Ceron De Orozco v. Flagship Facility Services, Inc. ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARTA L. CERON DE OROZCO and Case No.: 18-CV-2397 JLS (JLB) EMMA BARCENAS, individually and on 12 behalf of all similarly situated employees ORDER (1) GRANTING 13 of Defendants in the State of California, PLAINTIFFS’ MOTIONS FOR (a) FINAL APPROVAL OF CLASS 14 Plaintiffs, AND COLLECTIVE ACTION 15 v. SETTLEMENT AND (b) ATTORNEY’S FEES, COSTS, 16 FLAGSHIP FACILITY SERVICES, AND CLASS REPRESENTATIVE INC.; and DOES 1 THROUGH 50, 17 SERVICE AWARDS; AND inclusive, (2) ENTERING JUDGMENT 18 Defendants. 19 (ECF Nos. 47, 48) 20 Presently before the Court are Plaintiffs Marta L. Ceron de Orozco and Emma 21 Barcenas’ Motions (1) in Support of Final Approval of Class and Collective Action 22 Settlement (“Final Approval Mot.,” ECF No. 47), and (2) for Award of Attorney’s Fees, 23 Costs and Class Representative Service Awards (“Fee Mot.,” ECF No. 48). Also before 24 the Court are Defendant Flagship Facility Services, Inc.’s (“Defendant” or “Flagship”) 25 Notice of Non-Opposition to Plaintiffs’ Motion for Final Approval of Class and Collective 26 Action Settlement (ECF No. 49) and the Supplemental Declaration of Chris Pikus for Rust 27 Consulting, Inc. Regarding Plaintiff’s Motion for Final Approval of Class and Collective 28 1 Action Settlement (“Supp. Pikus Decl,” ECF No. 52). The Court held a hearing on 2 December 17, 2020. See ECF No. 53. Because the Settlement is fundamentally fair, 3 reasonable, and adequate, the Court GRANTS Plaintiffs’ unopposed Final Approval 4 Motion. Further, because the requested attorneys’ fees, costs, settlement administration 5 expenses, and service awards are reasonable, the Court GRANTS Plaintiffs’ Fee Motion. 6 BACKGROUND 7 This case began on August 13, 2018, when Ms. Ceron de Orozco filed a putative 8 class action against Flagship in the Superior Court of California for the County of San 9 Diego. Declaration of Graham S. P. Hollis (“Hollis Decl.,” ECF No. 47-2) Ex. 1 ¶ 13. On 10 October 18, 2018, Flagship removed Ms. Ceron de Orozco’s First Amended Complaint to 11 the United States District Court for the Southern District of California. See ECF No. 1. 12 On January 9, 2019, Ms. Ceron de Orozco filed the operative Second Amended Complaint 13 (“SAC”), adding Ms. Barcenas as a named Plaintiff. See ECF No. 23. 14 Mses. Ceron de Orozco and Barcenas are both former non-exempt employees of 15 Defendant. See SAC ¶¶ 9, 12. Ms. Ceron de Orozco worked for Defendant as a janitor at 16 the San Diego International Airport from January 1999 to October 2017. Id. ¶ 30. Ms. 17 Barcenas worked for Defendant as a janitor at the San Diego International Airport from 18 June 20, 2001 to December 20, 2016. Id. ¶ 32. Plaintiffs allege that Defendant (1) failed 19 to provide off-duty meal and rest breaks, (2) failed to pay for all wages for off-the-clock 20 work, (3) failed to reimburse for necessary business expenses, and (4) incurred waiting 21 time and Private Attorneys General Act (“PAGA”) penalties. See generally id. 22 Following mediation, the parties entered into a Joint Stipulation of Class Action and 23 PAGA Representative Action Settlement and Release (the “Settlement”). See Hollis Decl. 24 Ex. 1 at Ex. 1 (“Proposed Settlement”). On July 22, 2020, the Court preliminarily approved 25 the Settlement, provisionally certified the class, approved the proposed class notice and 26 notice plan, and appointed class counsel, class representatives, and the settlement 27 administrator. See ECF No. 44 (“Prelim. Approval Order”). On August 20, 2020, the 28 Court granted the Parties’ joint ex parte motion to modify the Preliminary Approval Order, 1 approving an amendment to the Settlement modifying the definition of the Class Period, 2 approving a proposed Amended Class Notice, and modifying the schedule for final 3 approval. See ECF No. 46. On November 23, 2020, Plaintiffs filed the present Motions. 4 See ECF Nos. 47, 48. 5 SETTLEMENT TERMS 6 I. Proposed Settlement Class and Subclass 7 Originally, the Proposed Settlement Class (the “Non-Exempt Class”) included “all 8 current and former non-exempt janitorial employees who worked for Defendant in 9 California at any time from August 13, 2014 through the date of Preliminary Approval of 10 the Settlement.” Proposed Settlement ¶ 1.22. On August 20, 2020, the Court approved an 11 amendment to the definition of “Class Period,” providing for an end date of January 30, 12 2020. See ECF No. 46; see also Lin Decl. Ex. 1. 13 Originally, the Proposed Settlement Subclass (the “Waiting Time Penalties 14 Subclass”) included “all members of the Non-Exempt Class who separated from their 15 employment with Defendant at any time from August 13, 2015 through the date of the 16 Preliminary Approval of the Settlement.” Proposed Settlement ¶ 1.39. Again, the end date 17 was subsequently modified to January 30, 2020. See ECF No. 46; see also Lin Decl. Ex. 18 1. 19 In total, the Parties identified 6,922 potential Class Members. See Decl. of Chris 20 Pikus for Rust Consulting, Inc. (“Pikus Decl.,” ECF No. 47-6) ¶ 7. 21 II. Proposed Monetary Relief 22 The Settlement provides for a $2,000,000 Maximum Settlement Amount, Proposed 23 Settlement ¶ 1.20, allocating up to $600,000 to pay Class Counsel’s fees, id. ¶ 4.4, up to 24 $35,000 to pay Class Counsel’s costs, id., $20,000 for the Class Representative Service 25 Awards, id. ¶ 4.5, up to $39,000 to pay Settlement Administration Costs, id. ¶ 4.7, and 26 27 28 1 The Amendment to the Settlement was submitted to the Court as Exhibit 1 to the Declaration of David 1 $15,000 for the California Labor and Workforce Development Agency’s (“LWDA”) 2 portion of the PAGA Payment, id. ¶ 4.6, with the remaining Net Settlement to be 3 “distributed to the Class Members,” id. 4 Each Class Member will receive a portion of the Net Settlement “calculated based 5 on the respective number of Qualifying Workweeks . . . worked during the Class Period.” 6 Id. ¶ 4.3(a). First, the Settlement Administrator will determine the number of Qualifying 7 Workweeks the Class Member worked during the Class Period. Id. ¶ 4.3(b). Then, if the 8 Class Member also is a member of the Waiting Time Penalties Subclass, he or she will be 9 allocated an additional six Qualifying Workweeks. Id. ¶ 4.3(c). Finally, each Class 10 Member’s individual payment will be allocated based on his or her percentage of 11 Qualifying Workweeks over the total number of Qualifying Workweeks for all Class 12 Members. Id. Consequently, although payments will vary, “with the Net Settlement 13 Amount currently estimated to be $1,291,000.00, this equates to approximately $3.09 per 14 Qualified Workweek, with the average Class Member estimated to receive approximately 15 $186.50.” ECF No. 47-1 (“Final Approv. Mot. Mem.”) at 9. 16 The Parties also have set aside 5% of the Net Settlement for the settlement of Class 17 Members’ FLSA claims. Id. ¶ 4.3(e). Class Members need to submit an opt-in form in a 18 timely manner to be eligible for their FLSA Settlement Payment. Id. Once a Class Member 19 timely submits his or her FLSA Consent Form, thereby opting in, he or she is “entitled to 20 a pro-rata share of the FLSA Settlement Fund based on the ratio of the [individual’s] total 21 number of Qualifying Workweeks. . . to the total number of Qualifying Workweeks that 22 all participating Class Members worked during the Class Period.” See ECF No. 40-1 23 (“Mot. for Prelim. Approv. Mem.”) at 8. 24 In exchange, the Class Members will release “any and all claims alleged in the 25 Second Amended Complaint,” which includes claims for 26 (a) Failure to provide meal periods, or premium pay; (b) Failure to provide rest periods, or premium pay; (c) Failure to pay all 27 minimum and regular wages; (d) Failure to pay all overtime 28 wages; (e) Failure to pay accrued vacation wages; (f) Failure to 1 indemnify necessary business expenses; (g) Failure to timely pay all wages due during, and upon separation of, employment; 2 (h) Failure to provide accurate itemized wage statements; 3 (i) Failure to maintain accurate records; (j) Violation of Cal. Business and Professions Code §§ 17200, et seq., arising from 4 the claims that are alleged in the Second Amended Complaint; 5 (k) Penalties provided under Cal. Labor Code sections 226.7, 512, and 558, and the applicable IWC Wage Order for failure to 6 provide meal and rest periods; (l) Penalties provided under Cal. 7 Labor Code sections 1194 and 1197.1 and the applicable IWC Wage Order for failure to pay minimum wages; (m) Penalties 8 provided under Cal. Labor Code sections 510, 558, and 1194, 9 and the applicable IWC Wage Order for failure to pay overtime wages; (n) Liquidated damages provided under California Labor 10 Code section 1194.2 for failure to pay minimum wages; (o) 11 Penalties provided under Cal. Labor Code sections 201, 202, 203, 204, and 210 for failure to timely pay all wages owed; (p) 12 Penalties under Cal. Labor Code section 226, made available 13 under the Private Attorneys General Act; (q) Penalties under Cal. Labor Code section 1174 and the applicable IWC Wage Order, 14 made available under the Private Attorneys General Act, for 15 failure to maintain accurate records; (r) Penalties under Cal. Labor Code section 2698 et seq. predicated on alleged California 16 Labor Code violations or penalties that were asserted based upon 17 the facts alleged in the Action (which include Cal. Labor Code sections 201, 202, 203, 204, 210, 218.5, 218.6, 221, 223, 224, 18 225.5, 226, 226.3, 226.7, 510, 512, 558, 1194, 1194.2, 1197, 19 1197.1, 1198, 1198.5, and 2802); and (s) Related damages, restitution, disgorgement, interest, attorneys’ fees, costs, or 20 expenses relating to any such claims. 21 22 Proposed Settlement ¶ 12.1. Further, any Class Member who opts in to the FLSA Fund 23 “will fully and forever release and discharge the Released Parties from . . . all claims made 24 under the [FLSA] and any alleged federal wage and hour violations/allegations that were 25 made or could have been made based on the actual claims asserted or factual allegations in 26 the Action.” Id. ¶ 12.2. 27 / / / 28 / / / 1 None of the Maximum Settlement Amount will revert to Defendant. Id. ¶ 9.1. To 2 the extent that any funds remain after distribution to the Class Members, that amount “shall 3 be distributed to Legal Aid at Work as a cy pres award.” Id. ¶¶ 9.2, 9.3. 4 MOTION FOR FINAL APPROVAL OF SETTLEMENT 5 I. Class Action Settlement 6 A. Class Certification 7 Before granting final approval of a class action settlement agreement, the Court must 8 first determine whether the proposed class can be certified. Amchem Prods. v. Windsor, 9 521 U.S. 591, 620 (1997) (indicating that a district court must apply “undiluted, even 10 heightened, attention [to class certification] in the settlement context” in order to protect 11 absentees). In the present case, the Court already has certified the Settlement Class and 12 Subclass. See Prelim. Approv. Order at 5–11, 18–19. The Court subsequently approved 13 an amended definition for “Class Period” applicable to the Settlement Class and Subclass. 14 See ECF No. 46; see also Lin Decl. Ex. 1. 15 B. Adequacy of Notice 16 The Court must also determine that the Class received adequate notice. Hanlon v. 17 Chrysler Corp., 150 F.3d 1011, 1025 (9th Cir. 1998), overruled on other grounds by Wal- 18 Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). “Adequate notice is critical to court 19 approval of a class settlement under Rule 23(e).” Id. In its Preliminary Approval Order, 20 the Court preliminarily approved the Parties’ proposed Notice and Notice Plan. See Prelim. 21 Approv. Order at 17–18. Subsequently, the Court approved an Amended Notice reflecting 22 the revised Class Period. See ECF No. 46. 23 In support of their Final Approval Motion, Plaintiffs have filed the Declaration of 24 Chris Pikus for Rust Consulting, Inc., who is “a Senior Project Manager for Rust 25 Consulting, Inc. (‘Rust’),” the Settlement Administrator. See generally Pikus Decl.; see 26 also id. ¶ 1. In his declaration, Mr. Pikus details the actions taken by Rust to provide notice 27 in accordance with the Amended Notice Plan. See generally id. Having reviewed Mr. 28 / / / 1 Pikus’s declaration, the Court finds that the Settlement Class and Subclass received 2 adequate notice of the Settlement. 3 C. Fairness of the Settlement 4 The Court must next determine whether the proposed settlement is “fair, reasonable, 5 and adequate” pursuant to Federal Rule of Civil Procedure 23(e)(1)(C). Factors relevant 6 to this determination include: 7 The strength of the plaintiffs’ case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining 8 class action status throughout the trial; the amount offered in 9 settlement; the extent of discovery completed and the stage of the proceedings; the experience and views of counsel; the presence 10 of a governmental participant; and the reaction of the class 11 members to the proposed settlement. 12 Hanlon, 150 F.3d at 1026. This determination is committed to the sound discretion of the 13 trial judge. Id. 14 In its Preliminary Approval Order, the Court addressed each of the Hanlon factors 15 in turn and found that the pertinent factors weighed in favor of approving the Settlement. 16 See Prelim. Approv. Order at 11–16. The Court subsequently approved a minor 17 amendment to the Settlement revising the end date for the Class Period, see ECF No. 46, 18 which the Court does not believe materially alters this analysis. Since then, no member of 19 the Settlement Class has filed an objection, see Pikus Decl. ¶ 15; Supp. Pikus Decl. ¶ 5, 20 and Defendant has filed a Notice of Non-Opposition to the Final Approval Motion, see 21 ECF No. 49. Because no pertinent facts have changed, the Court reaffirms and incorporates 22 by reference its analysis of the Rule 23(e) requirements as set forth in its Preliminary 23 Approval Order. See Prelim. Approv. Order at 11–16. Accordingly, the Court finds the 24 Settlement to be “fair, reasonable, and adequate” pursuant to Federal Rule of Civil 25 Procedure 23(e). 26 II. FLSA Settlement 27 Before approving the settlement of a collective action under the FLSA, the Court 28 must assess whether the settlement “is a fair and reasonable resolution of a bona fide 1 dispute over FLSA provisions.” Camilo v. Ozuna, Case No. 18-cv-02842-VKD, 2019 WL 2 2141970, at *10 (N.D. Cal. May 16, 2019) (citing Lynn’s Food Stores, Inc. v. United States, 3 679 F.2d 1350, 1355 (11th Cir. 1982)). “If the settlement is a reasonable compromise of 4 issues in dispute, the court ‘may approve the settlement in order to promote the policy of 5 encouraging settlement of litigation.’” Id. (citing Lynn’s Food Stores, 679 F.2d at 1354). 6 The Court previously preliminarily approved the FLSA Collective Action Member 7 Consent to Join Form. See Prelim. Approv. Order at 19. Class Counsel argues that, “[d]ue 8 to the similarities between the class claims and the FLSA claims and the risks associated 9 with litigating complex actions, such as preserving manageability, the FLSA Settlement is 10 also fair, reasonable, and adequate.” Id. Class Counsel asserts that “the FLSA settlement 11 represents a great benefit to Class Members,” as “[f]ive percent (5%) of the Net Settlement 12 Amount, or approximately $64,550.00, will be allocated to Class Members who opted in 13 to the FLSA release.” Final Approv. Mot. Mem. at 14. Class Members who did not opt in 14 will receive ninety-five of their proportionate share of the Net Settlement Amount, and 15 their FLSA claims will not be released. Id. Any unclaimed FLSA allocations will be 16 redistributed pro rata among the participating Class Members. Id. 17 It appears Rust, the Settlement Administrator, performed admirably with regard to 18 the FLSA Consent Forms, attempting outreach to the Class Members who submitted 19 incomplete Consent Forms, see Pikus Decl. ¶ 13, and accepting late Consent Forms, see 20 Supp. Pikus Decl. ¶ 3, and thus the Court concludes, based on the circumstances of this 21 case, that the FLSA Settlement appears fair, reasonable, and adequate. 22 III. PAGA Allocation 23 Finally, the Settlement allocates $20,000 for PAGA penalties, with $15,000, or 24 seventy-five percent, paid to LWDA and the remaining $5,000, or twenty-five percent, 25 remaining in the Net Settlement Amount for distribution to the Class Members. Final 26 Approv. Mot. Mem. at 14. Class Counsel contends that, “[i]f a higher amount is allocated 27 to the PAGA, the burden to pay civil penalties would be shifted to the members of the 28 Settlement Class because the higher allocation would reduce the amount that the members 1 of the Settlement Class would receive,” id. at 15, and, at any rate, “[c]ourts have 2 consistently ruled that no part of a settlement must necessarily be allocated and distributed 3 to the LWDA,” id. at 14–15 (citations omitted). 4 No objections have been made to the requested PAGA allocation, which the Court 5 finds reasonable. The Court therefore approves the requested PAGA allocation in the 6 amount of $20,000, which the Court finds to be “‘fair and adequate in view of the purposes 7 and policies of [PAGA].’” Flores v. Starwood Hotels & Resorts Worldwide, Inc., 253 F. 8 Supp. 3d 1074, 1077 (C.D. Cal. 2017) (quoting O’Connor v. Uber Techs., 201 F. Supp. 3d 9 1110, 1135 (N.D. Cal. 2016)). 10 IV. Conclusion 11 Because all the pertinent factors here weigh in favor of approving the Settlement, 12 the Court GRANTS Plaintiffs’ Final Approval Motion. 13 MOTION FOR ATTORNEY’S FEES, COSTS, AND SERVICE AWARDS 14 Class Counsel seek attorneys’ fees in the amount of $600,000—i.e., thirty percent 15 of the Gross Settlement Fund—and reimbursement of litigation costs in the amount of 16 $26,861.68. Fee Mot. at 2. Class Counsel also request Settlement administration expenses 17 to Rust in the amount of $39,000 and Class Representative Service Awards of $10,000 18 each to named Plaintiffs Marta L. Ceron de Orozco and Emma Barcenas, for a total of 19 $20,000. Id. The Court addresses each of Class Counsel’s requests in turn. 20 I. Attorneys’ Fees 21 Federal Rule of Civil Procedure 23(h) permits a court to award reasonable attorneys’ 22 fees “authorized by law or by the parties’ agreement.” The Court has discretion to award 23 attorneys’ fees based on “the percentage-of-the-fund method or the lodestar/multiplier 24 approach.” In re Wash. Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1295–96 (9th 25 Cir. 1994). The Ninth Circuit has routinely applied the percentage-of-the-fund approach, 26 treating twenty-five percent as the “benchmark.” In re Pac. Enters. Sec. Litig., 47 F.3d 27 373, 378–79 (9th Cir. 1994). Despite this benchmark, district courts have discretion to 28 / / / 1 “[a]djust the benchmark when special circumstances indicate a higher or lower percentage 2 would be appropriate.” Id. at 379. 3 Here, Class Counsel seek thirty percent of the $2,000,000 Gross Settlement Fund, 4 totaling $600,000, see ECF No. 48-1 (“Fee Mot. Mem.”) at 2, which exceeds the Ninth 5 Circuit’s twenty-five percent benchmark. In its Preliminary Approval Order, the Court 6 indicated that, “[a]t th[at] point, without Class Counsel’s Briefing, the Court f[ou]nd[] no 7 reason to award fees that exceed the Ninth Circuit’s 25% benchmark,” and that “Class 8 Counsel w[ould] need to show what special circumstances exist warranting a higher 9 percentage in their motion for attorney’s fees.” Prelim. Approv. Order at 15. 10 In their Fee Motion, Class Counsel contend that the requested fees of $600,000 are 11 reasonable under either the percentage-of-the-fund or lodestar approach to calculating a 12 reasonable fee. See Fee Mot. Mem. at 2–7. Specifically, Class Counsel contend that a 13 departure from the twenty-five percent benchmark under the percentage-of-the-fund 14 approach is warranted given the “favorable” results for Class Members, see id. at 4; the 15 “favorable amount” payable to the LWDA as PAGA penalties, see id.; the fact that “U.S. 16 District Courts in California typically award attorney’s fees in the range of 30-40% in wage 17 and hour class actions that result in the recovery of a common fund under $10 million,” see 18 id. at 3, 4 (citations omitted); the “significant risks” posed by the litigation, id. at 4; the 19 contingent nature of the case, see id. at 4–5; and the non-opposition of any Class Members, 20 see id. at 5. As for the lodestar method, Class Counsel have worked 1,566.7 hours on this 21 matter, see id. at 5, resulting in a lodestar calculation of $702,998.00, see id. (citing Hollis 22 Decl. ¶ 75). “While courts will often apply a multiplier of three or four times to adjust a 23 lodestar figure upward or downward in complex class action litigation such as this, no such 24 multiplier is necessary in this case because Class Counsel’s lodestar amount is already 25 higher than the $600,000.00 amount requested.” Id. at 6. 26 Having reviewed the Fee Motion, the Declaration of Graham S. P. Hollis in Support 27 of Plaintiffs’ Fee Motion with its supporting exhibits, Class Counsel’s arguments, and the 28 applicable law, and given the lack of objection from Defendant or the Settlement Class, the 1 Court agrees that the fee request in the amount of $600,000, or thirty percent of the Gross 2 Settlement Fund, is reasonable under the circumstances, particularly in light of the 3 favorable results achieved by Class Counsel, the risk Class Counsel assumed by taking this 4 case on contingency, and the award being in line with fee awards in similar actions. 5 Accordingly, the Court finds that an award of thirty percent of the Gross Settlement Fund, 6 or $600,000, is reasonable under the circumstances of this case. 7 II. Costs 8 The Settlement authorizes Class Counsel to apply for reimbursement of up to 9 $35,000 in costs, see Proposed Settlement ¶ 4.4, and Class Counsel seek reimbursement 10 for $26,861.68, see Fee Mot. Mem. at 7. According to Class Counsel, “[e]ach of the 11 expenses incurred is of the type that would normally be billed to and paid for by a client, 12 including filing fees, copying, postage, computerized factual and legal research charges, 13 telephone charges, and mediation fees,” id. (citing Hollis Decl. ¶ 95), and “[a]ll expenses 14 were reasonably and necessarily incurred as a result of Class Counsel’s prosecutorial 15 efforts,” id. (citing Hollis Decl. ¶ 96). No objections have been made to these costs, and 16 the Court finds that Class Counsel’s litigation expenses are typical and reasonable. The 17 Court therefore approves the requested costs reimbursement in the amount of $26,861.68. 18 III. Settlement Administration Expenses 19 The Settlement further authorizes the deduction of up to $39,000 from the Gross 20 Settlement Fund for the administration costs incurred by the Settlement Administrator. 21 Proposed Settlement ¶ 4.7. Class Counsel seek approval of settlement administration 22 expenses in the amount of $39,000 to the Settlement Administrator, Rust, see Fee Mot. 23 Mem. at 7–8, which includes “fees incurred and future costs for completion of the 24 administration,” Pikus Decl. ¶ 16. No objections have been made to these expenses, and 25 the Court finds that the Settlement Administrator’s expenses are reasonable. The Court 26 therefore approves the requested administration expenses in the amount of $39,000. 27 / / / 28 / / / 1 IV. Service Awards 2 Incentive awards are “fairly typical” discretionary awards “intended to compensate 3 class representatives for work done on behalf of the class, to make up for financial or 4 reputational risk undertaken in bringing the action, and, sometimes, to recognize their 5 willingness to act as a private attorney general.” Rodriguez v. W. Publ’g Corp., 563 F.3d 6 948, 958–59 (9th Cir. 2009) (citations omitted). In deciding whether to give an incentive 7 award, the Court may consider: 8 1) the risk to the class representative in commencing suit, both financial and otherwise; 2) the notoriety and personal difficulties 9 encountered by the class representative; 3) the amount of time 10 and effort spent by the class representative; 4) the duration of the litigation; and 5) the personal benefit (or lack thereof) enjoyed 11 by the class representative as a result of the litigation. 12 13 Van Vranken v. Atl. Richfield Co., 901 F. Supp. 294, 299 (N.D. Cal. 1995) (citations 14 omitted). 15 Class Counsel seek a $10,000 service award for each of named Plaintiffs Marta L. 16 Ceron de Orozco and Emma Barcenas, for a total of $20,000. Fee Mot. Mem. at 8–15. In 17 its Preliminary Approval Order, the Court found, on the record before it at the time, the 18 requested service awards “unreasonable in light of the time expended and the average 19 payment each of the Class Members will receive.” Prelim. Approv. Order at 16 (citations 20 omitted). Accordingly, the Court preliminarily approved service awards in the revised 21 amount of $5,000 for each named Plaintiff as reasonable but indicated that “Plaintiffs may 22 attempt to substantiate a $10,000 Named Plaintiff Service Award in their motion for final 23 approval.” Id. 24 In the Fee Motion, Class Counsel contend that the requested awards are reasonable 25 in light of other awards within this District. Fee Mot. Mem. at 9. Class Counsel point to 26 Moreno v. Beacon Roofing Supply, Inc., No. 19cv185-GPC(LL), 2020 WL 3960481 (S.D. 27 Cal. July 13, 2020), in which a $10,000 service award was approved for a $230,000 28 settlement and where the plaintiff “responded to discovery, including obtaining phone 1 records, participated in interviews, meetings, and telephone consultations, and reached out 2 to other witnesses.” Fee Mot. Mem. at 9. Class Counsel contend that the named Plaintiffs 3 in this action “performed even greater duties in service of the class,” because each named 4 Plaintiff sat for a full-day deposition and sought out additional witnesses for Class Counsel 5 to interview. Id. (citing Hollis Decl. ¶¶ 105, 108). 6 Class Counsel also note that the named Plaintiffs took on the risk of potentially 7 having to pay Defendant an award of costs were they to be unsuccessful and the risk that 8 future employers would be reluctant to hire them in light of this litigation. Id. at 10 (citing 9 Hollis Decl. ¶ 104). The named Plaintiffs also “have gone above and beyond their regular 10 class members’ duties and without their efforts, this litigation would have not been able to 11 resolve.” Id. Since preliminary approval, the named Plaintiffs have performed additional 12 work, including reaching out to Class Members and explaining the terms of the Settlement 13 to Spanish-speaking Class Members. Id. at 10–11 (citing Hollis Decl. ¶¶ 105, 112). Many 14 Spanish-speaking Class Members reached out to the named Plaintiffs after receiving the 15 Notice of Proposed Settlement with questions, which the named Plaintiffs “patiently and 16 diligently answered.” Id. at 11 (citing Barcenas Decl. ¶ 22; Ceron Decl. ¶ 25). Although 17 the named Plaintiffs had previously estimated spending thirty to forty hours each on this 18 litigation, they each now estimate having expended more than fifty hours on this litigation, 19 including time pre-filing and post-preliminary approval. Id. (citing Barcenas Decl. ¶ 27; 20 Ceron Decl. ¶ 30). 21 Class Counsel also submit declarations from each named Plaintiff to further support 22 the reasonableness of their service award requests. See ECF Nos. 48-4 (“Ceron Decl.”), 23 48-5 (“Barcenas Decl.”). In addition to setting forth many of the facts previously 24 mentioned, the Barcenas Declaration notes that Ms. Barcenas “was also a union 25 representative for janitorial workers at Flagship so other janitors would voice their 26 complaints to [her].” Barcenas Decl. ¶ 6. In addition to declaring many of the previously 27 set forth facts, the Ceron Declaration indicates that Ms. Ceron de Orosco has continued to 28 make herself available to Class Counsel despite herself and her husband becoming ill 1 from—and her husband recently passing away due to—COVID-19. Ceron Decl. ¶¶ 9, 26. 2 The Court offers its sincere condolences to Ms. Ceron on the loss of her husband and 3 wishes her a full and speedy recovery. 4 Finally, Class Counsel highlight the “significantly broader release” named Plaintiffs 5 agreed to under the Settlement as further supporting the requested $10,000 service awards. 6 Fee Mot. Mem. at 13. Class Counsel claim that this release justifies the requested service 7 awards relative to the average payment received by each Class Member. Id. Class Counsel 8 note that, “[w]hile Plaintiffs release any and all claims, Class Members only release those 9 that were brought or could have been brought under the operative complaint,” id. (citing 10 Proposed Settlement ¶ 1.33), and “[t]hese do not include the claims at issue in [two] 11 previously resolved class cases,” id., nor “those claims still being litigated in [an action 12 currently pending in Santa Clara Superior Court],” id. Thus, although the named Plaintiffs 13 “are foreclosed from seeking any other remedies,” the Class Members “have recovered 14 and/or may continue to recover damages from Defendant based on the claims in these other 15 cases.” Id. 16 Having considered the relevant factors, Class Counsel’s arguments, and the 17 supporting declarations, the Court finds the requested service award of $10,000 to each 18 named Plaintiff, in the total amount of $20,000, to be reasonable. 19 V. Conclusion 20 For the foregoing reasons, the Court GRANTS Plaintiffs’ Fee Motion. 21 CONCLUSION 22 For the reasons stated above, the Court GRANTS Plaintiffs’ Motions (ECF Nos. 47, 23 48) and ORDERS as follows: 24 1. The Court GRANTS final approval of the Settlement and finds that: (1) the 25 Settlement is fair and reasonable to the Class when balanced against the 26 possible risks of further litigation, including issues relating to class 27 certification, liability, calculating damages, and potential appeals; (2) 28 significant investigation, research, and litigation was conducted, which 1 allowed the Parties to fairly evaluate their respective positions; (3) settlement 2 at this time will avoid the substantial cost, delay, and risks presented by further 3 litigation of the action; and (4) the Settlement was reached after serious, 4 informed, and non-collusive negotiations, which were conducted at arm’s 5 length by experienced counsel with the assistance of a neutral and reputable 6 mediator. 7 2. The Court further finds that the proposed Settlement Class meets the 8 requirements of numerosity, commonality, and typicality to justify 9 certification, and that there is adequate and fair representation. 10 3. The Court hereby GRANTS final approval to the Settlement and finds it 11 reasonable and adequate, and in the best interests of the Class as a whole. 12 Accordingly, the Court hereby DIRECTS that the Settlement be effectuated 13 in accordance with the Stipulation of Settlement. In light of the foregoing, the 14 Court: 15 a. ORDERS that the settlement awards be made and administered in 16 accordance with the terms of the Stipulation of Settlement as to the 6,922 17 Class Members, which includes the 908 individuals who have validly 18 opted to participate in the FLSA Collective Action. 19 b. Finds that, under the California Private Attorneys General Act (“PAGA”), 20 California Labor Code §§ 2699 et seq., a PAGA payment of $20,000 is 21 reasonable, and hereby ORDERS that the Settlement Administrator shall 22 pay the PAGA Payment of $20,000 as set forth in the Stipulation of 23 Settlement. Of this amount, seventy-five percent, or $15,000, will be paid 24 to the LWDA and twenty-five percent, or $5,000, will be distributed to 25 Class Members pursuant to the terms of the Settlement. 26 c. CONFIRMS Graham Hollis APC as Class Counsel and APPROVES the 27 requested fee of $600,000, as well as $26,861.68 in costs, both to be paid 28 from the Settlement Fund. 1 d. CONFIRMS Rust as the Settlement Administrator and APPROVES 2 $39,000 in costs and expenses to be paid to Rust from the Settlement Fund. 3 e. Finds named Plaintiffs Marta L. Ceron De Orozco and Emma Barcenas 4 suitable class representatives and ORDERS payment to each of $10,000 5 out of the Settlement Fund. 6 f. Directs that, in accordance with the Stipulation for Settlement, any 7 uncashed settlement checks or settlement checks that remain uncashed 8 after 180 days after mailing be redistributed to Legal Aid at Work as a cy 9 pres award. 10 Without affecting the finality of this Order for purposes of appeal, the Court 11 RETAINS jurisdiction over this matter for the purposes of enforcing the Settlement and 12 |/issuing any orders in connection therewith. 13 IT ISSO ORDERED. 14 Dated: December 18, 2020 tt 15 jt Janis L. Sammartino United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28