Pacheco v. Bushfire Grill, Inc. ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 JAIRO PACHECO, individually and on Case No.: 18cv1696-JAH (WVG) behalf of other similarly situated current and 11 former employees ORDER: 12 Plaintiff, 1. GRANTING FINAL APPROVAL 13 OF CLASS ACTION 14 v. SETTLEMENT [Doc. No. 29]; AND 15 BUSHFIRE GRILL, INC., a California 2. GRANTING MOTION FOR 16 corporation; BUSHFIRE BEACHSIDE, ATTORNEYS’ FEES, COSTS, INC., a California corporation; and DOES SERVICE PAYMENT [Doc. No. 28] 17 1-100, inclusive, 18 Defendants. 19 20 Plaintiff Jairo Pacheco’s (“Pacheco” or “Plaintiff”) Motion for Final Approval of 21 Class and Action Settlement (“Motion for Final Approval”) and Motion for Attorneys’ 22 Fees, Costs, and Service Payment (“Fee Motion”) came on for hearing on August 10, 23 2020, at 2:30 p.m., before the honorable John A. Houston, District Judge, United States 24 District Court for the Southern District of California. Jenny D. Baysinger appeared on 25 behalf of Plaintiff and Jennifer N. Lutz appeared on behalf of Defendants Bushfire Grill, 26 Inc. and Bushfire Beachside, Inc. The Court, having fully and carefully considered 27 Plaintiff’s Motion for Final Approval and Fee Motion, the memoranda and declarations 28 in support thereof, the Parties’ Settlement Agreement, and the oral arguments made at the 1 hearing, hereby makes the following determinations and orders : 2 1. On April 10, 2020, this Court granted preliminary approval of the 3 Settlement. Doc. 27. The claims brought by Plaintiff are set forth in that order and will 4 not be repeated here. Plaintiff’s Motion for Attorneys’ Fees and Motion for Final 5 Approval were timely filed and posted to both this Court’s website and the Settlement 6 Claims Administrator’s website for interested Class Members to review. Doc. 28, 29, 7 respectively. No objections to the Plaintiff’s motions were filed. 8 2. The Court finds that the Settlement was reached after arm’s-length 9 negotiations between the Parties, including two separate Early Neutral Evaluation 10 sessions overseen by Magistrate Judge William V. Gallo; the proposed Settlement 11 occurred only after counsel for the Parties conducted adequate investigation and formal 12 discovery; and the Settlement of this action, as embodied in the terms of the Settlement, 13 is finally approved as fair, reasonable, and adequate and in compliance with all applicable 14 requirements of the Federal Rules of Civil Procedure and any other applicable law, and in 15 the best interests of the Class Members. 16 3. Plaintiff Jairo Pacheco is confirmed as Class Representative. 17 4. Mayall Hurley P.C., by and through Lead Counsel Jenny D. Baysinger and 18 Robert J. Wasserman are confirmed as Class Counsel. 19 5. Atticus Administration, LLC is confirmed as Administrator of the 20 Settlement. 21 6. Prior to granting the preliminary approval, the Court evaluated the standards 22 for class certification. Nothing has been raised subsequently that might affect the Court’s 23 prior analysis as to whether certification is appropriate here, and the Court has no cause 24 to revisit that analysis. The Court finds that final certification as to the following classes 25 and sub-classes, collectively referred to as the Class is appropriate under Rule 23: 26 27 1 All terms used in this Order Granting Final Approval of Class and Collective Action Settlement, Attorneys’ Fees, Costs, 28 and Service Payment (the “Order”) shall have the same meanings given those terms in the Parties’ Class Action Settlement Agreement and Release of Claims (“Settlement Agreement” or “Settlement”), a copy which is attached as Exhibit 1 to the 1 a. All current and former non-exempt employees of Defendants, and either of 2 them, employed within California who worked at least one shift in excess of 3 five (5) hours between May 24, 2014 and December 31, 2018 and who did 4 not enter into a written Arbitration Agreement with Defendants (the “Meal 5 Break Class”); 6 b. All current and former non-exempt employees of Defendants, and either of 7 them, employed within California who worked at least one shift in excess of 8 three and one half (3 ½) hours between May 24, 2014 and December 31, 9 2018 and who did not enter into a written Arbitration Agreement with 10 Defendants (the “Rest Break Class”); 11 c. All individuals who are members of either the Rest Break Class or the Meal 12 Break Class and whose employment with Defendants ended at any time 13 between May 24, 2015 and December 31, 2018 (the “Former Employee Sub- 14 Class”). 15 7. The Court reviewed Class Notice that was proposed when the Parties sought 16 preliminary approval of the Settlement and found them sufficient. The Court-approved 17 Notice informed the Class Members of the Settlement terms, the claims they would be 18 releasing if they chose to participate in the settlement, their rights to opt-out of, comment 19 on or object to the Settlement, and their rights to appear at the Final Approval Hearing 20 and be heard regarding the Settlement. The Class Notice also informed Class Members 21 of the Individual Settlement Amount that Plaintiff separately negotiated with respect to 22 unique individual claims he possessed that are separate from the Released Claims. 23 Adequate periods of time to respond and to act were provided by each of these 24 procedures. A website was created and maintained which provided Class Members the 25 ability to obtain additional information regarding the Settlement and to access pertinent 26 pleadings. 27 8. The Administrator sent Notice to 226 individuals on May 15, 2020. Notice 28 was effectuated on 206 Class Members; 91.15% of Class Members. See Declaration of 1 Christopher Longley on Behalf of Atticus Administration, LLC (“Administrator 2 Declaration”). 3 9. The Court concludes that adequate notice was provided to the vast majority 4 of the class here. Silber v. Mabon, 18 F.3d 1449, 1453–54 (9th Cir. 1994) (noting the 5 court need not ensure all class members receive actual notice, only that “best practicable 6 notice” is given); Winans v. Emeritus Corp., No. 13-cv-03962-HSG, 2016 WL 107574, at 7 *3 (N.D. Cal. Jan. 11, 2016) (“While Rule 23 requires that ‘reasonable effort’ be made to 8 reach all class members, it does not require that each individual actually receive notice.”). 9 The Court accepts the Administrator Declaration, and finds sufficient notice has been 10 provided so as to satisfy Federal Rule of Civil Procedure 23(e)(1). 11 10. Not one of the Class Members elected to exclude themselves from the 12 Settlement and no one has raised any objection. 13 11. The Settlement contemplates a Gross PAGA Settlement Amount of $11,50, 14 which will be allocated $2,200 to satisfy administrative costs, $6,975 to the LWDA, and 15 $2,325 to be distributed to the Aggrieved Employees. The proposed allocation is fair and 16 reasonable, serves the deterrent and punitive purposes of the PAGA, is within the range 17 commonly approved by state and federal courts, and is confirmed. 18 12. The Court also approves payment to the Administrator in the total amount of 19 $9,200, to be paid $7,000 from the Gross Class Settlement Amount of $206,000 and 20 $2,200 from the Gross PAGA Settlement Amount of $11,500. 21 13. The proposed Service Payment of $2,000 to Plaintiff, less than 1% of the 22 Gross Settlement Amount and the Gross Class Settlement Amount, for his service as 23 Class Representative is approved. 24 14. Class Counsel’s request of attorneys’ fees in the amount of 1/3 of the Gross 25 Settlement Amount, or $72,500, and declared costs of $7,500, are approved. 26 15. In accordance with the terms of the Settlement, as of the Effective Date, 27 Participating Class Members will forever and completely release and discharge 28 Defendants and Released Parties from the Released Claims. SA ¶ 72 (i). Additionally, 1 || Plaintiff, on behalf of himself, the LWDA, and the other aggrieved employees in th 2 ||State of California, will release Defendants and Released Parties from the Release 3 || PAGA Claims. SA 4 73. 4 16. Participating Class Members shall be permanently enjoined and restraine 5 || from and against initiating or pursuing against Defendants any individual, representative 6 || or class claims released by this Settlement. 7 17. Final Judgment is hereby entered based on the Parties’ Settlement. Th 8 ||Court retains jurisdiction, however, to enforce the terms of the Settlement, and ensut 9 || that its terms and this Order are carried out. 10 IT IS SO ORDERED. 11 12 13 |) Dated: August 14, 2020 14 15 on. John A. Houston 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28