the turley mara law firm, aplc
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William Turley, Esq. (122408) David Mara, Esq. (230498) Jamie Serb, Esq. (289601) THE TURLEY & MARA LAW FIRM, APLC 7428 Trade Street San Diego, California 92121 Telephone: (619) 234-2833 Facsimile: (619) 234-4048
[Additional Counsel on Next Page]
Attorneys for Plaintiffs, on behalf of themselves, all others similarly situated, and on behalf of the general public.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN DIEGO
PHILIP LO CASCIO, TREVINE FERNANDO, DANNY ALZAMMAR, and PHU LE, on behalf of themselves and all others similarly situated, and on behalf of the general public
. Plaintiffs,
V.
HERTZ LOCAL EDITION; THE HERTZ CORPORATION, and DOES 1-100
Defendants.
MEMO P&As ISO PLAINTIFFS' MOTION FOR FINAL APPROVAL Of CLASS ACTION SETTLEMENT
Case No. 37-2015- 00020830 -CU-OE-CTL
CLASS ACTION
UNOPPOSED
PLAINTIFFS' MEMORANDUM OF · POINTS & AUTHORITIES IN SUPPORT OF UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; ATTORNEYS' FEES; COSTS; ENHANCEMENT PAYMENTS; AND ENTERING OF JUDGMENT
Date: November 17, 2017 Time: 8:30 a.m. Dept.: 65 Hon.: Joan M. Lewis
Complaint Filed: June 22, 2015
CASE NO. 37-2015-00020830
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James R. Hawkins, Esq. (¹192925)Gregory Mauro, Esq. (¹222239)JAMES HAWKINSAPLC9880 Research Drive, Suite 800Irvine, CA 92618Tel.: (949) 387-7200Fax: (949) 387-6676Email: JamesSi ameshawkinsaplc.cornEmail: GrepSiameshawkinsanlc.corn
Attorneys for PlaintiffTREVINE FERNANDOindividually and on behalf ofall others similarly situated
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ANDRADEGONZALEZLLPSEAN A. ANDRADE [SBN 223591]sandrade(Randradeftrm.cornHENRY H. GONZALEZ [SBN 208419]haonzalezRandradefirm.cornANDRE Y. BATES [SBN 178170]abatesRandradefirm.corn634 South Spring Street, Top FloorLos Angeles, California 90014Telephone: (213) 986-3950Facsimile: (213) 995-9696
Attorneys for PlaintiffsDANNYALZAMMAR
and PHU LE, on behalf of themselvesand others similarly situated
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MEMO P&As ISO PLAINTIFFS'OTION FOR FINALAPPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 37-2015-00020830
1 TABLEOF CONTENTSI. INTRODUCTIONAND BACKGROUND .
IL INVESTIGATION,DISCOVERY, AND MEDIATION..3
A. Discovery, Investigation, and the Parties'taunchly Conflicting Positions4
B. The Parties Agreed to Mediate, Resulting in the Settlement the Court Preliminarily5
Approved on August 10, 2017 46
7III. THE PROPOSED SETTLEMENT AND THE CLASS MEMBERS'ESPONSE.......... 4
A. The Proposed Settlement 48
B. The Released Claims . 5
C. Preliminary Approval and the Notice to the Class.
11 D. The Class Members'verwhelming Support of the Settlement ....................................
12 IV. ARGUMENT
13 A. The Settlement is Fair, Reasonable, and Adequate and Satisfies the Standard for Final
14 Approval ..
15 V. THE COURT SHOULD APPROVE THE REQUESTED FEES AND COSTS ....
16 A. The Requested Fee Award is Fair and Reasonable Calculated as a Percentage of a
17 Common Fund . 7
18 B. The Requested Attorneys'ee and Cost Award Is Within the Range ofFees Approved in
19 Comparable Common Fund Cases .8
20 C. A Lodestar Cross-Check Confirms the Reasonableness of the Requested Fee................... 9
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D. Class Counsel's Hourly Rates Are Reasonable.
E. Class Counsel's Total Hours are Reasonable
F. Costs of Litigation
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24VII. THE CLASS REPRESENTATIVE SERVICE PAYMENT IS REASONABLE............ 13
25VIII. THE ADMINISTRATIONCOSTS ARE REASONABLE
26IX. CONCLUSION 15
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MEMO PAAs ISO PLAINTIFFS'OTION FOR FINALAPPROVAL OF CLASS ACTION SElTLEMENT CASE NO. 37-2015-00020830
1
Augustus v. ABMSecurity Services, Inc.2
(2016) 2 Cal.5th 257.3
Bell v. Farmers Ins. Exch.,4
115 Cal. App. 4th 715.
5 Boeing Co. v. Van Gemert
6 (1980) 444 U.S. 472.
CASKS
13
7 Brinker Restaurant Corp. v. Superior Court
6 (2012) 53 Cal.4th 1004.
g Chavez v. Netflix, Inc.,
3,11
10
12
13
162 Cal. App. 4th 43.
Clio v. Seagate Tech. Holdiizgs, Inc.
(2009) 177 Cal. App. 4th 734.
Cliun-Hoon v. McKee Foods Corp.
716 F.Supp.2d 848 .1014
City and County ofSan Francisco v. Szveet
(1995) 12 Cal.4th 105.
Dennis v. Kellogg Co.
17 09-CV-1786-L WMC, 2013 WL 6055326 ..
16 Dunk v. Ford Motor Co.
tg (1996) 48 Cal. App. 4th 1794
Flannery v. California Highzvay Patrol
.6,7
21(1998) 61 CaL App. 4th 629 . 10
Garcia v. Gordon Trucking, Inc.22
No. 1:10-CV-0324 AWISKO.23
. 13
24Hopson v. Hanesbrands Inc.
(N.D. Cal. Apt. 3, 2009) . . 10, 12, 13
25 In re Cellphone Fee Termination Cases,
26 186 Cal. App. 4th 1380. .13
27 In re Microsoft I-VCases
26 (2006) 135 Cal. App. 4th 706
MEMO P &As ISO PLAINTIFFS'OTIONFOR FINALAPPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 37-2013-00020830
1In re Portal Software, Inc. Securities Litigation
2007 U.S. Dist. LEXIS 888862
In re Quinn v. SI'ate ofCalifornia3
(1995) 15 Cal.3d 162.4
Ketch um v. Moses
5 24 Cal.4th 1122
Lealao v. Beneficial California, Inc.
7 (2000) 82 Cal. App. 4th 19.
8 Munoz v. BCI Coca-Cola Bottling Co. ofLos Angeles
g 186 Cal. App. 4th 399..
New York Gasligltt Club, Inc. v. Carey
(1980) 447 U.S. 54.
Officersfor Justice v. CivilServ. Comnt'n ofCity & Cnty. ofS.F.12
(9th Cir. 1982) 688 F.2d 61513
PLCM Group, Inc. v. Drexler
(2000) 22 CRL 4th 1084
15 Potter v. Pacific Coast Lumber Co. of Cal.
18 (1951) 37 Cal. 2d 592
17 Serrano v. Priest
38 (1977) 20 Cal.3d 25
3g Smitlt v. CBST Van Expedited, Inc.,
10
13
9, 10
7 9,11
20
22
23
10-CV-1116- IEG WMC, 2013 WL 163293.
Stambaugh v. Superior Court
(1976) 62 Cal. App. 3d 231
Villacres v. ABMIndus. Inc.,
189 Cal. App. 4th 562 13
24Vincent v. Hughes Air 8'est, Inc.
25
27
28
(9th Cir. 1977) 557 F.2d 759 ..
8'ershba v. Apple Computer, Inc.
(2001) 91 Cal. App. 4th 224.
.7,8
.6,8
MEMO P&As ISO PLAINTIFFS'OTIONFOR FINALAPPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 37-2013-00020830
1 I. INTRODUCTIONAND BACKGROUND
2 This motion seeks final approval of a non-reversionary $4,800,000 proposed wage and
3 hour class action settlement by Plaintiffs Philip Lo Cascio, Trevine Fernando, Danny Alzamar.
4 and Phu Le on behalf of themselves and the 3,287 persons similarly employed or formerly
8 employed as hourly non-exempt employees of Defendant Hertz Local Edition Corporation'
("HLE")who worked in California at any time during December 15, 2010 through May I, 2017.
HLE is one of the largest U.S. car rental companies by sales, locations, and fleet size.
8 This case required 2,784.71 hours of attorney time from Class Counsel and sought relief
g for 3,287 non-exempt employees who worked for Defendant in California at any time during the
10 Class Period. This litigation involved ongoing investigations with Class Members throughout the
state of California, exchange and analysis of written discovery, the depositions of Plaintiffs Lo
Cascio and Fernando and Defendants'0(b)(6) witnesses, Tionna Rose Wentz, the Region
13 Revenue Manager for HLE, Western Region, and Erin Gail Iseminger, the Western Region Vice
President for HLE, as well as the informal exchange of information prior to mediation, and a full
day of mediation. Class Counsels'ee request of $ 1,598,400, representing 33 I/3% of the Gross
Settlement Amount, is fully supported by the common fund method and the lodestar method.
17 Plaintiffs further move for final approval of$ 51,084.82 in litigation costs (estimated not tc
exceed $ 70,000) incurred in litigating tins matter. Plaintiffs also move for final approval of Class
Representative Payments in the amount of$ 10,000 to each named Class Representative, Philip Lo
Cascio, Trevine Fernando, Danny Alzamar, and Phu Le (total of $40,000) for consideration in
exchange for giving a general release greater than the release given by Participating Class
Members and to compensate them for the time they spent on this case. Plaintiffs played a vital role
23in representing the other non-exempt employees in this case and spearheading the lawsuit to seek
actual and substantial monetary relief for them. Additionally, Plaintiffs move for final approval of
payment of$48,499 (estimated not to exceed $ 50,000) to the Settlement Administrator, Simpluris.
Inc. ("Simpluris") for the costs and fees of administering the settlement. Finally, Plaintiffs move
for final approval ofpayment of $ 75,000 (75% of $ 100,000) to the LWDAfor PAGA penalties.
28 'he Hertz Corporation did not directly employ Class Members.
MEMO P&As ISO PLAINTIFFS'OTIONFOR FINALAPPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 37-2015-00020830
1 The requested amount of attorneys'ees, litigation costs, settlement administration costs.
2 enhancement payments, and LWDApayment were fullydisclosed to the Class Members when the
3 Class Notice was mailed to them on September 14, 2017. Most impoitantly, the Settlement and all
of its terms received overwhelming support from Class Members. As of the date of this filing,nc
E objections were filed and no Class Members requested exclusion from the Settlement. With
0 an estimated average payout to Class Members of$ 902.98 and highest estimated award being
$4,626.61, the Settlement is fair, adequate, and reasonable. Therefore, Plaintiffs respectfully
0 request that the Court grant final approval of the Settlement, attorneys'ees, litigation costs, costs
g ofsettlement administration, LWDApayment, and class representative enhancement awards in the
10 amounts requested, as preliminarily approved by this Court on August 10, 2017, as fullydisclosed
to the Class Members, and as requested herein.
12 II. INVESTIGATION DISCOVERY AND MEDIATION
13 As described in full detail in Plaintiffs'reliminary Approval Motion, filed on July 21,
14 2017, at pages 2-4, this Settlement sought to resolve the Lo Cascio/Fernando consolidated class
action (which joined together Lo Cascio v. Hertz Local Edition Corporation and Fernando v. Hert"
Local Edition Corporation) ("Lo Casio P'), the Lo Cascio v. Hertz Local Edition PAGA action
("Lo Casio I1"'), and Jones v. Hertz Local Edition Corporation ("Jones Matter"). The Court
preliminarily approved tins Settlement and granted Plaintiffs'eave to file their First Amended
Complaint ("FAC")on August 10, 2017. Plaintiffs filed their FAC on August 10, 2017, adding the
plaintiffs, counsel and claims from the Lo Cascio I and Jones Matter to the instant matter (Lo
Cascio LJ) . Declaration of WilliamTurley, "Turley Dec.," $ 23.
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A. Discovery, Investigation, and the Parties'taunchly Conflicting Positions
As discussed more in depth in Plaintiffs'reliminary Approval Motion, filed July 21, 2017,
the Parties propounded and responded to written discover requests and deposed Defendants'ule
30(b)(6) witnesses, Tionna Rose Wentz, the Region Revenue Manager for HLE, Western Region
and Erin Gail Iseminger, the Western Region Vice President for HLE. Defendants deposed
27 '- October 30, 2017 is the deadline to request exclusion or object to the Settlement, which is five days atter the date ot
this filing. Plaintiffs willfile a supplemental declaration from Simpluris regarding the status ofopt outs and objections
after October 30, 2017.
MEMO P&As ISO PLAINTIFFS'OTIONFOR FINALAPPROVAL OF CLASS ACTION SETI'LEMENT CASE NO. 37-20 IS-00020830
1 Plaintiffs Lo Cascio and Fernando. Based upon Defendants'iscovery responses and document
2 production, the depositions of Defendants'itnesses, Plaintiffs'epositions, as well as the
numerous interviews Plaintiffs had with Class Members, Plaintiffs contend Defendants do not use
the correct formula to calculate a bonus overtime adjustment under California law and do not
6 provide duty-free meal and rest breaks. Per Defendants'ritten policies, Plaintiffs contend its
E employees remain tethered to their work stations and cellphones, standing by to wait on customers,
ready to "capture every reservation." Plaintiffs claim this violates Labor Code sections 512 and
g 226.7, Wage Orders, Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, and
g Augustus v. ABMSecurity Services, Inc. (2016) 2 Cal.5th 257, for failure to insect employees
10 that they were entitled to take duty-free meal and rest periods. Turley Dec. $ 24.
11 Defendants vehemently deny Plaintiffs'ontentions, claiming that there is no California
formula for adjusting overtime rates to account for non-discretionary bonuses and that they
properly calculated and paid overtime wages according to the applicable federal law. Furthermore,
Defendants contend they made meal and rest peiiods available to their non-exempt employees and
fullycomplied with California law. Defendants contend it has voluminous records demonstrating
its employees clocked out for their meal periods. Defendants further contend, that, on the rare
1 7 occasion when employees missed a meal period, Defendants promptly paid to those employees the
premium required by Labor Code $ 226.7. Defendants further contend that they have statements
from their non-exempt employees, stating that they received their meal and rest breaks and that
they could do whatever they wanted on their meal and rest periods, including leave their work
stations and not respond to telephone calls. Therefore, Defendants contend Plaintiffs would have
a difficult burden of proof at certification to show that their claims were common to all class
members. Turley Dec. $ 26.
Finally, under Bri»ker, Defendants argue they need not ensure meal and rest periods are24
taken, but are only obligated to make them available to their employees. Defendants contend their
meal and rest period policies were not unlawful, because they did not have and Plaintiffs cannot
27 'll remaining causes of action for wage statement violations and waiting time penalties were derivative and
dependent upon the strength ofPlaintiffs'laims for unpaid wages and meal and rest break violations. Turley if 25.
MEMO PAAs ISO PLAINTIFFS'OTION FOR FINALAPPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 37-2015-00020830
1 prove Defendants had a policy which refused duty-free meal and rest periods to Plaintiffs and
2 members of the Class. Defendants further contend their meal and rest period policies comported
3 with the flexibility the Brinker court held was integral to California's meal and rest period
requirements. Turley Dec. $ 27. Per the above, the Parties took staunchly conflicting positions with
5 respect to Defendants'olicies and procedures and their effect on non-exempt employees.
B. The Parties Agreed to Mediate, Resulting in the Settlement the Court6 Prellminarily Approved on August 10, 2017
On March 2, 2017, the Parties attended mediation with Mark Rudy. After an entire day ot
negotiations, the Parties were able to reach an agreement on Settlement, the terms of which were
ultimately memo'rialized in the Joint Stipulation of Settlement and Release the Cour't preliminarily
approved on August 10, 2017. Turley Dec. $ 28.
12
THE PROPOSED SETTLEMENT AND THE CLASS MEMBERS'ESPONSEA. The Proposed Settlement
The Parties have agreed that this action be settled and compromised for the non-
reversionary total sum of $4,800,000 ("Gross Settlement Amount'* or "GSA") which includes,
15subject to Court approval: (a) Class Counsel Fee Payment of up to $ 1,598,400 or 33 1/3%; (b)
16Class Counsel Litigation Expenses Payment estimated not to exceed $ 70,000; (c) Class
Representative Payments to the four Class Representatives in a sum not to exceed $ 10,000 each:17
(d) Administration Costs to Simpluris, estimated at approximately $ 50,000; (e) a PAGA Payment18
of $ 75,000 (75% of $ 100,000 allocated to the Labor and Workforce Development Agency and19
remainder to Participating Class Members); and (f) applicable taxes. Turley Dec. $ 29.20
21After all Court-approved deductions from the GSA, it is estimated that $ 2,987,016.18 ("Net
Settlement Amount" or "NSA"), less all applicable payroll taxes, will be distributed to Class22
Members, with an average settlement share estimated at $902.98 and high payment estimated at23
$4,626.61. Subject to the terms and conditions ofthe Settlement, Simpluris willcalculate and issue24
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26
27
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an individual Settlement Share based on the following formula:
Class Member Settlement Share Calculation. All Participating Class Members
willautomatically receive their proportionate share of the NSA. The NSA shall be
distributed to the individual Participating Class Members based on the Workweeks
the individual Participating Class Members worked for HLE in California duringthe Class Period. The amount allocated for each individual Participating Class
MEMO PkAs ISO PLAINTIFFS'OTIONFOR FINALAPPROVAL OF CLASS ACTION SE1TLEMENT CASE NO. 37-2015-00020830
Member will be determined by multiplying the number of Workweeks workedduring the Class Period by each Participating Class Member (after resolution ofany
dispute regarding the number of Workweeks) times the Workweek Value. See
Settlement Agreement, f III(B)(1)(c).The Workweek Value means the NSA divided by the number of workweeks for all Class
4 Members during the Class Period. The number of workweeks Class Members worked will be
6 derived from Defendant's records. Under no circumstances willany portion of the GSA revert
to Defendants. Turley Dec. tl 30.
B. The Released Claims
10
In exchange for a Settlement Payment, Class Members are informed that, by accepting the
payment, they release the Released Parties, as defined by the Settlement Agreement, from all
Released Claims. Said Released Claims are more fully laid out in the a'ccompanying Declaration
ofWilliamTurley, as well as in Plaintiffs Motion for Preliminary Approval and the accompanying
11Settlement Agreement, both filed on July 21, 2017. Turley Decl. $f[ 31-33.
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C. Preliminary Approval and the Notice to the Class
On August 10, 2017, the Court granted preliminary approval, conditionally certified the
Class, and among other things, appointed Simpluris to act as the Settlement Administrator,
16 approved the Notice Packet and directed that the Notice be mailed to the Class by First Class U.S.
16 Mail. Following a National Change of Address search of the U.S. Postal Service database, on
September 14, 2017, the Simpluris mailed the Notice Packet to 3,287 Class Members. Declaration
16 ofJarrod Salinas ("Salinas Dec.") tttt 5-7, Exh. A. The Notice advised the Class ofthe terms of the
1 9 Settlement and of their rights to 1) participate in the Settlement and to receive their share of the
20 Settlement; 2) object to the settlement and to appear at the Final Approval Hearing (which date,
21 time and place was provided); 3) request to be excluded from the Settlement; and 4) the timing for
22 doing any of these acts. The Notice also informed Class Members to notify Simpluris of any
23 change to their cmrent mailing address in order to ensure receipt oftheir Settlement Payment check
24 once final approval was granted. The Notice included individualized information pertinent to each
26 Class Member upon which their Settlement Payment would be calculated, i.e., the number ol
26 workweeks worked during the Class Period, the estimated amount of their Settlement Payment,
27 and provided instructions in the event a Class Member wished to dispute perceived inaccurate
26 information. Turley Decl. tt 34; Salinas Decl. Exh. A.
MEMO P&As ISO PLAINTIFFS'OTIONFOR FINALAPPROVAL OF CLASS ACTION SETI'LEMENT CASE NO. 37-2018-00020830
1Following the initialmailing ofthe Notice Packet, and the re-mailing ofundelivered Notices
followed by skip traces conducted by Simpluris, there were twenty-one undelivered Notices. Salinas2
DecL $ 8. However, these Class Members —and any Class Member who still wishes to claim their3
share of the NSA —will still be able to claim their respective portions of the Settlement Irom the
4Department of Industrial Relations Unclaimed Wages Fund. Turley Dec. $ 35.
5 D. The Class Members'verwhelming Support of the Settlement
6 AllParticipating Class Members will receive a Settlement Share. With an estimated NSA
of$2,987,016.18, Class Members willreceive an estimated average payment of $902.98, with the
highest payment estimated at $4,626.61. As of the date of this filing, there are no opt-outs oi
objebtions asserted by any'lass Member, resulting in a 100'ls participation rate. Turley Decl. $~
36. Salinas Dec. $$ 9-11.
12
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IV. ARGUMENTA. The Settlement is Fair, Reasonable, and Adequate and Satisfies the Standard
for Final Approval
Rule 3.769, California Rules of Court, requires court approval for class action settlements.
14Cal. R. Ct. 3.769(g). California courts favor settlement. Stambaugh v. Superior Court (1976) 62 Cal.
15App. 3d 231, 236, Potter v. Pacific Coast Lumber Co. ofCal. (1951) 37 Cal. 2d 592, 602 ("[T]he
16 law wisely favors settlements" ). Accordingly, the Court must give "[due] regard to what is otherwise
17a private consensual agreement between the parties." Wershba v. Apple Computer, Inc. (2001) 91
Cal. App. 4th 224, 245.
In deciding whether to approve a class settlement, a court evaluates whether the proposed
settlement is "fair, adequate, and reasonable." Dunk v. Ford Motor Co. (1996) 48 Cal. App. 4th 1794,
1801 (citing Officers for Justice v. CivilServ. Comm'n ofCity d'c Cnty. ofSF. (9th Cir. 1982) 688
F.2d 615, 625); Cho v. Seagate Tech. Holdings, Inc. (2009) 177 Cal. App. 4th 734, 742 43. A court
enjoys broad discretion to make its fairness deteimination. Dunk, 48 Cal. App. 4th at 1801. However,
"a presumption of fairness exists where: (I) the settlement is reached through ami'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." Dunk, 48 Cal. App. 4th at 1802; accord Iftershba, 91 Cal. App. 4th at 245. In addition, a court
should consider additional relevant factors, including the strength ofthe plaintiffs'ase compared to
MEMO P&As ISO PLAINTIFFS'OTIONFOR FINALAPPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 37-2015-00020830
1 the settlement amount; the risk, expenses, complexity, and likely duration of further litigation; and
2 the fair treatment ofclass members in relation to each other. Dunk, 48 Cal. App. 4th at 1802; see also
3 In re Microsoft I- V Cases (2006) 135 Cal. App. 4th 706, 723; see also Boyd v. Bechtel Corp. (N.D.
4 Cal. 1979) 485 F. Supp. 610, 617.
5 At the time ofpreliminary approval, the Court was provided with sufficient information tc
6 satisfy three of the four Dunk factors, leaving the fourth factor, the number ofobjectors, unknown
until after the Class had an opportunity to respond to the Settlement via the Class Notice. Subjecl
8 only to the Class'eaction to the Settlement, the Court preliminarily presumed the Settlement wa«
g fair, adequate and reasonable. See, Order Granting Preliminary Approval filed August 10, 2017.
16 Following dissemination of the Notice, and adequate time provided to the Class to return an
objection to the Settlement, not a single objection was asserted or filed by any Class Member.
Thus, the proposed Settlement is entitled to the presumption that it is fair and in all other respects
1 3 proper, and one which should be finally approved. Turley Decl. $ 37.
14
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V. THE COURT SHOULD APPROVE THE REQUESTED FEES AND COSTS
A. The Requested Fee Award is Fair and Reasonable Calculated as a Percentage
of a Common Fund
16 Class Counsel applies for an award ofattorneys'ees in the sum of$ 1,598,400 (which is 33
17 1/3% of the GSA), and litigadon costs of $51,084.82. Turley Decl. $ 38. California courts have
18 recognized that an appropriate method for determining an award of attorneys'ees is based on a
19 percentage of the total value of benefits to Class Members by the settlement, also known as the
20 "common fund" method. Serrano v. Priest (1977) 20 Cal.3d 25, 34 (Ser>.ano III);Boeing Co. v. Van
21 Gemert (1980) 444 U.S. 472, 478; Vincent v. Hughes Air JVest, Inc. (9th Cir. 1977) 557 F.2d 759,
22 769. "Despite its primacy, the lodestar method is not necessarily utilized in common fund cases."
23 Lealao v. Beneficial California, Inc., (2000) 82 Cal. App. 4th 19, 27 ["Lealao"); Dunk 48 Cal. App.
24 4th at 1808 (the percentage method calculates attorney fees as a reasonable percentage of the
25 common fund and may be used where the amount of the settlement is a certain or easily calculable
26 smn ofmoney).
27See, Plaintiffs'otion for Preliminary Approval, pages t> —14, filed July 21, 2017. In addition to the Diu>k factors.
Class Counsel also detailed the other factors such as the strengths of Plaintiffs'ase, risks and costs of further
litigation, as well as the reasonableness of the MSA amount in light ofKtdlrus td.
MEMO P&As ISO PLAINTIFFS* MOTION FOR FINALAPPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 37-2013-00020830
1 The purpose of the common fund/percentage approach is to "spread litigation costs
2 proportionally among all the beneficiaries so that the active beneficiary does not bear the entire
3 burden alone." Vincent, supra, 557 F.2d at 769. In re Quinn v. State ofCalifornia (1995) 15 Cal.3d
162, 167, the Court stated: "[O]ne who expends attorneys'ees in winning a suit which creates a
fund from which others derive benefits may require those passive beneficiaries to bear a fair share
8 of the litigation costs." Similarly, in City and County ofSan Francisco v. Sweet (1995) 12 Cal.4th
105, 110, the California Supreme Court recognized that the common fund doctrine has been
8 applied "consistently in California when an action brought by one party creates a fund in which
8 other persons are entitled to share." The reasons for applying the common fund doctrine include:
10 '*...fairness to the successful litigant, who might otherwise receive no benefit because his recovery
might be consumed by the expenses; correlative prevention of an unfair advantage to the others
who are entitled to share in the fund and who should bear their share of the burden of its recovery;
13 encouragement of the attorney for the successful litigant, who willbe more willing to undertake
and diligently prosecute proper litigation for the protection or recovery of the fund if he is assured
that he will be properly and directly compensated should his efforts be successful." Id.
Furthermore, because there is a defined and clearly traceable benefit to the Class, the Court can
base an award of attorneys'ees using a 'common fund'pproach to compensate Class Counsel.
B. The Requested Attorneys'ee and Cost Award Is Within the Range of Fees
18 Approved in Comparable Common Fund Cases
19 Assessing an appropriate fee based on a percentage of the fund involves taking into account
20 "all of the circumstances of the case." The case law addressing the evaluation of reasonable
21 attorneys'ees in employee class actions arise almost exclusively where awards were challenged by
22 defendants or objectors —the only parties with standing to appeal —none ofwhich are present here.
23 See Wershba, 91 Cal.App.4th at 236. Several studies of class action fee awards have found that the
24 median common fund fee award is approximately one-third of the total settlement fund. See, e.g.,
28 Chavez v. Netflix, Inc., 162 Cal. App. 4th 43, 66, n.l 1 (2008) (numerous studies have shown that
28 "fee awards in class actions average around one-third ofthe recovery."); Reagan W. Silber and Frank
27 E. Goodrich, Contmon Funds and Common Problems: Fee Objections and Class Counsel's
28 Response, 17 Rev. Litig. 525, 546 (1998); T. Willging, L. Hooper and R. Niemic, Empirical Study
MEMO P&As ISO PLAINTIFFS'OTIONFOR FINALAPPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 37-2018-00020830
1 of Class Actions in Four Federal District Courts: Final Report to the Advisory Committee on Civil
2 Rules, 90 (1996) (finding that attorneys'ees in class litigation "were generally in the traditional
3 range ofapproximately one-third of the total settlement" ).
4 The requested fee falls in the mid-range ofpercentage class fee awards, which commonly
5 range Irom 20% to 50% of a common fund, and constitutes fair compensation for undertaking
6 complex, risky, expensive, and time-consuming litigation on a contingent basis and compensates
7 Class Counsel for their efforts as well as the result achieved for the benefit of the Class as well as
8 Defendants'ormer, current, and future employees. Numerous state and federal courts in California
9 routinely approve fee requests equal to or greater than 33% ofthe common fund. Indeed, some courts
10 have found that an award of 33% of the common fund represents the "benchmark" in California.
Smith v. CRST Van Expedited, Inc., 10-CV-1116- IEG WMC, 2013 WL 163293, *5 (S.D. CaL Jan.
14, 2013) ("These percentages compare favorably with both California (33%) and federal (25%)
13 benchmarks."); Dennis v. ICellogg Co., 09-CV-1786-L WMC, 2013 WL 6055326, at *7 (S.D. Cal.
Nov. 14, 2013) ("This percentage compares favorably with both California (33%) and federal (25%)
benchmarks and the requested fee compares well with a lodestar cross-check as well."). In short,
Class Counsel's fee request is in line with awards in similar cases in California and nationwide and
17 demonstrates that Class Counsel's fee request is consistent with market rates and is reasonable.
C. A Lodestar Cross-Check Confirms the Reasonableness of the Requested Fee18
Class Counsel's fee request is reasonable when calculated using the lodestar method. Under
19the lodestar method, a base fee amount is calculated from a compilation of time reasonably spent
20on the case and the reasonable hourly compensation of the attorney. Serrano v. Priest (1977) 20
21Cal. 3d 25, 48. The court then enhances this lodestar figure by a "multiplier"to account for a range
22of factors, such as the novelty and difficultyof the case, its contingent nature, and the degree of
23success achieved. Id., at 49; see also Ketchum v. Moses 24 Cal.4th 1122, 1132-36 (2001); PLCAi
24Group, Inc. v. Drexler (2000) 22 CaL 4th 1084, 1096; Thayer v. IVells Fargo Bank (2001) 92
25Cal.App.4th 819, 834, (2001), ["[t]here is no...rule limitingthe factors that may justify an exercise
26 ofjudicial discretion to [adjust the] lodestar"].
27
MEMO P&As ISO PLAINTIFFS'OTIONFOR FINALAPPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 37-2013-00020830
1 Class Counsel has worked 2,784.71 hours to date on this case, and has calculated the base
2 lodestar at $ 1,782,242 at rates reflecting those currently earned in the market place. Turley Decl.
3 $ 39, Exh. I, Summary ofTime and Costs; Declaration ofAndre Bates $ 19; Declaration ofJames
4 Hawkins $ 24-25 and Gregory Mauro $ 8. Allof the work and tasks performed by Class Counsel
5 were reasonable and necessary to the prosecution of this case and are reflected in the result
6 achieved. Turley Decl. f[$ 13-14, 17-18, 20, 40; Bates Decl. $$ 5-15; Hawkins Decl. $1[24-26;
7 Mauro DecL $$ 7-8. As Class Counsel's lodestar fee is in excess of their fee request, a multiplier
6 on their lodestar fee is not sought herein. Turley Decl. tt 41, Exh. 1. In fact, the requested fee
g results in a so-called "negative multiplier" which suggests the percentage of the fund amount is
10 reasonable and fair. See Chun-Hoon v. McKee Foods Corp., 716 F.Supp.2d 848, 854; In re Portal
Software, Inc. Securities Litigation, 2007 U.S. Dist. LEXIS 88886, 2007 WL 4171201, at *16
12 (N.D. Cal. 2007).D. Class Counsel's Hourly Rates Are Reasonable
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Class Counsels'ourly attorney and paralegal rates are between $ 150 and $ 875 and are in
line with rates typically approved in wage and hour class action litigation and which rates have been
approved by Courts in California in the Los Angeles, Sacramento, San Francisco, Alameda, Orange
and San Diego County Superior Courts. Turley Decl. ltd 42; Bates Decl. )tt 18-22; Hawkins Decl. $
25. A reasonable hourly rate is the prevailing rate charged by attorneys ofsimilar skilland experience
in the relevant community. PLCM Group, Inc., supra, (2000)22 CaL 4th at 1095, more recently,
Hopson v. Hanesbrands Inc. (N.D. Cal. Apr. 3, 2009) 2009 U.S. Dist. LEXIS 33900. When
determining a reasonable hourly rate, courts may consider factors such as the attorney's skill and
21experience, the nature of the work peiformed, the relevant area of expertise and the attorney's
22customary billing rates. Flannery v. California Higltway Patrol (1998) 61 Cal. App. 4th 629, 632.
23Class Counsel's skill and experience support their hourly rates. Their practice is limited
24exclusively to litigation, focusing on the representation of employees in wage and hour and
25consumer class action matters and have been appointed class counsel or co-class counsel in many
26 of these cases. Turley Decl. $$ 1-12, 15-16, 19, 43; Bates Decl. $$ 22, Exh. A; Hawkins Decl. t27
23; Mauro Decl. $$ 3-6. As leading attorneys in the field ofwage and hour class action litigation,
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CASE NO. 37-2013-00020830
1 Class Counsel continually monitors the prevailing market rates charged by both defense and
2 plaintiff law firms and set the billing rates of their attorneys and paralegals/law clerks to be
3 consistent with the prevailing market rates in the private sector for attorneys and staff ol
4 comparable skill, qualifications and experience. Other wage and hour attorneys working as class
5 counsel before California courts charge comparable ifnot higher rates. Turley Decl. $$ 44, Exh,
6 2, Westlaw Court Express's Legal BillingReport, Volume 14, Number 3, California Region for
December 2012; Exh. 3, 2014 Declaration ofRichard M. Pearl in Hobnbautn v. Brinker Restaurant
8 Corp. SDSC GIC834348; Exh. 4, 2012 National Law Journal Survey ofHourly BillingRates for
9 Partners and Associates.
E. Class Counsel's Total Hours are Reasonable10
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In determining a lodestar fee, reasonable hours include, in addition to time spent during
litigation, the time spent before the action was filed, including time spent interviewing clients,
investigating the facts and the law, and preparing the initial pleadings. See New york Gaslight Club,
Inc. v. Carey (1980) 447 U.S. 54, 62, 100 S. Ct. 2024, 2030, 64 L. Ed. 2d 723. Further, the fee award14
should include fees incurred to establish and defend the attorneys'ee claim. Serrano v. Priest (1982)15
32 Ca1.3d 621, 639 ("Serrano IV*).16
Counsel's many tasks, in summary form, included the following: pre-filing investigation and
17legal research; communicating with the class representatives; interviewing and meeting withputative
18Class Members throughout the state; research and investigation in California's ever evolving wage
19and hour laws regarding compensation, overtime, meal and rest periods, itemized wage statements,
20waiting tune penalties, and California's Unfair Competition Law; investigation into Defendants'1
pay-structures and policies; draft and file pleadings; draft, propound, and respond to written
22discovery requests; numerous conferences with co-counsel and defense counsel regarding a variety
23of issues throughout the litigation, mediation, and settlement; status and case management
24conference statements and attend hearings; oppose motions and attend the hearings thereon; meet
25and confer correspondence; draft mediation damage and exposure models; analyze records produced
26by Defendants relating to its policies, pay-structures, and time keeping; prepare for and defend
27depositions of Plaintiffs; prepare for and depose Defendants'0(b)(6) witnesses; prepare for and
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CASE NO. 37-2015-00020B30
1 attend mediation; analyze records produced by representatives and class members; negotiate, draft,
2 and re-draft the memorandum ofunderstanding, the settlement agreement, and the Notice Packet to
3 the Class; discussions with settlement administrator regarding his duties; draft and edit preliminary
approval motion and supporting papers; review and proofNotice Packet papers I'rom the settlement
5 administrator; review weekly status reports from the claims administrator regarding Class
6 participation; prepare and send out a Belaire West notice to the Class; telephone outreach to Class
Members to investigate claims made in the case; conferences with co-counsel and settlement
8 administrator re: address changes and Class Members'esponses to the Settlement; review and
9 suggest revisions to settlement administrator's declaration; draft and edit final approval of the
10 settlement and fee application, and appearing at the hearing thereon. Turley Decl. $$ 13, 17, 20;
Bates Decl. )tr 5-15; Hawkins Decl. 5 8.
12 Class Counsel has expended a total of 2,784.71 hours on this case. The work performed by
13 Class Counsel in order to achieve a settlement that willprovide valuable consideration to the Class,
averaging an estimated payment of$902.98, with the highest estimated award being $4,626.61,
is summarized by Class Counsel in the declarations submitted herewith. Allof the tasks and work
performed were reasonable and necessary to the prosecution of this case. The work performed was
particularly justified, in light of the extraordinary result achieved. Turley Decl. tt) 49, Exh. I; Bates
18 Decl. $ 5-15; Hawkins Decl. $$ 25-26.
F. Costs of Litigation
Class Counsel seeks reimbursement of the litigation costs and expenses of $ 51,084.82,
20previously estimated not to exceed $ 70,000. Turley Decl., $ 50, Exh. 1; Bates Decl. $ 20; Hawkins
21Decl. f 26. These costs were all reasonable and necessary to the prosecution of this case and the
22results aclueved and are fair, reasonable, and unopposed by Defendants. Turley Decl. $ 51.
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SETTLEMENT PENALTIES UNDER PAGA ARE REASONABLE
Where settlements "negotiate[] a good faith amount" for PAGA penalties and "there is nc
25indication that this amount was the result of self-interest at the expense of other Class Members,"
26such amounts are generally considered reasonable. Hopson v. Hanesbrands Inc., No. CV-08-0844
27EDL, 2009 WL 928133, at *9 (N.D. Cal. Apr. 3, 2009). The amount that would go to the LWDA
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CASE NO. 37-2015-00020830
1 comports with PAGA settlement amounts approved by the courts. See, e.g., Hopson v.
2 Hanesbrands Inc., No. CV-08-0844 EDL, 2008 WL 3385452, at *1 (N.D. Cal. Aug. 8, 2008)
3 (approving a PAGA settlement of 0.3% or $ 1,500); Garcia v. Gordon Trucking, Inc., No. 1:10-
CV-0324 AWI SKO, 2012 WL 5364575, at "3 (E.D. Cal. Oct. 31, 2012) (approving a PAGA
8 settlement of 0.27%); Villacres v. ABMIndus. Inc., 189 Cal. App. 4th 562 (2010), review denied
8 (Feb. 16, 2011) (PAGA claims may be settled without any money allocated to those claims).
7 The $75,000 (75% of $ 100,000) settlement to pay for all applicable penalties under the
8 California Labor Code's Private General Act of 2004, as amended ("PAGA") is reasonable under
8 the circutnstances. The Piuties negotiated a good faith amount to the California Labor and Workforce
1p Development Agency's ("LWDA").The sum to be paid to the LWDAwas not the result of self-
interest at the expense ofother Class Members. Turley Decl. $ 52.
12 VH THE CLASS REPRESENTATIVE SERVICE PAYMENTIS REASONABLE
13 Courts routinely approve service payments, or incentive awards, to compensate named
plaintiffs for the services they provide and the risks they incur during class litigation. See In re
Cellphone Fee Termination Cases, 186 Cal. App. 4th 1380, 1393 (2010); see also Bell v. Farmers
Ins. Exch., 115 Cal. App. 4th 715, 725-26 (2004) (upholding service payments to class
representatives); Itfunoz v. BCI Coca-Cola Bottling Co. ofLos Angeles, 186 Cal. App. 4th 399, 412
(2010) (upholding incentive awards to plaintiffs that, when added to their individual recoveries,
amounted to more than twice as much as the average payment to class members); Manual sS 21.62
2p 11.971 (noting that service payments are wairanted).
21Class Counsel seeks approval of a service payment to named Plaintiffs/Class
Representatives, Philip Lo Cascio, Trevine Fernando, Danny Alzamar, and Phu Le, in sums of
23 $ 1 0,000 each, the total sum of which represents less than 1 % of the $4,800,000 settlement. The
requested service payment to each is reasonable in light of giving a general release of all claims,
greater than that given by the Class, the benefits Plaintiffs have conferred upon the entire Class,
resulting in substantial payments to Class Members, the significant time spent assisting counsel with
the invesfigation and prosecution ofthese claims, responding to anticipated discovery and deposition
28testimony, and consenting to the proposed Settlement. Furthermore, in pursuing this action on behalf
MEMO PSIAs ISO PLAINTIFFS'OTION FOR FINALAPPROVAL OF CLASS ACTION SETTLEMENT
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CASE NO. 37-2013-00020830
1 of the Class, Plaintiffs risked a judgment entered against them for attorneys'ees and costs in the
2 event this matter had been lost. The Class was informed each Plaintiffwould apply for this service
3 payment and not one Class Member objected and Defendants do not oppose the request. Based on
4 the foregoing, the $ 10,000 service payment to each of the Class Representatives is fair, appropriate
6 and justified as part of the overall settlement. Turley Decl. $ 53. See also, Declarations ofPhilip Lo
6 Cascio, Trevine Fernando, Danny Alzamar, and Phu Le, filed concurrently herewith.
VIII. THE ADMINISTRATIONCOSTS ARE REASONABLE
8 The Parties agreed to hire Simpluris, Inc. as the Administrator and the Court approved this
9 choice. The Administrator was responsible for formatting, printing and mailing the Notice. It was
IO also responsible for updating addresses and re-mailing returned as undeliverable Notice Packets,
responding to Class Member inquiries, providing weeldy status reports, answering questions from
Counsel for the Parties, and providing a declaration to docmnent its duties and responsibilities under
t3 the Settlement. Following the grant of final approval, the Administrator's duties will continue in
44 order to calculate and mail the Settlement Payment checks to Class Members, perform tax reporting
obligations, disburse other payments as ordered by the Court, and perform such other duties as set
forth in the Settlement Agreement. Simpluris'ee of$48,499 for services rendered and to be rendered
is fair and reasonable and should be granted. Turley DecL $ 54. See also, Salinas Declaration.
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CASE NO. 37-2015-00020830
1 IX. CONCLUSION
2 Based on the foregoing, Class Counsel respectfully requests the Court grant final approval
3 of the Class Action Settlement, award Class Counsel's attorneys'ees in the sum of $ 1,598,400,
litigation costs of $51,084.82, award to each named Plaintitf, the Class Representative service
6 payment in the sum of $ 10,000, award to Simpluris, Inc., $48,499 for settlement administration
6 services, and award to the LWDA$ 75,000 for payment ofcivilpenalties pursuant to PAGA.
7
Date: October 25, 20178
, APLC
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William/ ley, Esq.
Davidfii a, Esq.Jamie rb, Esq.Representing Plaintiffs
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MEMO P&As ISO PLAINTIFFS'OTIONFOR FINALAPPROVAL OF CLASS ACTION SETI'LEMENT
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CASE NO. 37-2015-00020B30