Case Name: Denise Clamens-Hollenback v. Atterro, Inc., et al.
Case No.: 17-CV-305535

* This tentative ruling was issued to the parties on June 6, 2018.

This is a putative wage and hour class action by employees of defendant Atterro, Inc. Plaintiff alleges that Atterro failed to timely pay accrued paid time off to employees at separation, belatedly issued final paychecks, and provided wage statements that did not state the correct entity address. The parties have reached a settlement, which the Court preliminarily approved on February 2, 2017. Plaintiff now moves for final approval of the settlement and approval of her attorney fees, costs, and enhancement award. Plaintiff’s motion is unopposed.

I. Legal Standard for Approving a Class Action Settlement

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, internal citations and quotations omitted.)

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 v. Ford Motor Co., supra, 48 Cal.App.4th at p. 1801, 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 v. Ford Motor Co., supra, 48 Cal.App.4th at p. 1802.) The presumption does not permit the Court to “give rubber-stamp approval” to a settlement; in all cases, it must “independently and objectively analyze the evidence and circumstances before it in order to determine whether the settlement is in the best interests of those whose claims will be extinguished,” based on a sufficiently developed factual record. (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 130.)

II. Terms and Administration of Settlement

The terms of the settlement are as follows. The $150,000 non-reversionary settlement includes a $1,875 payment to the California Labor and Workforce Development Agency associated with plaintiff’s PAGA claim (seventy-five percent of the $2,500 allocated to PAGA penalties). Attorney fees of up to $50,000 (one-third of the gross settlement), litigation costs estimated at $5,000, and administration costs estimated at $5,500 and capped at $10,000 will also be paid from the gross settlement, along with defendant’s share of payroll taxes. The named plaintiff will seek an enhancement award of $7,500.

The remaining net settlement will be distributed to class members pro rata based on the number of weeks worked by each class member during the class period. Class members will not be required to submit a claim to receive their payments. Checks uncashed after 120 days will be voided and the associated funds will be split between the Sacramento Voluntary Legal Services Program, Employment Law Clinic and the Koinonia Family Services.

Class members who do not opt out of the settlement will release any and all claims “arising out of or related to the allegations made in the Complaint and First Amended Complaint,” including but not limited to specified claims under the Labor Code and related authorities.

The notice process has now been completed. There were no objections, requests for exclusion from the class, or disputes regarding eligible workweeks. Of 85 notice packets, 4 were re-mailed to updated addresses and 2 were ultimately undeliverable. The claims administrator estimates that the average class member payment will be $910.22, with a maximum payment of $3,045.82.

At preliminary approval, the Court found that the proposed settlement provides a fair and reasonable compromise to plaintiff’s claims. It finds no reason to deviate from this finding now, especially considering that there are no objections. The Court consequently finds that the settlement is fair and reasonable for purposes of final approval.

III. Attorney Fees, Costs, and Incentive Award

Plaintiff seeks a fee award of $50,000, or 1/3 of the gross settlement, which is not an uncommon contingency fee allocation. This award is facially reasonable under the “common fund” doctrine, which allows a party recovering a fund for the benefit of others to recover attorney fees from the fund itself. Plaintiff also provides a lodestar figure of $74,852.50, based on 165.5 hours spent on the case by two attorneys with billing rates of $650 and $475 per hour, as well as a post-bar law clerk billed at $125 per hour. The fee request results in a negative multiplier. As a cross-check, the lodestar supports the 1/3 percentage fee requested, particularly given that there are no objections to the attorney fee request. (See Laffitte v. Robert Half Intern. Inc. (Cal. 2016) 1 Cal.5th 480, 488, 503-504 [trial court did not abuse its discretion in approving fee award of 1/3 of the common fund, cross-checked against a lodestar resulting in a multiplier of 2.03 to 2.13].)

Plaintiff also requests $4,669.37 in costs, below the $5,000 estimate that was provided at preliminary approval. The costs are reasonable based on the summary provided by plaintiff and are approved. The $5,500 in administrative costs are also approved.

Finally, plaintiff requests a service award of $7,500. To support her request, she submitted a declaration with her motion for preliminary approval in which she describes her efforts on the case. The Court finds that the class representative is entitled to an enhancement award and the amount requested is reasonable.

IV. Conclusion and Order

Plaintiff’s motion for final approval is GRANTED.

The following class is certified for settlement purposes:

All persons who are employed or have been employed by Defendant in California as hourly employees from January 18, 2013 through the date of entry of the Order of Preliminary Approval by the Court, excluding any person who previously settled or released the claims covered by this Settlement, any person who previously was paid or received awards through civil or administrative actions for the claims covered by this Settlement, or any person who submits a timely and valid Request for Exclusion as provided in this Settlement.

The Court will prepare the order.