SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA

THOMAS LAGOS, on behalf of himself and all others similarly situated,

Plaintiff,

vs.

THE BOARD OF TRUSTEES OF THE LELAND STANFORD JUNIOR UNIVERSITY, a California corporation, and DOES 1 through 10,

Defendants.
Case No. 2015-1-CV-284497

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 October 5, 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 an alleged violation of 15 U.S.C. section 1681b(b), which concerns the use of “consumer reports” for employment purposes. (Complaint, ¶¶ 10-14.) The Complaint, filed on August 18, 2015, sets forth a single cause of action for violation of 15 U.S.C. section 1681b(b)(2).

The parties have reached a settlement. On June 1, 2018, the Court granted preliminary approval of the settlement. Plaintiff Thomas Lagos (“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 the following class:

All individuals on whom, during the period from August 18, 2010 through August 22, 2015 a consumer report for employment purposes was procured by Stanford. Excluded from the Settlement Class are all persons who are validly excluded from the Settlement Class and persons who received constructive or actual notice that [a] consumer report had been obtained on them more than two years before August 18, 2015.

As discussed in connection with the motion for preliminary approval, defendant The Board of Trustees of The Leland Stanford Junior University (“Defendant”) will pay a total of $600,000. This amount includes attorneys’ fees of up to $200,000, costs of up to $25,000, an enhancement payment of $7,500 for the class representative, and class administration costs of up to $70,000.

Out of the net settlement fund, 90% will be distributed to class members as to whom a consumer report was generated by Defendant during the period August 18, 2013 through August 22, 2015 (“two-year settlement class members”), and 10% will be distributed to class members to whom a consumer report was generated by Defendant during the period August 18, 2010 through August 18, 2013 and who did not have constructive or actual notice that a consumer report had been obtained on them (“three-five year settlement class members”).

On July 9, 2018, the claims administrator, ILYM Group, sent the email notice to 13,405 settlement class members. (Declaration of Stephanie Molina of ILYM Group, Inc. in Support of Motion for Final Approval of Class Action Settlement, ¶ 6.) On the same day, ILYM Group mailed the postcard notice to 432 class member to which ILYM Group determined the e-mail was not received. (Id. at ¶ 7.) As of September 13, 2018, nine postcard notices have been deemed undeliverable. (Id. at ¶ 11.) There have been no objections to, and no requests for exclusion from, the settlement. (Id. at ¶¶ 12-13.)

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 $7,500 for class representative Thomas Lagos.

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.)

In connection with the motion for preliminary approval, the Court examined the declaration submitted by Lagos and found the incentive award should be approved. The Court continues to make that finding now.

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 in the amount of $200,000. Plaintiff’s counsel has a lodestar of $460,000. (Declaration of Peter R. Dion-Kindem in Support of Motion for Final Approval of Class Action Settlement and Award of Attorney’s Fees and Costs, ¶ 20.) While the rates used in calculating the lodestar are on the high side ($875/hour), the lodestar results in a negative multiplier. Therefore, the Court finds the requested attorneys’ fees are reasonable and they are approved.

Plaintiff’s counsel also seeks actual costs totaling $16,250.25. (Id. at ¶ 27; Declaration of Lonnie C. Blanchard, III in Support of Motion for Final Approval of Class Action Settlement and Award of Attorney’s Fees and Costs, ¶ 17; and Declaration of Jeffery D. Holmes in Support of Motion for Final Approval of Class Action Settlement and Award of Attorney’s Fees and Costs, ¶ 10.) The costs are approved.

The motion for final approval of class action settlement is GRANTED. The Court will prepare the final order and sign the proposed judgment submitted by Plaintiff if this tentative ruling is not contested.