The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
APPROVAL OF CLASS ACTION APPROVAL OF FEES, REPRESENTATIVE AWARDS, AND COSTS (DOC. 61). SETTLEMENT, CLASS CERTIFICATION, AND JUDGMENT (DOC. 60), AND FOR MEMORANDUM DECISION AND ORDER employees, GRANTING JOINT MOTIONS FOR FINAL
Plaintiffs Enriquez Vasquez and Juan Andres Ruiz brought this action on behalf of themselves and approximately 177 current and former roofing workers employed by Defendants Coast Roofing, Inc. ("Coast") and Francis Dominic Giangrossi, alleging violations of ederal and state wage-and-hour laws. See First Amended Class Action Complaint ("FAC"), filed Sept. 19, 2007, Doc. 23. On November 17, 2009, the district court preliminarily approved the terms of a negotiated Class Action Settlement. Doc. 57. Before the court for decision are joint motions for final approval of the class action settlement, class certification, and judgment, Doc. 60, and for approval of fees, representative awards, and costs, Doc. 61. No oppositions have been filed, nor was any oral objection made in open court during the publicly-noticed hearing of these motions on February 22, 2010 at 10:00 AM in Courtroom 3 (OWW).
A.Summary of the Litigation
The FAC alleges that Coast failed to pay overtime and minimum wages; failed to pay wages due at termination of employment; failed to provide all legally required meal periods and rest breaks; failed to provide accurate, itemized employee wage statements; and failed to compensate employees for travel time and mileage. The FAC seeks to certify a class composed of Plaintiffs and similarly situated individuals and to recover back wages, interest, penalties, and attorneys' fees and costs from Defendants.
Plaintiffs' counsel reviewed employee records gathered pursuant to pre-litigation non-discovery methods provided by California Labor Code section 226, interviewed numerous witnesses, and reviewed hundreds of pages of documents from employees before filing the complaint. Mallison Decl., Doc. 62, at ¶¶ 37-39.
B. Summary of the Settlement
1. The Gross Settlement Payment
Under the Settlement, Coast will make a Gross Settlement Payment of $300,000. This payment will cover Settlement Shares to be paid to Class Members who submit valid claims; the employer share of payroll taxes on the Settlement Shares; a $10,000 payment to the California Labor and Workforce Development Agency for its share of the settlement of civil penalties; the Settlement Administrator's reasonable fees and expenses of $25,000 (which is less than the Administrator's actual costs of $27,592); and (subject to court approval) payments to Plaintiffs, in addition to their Settlement Shares, of $5,000 each in compensation of their services as Class Representatives and payments to Class Counsel of up to $100,000 for their reasonable attorneys' fees and up to $10,000 in expenses. See Settlement Agreement ("Settlement") § III.A-C, attached to Mallison Decl. at Ex. 1, Doc. 62-2. There will be no reversion of the Gross Settlement Payment to Coast.
2. Payment of Settlement Shares.
After the other amounts are deducted, the Gross Settlement Amount (termed the "Net Settlement Amount") will be distributed as Settlement Shares to all Class Members who submit valid claims, based upon the following allocation formula:
The Settlement Share for each Claimant will be based on (a) that Claimant's total number of Months of Employment during the Class Period (b) divided by the aggregate number of Months of Employment of all Participating Class Members during the Class Period (with the division rounded to four decimal places) (c) multiplied by the value of the Net Settlement Amount.
Settlement § III.D.1. This simple formula relies upon information readily available from Coast's records and is commonly used in wage- and-hour cases. Mallison Decl. at ¶43.
3. Distribution of Unclaimed Funds and Uncashed Checks.
In the event that not all Class Members submit claims, the residual will be redistributed to those Class Members who do submit valid claims. Settlement § III.D.3. In the event that checks issued to Class Members are not cashed, these monies will be donated to two public interest organizations on a 50%/50% basis: (1) the California ural Legal Assistance; and (2) the Boys and Girls Club of Bakersfield. Id . § III.F.10. Donation of the residual to these public interest organizations that serve low-income workers is appropriate. See Mallison Decl. at ¶44.
The Settlement provides that all Participating Class Members release Defendants as follows:
As of the date of the Judgment, all Participating Class Members hereby fully and finally release Coast, and its parents, predecessors, successors, subsidiaries, affiliates, and trusts, and all of its employees, officers, agents, attorneys, stockholders, fiduciaries, other service providers, and assigns, from any and all claims, known and unknown, for or related to all claims based on or arising from the allegations that they were or are improperly compensated under federal, California, or local law (the "Class's Released Claims"). The Class's Released Claims include all such claims for alleged unpaid wages, including overtime compensation, missed meal-period and rest-break wages or penalties, and interest; related penalties, including, but not limited to, recordkeeping penalties, pay-stub penalties, minimum-wage penalties, missed meal-period and rest-break penalties, and waiting-time penalties; and costs and attorneys' fees and expenses.
5. Objections and Opt-Out Process
Any Class Member who so wishes had an opportunity to object to or comment on the Settlement, or may elect not to participate in the Settlement. The Class Notice fully explains the objection/comment and opt-in procedures. Settlement § III.F.4.
6. Termination of Settlement.
The Settlement provided for confirmatory discovery to be conducted during the approval process. Plaintiffs reserved the right to void the Settlement if this confirmatory discovery revealed any substantial variance from previous discovery or other factual representations made by defendants and relied upon by Plaintiffs as the basis for the Settlement. Settlement § III.F.7. Plaintiffs completed this confirmatory discovery, including consultation with experts in construction accounting and database analysis. This discovery did not reveal any reason to void the settlement. Doc. 67 at 6.
A.The Terms of Preliminary Approval Have Been Satisfied.
The procedures for giving notice to the class members, as set forth in the Settlement and ordered in the Court's Preliminary Approval Order, Doc. 57, have been carried out. The Notice of Certification of Settlement Class and Collective Action, Settlement and Hearing Date for Final Court Approval (the "Class Notice"), and the forms of Claim for Settlement Share and Election Not to Participate in Settlement (referred to in conjunction with the "Class Notice" as "Notice Packets") were sent out by the Settlement Administrator via U.S. Mail to Class Members on December 9, 2009, in the manner specified by the Settlement. Donly Decl., Doc. 69, at ¶10. In addition, on December 11, 2009 a summary version of the Class Notice was published in the Bakersfield Californian and El Popular newspapers. Id . at ¶11.
The U.S. Postal Service returned 40 Notice Packets to the Settlement Administrator. Id . at ¶13. Best efforts to trace these individuals and/or find their updated addresses were conducted resulting in 24 additional delivered notice packets mailed and 23 delivered. Id . at ¶13. On December 26, 2009, the Settlement Administrator contacted 165 Class Member who had not yet provided claims forms via phone to remind them about the deadlines in the settlement. Id . at ¶12.
As of January 14, 2010, 56 class members, or more than 31% of the class members submitted claims. Id . at ¶12. Zero individuals submitted elections not to participate, id . at ¶15, and as of January 22, 2010, the date on which Plaintiffs' motion for final approval was filed, no class member had submitted an objection to the settlement, id . at ¶18.
B. Final Approval of a Settlement Class is Appropriate.
In order to approve a class action settlement, a district court must first make a finding that a class can be certified. See, e.g., Molski v. Gleich , 318 F.3d 937, 943, 946-50 (9th Cir. 2003). "When, as here, the parties have entered into a settlement agreement before the district court certifies the class, reviewing courts must pay undiluted, even heightened, attention to class certification requirements." Staton v. Boeing Co. , 327 F.3d 938, 952 (9th Cir. 2003).
Pursuant to Federal Rule of Civil Procedure 23(c)(1), approval of the class is appropriate where the plaintiff establishes the four prerequisites of Federal Rule of Civil Procedure 23(a) -- (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation -- as well as one of the three requirements of Rule 23(b). See Horton v. USAA Cas. Ins. Co. , --- F.R.D. --- 2009 WL 5066681, *4 (D. Ariz. 2009).
Here, the proposed class is comprised of all individuals who have been employed by Coast in California as non-exempt roofing workers during the period from January 31, 2003 to July 31, 2009. There are approximately 177 Class Members.
A proposed class must be "so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). The numerosity requirement demands "examination of the specific facts of each case and imposes no absolute limitations." General Tel. Co. of the Northwest, Inc. v. EEOC , 446 U.S. 318, 330 (1980). Courts have routinely found the numerosity requirement satisfied when the class comprises 40 or more members. Ansari v. New York Univ. , 179 F.R.D. 112, 114 (S.D.N.Y. 1998). Here, the presence of approximately 177 similarly situated Class Members satisfies the numerosity requirement.
Plaintiffs also must establish impracticability of joinder. A court should consider "not only the class size but other factors as well, including the geographic diversity of class members, the ability of individual members to institute separate suits, and the nature of the underlying action and the relief sought." See, Nat'l Ass'n of Radiation Survivors v. Walters , 111 F.R.D. 595, 599 (N.D. Cal. 1986). The limited size of any individual plaintiff's recovery is also relevant. Edmondson v. Simon , 86 F.R.D. 375, 379 (N.D. Ill. 1980). Here, where the potential recovery by any individual plaintiff is relatively small, individual members of the class would likely be ...