EDWARD J. DAVILA, District Judge.
This employment class action suit is brought by Representative Plaintiffs Danette M. Moore, Latresa Myers, Alanna Harrison, and Alisa Valdez (collectively, "Plaintiffs") against Defendant PetSmart, Inc. ("PetSmart") alleging wage-and-hour violations. Presently before the court are Plaintiffs' motion for final approval of the proposed class action settlement agreement, and motions for attorneys' fees and costs.
Federal jurisdiction arises pursuant to 28 U.S.C. § 1332(a), or alternatively, pursuant to 28 U.S.C. § 1332(d)(2). Having carefully considered the parties' briefing along with oral argument, the court GRANTS Plaintiffs' motion for final approval of the proposed class action settlement agreement, and GRANTS IN PART AND DENIES IN PART Plaintiffs' motions for attorneys' fees and costs.
PetSmart is a nationwide pet supply retailer, and is the largest specialty retailer of pet services that include pet training, pet grooming, and pet adoption. Plaintiffs are current and former employees of PetSmart who worked either as pet groomers, also known as "pet stylists," or as non-exempt employees at various locations throughout California. Through this action, Plaintiffs represent a purported class of 19,701 individuals who were employed at one of PetSmart's 132 stores in California during the period between May 23, 2008 and May 14, 2014.
According to Plaintiffs, PetSmart has engaged in a pattern of wage-and-hour abuse towards its employees by denying them certain rights afforded under California law. Plaintiffs allege that pet stylists earn their wages solely on commission—pet stylists receive 50% of the fee the customer would pay for the grooming service. In a given week, when pet stylists earned more through commission than they would have earned at their hourly fall back rate, they were considered to be "commissioned out." Once commissioned out, pet stylists were allegedly put to perform non-grooming tasks for which they were not paid. Consequently, Plaintiffs allege that PetSmart failed to pay minimum wages for all hours worked because in addition to performing grooming services, pet stylists were required to perform non-grooming services for which they were not paid. Moreover, since pet stylists only get paid when they perform grooming services, they were getting unpaid rest breaks. Thus, Plaintiffs allege that PetSmart failed to compensate for meal and rest periods. Furthermore, Plaintiffs allege that PetSmart failed to provide grooming tools, failed to reimburse pet stylists for grooming supplies, and failed to pay accurate vacation wages.
As to the non-exempt employees, Plaintiffs allege that PetSmart failed to provide employees with meal and rest periods and failed to pay wages for work performed off-the-clock because they were frequently called upon to assist customers during their meal and rest periods. Plaintiffs further allege that between 2005 and 2011, PetSmart maintained an illegal written meal-and-rest-break-policy providing employees one 30-minute unpaid meal break if employees worked more than six hours but less than eight, and one 15-minute rest break if employees worked more than four hours but less than six.
Plaintiffs contend they have satisfied the procedural notice requirement of the Private Attorney General Act of 2004 ("PAGA"), exhausted the administrative remedies of the California Department of Fair Employment and Housing Act, and received the requisite right-to-sue notices.
In September 2012, Jeanette Negrete filed a similar wage-and-hour action against PetSmart in the Superior Court for the County of Shasta, on behalf of pet stylists. In June 2013, PetSmart removed that action to federal court in this district.
In January 2014, the parties reached a settlement agreement.
A class action may not be settled without court approval. Fed. R. Civ. P. 23(e). When the parties to a putative class action reach a settlement agreement prior to class certification, "courts must peruse the proposed compromise to ratify both the propriety of the certification and the fairness of the settlement."
"Approval under 23(e) involves a two-step process in which the Court first determines whether a proposed class action settlement deserves preliminary approval and then, after notice is given to class members, whether final approval is warranted."
The analysis begins with an examination of whether class treatment remains appropriate under Rule 23. At the preliminary approval stage, the court found that: (1) the numerosity requirement was met because the proposed class consists of approximately 16,400 current and former PetSmart employees who worked in California; (2) questions of law or fact are common to the purported class members because all claims for relief arise from PetSmart's employment policies, which affects all the purported class members; (3) these questions of law or fact predominate over questions affecting only individual members, and thus a class action is a superior method to resolve these claims; (4) Plaintiffs' claims are typical to those of the putative class members as they were subjected to the same employment policies, and thus suffered similar damages; (5) Plaintiffs and Class Counsel would fairly and adequately protect the interests of the purported class; (6) Plaintiffs' interests are representative and consistent with those of the purported class; and (7) Class Counsel is experienced in employment class action litigation.
Since preliminary approval, there have been two changes. First, the class size has increased to over 19,000 individuals, which only strengthens the analysis performed during preliminary approval regarding numerosity and the superiority of the class action method. Second, the approved settlement agreement was subsequently modified. Even with the modifications, however, the class definitions and the Rule 23 analysis remain substantively similar and consistent to that which was preliminarily approved. Due to the continued viability of this court's prior findings, the court finds it appropriate to grant final approval of the following settlement classes:
Settlement Agreement at § 4.3; Mot. at 7. The class shall remain certified for settlement purposes.
Rule 23(e)(1) provides that "[t]he court must direct notice in a reasonable manner to all class members who would be bound by the proposal." However, actual notice is not required. "The notice must be the best practicable, reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."
In this case, the parties selected Simpluris, Inc. as Claims Administrator.
In November 2014, notice packets were mailed to the 19,701 purported class members via First Class mail.
Furthermore, the Claims Administrator established a toll-free telephone number, which was operational 24 hours a day, seven days a week, and a website entitled www.petsmartsettlement.com, which has been operational since November 21, 2014.
The Claim Administrator's effort to maximize notice to putative class members, coupled with the court-approved content and appearance of the class notice and claim form, renders this notice plan consistent with Rule 23 standard. Accordingly, the notice plan merits final approval.
Having evaluated the execution of notice to the proposed class and the response offered by the putative class members, the court now reexamines the fairness of the proposed settlement agreement. It contains the following key terms:
1.
• Payment to the Labor and Workforce Development Agency ("LWDA") pursuant to PAGA: The parties agree that $50,000 shall be allocated as settlement of claims under the PAGA. Of this amount, 75% shall be paid to the LWDA and the remaining 25% shall be distributed to the settlement class members.
• Class Counsel's attorneys' fees and costs: PetSmart agrees not to oppose a total award of fees of up to 33.33% of the total settlement amount, which amounts to $3,333,333, and costs incurred by Class Counsel.
• Service payments to class representatives: PetSmart agrees not to oppose a service payment of up to $10,000 for Plaintiffs Harrison and Valdez, and up to $5,000 for Plaintiffs Moore, Myers, and Negrete.
• Costs of administration: The parties agree that settlement administration fees will be paid from the total settlement, which amounts to $105,000.
• Reserve fund: The parties agree to a reserve fund of $100,000, which will be used for late claims, to compensate settlement class members who raise issues such as errors or inadvertent exclusion, and to resolve any other dispute.
• Net distribution amount: The parties agree that after the above payments are made, the remaining amount will constitute the net distribution amount that will be allocated to the settlement class members.
• Plan for allocating net distribution amount: The first allocation of funds will be made to the settlement class members in the "waiting time penalties settlement sub-class."
2.
• PetSmart will provide additional grooming tools for its pet stylists, and will provide communication on the use of store tools.
• PetSmart agrees to revise its pet stylist pay plans to specifically confirm that grooming employees are being paid for all hours worked at their regular rate, and any other amounts paid are in addition to the hourly rate.
• PetSmart will retain a consultant specializing in safety and ergonomic issues to conduct an evaluation of its current practices and to review its policies and procedures as to whether to allow pet stylists to sit while performing grooming tasks.
• PetSmart will revise its policies to emphasize that all hours worked will be paid, off-the-clock work will be expressly prohibited, any employee who performs off-the-clock work will be required to inform his/her manager, and employees who are interrupted during their meal or rest breaks will be allowed to take additional time.
3.
4.
In assessing whether a class action settlement is fair, adequate and reasonable, the court must balance a series of factors, including "the strength of the plaintiffs' case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status throughout the trial; the amount offered in settlement; the extent of discovery completed and the stage of the proceedings; the experience and views of counsel; the presence of a governmental participant; and the reaction of the class members to the proposed settlement."
In determining the probability and likelihood of a plaintiff's success on the merits of a class action litigation, "the district court's determination is nothing more than an amalgam of delicate balancing, gross approximations and rough justice."
Here, Plaintiffs contend that their theory of recovery for unpaid wages for non-commission duties and for rest break time was novel and highly risky given the unsettled area of law at the time this case was filed. Mot. at 10-11. Plaintiffs further contend that PetSmart vigorously defended against these claims and raised a number of factual issues that would show substantial variation among class members, and thus could present a substantial risk at the class certification stage.
Given the wage-and-hour theory advanced by Plaintiffs and the factual issues that could have arisen showing variation of work performed between different class members, settlement appears to provide a better result for the putative class members than continued litigation. Thus, this factor weighs in favor of settlement.
Plaintiffs contend that further litigation would have posed various risks including a finding that the putative class members had been paid all wages due, that PetSmart did not intentionally fail to furnish accurate itemized wage statements, and a reduction in Plaintiffs' damages.
Although a class can be certified for settlement purposes, the notion that a district court could decertify a class at any time is an inescapable and weighty risk that weighs in favor of a settlement.
The proposed settlement yielded a total settlement amount of $10 million. After all agreed-upon payments are made, the net distribution amount allocated to settlement class members will be approximately $6,322,500, composing 63% of the total settlement fund. According to the Claims Administrator, the average individual payment will amount to approximately $645.02, and the highest individual payment will amount to approximately $15,705.64.
While the monetary recovery obtained for settlement class members is significant, the injunctive relief agreed upon is less impressive. In particular, there is minimal value in PetSmart agreeing to retain a consultant specializing in safety and ergonomic issues to conduct an evaluation when PetSmart is not obligated to disclose the results of such evaluation or make any changes to its practices. Nonetheless, as a whole, the monetary amount offered to purported class members is substantial enough to weigh this factor in favor of settlement.
In class action settlements, "formal discovery is not a necessary ticket to the bargaining table where the parties have sufficient information to make an informed decision about settlement."
While the parties had not gone through a round of summary judgment proceedings, extensive discovery and fact gathering was conducted so that Plaintiffs "had a good grasp on the merits of their case before settlement talks began."
In evaluating this factor, the court notes that "[p]arties represented by competent counsel are better positioned than courts to produce a settlement that fairly reflects each party's expected outcome in litigation."
A low number of opt-outs and objections in comparison to class size is typically a factor that supports settlement approval.
As of the filing of the instant motion, the Claims Administrator received claims from 9,914 settlement class members, of which 9,799 claims were valid.
Given that nearly half of the putative class submitted a claim form, and less than one percent either opted out or objected, the reaction of the putative class has been very positive. Therefore, this factor strongly favors settlement.
Agreements formed prior to formal class certification present a potential for a breach of fiduciary duty towards the class, thus "such agreements must withstand an even higher level of scrutiny for evidence of collusion."
As to the first factor, the net distribution amount will be approximately $6,322,500, and counsel's request for attorneys' fees amount to approximately $3,333,333. It is compelling that all settlement class members who submit a claim form will receive monetary recovery, and that the average individual payment will amount to approximately $645.02. Moreover, it is significant that any remaining funds will be re-distributed to the settlement class members. While PetSmart will benefit because any funds that continue to remain will be allocated towards its share of employer-side payroll taxes owed, overall, it does not appear that Class Counsel will receive a disproportionate distribution of the settlement. Thus, as to this factor, there does not appear to be collusion.
As to the second and third factors, the parties did negotiate a "clear sailing" arrangement whereby PetSmart agrees not to oppose an attorneys' fee award of up to 33% of the total settlement fund, or $3,333,333, and costs incurred by Class Counsel.
While the presence of a neutral mediator weighs in favor of non-collusiveness, it is not dispositive on its own.
In sum, all of the applicable factors weigh in favor of granting final approval to the proposed settlement agreement.
The parties agree that any net distribution amount remaining after the individual settlement amounts have been allocated and payment of PetSmart's employer taxes have been made, will go towards cy pres. Settlement Agreement § 4.5(c). The cy pres recipient will be the Legal Aid Society—Employment Law Center located in San Francisco, California.
Plaintiffs seek approval of the requested payment to the LWDA as its share of the PAGA penalties. Mot. at 18. The parties request a payment of $50,000 of the total settlement amount, 75% of which will be paid to the LWDA and 25% of which will be distributed to the settlement class members as part of the net distribution amount.
"PAGA authorizes aggrieved employees, acting as private attorneys general, to recover civil penalties from their employers for violations of the Labor Code."
The parties retained Simpluris as settlement administrator, which seeks fees and costs of $119,500. Mot. at 19. While originally Simpluris estimated its fees and costs to amount to $105,000, it has now documented fees and costs totaling $119,500 because the class size increased by 3,288 individuals and the response rate was about 10.24% higher than anticipated.
An objector to a proposed settlement agreement bears the burden of proving any assertions they raise challenging the reasonableness of a class action settlement.
Here, there is only one objector—Lindsey Loomis, who has retained counsel. Ms. Loomis worked for PetSmart as a pet stylist and in other non-exempt positions from October 2008 to May 2014. Dkt. No. 97 at 2. Of concern is the timeliness of Ms. Loomis' objections because her objection filed on February 11, 2015—the last filing date for an objection—did not contain Ms. Loomis' signature.
Although Ms. Loomis' objection has been struck, the court will assume for the present discussion that her objection was timely filed in order to address the merits of her arguments. Ms. Loomis sets forth two arguments as the basis for her objection.
Ms. Loomis' argument is unpersuasive. To the extent that Class Counsel should have treated pet stylists differently than non-exempt employees, it did so by allocating two-thirds of the net distribution fund to pet stylists and one-third to non-exempt employees. Moreover, to the extent Ms. Looomis contends Class Counsel has breached its ethical duty of loyalty, there is no such indication. Members of both sub-classes will be obtaining monetary recovery, and their interests are parallel.
Second, Ms. Loomis argues that Class Counsel GrahamHollis cannot represent an individual's personal claims against PetSmart because these individuals' interests are not co-extensive with those of the class. Dkt. No. 97 at 3. Ms. Loomis argues that the class representatives are pursuing separate claims against PetSmart that will not be released as part of the settlement, and thus Class Counsel's loyalty to the class is compromised. Dkt. No. 110 at 3. Ms. Loomis further argues that Class Counsel's representation of the class representatives in these individual claims raises the specter of collusion because Class Counsel could later negotiate a more favorable settlement for the class representatives, to the detriment of the other class members.
This argument is equally unavailing. There is no indication that the class representatives' interests are adverse to those of the class, and there is no indication that Class Counsel's ethical duty of loyalty to the class was compromised as it obtained a significant recovery to the class members. Furthermore, Ms. Loomis has not shown that Class Counsel represents class representatives in separate claims against PetSmart, or that such representation resulted in a detriment to the class members. To the extent Ms. Loomis contends that a better deal could have been provided to class members in exchange for the release of their claims, it is unpersuasive because this is not the standard upon which to evaluate the reasonableness of a settlement agreement.
In sum, Ms. Loomis has failed to meet her burden of proving any assertion that challenges the reasonableness of the instant settlement agreement. She has not sufficiently demonstrated that the proposed settlement is unfair, unreasonable, inadequate, or is the product of collusion. Accordingly, Ms. Loomis's objections would be overruled even if considered on its merits.
The court finds the proposed settlement agreement to be fair, reasonable, and adequate. Based on the foregoing, the court grants final approval.
When Class Counsel request attorneys' fees and costs, "courts have an independent obligation to ensure that the award, like the settlement itself, is reasonable, even if the parties have already agreed to an amount."
"Where a settlement produces a common fund for the benefit of the entire class, courts have discretion to employ either the lodestar method or the percentage-of-the-recovery method."
Under the latter method, the court awards as fees a percentage of the common fund in lieu of the lodestar amount.
Plaintiffs present two motions for attorneys' fees and costs: The first is on behalf of Lead Class Counsel GahamHollis APC ("GrahamHollis Firm"), and the second is on behalf of Pet Stylist Settlement Class Counsel Capstone Law APC ("Capstone Firm") (collectively, "Class Counsel"). Pursuant to the settlement agreement, the GrahamHollis Firm seeks 28.83% of the total settlement fund (or $2,883,000) and the Capstone Firm seeks 4.5% of the total settlement fund (or $450,000); collectively, they seek 33.33% (or $3,333,333) of the total settlement fund. Settlement Agreement § 4.9.
According to Class Counsel, its fee request is reasonable because it is supported by the overall benefit achieved on behalf of the class, and is not disproportionate to the $6,322,500 available for distribution to the settlement class members. Dkt. No. 92-1 at 4. Class Counsel also emphasize that no amount of the net distribution fund will revert back to PetSmart, but rather will be redistributed to the settlement class members.
The court recognizes the importance of representing aggrieved employees in their efforts to vindicate their rights in the workplace, and notes the considerable risk current employees take when challenging their employer's policies and practices. In order to assert their rights and hold their employers liable for wage-and-hour violations, it is often necessary to litigate such actions as class actions. Furthermore, from class counsel's perspective, they assume great risk in pursuing wage-and-hour actions where a substantial variance between employees can exist, and thus threaten the viability of the case. That Class Counsel, here, was able to obtain a favorable settlement agreement is commendable.
To the extent the 25% benchmark serves as a starting point, it is appropriate to award an attorneys' fee of 27% of the total settlement fund, or $2.7 million, given the significant monetary recovery obtained for the class and the public policy stated above. The court declines to award the requested 33% because the injunctive relief obtained is not of the type that would incur a significant change in policy or practice on behalf of PetSmart, and Class Counsel did not spend an exorbitant amount of time and money litigating this case given the absence of any dispositive motions, such as a motion to dismiss or motion for summary judgment.
The court will now perform the lodestar cross-check to ascertain the reasonableness of a 27% attorneys' fee request.
The Ninth Circuit encourages district courts "to guard against an unreasonable result" by cross-checking attorneys' fees calculations against a second method.
Class Counsel has provided the following lodestar calculation:
The reasonable hourly rate for computing the lodestar amount is based on the "prevailing market rates in the relevant community."
As to the number of hours billed, it must equal the number of hours that can reasonably be billed to a private client.
"Though the lodestar figure is `presumptively reasonable,' the court may adjust it upward or downward by an appropriate positive or negative multiplier reflecting a host of `reasonableness' factors, including the quality of representation, the benefit obtained for the class, the complexity and novelty of the issues presented, and the risk of nonpayment."
In sum, given the circumstances of this case and the lodestar cross-check, an attorneys' fee award of 27% of the settlement fund, or $2.7 million, is reasonable. This amount is hereby approved.
Ms. Loomis objects to the GrahamHollis Firm's motion for attorneys' fees on the same basis as her objection to the settlement agreement.
In addition, Class Counsel seek reimbursement of litigation costs. The GrahamHollis Firm seeks $42,093.91 and the Capstone Firm seeks $13,717.22 for expenses that include court filing fees, attorney service/messenger, online research, mediator's fee, photocopies, document imaging, faxes, postage, telephone, and travel expenses.
"[N]amed plaintiffs, as opposed to designated class members who are not named plaintiffs, are eligible for reasonable incentive payments."
Pursuant to the settlement agreement, Plaintiffs request a service award for Plaintiffs Moore, Myers, and Negrete of $5,000 each, and a service award for Plaintiffs Harrison and Valdez of $10,000 each. Settlement Agreement § 4.8. The settlement agreement also provides that any unawarded amount will be returned to PetSmart and will not be available for class distribution.
According to Plaintiffs Moore, Myers, and Negrete, they took a risk of being located on the internet and having a prospective employer learn that they sued a former employer.
Plaintiffs Harrison and Valdez seek a $10,000 service award each because, in addition to the risks incurred by the other named plaintiffs and their active participation in this litigation, Plaintiffs Harrison and Valdez were current employees of PetSmart while litigating this case.
The court, therefore, approves a service award of $5,000 each to Plaintiffs Moore, Myers, and Negrete, and a service award of $10,000 each to Plaintiffs Harrison and Valdez. This amounts to $35,000, which is less than one percent of the total settlement fund.
Based on the preceding discussion, the court rules as follows:
1. Plaintiffs' Motion for Final Approval of Class Action Settlement (Dkt. No. 93) is GRANTED. The court finds that the terms of the settlement agreement are fair, adequate, and reasonable, and thus satisfy Rule 23(e).
2. Plaintiffs' Motion for Attorneys' Fees and Costs (Dkt. Nos. 91, 92) is GRANTED IN PART AND DENIED IN PART. The court finds $2.7 million in attorneys' fees, $55,811.13 in litigation costs, and $35,000 in service awards to be reasonable.
Plaintiffs shall file a proposed judgment consistent with this order on or before