The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge
[Motion filed on August 3, 2009]
ORDER GRANTING FINAL APPROVAL OF SETTLEMENT
Plaintiffs' Motion for Final Approval of the Settlement ("Mot.") was filed August 3, 2009. The Settlement includes the "Joint Stipulation of Class Action Settlement and Release" and exhibits attached thereto, all filed on April 15, 2009. ("Settlement Agreement.") The Settlement also includes modifications of the Settlement Agreement by: (1) the Court's May 14, 2009 Order Re Joint Stipulation of Class Action Settlement and Release; (2) the Court's May 18, 2009 Minute Order granting preliminary approval of the Settlement Agreement ("May 18, 2009 Minute Order"); (3) the Court's orders in response to the parties' ex parte application of June 8, 2009 (re no publication of class notice) as well as the parties' stipulations of July 2, 2009 (service of revised claim forms), July 22, 2009 (no incentive payments for Salvador Garcia ("Garcia") or Jim Renstrom ("Renstrom")), and August 10, 2009 (distribution of checks by Class Counsel, incentive payments not claimed by Garcia and Renstrom distributed via cy pres).
Defendants Michael Thompson, City of Ontario, Ontario Police Department, Lloyd Scharf, Tony Del Rio, and Brad Schneider ("Defendants") filed a Statement in Support of Settlement on August 4, 2009. On August 13, 2009, the City of Ontario Risk Manager, Ann Richey, filed a declaration regarding Defendants' compliance with the Settlement.
On August 17, 2009, the parties lodged a Revised Proposed Order Granting Final Approval of Class Action Settlement and Judgment ("Revised Proposed Order") but the Settlement does not require its use. (See Settlement Agreement ¶ 26(c).)
The Law firm of Lackie & Dammeier filed the original Complaint in August 2004 on behalf of Robert Bernhard ("Bernhard"), Scott Anderson ("Anderson"), Steven Hurst ("Hurst"), Renstrom, Ron Dupuis ("Dupuis"), Keith Henderson ("Henderson"), Craig Pefferle ("Pefferle"), Nicko Carcich ("Carcich"), Rick Carroll ("Carroll"), Garcia, Christopher Alvarez ("Alvarez"), Fred Ruiz ("Ruiz"), Steve Guderian ("Guderian"), Mike Kelley ("Kelley"), and Mike Bors ("Bors") as individuals.
In October of 2004, Lackie & Dammeier, with the American Civil Liberties Union ("ACLU") and Bahan & Associates, filed a First Amended Complaint ("FAC") on behalf of Steven Trujillo ("Trujillo"), Jeff Quon ("Quon"), Craig Ansman ("Ansman"), Will Rivera ("Rivera"), Anderson, Bernhard, and Pefferle (collectively "Plaintiffs"), as representatives of a purported class. Trujillo, Ansman, Rivera, Anderson, Bernhard, and Pefferle served as Class Representatives. (Settlement Agreement ¶ 1.)
The Court granted Plaintiffs' motion for class certification pursuant to Fed. R. Civ. P. 23(b)(3) in April 2005, designating Della Bahan ("Bahan"), Peter Eliasberg ("Eliasberg"), and Michael Lackie ("Lackie") as co-lead counsel of a class consisting of "[a]ll persons who were employed by the Ontario Police Department or volunteered for the Ontario Police Department, used the Department's men's locker room during the period in which the surveillance equipment was installed, and were recorded by the surveillance equipment." (Order Granting Mot. for Class Certification 2, 16.)
The Court granted Defendants' motion to disqualify Lackie & Dammeier as counsel in August 2005 and in May 2009 denied that firm attorney's fees. (August 17, 2005 Minute Order Granting Defs.' Mot. to Disqualify Counsel; May 13, 2009 Minute Order Den. Lackie & Dammeier's Mot. for Att'y Fees.)
In April, 2006, the Court heard cross-motions for summary judgment and granted summary adjudication in favor of Plaintiffs. (Amended Order Den. In Part and Granting In Part Pls.' and Defs.' Mots. for Summ. J. 1.) Defendants appealed the Court's denial of qualified immunity and the Ninth Circuit affirmed.
In the summer of 2008, the Court permitted Bahan & Associates to withdraw as counsel and appointed Hadsell Stormer Keeny Richardson & Renick ("Hadsell Stormer") as co-class counsel. (July 23, 2008 Order Granting Mot. for Substitution of Class Counsel 2.) Since then, Hadsell Stormer and Eliasberg of the ACLU have served as Class Counsel. (Id. at 6.)
The parties prepared for trial during the latter part of 2008 and into February, 2009. On the morning of the first day of trial, they announced they had reached a settlement of their dispute.
In May 2009 the Court gave preliminary approval to the Settlement. The Court found the proposed notice and claim form met the requirements of Rule 23 and due process and were the best notice practicable. (Order Re Joint Stipulation of Class Action Settlement and Release ¶ 5.)
Accordingly, notice was sent to class members. (Id.; May 18, 2009 Minute Order.) Class Counsel received the claim forms. With defense counsel, they sought and obtained several adjustments to the claim forms and procedures which now form part of the Settlement, as described above.
The Settlement creates two non-reversionary funds totaling $2.75 million: a $1.54 million fund for payments to class members and a $1.21 million fund for attorneys' fees and costs. (Settlement Agreement ¶¶ 6, 10.) Class Counsel will distribute funds as follows: (1) $10,000 to each class member who submitted a claim form timely; (2) an additional $10,000 (for $20,000 total) to ten of the twelve persons*fn1 who were named as plaintiffs in the original Complaint but not the FAC; (3) an additional $30,000 (for $40,000 total) to the six Class Representatives. (Mot. 11.)
Garcia and Renstrom could have been eligible, as persons named as plaintiffs in the original Complaint but not the FAC, for $10,000 incentive payments. The $20,000 unclaimed by Garcia and Renstrom, as well as any portion of the $2.54 million remaining after the distribution of the monies provided for in the Settlement, will be distributed to the United States Adaptive Recreation Center ("USARC"). (Order Granting Stipulation for Settlement Check Distribution to Class ...