Case Name: Lee Webster v. Live Nation Worldwide, Inc., et al.
Case No.: 2015-1-CV-286202

This is a putative wage and hour class action by employees of defendant Live Nation Worldwide, Inc. The parties have reached a settlement, which the Court preliminarily approved on October 13, 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. Analysis

The terms of the settlement are as follows. The $1.1 million non-reversionary settlement includes a $15,000 payment to the California Labor and Workforce Development Agency associated with plaintiff’s PAGA claim. Attorney fees of up to $366,630 (slightly under one-third of the gross settlement), litigation costs estimated at $18,029.44, and administration costs estimated at $13,042 will also be paid from the gross settlement, along with defendant’s share of payroll taxes, estimated at $16,845.95. Plaintiff will seek an incentive payment of $20,000.

The remaining net settlement will be distributed to class members pro rata based on the number of hours worked performing parking or traffic control duties 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 180 days will be voided and the associated funds will be split between the Katherine & George Alexander Community Law Center and Lambda Legal.

Class members who do not opt out of the settlement will release any and all claims alleged in the SAC “or that could have been alleged under state or federal law based upon the facts alleged therein,” including specified wage and hour violations. The release excludes any claims against Platinum Parking Management, LLC, a Live Nation vendor named as the defendant in a separate action by plaintiff.

The notice process has now been completed. There were no objections to the settlement and 13 requests for exclusion from the class, one of which was untimely. Of 1,550 notice packets, 77 were re-mailed to updated addresses located through skip tracing and 39 were ultimately undeliverable. The claims administrator estimates that the average class member payment will be $381.40, with a maximum payment of $6,666.06.

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. At the hearing on this matter, counsel shall address with the Court the parties’ proposed treatment of the untimely request for exclusion that was received.

Plaintiff seeks a fee award of $366,630, or just under 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. Plaintiffs also provide a lodestar figure of $199,350, based on 271.6 hours expended on the case by two experienced attorneys with billing rates of $750 and $625 per hour. The lodestar does not include approximately 20-30 hours spent on the case by associate attorneys and administrative support staff and an estimated 20-30 hours that class counsel will likely spend in connection with final approval and administration of the settlement. The fee request results in a reasonable multiplier of 1.84. 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 $21,059.71 in costs, slightly above the $18,029.44 estimate that was provided at preliminary approval. The costs are reasonable based on the summary provided by plaintiff and are approved. The $13,230 in administrative costs are also approved.

Finally, plaintiff requests a service award of $20,000. To support her request, she submits a declaration describing her efforts and indicating that she spent approximately 120 hours on this action, including providing a full-day deposition and attending a full-day mediation. The Court finds that the class representative is entitled to an enhancement award and the amount requested is reasonable.

III. Conclusion and Order

Plaintiff’s motion for final approval is GRANTED.

The following class is certified for settlement purposes:

All non-exempt employees who, regardless of their formal job title, performed parking or traffic control duties (coded in Defendant’s timekeeping system, in the “Worked Department” field, as A5985, B5985, C5985, D5986, E5986, or J5985), who are employed or have been employed by Defendant in the State of California, during the period of four years prior to the filing of this Lawsuit (September 28, 2011) through the date the Court grants preliminary approval of the Settlement.

The employees to be excluded from the class based on their requests for exclusion will be addressed at the final fairness hearing.

The Court will prepare the order.