SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA

JOEY HARSAGHY, individually and on behalf of all others similarly situated,

Plaintiff,

vs.

PURE STORAGE, INC., a Delaware Corporation; SECURE TALENT, INC., a California Corporation; and DOES 1-100, inclusive,

Defendants.
Case No. 2017-1-CV-312254

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 August 17, 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 arising out of various alleged Labor Code violations. The First Amended Complaint, filed on July 3, 2017, sets forth the following causes of action: (1) Failure to Pay Overtime Wages (Lab. Code, §§ 1194, 510); (2) Failure to Pay Minimum Wage (Lab. Code §§ 1182.12, 1194, et seq., 1197, et seq.; Minimum Wage Order); (3) Failure to Furnish Timely/Accurate Wage Statements (Record-Keeping Violations) (Lab. Code §§ 226, 1174); (4) Waiting Time Penalties (Failure to Pay Full Wage of Terminated Employees) (Lab. Code §§ 201-203); (5) Unlawful Business Practices (Bus. & Prof. Code, § 17200, et seq.); and (6) Violation of Private Attorney General Act of 2004 (“PAGA”) (Lab. Code § 2698, et seq.)

The parties have reached a settlement. On April 27, 2018, the Court granted Plaintiff Joey Harsaghy’s (“Plaintiff”) motion for preliminary approval of the settlement. Plaintiff now moves 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:

All persons who worked for Defendants in California as temporary or contract talent acquisition “Sourcers” or “Recruiting Coordinators” (or similarly nomenclatured positions performing substantially identical functions and/or duties) at Pure Storage during the Class Period.

Pursuant to the settlement, defendants Pure Storage, Inc. and Secure Talent, Inc. (together, “Defendants”) will pay a total of $325,000, with $265,000 from Pure Storage and $65,000 from Secure Talent. This amount includes attorneys’ fees of up to $108,322, costs of $15,000, an enhancement payment of $10,000 for the class representative, a PAGA payment of $10,000 ($7,500 of which will be paid to the LWDA), and an estimated amount of $10,000 to the settlement administrator.

On June 1, 2018, notice packets were mailed to the 27 class members on the class list provided to the class administrator, Rust Consulting, Inc. (Declaration of Jennifer Mills for Rust Consulting, Inc., ¶ 10.) As of July 19, 2018, there are no undeliverable notice packets. (Id. at ¶ 11.) As of the same date, Rust has received one dispute form, which was blank. (Id. at ¶ 12.) Rust attempted to contact the class member who submitted the dispute form, but has received no further communications or correspondence from the class member. (Ibid.) There have been no requests for exclusion or objections. (Id. at ¶¶ 12-14.)

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

Plaintiff requests an incentive award of $10,000 for class representative Joey Harsaghy.

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.)

Harsaghy has submitted a declaration in which he states he spent dozens of hours to help gather information and litigate the case. (Declaration of Class Representative Joey Harsaghy in Support of Motion for Final Approval of Class Settlement, ¶ 7.) He also states he was aware that being a class representative could impact his career and future employment, and that he might be responsible for some or all of Defendants’ legal costs if he did not prevail. (Id. at ¶ 10.) Based on the declarations, the Court finds incentive award is warranted. However, $10,000 is too high. The Court will approve an incentive award of $5,000.

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.) Plaintiff’s counsel requests attorneys’ fees of $108,322 (approximately 1/3 of the total settlement fund) plus actual costs of $14,054. As a cross-check on the reasonableness of the fee award, Plaintiff’s counsel provides a lodestar figure of $61,555. (Declaration of Matthew S. Da Vega in Support of Plaintiffs’ Unopposed Motion for Final Approval of Class Settlement and Attorney Fees and Costs, ¶ 20.) This results in a multiplier of 1.76. While this multiplier is somewhat higher than average, the Court finds the requested attorneys’ fees are reasonable as a percentage of the settlement and the fees and costs are approved.

Lastly, Plaintiff requests approval of $11,000 in actual costs for the class administrator. At the time of preliminary approval, it was estimated administration costs would be $10,000. The administration costs are approved in the amount of $11,000.

Subject to the modification to the incentive award, the motion for final approval of class action settlement is GRANTED.

The Court will prepare the final order and judgment if this tentative ruling is not contested.