for the benefit of persons 18 other than himself or his client is entitled to a reasonable 19 [attorneys’] fee from the fund as a whole.’” Staton v. Boeing 20 Co., 327 F.3d 938, 969 (9th Cir. 2003) (quoting Boeing Co. v. Van 21 Gemert, 444 U.S. 472, 478 (1980)). In common fund cases, the 22 district court has discretion to determine the amount of 23 attorneys’ fees to be drawn from the fund by employing either the 24 4 In its preliminary approval for class action 25 settlement, the court expressed reservations about the amount of the requested fee and cautioned class counsel that the “reasons 26 for the attorney’s fees should be explained further in counsel’s 27 fee motion.” (Preliminary Approval Order at 20.) Counsel has satisfied the court’s concerns in the motion for attorneys’ fees 28 1 percentage method or the lodestar method. Id. The court may 2 also use one method as a “cross-check[ ]” upon the other method. 3 See Bluetooth Headset, 654 F.3d at 944. 4 As part of the settlement, the parties agreed to an 5 award of attorneys’ fees of $75,000, which constitutes 33.33% of 6 the gross settlement fund. (Hollis Decl. in Supp. of Final 7 Approval ¶ 10.) Counsel represents that this award constitutes a 8 fair market charge for the benefits conferred on the class 9 members. (Id. ¶¶ 41-43.) As discussed, absent a settlement, it 10 was quite likely that class members would be unable to recover 11 anything from InAlliance due to bankruptcy. (Initial Hollis 12 Decl. ¶ 64.) As a result of the settlement, on average, class 13 members will recover approximately $406.79. (Hollis Decl. in 14 Supp. of Final Approval ¶ 23.) This is a substantial amount that 15 will be available to class members without further delay. 16 Additionally, the attorneys’ fees requested by counsel 17 are below the lodestar figure of $234,011.00, as calculated by 18 plaintiff’s counsel.5 (Id. ¶ 45.) Plaintiff’s counsel maintains 19 contemporaneous billing logs which reflect time billed in one- 20 tenth of an hour increments. (Id. ¶ 46.) Over the span of two 21 years, partners, associates, law clerks, case managers, and 22 paralegals at the firm have dedicated 504.9 hours of work to this 23 case.6 (Id. ¶¶ 46-49, 52.) The firm is highly specialized in 24 5 The court expresses no opinion as to the proper 25 lodestar amount in this case.

26 6 The firm’s hourly rates for shareholders fall between 27 $725 and $840 per hour; associates, between $370 and $675; paralegals, $240; case managers, $185; and law clerks, $175. 28 1 wage and hour matters and class action cases, and the firm’s 2 hourly rates comport with those of attorneys of similar skill and 3 experience. (Id. ¶¶ 48-50.) 4 While the attorneys’ fees requested is above the 25% 5 “benchmark” set by the Ninth Circuit for “common fund” 6 settlements, see Six Mexican Workers v. Arizona Citrus Growers, 7 904 F.2d 1301, 1311 (9th Cir. 1990), courts in this circuit have 8 approved fees that exceeded that “benchmark” in many cases. See, 9 e.g., Bond v. Ferguson Enters., Inc., No. 1:09-CV-1662 OWW MJS, 10 2011 WL 2648879, at *9 (E.D. Cal. June 30, 2011) (“[T]he exact 11 percentage [of attorneys’ fees] varies depending on the facts of 12 the case, and in most common fund cases, the award exceeds [the 13 25%] benchmark.”). A fees award amounting to “33 1/3 % of the 14 total settlement value” is considered “acceptable.” Id. 15 Furthermore, “a review of California cases . . . reveals that 16 courts usually award attorneys’ fees in the 30-40% range in wage 17 and hour class actions that result in recovery of a common fun[d] 18 under $10 million.” Cicero v. DirecTV, Inc., Civ. No. 07-1182, 19 2010 WL 2991486, at *6 (C.D. Cal. July 27, 2010). In addition, 20 the fact that the requested fees in this case are well below the 21 lodestar figure further supports granting approval. See Vizcaino 22 v. Microsoft Corp., 290 F.3d 1043, 1050 (9th Cir. 2002) (“[T]he 23 lode star ... provides a check on the reasonableness of the 24 percentage award.”). 25 In light of the fees usually awarded in these types of 26 cases, the risks counsel incurred by taking this case on a 27 contingency basis, the time and effort spent litigating this 28 case, and the reasonable result obtained for class members, the 1 court finds the requested fees are reasonable. Accordingly, the 2 court will approve counsel’s motion for attorneys’ fees. 3 D. Costs 4 “There is no doubt that an attorney who has created a 5 common fund for the benefit of the class is entitled to 6 reimbursement of reasonable litigation expenses from that fund.” 7 In re Heritage Bond Litig., Civ. No. 02-1475, 2005 WL 1594403, at 8 *23 (C.D. Cal. June 10, 2005). Here, the parties agreed that 9 plaintiff’s counsel shall be entitled to recover reasonable 10 litigation costs, not to exceed $9,000. (Initial Hollis Decl., 11 Ex. B at ¶ 2.9.1.) Counsel’s litigation expenses and costs are 12 $8,869.33. (Hollis Decl. in Supp. of Final Approval ¶ 60.) 13 These expenses include the fees paid for attorney services, court 14 reporters, mediation, legal research, photocopies, postage, 15 overnight delivery expenses, travel, and the like. (Id.) The 16 court finds these are reasonable litigation expenses. Therefore, 17 the court will grant class counsel’s request for costs in the 18 amount of $8,869.33. 19 E. Representative Service Award 20 “Incentive awards are fairly typical in class action 21 cases.” Rodriguez, 563 F.3d at 958. “[They] are intended to 22 compensate class representatives for work done on behalf of the 23 class, to make up for financial or reputational risk undertaken 24 in bringing the action, and, sometimes, to recognize their 25 willingness to act as a private attorney general.” Id. at 958- 26 59. In assessing the reasonableness of incentive payments, the 27 court should consider “the actions the plaintiff has taken to 28 protect the interests of the class, the degree to which the class 1 has benefitted from those actions” and “the amount of time and 2 effort the plaintiff expended in pursuing the litigation.” 3 Staton, 327 F.3d at 977 (citation omitted). The court must 4 balance “the number of named plaintiffs receiving incentive 5 payments, the proportion of the payments relative to the 6 settlement amount, and the size of each payment.” Id. In the 7 Ninth Circuit, an incentive award of $5,000 is presumptively 8 reasonable. Davis v. Brown Shoe Co., Inc., No. 1:13-01211 LJO 9 BAM, 2015 WL 6697929, at *11 (E.D. Cal. Nov. 3, 2015) (citing 10 Harris v. Vector Marketing Corp., No. C-08-5198 EMC, 2012 WL 11 381202, at *7 (N.D. Cal. Feb. 6, 2012) (collecting cases). 12 The single named plaintiff, Joseph Osegueda, seeks an 13 incentive payment of $5,000 for his time and effort in 14 representing the class. (Hollis Decl. in Supp. of Final Approval 15 ¶ 60.) Osegueda represents that he has devoted significant time 16 and resources to the case over a period of two years, risking 17 both his finances and his reputation. (Decl. of Joseph Osegueda 18 (“Osegueda Decl.”) ¶ 4 (Docket No. 29-4).) Plaintiff also states 19 that he spent a significant amount of time assisting class 20 counsel in the development of this case by responding to 21 discovery, participating in mediation, assisting in the 22 preparation and evaluation of the case, and evaluating and 23 approving the proposed settlement on behalf of the class. (Id. 24 ¶¶ 6-11.) In light of plaintiff’s efforts and risks incurred in 25 bringing this action, the court finds his requested incentive 26 award to be reasonable and will approve the award. 27 II. Conclusion 28 Based on the foregoing, the court will grant final 1 certification of the settlement class and will approve the 2 settlement set forth in the settlement agreement as fair, 3 reasonable, and adequate. The settlement agreement shall be 4 binding upon all participating class members who did not exclude 5 themselves. 6 IT IS THEREFORE ORDERED that plaintiff’s unopposed 7 motions for final approval of class action settlement and 8 attorneys’ fees, costs, and incentive award (Docket Nos. 28, 29) 9 be, and the same hereby are, GRANTED. 10 IT IS FURTHER ORDERED THAT: 11 (1) Solely for the purpose of this settlement, and 12 pursuant to Federal Rule of Civil Procedure 23, the court hereby 13 certifies the following class: all current or former employees of 14 InAlliance who worked in the State of California in the position 15 of Independent Living Facilitator (“ILF”) at any time from 16 February 22, 2014 through January 13, 2020. 17 (2) The court appoints the named plaintiff Joseph 18 Osegueda as class representative and finds that he meets the 19 requirements of Rule 23; 20 (3) The court appoints law firm of GrahamHollis APC as 21 class counsel and finds that it meets the requirements of Rule 22 23; 23 (4) The settlement agreement’s plan for class notice is 24 the best notice practicable under the circumstances and satisfies 25 the requirements of due process and Rule 23. The plan is 26 approved and adopted. The notice to the class complies with Rule 27 23(c)(2) and Rule 23(e) and is approved and adopted; 28 (5) The court finds that the parties and their counsel 1 took appropriate efforts to locate and inform all class members 2 of the settlement. Given that no class member filed an objection 3 to the settlement, the court finds that no additional notice to 4 the class is necessary; 5 (6) As of the date of the entry of this order, 6 plaintiff and all class members who have not timely opted out of 7 this settlement herby do and shall be deemed to have fully, 8 finally, and forever released, settled, compromised, 9 relinquished, and discharged defendants of and from any and all 10 settled claims, pursuant to the release provisions stated in the 11 parties’ settlement agreement; 12 (7) Plaintiff’s counsel is entitled to fees in the 13 amount of $75,000, and litigation costs in the amount of 14 $8,869.33; 15 (8) ILYM Group, Inc. is entitled to administration 16 costs in the amount of $8,801.25; 17 (9) $8,473.50 from the gross settlement amount shall be 18 paid to the California Labor and Workforce Development Agency in 19 satisfaction of defendants’ alleged penalties under the Labor 20 Code Private Attorneys General Act; 21 (10) The remaining settlement funds shall be paid to 22 participating class members in accordance with the terms of the 23 settlement agreement; and 24 (11) This action is dismissed with prejudice. However, 25 without affecting the finality of this Order, the court shall 26 retain continuing jurisdiction over the interpretation, 27 implementation, and enforcement of the settlement agreement with 28 respect to all parties to this action and their counsel of ee EERE IERIE IU DEI IOI IEE ISG III IIIS II IER OE IIE ESO

1 | record. 2 The clerk is instructed to enter judgment accordingly. 3 Dated: July 20, 2020 4 ahhh A hh. be — WILLIAM B. SHUBB 5 UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19