Tollini v. CGI Federal Inc. ( 2020 )

1 David Yeremian (SBN 226337) David@yeremianlaw.com 2 Roman Shkodnik (SBN 285152) roman@yeremianlaw.com 3 535 N. Brand Blvd., Suite 705 Glendale, California 91203 4 Telephone: (818) 230-8380 Facsimile: (818) 230-0308 5 UNITED EMPLOYEES LAW GROUP, PC 6 Walter Haines (SBN 71075) whaines@uelg.com 7 5500 Bolsa Ave., Suite 201 Huntington Beach, CA 92649 8 Telephone: (310) 652-2242 9 Attorneys for Plaintiff Fred Tollini, on behalf of himself and all others similarly situated 10 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 SAN FRANCISCO DIVISION 14 FRED TOLLINI, on behalf of himself and Case No.: 18-cv-03275-MMC others similarly situated, 15 CLASS ACTION 16 Plaintiffs, [Assigned for all purposes to the Honorable Maxine M. Chesney] 17 vs. 18 CGI FEDERAL INC., a Delaware Corporation; [PROPOSED] ORDER: 19 CGI TECHNOLOGIES AND SOLUTIONS INC., a Delaware Corporation; and DOES 1 (1) GRANTING MOTION FOR FINAL 20 through 50, inclusive, APPROVAL OF CLASS ACTION SETTLEMENT; AND (2) GRANTING 21 Defendants. MOTION FOR ATTORNEYS’ FEES AND COSTS AND SERVICE ENHANCEMENT 22 PAYMENT 23 24 Date: September 4, 2020 Time: 9:00 a.m. 25 Courtroom.: 7 26 Complaint Filed: April 30, 2018 FAC Filed: July 23, 2018 27 28 1 ORDER 2 On September 4, 2020, the Court heard Plaintiff Fred Tollini’s (“Plaintiff”) Unopposed 3 Motion for Attorneys’ Fees and Costs and Class Representative Enhancement at Final Approval of 4 Class Action Settlement (“Fees and Costs Motion”) and unopposed Motion for Final Approval 5 Class and Collective Action Settlement as set forth in the Stipulation of Settlement of Class Action 6 and Release ( “Settlement Agreement”) and Addendum to Settlement Agreement and Release of 7 Claims (“Addendum”) (collectively, the “Settlement”) and in the above-captioned action. In 8 accordance with the Order Granting Plaintiff’s Unopposed Motion for Preliminary Approval of 9 Class and Collective Settlement, Approval of Class Notice and Setting Final Approval Hearing 10 (ECF No. 53), Class Members have been given notice of the terms of the Settlement and an 11 opportunity to object to the Settlement, comment on it and exclude themselves from it. 12 Having considered the Settlement and the papers submitted by the Parties in support of 13 final approval of the Settlement, the Court hereby orders and makes the following determinations: 14 1. The terms in this Order shall have the same meaning as assigned to them in the 15 Settlement. 16 2. Class certification of the following Class and Collective, for settlement purposes 17 only, is appropriate under Rule 23(b)(3) of the Federal Rules of Civil Procedure and 29 U.S.C. § 18 216(b): all current and former non-exempt individuals employed by defendant within the State of 19 California at any time during the period from April 30, 2014 through May 27, 2019. 20 3. The Class meets the ascertainability, numerosity, commonality and typicality 21 requirements to justify certification, that individualized issues do not predominate over the issues 22 of law and fact that are common to the class as a whole, and that resolution of this matter through 23 a class action is superior to other available methods for fairly and efficiently adjudicating the 24 controversy. 25 4. Plaintiff Fred Tollini is an adequate class representative and appoints him as such. 26 5. Class Counsel, David Yeremian and Roman Shkodnik of David Yeremian & 27 Associates, Inc. have adequately represented the Class, and their appointment as Class Counsel is 28 confirmed. 1 FINAL APPROVAL OF NOTICE PROGRAM 2 6. Pursuant to the Court’s Order Granting Plaintiff’s Unopposed Motion for 3 Preliminary Approval of Class and Collective Settlement, Approval of Class Notice and Setting 4 Final Approval Hearing (ECF No. 53), a Notice of Class Action Settlement (“Class Notice”) was 5 mailed to Class Members by first class mail and also emailed to those class members for whom 6 defendant possessed a last known email address. The Class Notice: (i) was the best practicable 7 notice and satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure and 8 Constitutional due process; (ii) was reasonably calculated to apprise Class Members of the 9 pendency of the Action, the terms of the Settlement, their right to participate in the Settlement, 10 their right to exclude themselves from the Settlement, and their right to object to the Settlement, 11 and/or appear at the Final Approval Hearing for, the Settlement; and (iii) constituted due, 12 adequate, and sufficient notice of a class settlement under Federal Rule of Civil Procedure 23, due 13 process, and any other applicable rules or law. The Court finds that these procedures afforded 14 protections to Class Members and provided the basis for the Court to make an informed decision 15 and approval of the Settlement. 16 FINAL APPROVAL OF THE SETTLEMENT 17 7. The terms of the Settlement are fair, reasonable and adequate, and the standards 18 and applicable requirements for final approval of this class action settlement are satisfied, 19 including the provisions of Rule 23 of the Federal Rules of Civil Procedure. 20 8. The Settlement has been reached as a result of non-collusive, arms-length 21 negotiations, was achieved with the aid of an experienced mediator, and is approved in its entirety. 22 9. Class Counsel are experienced class action litigators and have expressed the view 23 that the Settlement is fair, reasonable and adequate. 24 10. Pursuant to the terms of the Settlement, in exchange for the Settlement Class 25 Members agreeing to release the Released Claims, the Gross Fund Value Defendant will be 26 required to pay under the Settlement is $350,000.00, which is inclusive of the Class Counsel’s 27 Attorneys’ Fees, Litigation Expenses, Claims Administration Costs, the PAGA Penalty Payment, 28 Settlement Payments to Settlement Class Members, and the Service Enhancement Payment to the 1 Class Representative. Taking into consideration: the nature of the Plaintiff’s claims; the nature of 2 Defendant’s defenses; the expense, complexity and likely duration of further litigation; the risk of 3 attaining and maintaining class action status throughout the litigation, the Court finds the amounts 4 paid under the Settlement are fair and reasonable. Moreover, the allocation of individual 5 settlement payments among the Settlement Class Members is fair, adequate and reasonable. The 6 fact that a settlement represents a compromise of the Parties’ respective positions rather than the 7 result of a finding of liability at trial also supports the Court’s decision to grant final approval. 8 11. There are three Class Members who timely requested exclusion from the 9 Settlement, and no Class Members objected to it. 10 12. For the reasons stated on the record at the hearing, the Court finds the notice of 11 settlement served by Plaintiff on the California Labor and Workforce Development Agency 12 (“LWDA”) satisfied the requirements of the PAGA. The LWDA has expressed no objection to 13 the Settlement. 14 13. For the reasons stated on the record at the hearing, the notice of settlement served 15 by defendant on the U.S. and applicable state Attorneys General satisfies the requirements of the 16 Class Action Fairness Act. No such government official has expressed an objection to the 17 Settlement. 18 14. In sum, taking into account the (1) strength of the plaintiffs’ case, (2) the risk, 19 expense, complexity, and likely duration of further litigation, (3) the risk of maintaining class 20 action status throughout the trial, (4) the amount offered in settlement, (5) the extent of discovery 21 completed and the stage of the proceedings, (6) the experience and views of counsel, (7) the 22 presence of a governmental participant, and (8) the reaction of class members, the Court finds the 23 Settlement is fair, adequate, reasonable and further finds the Settlement was made in good faith, 24 negotiated at arm’s length and represents the best interests of the Parties. Accordingly, the Court 25 finds the Settlement deserves this Court’s final approval and orders the Parties to consummate the 26 Settlement in accordance with the terms thereof. 27 15. Neither this Final Approval Order, nor the Settlement shall constitute an admission 28 by Defendant of any liability or wrongdoing whatsoever, nor is this Final Approval Order a 1 finding of the validity or invalidity of any claims in the action or a finding or wrongdoing by 2 Defendant. Nor is any act performed or document executed pursuant to, or in furtherance of, the 3 Settlement: (a) is or may be deemed to be or may be used as an admission of, or evidence of, the 4 validity of any Released Claims, or of any wrongdoing or liability of Defendant, Releasees, or any 5 of them; or (b) is or may be deemed to be or may be used as an admission of, or evidence of, any 6 fault or omission of Defendant, Releasees, or any of them, in any civil, criminal or administrative 7 proceeding in any court, administrative agency or other tribunal, except for purposes of settling 8 this action pursuant to the terms of the Settlement or enforcing the release of the Released Claims. 9 DISMISSAL AND RELEASE 10 16. This action shall be dismissed on the merits with prejudice, with each party bearing 11 his/her/its own costs, except as provided in the Settlement. 12 17. By this Final Approval Order, Plaintiff Fred Tollini shall release, relinquish and 13 discharge all claims released in Sections 20 and 22 of the Settlement, as set forth in the Settlement 14 and incorporated by reference herein. 15 18. By this Final Approval Order, each of the Settlement Class Members who did not 16 opt out of the Settlement shall be deemed to have fully, and forever released, relinquished, and 17 discharged all claims released by Sections 18 and 19 of the Settlement, as set forth in the 18 Settlement and incorporated by reference herein. The Class Members who requested to opt out 19 are: 20 A. Cynthia Colvin 21 B. Jimmy Padaoan 22 C. Talia Christine Yage 23 ALLOCATION OF THE SETTLEMENT 24 19. The Court approves that ILYM Group, Inc. will administer the settlement and shall 25 be paid claims administration expenses in the amount of $7,500.00 from the Gross Fund Value for 26 its services rendered in administering the settlement, in accordance with the Settlement. 27 20. The PAGA Payment arising under the California Private Attorneys General Act of 28 $5,000.00 is approved, with the LWDA receiving $3,750.00 and the remaining $1,250.00 being 1 redistributed to the Settlement Class members who did not opt out. Payment of that amount shall 2 be paid from the Gross Fund Value in accordance with the Settlement Agreement, and there shall 3 be no further recourse for the civil penalties released under the terms of the Settlement. 4 21. Based upon application by Class Counsel and Plaintiff, and his valuable 5 contribution to this litigation, the Court approves the payment of a Class Representative 6 Enhancement and Service Award in the amount of $5,000.00to Plaintiff (in addition to any 7 recovery he may receive as a member of the Settlement Class) in exchange for all Releases and in 8 recognition of his efforts and the risks he undertook in prosecuting this Action. 9 22. Based upon application by Class Counsel, the Court approves the payment of 10 attorneys’ fees to Class Counsel in the amount of $87,500.00, which is 25% of the Gross Fund 11 Value of $350,000.00to be paid in the manner set forth in the Settlement Agreement. In 12 determining an award of attorney’s fees where the class action settlement establishes a common 13 fund for the benefit of the class out of which the attorney’s fee is awarded, courts have adopted the 14 percentage of fee calculation. See Laffitte v. Robert Half Int’l, Inc., 1 Cal. 5th 480, 493-94 15 (2016). The Court finds that a fee award at the Ninth Circuit 25% benchmark is reasonable in light 16 of the factors to be considered, including: (1) the results achieved; (2) the risk of litigation; (3) the 17 skill required; (4) the quality of work performed; (5) the contingent nature of the fee and the 18 financial burden; and (6) the awards made in similar cases. See Barbosa v. Cargill Meat Solutions 19 Corp., 297 F.R.D. 431, 449 (E.D. Cal. 2013) (citing Vizcaino v. Microsoft Corp., 290 F.3d 1043, 20 1047 (9th Cir. 2002). In addition, the Court finds the fee award reasonable under the lodestar 21 cross-check method. See Laffitte, 1 Cal. 5th at.at 506; Vizcaino, 290 F.3d at 1043. In so finding, 22 the Court has considered a variety of factors, including “the quality of the representation, the 23 novelty and complexity of the issues, the results obtained, and the contingent risk presented.” See 24 Lealao v. Beneficial Cal., Inc., 82 Cal. App. 4th 19, 26 (2000); see alsoHanlon v. Chrysler Corp., 25 150 F.3d 1011, 1029 (9th Cir. 1998). 26 23. Plaintiff’s request for an award of reasonable litigation costs is also approved. Out 27 of the $16,000.00allocated to costs, Class Counsel has incurred $12,815.72in costs through final 28 approval. Class Counsel is awarded this amount, and the difference between that number and the 1 allocated amount will be added back into the Net Fund Value to be distributed to the Settlement 2 Class Members in accordance with the Settlement Agreement. 3 24. Within 10 days of the Effective date, Defendant shall provide deposit the full 4 Gross Fund Value into an account established by the Settlement Administrator. 5 25. Within 20 days after Defendant provides the total amount to be funded, the Claims 6 Administrator shall pay to each Settlement Class Member his or her Individual Settlement Amount 7 from the Net Fund Value, and make all other payments as set forth above, in accordance with the 8 Settlement. 9 26. The Settlement Agreement and this Final Approval Order, as well as the Judgment 10 entered thereon, shall have res judicata and preclusive effect in all pending and future lawsuits or 11 other proceedings that encompass any of Plaintiff’s claims and the Released Claims released by 12 the Settlement Class Members. The Settlement and this Final Approval Order and Judgment shall 13 be binding on Plaintiff and the Settlement Class Members and others acting on their behalf. 14 27. Plaintiff and the Settlement Class Members are permanently barred from filing, 15 commencing, prosecuting, intervening in, or participating (as class members or otherwise) in any 16 other lawsuit or administrative, regulatory, arbitration, or other proceeding in any jurisdiction 17 based on the claims released in the Settlement Agreement. 18 28. The Settlement provided for herein, and any proceedings undertaken pursuant 19 thereto, may not be offered, received, or construed as evidence of: a presumption, concession, or 20 an admission by any Party of liability or non-liability; the certifiability or non-certifiability the 21 class and collective claims resolved by the Settlement; the manageability or non-manageability of 22 the PAGA representative claims resolved by the Settlement; provided, however, that reference 23 may be made to this Settlement in such proceedings as may be necessary to effectuate the 24 provisions of this Settlement. 25 29. Without affecting the finality of the Final Approval Order and Judgment, the Court 26 retains continuing jurisdiction over Plaintiff, Defendant, and the Settlement Class Members as to 27 all matters concerning the administration, consummation, and enforcement of this Settlement 28 Agreement. 1 30. No later than 200 days after the mailing of the settlement payment checks, the 2 || settlement administrator shall prepare and sign a declaration attaching as an exhibit all the 3 || settlement payment checks that have been cashed by the Settlement Class Members. Class 4 || Counsel shall file the declaration and exhibit with the Court within two weeks of receipt as the 5 || current record of all consents by Settlement Class Members to opt into the action and release Fair 6 || Labor Standards Act claims. 7 30. After settlement administration and distribution of funds have been completed, the 8 || Parties shall file a report with this Court certifying compliance with the terms of the Settlement 9 || and this Order. 10 31. If this Order is reversed on appeal or the Settlement Agreement is terminated or is 11 || not consummated for any reason, the foregoing certification of claims, appointment of the Class 12 || Representative and appointment of Class Counsel shall be void and of no further effect, and the 13 || parties shall be returned to the status each occupied before entry of this Order without prejudice to 14 || any legal argument that any of the parties might have asserted but for the Settlement. 15 IT IS SO ORDERED. 16 17 ATED: September 4, 2020 18 rl ihe MAXINE Mt CHESNEY JUDGESOF THE NORTHERN DISTRICT OF CALIFORNIA 19 20 21 22 23 24 25 26 27 28