The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on August 18, 2017, at 9:00 a.m. in Department 5. The Court now issues its tentative ruling as follows:

I. INTRODUCTION

This is a class action lawsuit arising out of various alleged Labor Code violations. Plaintiff Hayley Diller (“Plaintiff”) was hired by defendants Under Armour Retail, Inc. and Under Armour, Inc. (collectively, “Defendants”) to work as a non-exempt employee at Defendants’ store located in Gilroy, California. (First Amended Class Action Complaint (“FAC”), ¶ 8.) Plaintiff alleges Defendants violated various Labor Code sections because employees were required to submit to security checks after they had already clocked-out at the end of their shifts. (FAC, ¶¶ 33, 37, 40, 47, and 51.)

The FAC, filed on April 10, 2017, sets forth the following causes of action: (1) Violation of Labor Code §§ 1194 and 1197; (2) Violation of Labor Code §§ 510 and 1194; (3) Violation of Labor Code §§ 226.7 and 512; (4) Violation of Labor Code §§ 201-203; (5) Violations of the UCL, Business & Professions Code § 17200, et seq.; and (6) Violation of Labor Code § 2698, et seq. The parties have reached a settlement. On May 19, 2017, the Court granted Plaintiff’s motion for preliminary approval of the settlement. Plaintiff now moves for final approval of the settlement.

II. MOTION FOR FINAL APPROVAL OF SETTLEMENT

A. 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.)

B. Discussion

As discussed in connection with the motion for preliminary approval of the settlement, the terms of the settlement are as follows. The case has been settled on behalf of “all current and former non-exempt California retail store employees of Defendants Under Armour Retail, Inc. and Under Armour, Inc. who were employed at any time from May 23, 2010 through December 31, 2016.” Pursuant to the settlement, Defendants will pay a total of $1,050,000. The settlement is made on a non-claims made basis and is non-reversionary. Out of the settlement payments will be made of $350,000 for attorneys’ fees (1/3 of the gross settlement amount), costs up to $50,000, $20,000 for a release of all Private Attorneys General Act claims ($15,000 paid to the California Labor and Workforce Development Agency and $5,000 to the net settlement fund), $10,000 for an enhancement award to Plaintiff, and up to $15,000 for settlement administration costs. Plaintiff also seeks actual court costs of $43,433.46.

The settlement administrator, Phoenix Settlement Administrators, mailed notice to 2,452 class members on June 14, 2017. (Declaration of Elizabeth Kruckenberg on Behalf of Settlement Administrator with Respect to Opt Outs, and Objections Received (“Kruckenberg Decl.”), ¶ 5.) Following the return of 340 notice packets without a forwarding address, and the re-mailing of 321 of those packets to addresses obtained through skip tracing, there are 62 notice packets considered undeliverable. (Id. at ¶¶ 6-7.) There have been two opt-out requests and there have been no objections. (Supplemental Declaration of Elizabeth Kruckenberg on Behalf of Settlement Administrator With Respect to Opt Outs, and Objections Received, ¶¶ 3-4.) Based on the calculations in the settlement, the highest individual settlement will be approximately $2,355.52 and the average individual payment will be approximately $251.56. (Kruckenberg Decl., ¶ 11.)

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

Plaintiff seeks a class representative award of $10,000. The class representative states she spent approximately 50 hours meeting and/or conferring with her attorneys, and provided information and documents in addition to traveling to her attorneys’ office and preparing for and attending her deposition. (Declaration of Plaintiff Hayley Diller in Support of Plaintiff’s Motion for Final Approval of Class Action Settlement, ¶ 4.) Based on this information, the Court approves the class representative award.

The Court 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 seeks fees in the amount of $350,000 (1/3 of the total settlement amount). This fee amount is sought under the “common fund” doctrine, which allows a party recovering a fund for the benefit of others to recover attorneys’ fees from the fund itself. (See City and County of San Francisco v. Sweet (1995) 12 Cal.4th 105, 110-111.) As a cross-check on the reasonableness of the fee award, Plaintiff’s counsel provides a lodestar figure of $516,525. This amount, however, includes anticipated time. Based on the declarations submitted by counsel, the lodestar for work actually incurred at this point is approximately $506,776. (See Declaration of Larry W. Lee in Support of Plaintiff’s Motion for Final Approval of Class Action Settlement (“Lee Decl.”), ¶¶ 16-17; see also Declaration of Dennis S. Hyun in Support of Plaintiff’s Motion for Final Approval of Class Action Settlement (“Hyun Decl.”), ¶¶ 19, 21; see also Declaration of William M. Marder in Support of Plaintiff’s Motion for Final Approval of Class Action Settlement (“Marder Decl.”), ¶¶ 2, 4; see also Declaration of Nick Rosenthal in Support of Plaintiff’s Motion for Final Approval of Class Action Settlement, ¶ 6.) Therefore, the amount requested for fees is less than the lodestar. Class counsel also submits that litigation costs of $43,433.46 have been incurred. (Lee Decl., ¶ 18; Hyun Decl., ¶ 22; Marder Decl., ¶ 5.) The Court approves the award of $350,000 in attorneys’ fees and $43,433.46 in costs.

In sum, the motion for final approval of the class action settlement is GRANTED.

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