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Ross v. Bar None Enterprises, Inc.

United States District Court, E.D. California

March 10, 2015

ROBERT ROSS, Plaintiff,


KIMBERLY J. MUELLER, District Judge.

This matter is before the court on the unopposed motions by plaintiff Robert Ross for attorneys' fees, costs, and class representative enhancement (ECF No. 35) and for final approval of settlement (ECF No. 37). The court held a hearing on this matter on January 16, 2015. Mark Thomas and Frank Moore appeared for plaintiff; no appearance was made for defendant. For the following reasons, plaintiff's motions are GRANTED.


On February 1, 2013, plaintiff Robert Ross filed an action as an individual against his former employer, defendant Bar None Enterprises, Inc. (Bar None), for wage claims related to his improper classification as an exempt employee as an Inventory Specialist from July 2010 until December 2012. Compl., ECF No. 1. In the course of discovery, plaintiff determined other similarly situated employees also were likely improperly classified, and on September 4, 2013, plaintiff requested leave to file a proposed second amended complaint asserting class claims. ECF No. 16. The court granted the motion on October 24, 2013 (ECF No. 19) and the second amended complaint was deemed filed the same day (ECF No. 20). The second amended complaint includes claims for all misclassified employees for (1) failure to pay overtime wages; (2) waiting time penalties; (3) failure to provide lawful wage statements; (4) failure to provide statutory meal periods; (5) failure to provide statutorily required rest periods; (6) unfair competition; and (7) declaratory relief. Id.

The parties agreed to resolve the claims in a mediation with Jeffrey Ross, a "well-known, experienced mediator, " presiding. Settlement Agreement ¶ G, ECF No. 29. Mediation took place on January 23, 2014, and parties reached an agreement memorialized in a brief, short form agreement in anticipation of a more formal agreement. Id.

On May 16, 2014, plaintiff filed a proposed settlement agreement with his motion for preliminary approval of class action settlement. Mot. for Prelim. Approval, ECF No. 22. In response to the court's order on June 20, 2014 (ECF No. 25), plaintiff submitted a corrected version of the settlement agreement on July 3, 2014 (ECF No. 29). On August 19, 2014, the court preliminarily approved the settlement, provisionally certified the settlement class, and scheduled a hearing for final approval of settlement, award of plaintiff's attorneys' fees and reimbursement of expenses, and other such matters as the court may deem appropriate on January 16, 2015. Preliminary Approval Order, ECF No. 34. Plaintiff filed a motion for attorneys' fees, costs, and class representative enhancement award on October 14, 2014 (Mot. for Attorneys' Fees, ECF No. 35), a Notice of Opt-Outs on December 31, 2014 (ECF No. 36), a motion for final approval of settlement on January 2, 2015 (Mot. for Final Approval, ECF No. 37), and a supplemental declaration from Class Representative Robert Ross on January 20, 2015 (ECF No. 39). Defendant has not responded, its silence consistent with the terms of settlement.


A. Settlement Fund

The settlement provides for a settlement fund of $300, 000, and each of the 28 class members will receive a share to be calculated by the claims administrator. The proposed calculation, according to the claims administrator, is based on the following: an average Inventory Specialist earns $19.92/hr. The claims administrator will multiply the weekly settlement amount by the class members' compensable workweeks. Settlement Agreement ¶ 4.3. Assuming a net settlement of $180, 000 for class members, the weekly pay period settlement is $139.10 per week, or $7, 233.20 for every year an Inventory Specialist worked at Bar None. Mot. for Final Approval at 10-11; Decl. of Sandra Molina at 2, ECF No. 37-4. This total sum includes the amount determined for attorneys' fees (not to exceed $90, 000) and litigation expenses (not to exceed $15, 000), any enhancement award ($5, 000), employee payroll deductions, and any other obligation of Bar None under the settlement, excluding employer's share of payroll taxes. Id.; see also Mot. for Final Approval at 4. No class members opted out of the settlement, and accordingly each will be issued settlement checks. Mot. for Final Approval at 5.

B. Attorneys' Fees and Litigation Costs

Class counsel is entitled to no more than 30 percent of the maximum settlement consideration of $300, 000 and actual litigation expenses to be paid exclusively from the settlement sum. Bar None agreed not to oppose a motion for approval of attorneys' fees and litigation expenses consistent with this amount, and agreed such a request is fair and reasonable under the circumstances. Id. ¶ 5.1.

C. Class Administration Fees

Class Administration fees are to be paid from the maximum settlement fund, and class counsel was responsible for securing and monitoring the services of the class administrator. Id. ¶ 7. The class administration fees are $5, 000. Decl. of Sandra Molina at 3, ECF No. 37-4.

D. Class Representative Enhancement

If approved by the court, the class representative is to receive a $5, 000 enhancement award separate from and in addition to the settlement payment to which the class representative is entitled. Id. ¶ 4.6. Bar None has not opposed this request and in the Settlement Agreement agreed it is fair and reasonable.

E. Penalties

An allocation of $5, 000 is to be paid to the California Labor Workforce Development Agency. Mot. for Final Approval at 4.


A party seeking to certify a class must demonstrate it has met the requirements of Federal Rule of Civil Procedure 23(a) and at least one of the requirements of Rule 23(b). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997); Ellis v. Costco Wholesale Corp., 657 F.3d 970, 979-80 (9th Cir. 2011). Although the parties in this case have stipulated that a class exists for purposes of settlement, the court must nevertheless undertake the Rule 23 inquiry independently. West v. Circle K Stores, Inc., No. CIV. S-04-0438 WBS GGH, 2006 WL 1652598, at *2 (E.D. Cal. June 13, 2006).

Under Rule 23(a), before certifying a class, the court must be satisfied that:

(1) the class is so numerous that joinder of all members is impracticable (the "numerosity" requirement);
(2) there are questions of law or fact common to the class (the "commonality" requirement);
(3) the claims or defenses of representative parties are typical of the claims or defenses of the class (the "typicality" requirement); and
(4) the representative parties will fairly and adequately protect the interests of the class (the "adequacy of representation" inquiry).

Collins v. Cargill Meat Solutions Corp., 274 F.R.D. 294, 300 (E.D. Cal. 2011) (quoting In re Itel Sec. Litig., 89 F.R.D. 104, 112 (N.D. Cal. 1981)); accord Fed.R.Civ.P. 23(a).

The court must also determine whether the proposed class satisfies Rule 23(b)(3). To meet the requirements of this subdivision of the rule, the court must find that "questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and effectively adjudicating the controversy.'" Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2558 (2011) (quoting Fed.R.Civ.P. 23(b)(3)). "The matters pertinent to these findings include: (A) the class members' interests in individually controlling the prosecution or defense of separate actions; [and] (B) the extent and nature of any litigation concerning the controversy already begun by or against class members...." Fed.R.Civ.P. 23(b)(3)(A)-(B).

Plaintiff seeks certification of the following class for settlement purposes: "[T]he 28 employees identified as Inventory Specialists who were misclassified as exempt employees by Bar None at any time from February 1, 2009 through February 28, 2013, and who have not opted out of this Settlement after Notice, and who are therefore in the Class that is certified for purposes of Settlement only." Mot. for Prelim. Approval at 7, ECF No. 22-1. "The class excludes individuals who cannot be located by the Claims Administrator." Id. No class members have objected or opted out as of the date of the filing of the motion. Notice of Opt-Outs, ECF No. 36.

On August 19, 2014, the court preliminarily certified the proposed class, finding the class satisfied the numerosity, commonality, typicality and adequacy of representation requirements of Rule 23(a), Preliminary Approval Order at 5-8, as well as the ...

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