SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA

BRADLEY LAUFER and BRIAN WEBER on behalf of themselves and all others similarly situated, and on behalf of the general public and aggrieved employees,

Plaintiffs,

vs.

EAT CLUB INC., a Delaware Corporation, and DOES 1 through 50,

Defendants.
Case No. 2017-1-CV-310764

TENTATIVE RULING RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on June 15, 2018, at 9:00 a.m. in Department 5. The Court now issues its tentative ruling as follows:

I. INTRODUCTION

This is a putative class action. According to the allegations of the First Amended Complaint (“FAC”), filed on August 4, 2017, plaintiffs Bradley Laufer and Brian Weber (together, “Plaintiffs”) are employed as food delivery drivers by defendant EAT Club Inc. (“Defendant”). (FAC, ¶ 1.) Plaintiffs allege Defendant required Plaintiffs and other delivery drivers to incur business expenses by using their personal smartphones and personal vehicles without reimbursement. (FAC, ¶ 7.)

The FAC sets forth the following causes of action: (1) Unlawful Failure to Reimburse Business Expenses; (2) Unfair Business Practices Under the Unfair Competition Law; and (3) Recovery Under Private Attorneys General Act (PAGA). The parties have reached a settlement. On February 16, 2018, the Court granted preliminary approval of the settlement. Plaintiffs now move for final approval.

II. LEGAL STANDARD

Generally, “questions whether a settlement was fair and reasonable, whether notice to the class was adequate, whether certification of the class was proper, and whether the attorney fee award was proper are matters addressed to the trial court’s broad discretion.” (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 234-235, citing Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794.)
In determining whether a class settlement is fair, adequate and reasonable, the trial court should consider relevant factors, such as “the strength of plaintiffs’ case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction of the class members to the proposed settlement.”

(Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at pp. 244-245, citing Dunk, supra, 48 Cal.App.4th at p. 1801 and Officers for Justice v. Civil Service Com’n, etc. (9th Cir. 1982) 688 F.2d 615, 624.)

“The list of factors is not exclusive and the court is free to engage in a balancing and weighing of factors depending on the circumstances of each case.” (Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 245.) The court must examine the “proposed settlement agreement to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.” (Ibid., quoting Dunk, supra, 48 Cal.App.4th at p. 1801 and Officers for Justice v. Civil Service Com’n, etc., supra, 688 F.2d at p. 625, internal quotation marks omitted.)

The burden is on the proponent of the settlement to show that it is fair and reasonable. However “a presumption of fairness exists where: (1) the settlement is reached through arm’s-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.”

(Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 245, citing Dunk, supra, 48 Cal.App.4th at p. 1802.)

III. DISCUSSION

As discussed in connection with the motion for preliminary approval, the case has been settled on behalf of the following class:

[A]ll non-exempt employees who were employed by Defendant as Delivery Representatives in the State of California during the Covered Period.

(Declaration of Kevin R. Allen, Esq. in Support of Plaintiffs’ Motion Final Approval of Class Action Settlement and Motion for Fees, Costs, and Service Award (“Allen Decl.”), Ex. 1 (“Settlement Stipulation”), ¶ I(C).)

Pursuant to the settlement, Defendant will pay a total of $475,000. (Settlement Stipulation”), ¶ I(S).) This amount includes $156,750 for attorneys’ fees (33% of maximum settlement amount), a PAGA penalty payment of $20,000 of which $15,000 will be paid to the California Labor and Workforce Development Agency, and an enhancement award of $10,000 for each of the named plaintiffs. (Id. at ¶ III(L).) Defendant will also pay actual litigation costs of $7,273.44 and actual settlement administration expenses of $11,709.

The settlement administrator, Dahl Administration, LLC (“Dahl”), mailed notice packets to 947 class members on March 26, 2018. (Declaration of Kelly Kratz Regarding Notice and Settlement Administration Activities Completed as of May 20, 2018, ¶ 6.) As of May 20, 2018, there have been no objections and there has been one request for exclusion. The estimated average payment for class members is $279.04 with $2,260.81 as the maximum estimated payment and $0.29 as the minimum payment. (Id. at ¶ 11.)

The Court previously found that the proposed settlement is fair and the Court continues to make that finding for purposes of final approval.

Plaintiffs request service payments of $10,000 to class representatives Bradley Laufer and Brian Weber.

The rationale for making enhancement or incentive awards to named plaintiffs is that they should be compensated for the expense or risk they have incurred in conferring a benefit on other members of the class. An incentive award is appropriate if it is necessary to induce an individual to participate in the suit. Criteria courts may consider in determining whether to make an incentive award include: 1) the risk to the class representative in commencing suit, both financial and otherwise; 2) the notoriety and personal difficulties encountered by the class representative; 3) the amount of time and effort spent by the class representative; 4) the duration of the litigation and; 5) the personal benefit (or lack thereof) enjoyed by the class representative as a result of the litigation. These “incentive awards” to class representatives must not be disproportionate to the amount of time and energy expended in pursuit of the lawsuit.

(Cellphone Termination Fee Cases (2010) 186 Cal.App.4th 1380, 1394-1395, quotation marks, brackets, ellipses, and citations omitted.)

Each of the class representatives has submitted a declaration discussing their participation in the case. They each state they spent at least 120 hours working on the case, including conference calls and meetings with counsel, review of documents, and preparation for and participation in mediation. (Declaration of Bradley Laufer in Support of Plaintiffs’ Motion for Final Approval of Class Action Settlement and Motion for Fees, Costs, and Service Award, ¶ 8; Declaration of Brian Weber in Support of Plaintiffs’ Motion for Final Approval of Class Action Settlement and Motion for Fees, Costs, and Service Award, ¶ 8.) The Court notes the two declarations are identical. Consequently, there is some question as to whether the asserted number of hours spent on the case is accurate. Nevertheless, the Court finds incentive awards are warranted. However, $10,000 for each class representative is too high. The Court will approve incentive awards of $5,000 for each representative.

The Court also has an independent right and responsibility to review the requested attorneys’ fees and only award so much as it determines reasonable. (See Garabedian v. Los Angeles Cellular Telephone Co. (2004) 118 Cal.App.4th 123, 127-128.) Plaintiffs’ counsel requests attorneys’ fees of $156,750 (33% of the total settlement fund) plus costs of $7,273.44. As a cross-check on the reasonableness of the fee award, Plaintiffs’ counsel provides a lodestar figure of $112,950. (Allen Decl., ¶ 19.) This results in a multiplier of 1.39. The Court finds the requested attorneys’ fees are reasonable and the fees and costs are approved.

The motion for final approval of class action settlement is GRANTED.

The Court will sign the [Proposed] Final Order and Judgment Granting Plaintiffs’ Motion for Final Approval of Class Action Settlement and Motion for Fees, Costs, and Service Award, with a modification to paragraph 13 regarding the “Enhancement Award to Class Representatives” reflecting the analysis above, if this tentative ruling is not contested.