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Ogbuehi v. Comcast of California/Colorado/Florida/Oregon, Inc.

United States District Court, E.D. California

June 9, 2015

TYSHEIKA OGBUEHI, Plaintiff,
v.
COMCAST OF CALIFORNIA/COLORADO/FLORIDA/ OREGON, INC., Defendant.

ORDER

KIMBERLY J. MUELLER, District Judge.

This matter is before the court on the unopposed motion by Tysheika Ogbuehi ("plaintiff" or "class representative") for final approval of class action settlement. (ECF No. 28.) Also before the court is plaintiff's unopposed motion for attorney's fees and costs. (ECF No. 25.) The court held a hearing on the matter on March 13, 2015, at which David Spivak appeared for plaintiff and Daryl S. Landy appeared for defendant. As explained below, the court GRANTS plaintiff's motions.

I. FACTUAL AND PROCEDURAL BACKGROUND

This class action lawsuit arises out of the alleged failure of Comcast Cable Communications Management, LLC (incorrectly named as Comcast of California/Colorado/ Florida/Oregon, Inc.) ("defendant") to properly compensate plaintiff and other employees under the Fair Labor Standards Act ("FLSA"), the California Labor Code, California Industrial Welfare Commission order provisions and the California Business and Professions Code. ( See generally Second Am. Compl. ("SAC"), ECF No. 16.)

The second amended complaint is the operative complaint and alleges as follows. Plaintiff and other similarly situated employees were employed with defendant in the position of Virtual Customer Account Executive. (Id. ¶ 4, ECF No. 16.) In this position, the employees primarily worked from home. (Id. ) Defendant classified plaintiff and other Virtual Customer Account Executives as non-exempt, hourly employees. (Id. ¶ 11.) Plaintiff and other employees worked more than eight hours in a day and more than forty hours in a workweek, but defendant failed to pay them overtime wages. (Id. ) Defendant also required Virtual Customer Account Executives to work "off the clock" but did not pay them for this work. (Id. ) Plaintiff brings nine separate claims for relief: (1) failure to indemnify in violation of the California Labor Code; (2) failure to provide meal periods in violation of the California Labor Code; (3) failure to provide rest periods in violation of the California Labor Code; (4) failure to pay wages in violation of the FLSA; (5) failure to pay employees minimum and overtime wages for all hours worked in violation of the California Labor Code; (6) failure to pay waiting time penalties in violation of the California Labor Code; (7) failure to provide accurate written wage statements in violation of the California Labor Code; (8) unfair competition under the California Business & Professions Code; and (9) recovery of civil penalties under the California Labor Code. (Id. at 10-26.)

On July 11, 2014, following the parties' participation in private mediation, plaintiff filed a motion for preliminary approval of class action settlement. (ECF No. 21.) In granting plaintiff's motion for preliminary approval of the class settlement agreement, the court conditionally certified the following class:

[A]ll persons employed by Comcast in the State of California from February 26, 2009 through and including the implementation of the California Call Center Closure [on November 30, 2012], who held positions as Virtual Customer Account Executives, and were not paid a severance payment that was offered as a result of the California Call Center Closure. The Class includes the estates of such persons and, if any such person is incompetent or deceased, the legal representative or successor in interest as evidenced by reasonable verification.

(ECF No. 24 at 24.)

The court's preliminary approval was with reservations, however. First, the court was concerned with the 33.33 percent attorney's fee request of plaintiff's counsel. (ECF No. 24 at 17.) That is because "the benchmark for such an award is 25 percent, the settlement was reached during an early stage of litigation, and... counsel has a clear sailing' agreement with defendant." (Id. ) Therefore, the court asked plaintiff's counsel to "provide the court with the information to permit the court to perform a lodestar cross-check." (ECF No. 24 at 17.) To allow the court to conduct a lodestar cross-check, the court asked plaintiff's counsel to provide a "detailed description of each task completed, the number of hours spent on each task, when the work was completed, who performed the work, each person's hourly rate and the total number of hours worked." (Id. )

Second, with respect to plaintiff's request for an enhancement award, the court noted that class counsel's generalized summary of the services plaintiff provided was not sufficient "to enable the court to make a well-informed decision regarding approval of plaintiff's proposed enhancement award." (Id. at 18-19.) Accordingly, the court asked plaintiff to "provide a detailed declaration describing her current employment status, any risks she faced as class representative, specific activities she performed as class representative and the amount of time she spent on each activity." (Id. at 19.) At the hearing on the instant motion, the parties represented plaintiff is gainfully employed.

Third, with respect to the parties' negotiations, the court asked the parties for information relating to their mediation to assess the settlement's reasonableness. (Id. at 19-20.) Specifically, the court required the parties to "provide information exchanged during their private mediation including, but not limited to, mediation statements and any relevant communications during the parties' negotiations." (Id. at 20.)

Finally, with respect to the cy pres provision of the settlement agreement, the court noted that it would require the parties to address the appropriateness of that provision at the final hearing. (Id. at 21.)

On December 1, 2014, plaintiff filed a motion for attorney's fees (ECF No. 25), and on February 28, 2015, plaintiff filed a motion for final approval of class action settlement (ECF No. 28). Defendant filed a brief in support of plaintiff's motion for final approval of class action settlement. (ECF No. 26.) Finally, the parties have lodged certain documents with the court for in camera review. (ECF No. 27.)

II. THE KEY TERMS OF THE SETTLEMENT AGREEMENT

Under the settlement agreement, defendant has agreed to pay a gross settlement amount ("GSA") of $100, 000. (ECF No. 24 at 10.) The GSA includes class counsel's attorney's fees, litigation expenses, claims administration costs, the Private Attorney General Act ("PAGA") penalty payment, settlement payments to class members, and the enhancement award. (ECF No. 21-2 ¶ 2.17.) The GSA does not include defendant's share of payroll taxes. (Id. ) By the instant motion, the parties seek the court's approval of the following terms of the settlement agreement. The GSA of $100, 000 is to be distributed as follows:

1. The amount to be paid to the class representative is $5, 000;
2. The amount to be paid for class counsel fees is $33, 333;
3. The amount to be paid for litigation expenses is $8, 004.69;
4. The PAGA payment is $2, 500, of which $1, 875 will go to the California Labor and Workforce Development Agency ("LWDA"), and the $625 balance will be distributed to the class members on a pro rata basis; and
5. The amount to be paid to the class administrator is $5, 000.

(ECF No. 28-1 at 1-2.)

Plaintiff further seeks the court's approval of the appointment of plaintiff as class representative, the appointment of David Spivak of The Spivak Law Firm and Walter Haines of the United Employees Law Group as class counsel, and the appointment of Gilardi & Co., LLC as class administrator. (Id. at 1.) After deducting the above distributions from the GSA ($100, 000 - $53, 212.69), the net settlement amount available to the class members is $46, 787.31.

After the claim administrator mailed the notice packets to the participating class members, it received neither objections nor requests to opt-out. At the hearing, the parties confirmed that no objections or opt-out requests were received.

III. CLASS CERTIFICATION

A party seeking to certify a class must demonstrate that 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 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. 04-0438, 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 Secs. 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), on which plaintiff relies in this action. To meet the requirements of that 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, ___ U.S. ___, ___, 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).

Here, as noted above, plaintiff filed a motion, which the court granted, for preliminary certification of the following class:

[A]ll persons employed by Comcast in the State of California from February 26, 2009 through and including the implementation of the California Call Center Closure [on November 30, 2012], who held positions as Virtual Customer Account Executives, and were not paid a severance payment that was offered as a result of the California Call Center Closure. The Class includes the estates of such persons and, if any such person is incompetent or deceased, the legal representative or successor in interest as evidenced by reasonable verification.

(ECF No. 24 at 24.)

There has been no objection to certification of the class, and nothing before the court suggests the preliminary certification was improper. Hence, for the same reasons as set forth in the court's preliminary approval order ( id. at 4-10), the court finds certification of the class appropriate for the purpose of the final approval of the settlement agreement.

IV. NOTICE TO AND RESPONSE FROM THE CLASS MEMBERS

The number of potential class members in this action is eighty-eight. (ECF No. 24 at 5.) On October 24, 2014, the class administrator mailed the class notices and the claim forms to the eighty-eight class members. (ECF No. 28-3 ¶ 4.) The claims administrator received only one returned notice with a forwarding address, which it immediately mailed to the forwarding address the United States Postal Services ("USPS") provided. (Id. ¶ 5.) The claims administrator has also received nine undeliverable notices. (Id. ¶ 6.) Through an address search, the claims administrator found updated addresses for seven of those nine. (Id. ) It re-mailed the packets to those seven addresses; it also re-mailed packets to the two addresses for which it was unable to locate updated addresses. (Id. ) Following the re-mailing, "five were returned once again as undeliverable." (Id. ) At the hearing on the instant motion, the parties agreed that a total of five undeliverable packets was an acceptable number. In addition, the class administrator established a toll-free telephone number, enabling the class members to inquire about the settlement. (Id. ¶ 7.) That number was provided on the notice sent to the class members. (Id. ) The call center system at the other end of that toll-free number has English and Spanish speaking live operators, who "are available Monday through Friday between the hours of 7:00 a.m. and 5:00 p.m." (Id. )

The claims period closed on December 11, 2014. (Id. ¶ 9.) As of that date, there were no objections to the settlement and no requests to opt out of the settlement. (Id. ¶¶ 9-10.) At hearing, the parties confirmed that no other packets were returned as undeliverable ...


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