SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA

KEVIN FLETCHER, individually, and on behalf of other members of the general public similarly situated and on behalf of other aggrieved employees pursuant to the California Private Attorneys General Act,

Plaintiff,

vs.

SILICON VALLEY BANK, a California corporation; and DOES 1 through 100, inclusive,

Defendants.
Case No. 2015-1-CV-285790

TENTATIVE RULING RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, ATTORNEYS’ FEES, COSTS, AND ENHANCEMENT AWARD

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on September 21, 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 Class Action Complaint, filed on July 3, 2017, sets forth the following causes of action: (1) Violation of California Labor Code §§ 510 and 1198 (Unpaid Overtime); (2) Violation of California Labor Code §§ 226.7 and 512(a) (Unpaid Meal Period Premiums); (3) Violation of California Labor Code § 226.7 (Unpaid Rest period Premiums); (4) Violation of California Labor Code §§ 201 and 202 (Final Wages Not Timely Paid); (5) Violation of California Labor Code § 204 (Wages Not Timely Paid During Employment); (6) Violation of California Labor Code § 226(a) (Non-Compliant Wage Statements); (7) Violation of California Labor Code § 1174(d) (Failure to Keep Requisite Payroll Records); (8) Violation of California Labor Code §§ 2800 and 2802 (Unreimbursed Business Expenses); (9) Violation of California Business & Professions Code § 17200, et seq.; and (10) Violation of California Labor Code § 2698, et seq. (California Labor Code Private Attorneys General Act of 2004).

The parties have reached a settlement. On May 18, 2018, the Court granted Plaintiff Kevin Fletcher’s (“Plaintiff”) motion for preliminary approval of the settlement. Plaintiff now moves for final approval of the settlement.

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

The case has been settled on behalf of all persons who were employed by defendant Silicon Valley Bank in California within the Financial Investigative Unit (“FIU”) as Fraud Operations Officers, Operations Officer – Fraud, Senior Fraud Operations Officers, Fraud Supervisors, Senior Anti-Money Laundering (“AML”)/Bank Secrecy Act (“BSA”) Analysts, AML/BSA Supervisors, FIU/AML Operations Team Leads, Enhanced Due Diligence (“EDD”) Specialists, Senior EDD Specialists, EDD Team Leaders, and Senior Fraud Technical Analysts, from September 17, 2011 through the date of preliminary approval. (Declaration of Edwin Aiwazian in Support of Plaintiff’s Motion for Preliminary Approval of Class Action Settlement (“Aiwazian Decl.”), Ex. 1 (Joint Stipulation of Settlement and Release), at ¶¶ 6-7.)

Pursuant to the settlement, Defendant agreed to pay a total of $1,000,000. (Aiwazian Decl., Ex. 1, at ¶ 13.) This amount includes attorneys’ fees up to $350,000, litigation costs and expenses up to $45,000, an enhancement award of $6,000 for the class representative, a PAGA payment of $10,000 ($7,500 of which will be paid to the LWDA), settlement administration costs of up to $6,000, and the employer’s payroll taxes for the wage portion of the settlement awards. (Id. at ¶ 14(c).)

Class members are paid based on weeks worked. (Aiwazian Decl., Ex. 1, ¶ 14(c)(i).) Partial workweeks are not counted, but if a class member worked only one day, that class member will be credited with one work week for purposes of settlement. (Ibid.) For each payment, one-third will be allocated to unpaid wages, one-third will be allocated to unpaid penalties, and one-third will be allocated to unpaid interest. (Id. at ¶ 14(c)(i).) Checks that are uncashed after 180 days will be distributed as follows: 25% to the State Treasury for deposit in the Trial Court Improvement and Modernization Fund and 75% to the State Treasury for deposit into the Equal Access Fund of the Judicial Branch. (Id. at ¶ 18.)

On July 2, 2018, the class action settlement administrator, Simpluris, Inc., mailed notice packets to the 34 class members. (Declaration of Jessica Barnett Regarding Notice and Settlement Administration (“Barnett Decl.”), at ¶ 8.) Simpluris learned that three class members were mis-identified, so it immediately it informed them they were not class members. (Id. at ¶ 9.) One packet was returned as undeliverable and later remailed to an updated address. (Id. at ¶ 10.) As of August 28, 2018 Simpluris believed all packets had been delivered. Simpluris has not received any requests for exclusion, objections to the settlement, or disputes over the number of workweeks. (Id. at ¶¶ 11-13.)

Simpluris has calculated that class members will receive compensation between $2,664.52 and $35,663.56 based on the number of weeks they worked. (Barnett Decl., at ¶ 16.) The average award is $17,864.84. (Ibid.)

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 $6,000 based on his service as a class representative.

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.)

Mr. Fletcher has submitted a declaration in which he states he spent approximately 40 hours gathering information and participating in this litigation. (Declaration of Kevin Fletcher in Support of Plaintiff’s Motion for Final Approval of Class Action Settlement, Attorney Fees, Costs and Enhancement Award, at ¶¶ 2-5.) Based on his declaration, the Court will approve an incentive award of $6,000.

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 $350,000 (35% of the total settlement fund) plus actual costs of $22,751.29. As a cross-check on the reasonableness of the fee award, Plaintiff’s counsel provides a lodestar figure of $367,800. (Declaration of Edwin Aiwazian in Support of Plaintiffs’ Motion for Final Approval of Class Action Settlement, Attorney Fees, Costs and Enhancement Award, at ¶¶ 11-12.) This results in a negative multiplier. The Court finds the requested attorneys’ fees are reasonable, and therefore approves the fees and costs.

Lastly, Plaintiff requests approval of $5,000 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 $5,000. (See Barnett Decl., at ¶ 14.)

The Motion for Final Approval of Class Action Settlement, Attorney Fees, Costs and Enhancement Award is GRANTED.

If this tentative ruling is not contested, the Court will prepare the final order and judgment. The Court will also sign the Proposed Final Approval Order and Judgment submitted by Plaintiff.