SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA

MEDINA ASALATI, individually and on behalf of all others similarly situated,

Plaintiff,

vs.

INTEL CORPORATION; and DOES 1-50, inclusive,

Defendants.
Case No. 2016-1-CV-302615

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 26, 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 Complaint (“FAC”), filed on March 17, 2017, sets forth the following causes of action: (1) Failure to Pay for All Hours Worked (Cal. Labor Code §§ 200, 1194, 1198); (2) Failure to Pay Overtime Wages (Cal. Labor Code §§ 200, 510, 1194); (3) Failure to Authorize and Permit and/or Make Available Meal and Rest Periods (Cal. Labor Code §§ 203, 223, 226.7, 512, and 1198); (4) Failure to Reimburse for Necessary Business Expenditures (Cal. Labor Code § 2802); (5) Failure to Maintain Proper Records (Cal. Labor Code § 1174, et seq.); (6) Failure to Provide Accurate Itemized Wage Statements (Cal. Labor Code § 226); (7) Waiting Time Penalties (Cal. Labor Code §§ 201-203); (8) Unlawful Business Practices (Cal. Bus. & Prof. Code § 17200, et seq.); (9) Penalties Pursuant to § 2699(a) of the Cal. Private Attorneys General Act; and (10) Penalties Pursuant to § 2699(f) of the Cal. Private Attorneys General Act.

The parties have reached a settlement. On June 8, 2018, the Court granted preliminary approval of the settlement. Plaintiff Medina Asalati (“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 current and former non exempt Intel employees who worked in California at any time from November 10, 2012 through April 19, 2018. As discussed in connection with the motion for preliminary approval, under the settlement defendant Intel Corporation (“Defendant”) will pay a total of $5,000,000. This amount includes attorneys’ fees of up to $1,666,650, costs of up to $25,000, an LWDA payment of $37,500, an enhancement payment of $15,000 for the class representative, and class administration costs of $45,121. There are 3,023 participating class members who will each receive an average award of $1,064.43.

On June 27, 2018, the claims administrator mailed the class notice to 3,049 class members. (Declaration of Carolyn Hunt Cottrell in Support of Plaintiff’s Motion for Final Approval of Class and Collective-Action Settlement (“Cottrell Decl.”, ¶ 56.) Ultimately, seven notices remained undelivered. (Id. at ¶ 57.) As of October 3, 2018, there have been no objections and 26 opt-outs. 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 $15,000 for class representative Medina Asalati.

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.)

The class representative has submitted a declaration in which she states she spent over 70 hours on the case. (Declaration of Medina Asalati in Support of Plaintiff’s Motion for Final Approval of Class and Collective-Action Settlement, ¶ 19.) This included working with class counsel to prepare the Complaint, assembling discovery responses, sitting for a day of deposition, and participating in the mediation process and settlement decisions. (Ibid.)

In the order on the motion for preliminary approval, the Court noted the requested incentive award is higher than what is approved in most class action settlements. The Court finds no reason to deviate from that finding. While Asalati has established an incentive award is justified, $15,000 is too high. The Court will approve an incentive award of $10,000.

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 in the amount of $1,666,650. Plaintiff’s counsel has a lodestar of $418,364. (Cottrell Decl., ¶ 126.) This results in a multiplier of 3.98. Compared to most other settlements reviewed by this Court, this multiplier is very high. Plaintiff’s counsel contends the fees requested are reasonable as a 33 1/3% recovery from the common fund. Plaintiff’s counsel further contends the lodestar multiplier is within the range endorsed by other leading cases. (See, e.g., Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 255 [noting that “[m]ultipliers can range from 2 to 4 or even higher.”].)

The Court has broad discretion in awarding attorneys’ fees. Ultimately, its responsibility is to award a reasonable fee to compensate counsel for their efforts. (See Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 504.) The California Supreme Court recently concluded that the lodestar cross-check is one tool for assessing whether a fee is reasonable, but that trial courts “retain the discretion to forgo a lodestar cross-check and use other means to evaluate the reasonableness of a requested percentage fee.” (Id. at 506.) The Court has thus studied the Declaration of Carolyn Hunt Cottrell in Support of Plaintiff’s Motion for Final Approval of Class and Collective-Action Settlement, along with the other submissions filed in connection with the motion for final approval. The Court has evaluated the information supporting the lodestar cross-check. It has also considered the risks described by Plaintiff’s counsel of not agreeing to settle the case but instead proceeding through class certification and trial, along with other facts and opinions that assist in the evaluation of the reasonableness of a requested percentage fee. Based on all of this information, some of which is unique to this case, the Court finds the fees are justified as a standard percentage of the common fund and are therefore approved.
Plaintiff’s counsel also seeks actual costs of $18,741.79. (Id. at ¶ 130.) The costs are reasonable and are thus approved.

Subject to the reduction in the incentive award, and the filing of a declaration identifying the names of the 26 individuals who have opted-out of the settlement, final approval of class action settlement is GRANTED.

The Court will sign the Final Order Approving Class and Collective-Action Settlement and Judgment submitted by Plaintiff if this tentative ruling is not contested, with the modification to the incentive award and an attached list of opt-outs.