United States District Court, N.D. California
ORDER GRANTING MOTION FOR FINAL APPROVAL; GRANTING IN
PART AND DENYING IN PART MOTION FOR ATTORNEY'S FEES,
COSTS, AND SERVICE AWARD RE: DKT. NOS. 63, 67
A. WESTMORE, United States Magistrate Judge.
Bhanu Vikram filed the instant putative class action against
Defendant First Student Management, LLC, alleging violations
of various California labor laws. (See Second
Amended Compl. (“SAC”), Dkt. No. 56.) The parties
subsequently settled the case, and on March 7, 2019, the
Court preliminarily approved the proposed settlement and
directed that notice be sent to the class members.
(Preliminary Approval Ord., Dkt. No. 57.) Pending before the
Court are: (1) Plaintiff's motion for final approval of
the settlement, and (2) Plaintiff's motion for
attorney's fees, costs, and a service award. (Plf.'s
Mot. for Final Approval, Dkt. No. 67; Plf.'s Mot. for
Attorney's Fees, Dkt. No. 63.) No. opposition was filed.
consideration of the parties' filings, as well as the
arguments presented at the August 29, 2019 motion hearing,
and for the reasons set forth below, Plaintiff's motion
for final approval is GRANTED, and Plaintiff's motion for
attorney's fees is GRANTED IN PART and DENIED IN PART.
is a school bus operator that provides student transportation
services for schools and districts. (SAC ¶ 2.) Plaintiff
alleges that Defendant failed to accurately calculate and pay
wages in two ways. (SAC ¶ 6.) First, Plaintiff alleges
that employees were required to appear at the bus yard at a
pre-designated time and stand in line to receive route
assignments and keys. (SAC ¶ 7.) Employees then walked
to their assigned bus and logged into Defendant's
time-keeping system. Between employees' arrival at the
bus yard at the pre-designated time and logging in, an
average of five to ten minutes would have passed. (SAC ¶
7.) Employees, however, were not paid for this time.
Plaintiff alleges that Defendant had a non-discretionary
program that paid incentive wages based on employees meeting
various performance goals. (SAC ¶ 9.) One such goal
involved assisting handicapped children. (SAC ¶ 9.)
Specifically, employees who were required to use the lift
assist with handicapped children were compensated with
incentive pay in the amount of $7.00/day. (SAC ¶ 9.)
This pay was called “lift pay” or
“comm” pay. (SAC ¶ 9.) Plaintiff alleges
that Defendant failed to include this incentive compensation
as part of their employees' regular rate of pay when
calculating overtime. (SAC ¶ 9.)
6, 2017, Plaintiff filed the instant case, alleging
violations of various California labor laws. (See
Compl., Dkt. No. 1.) In litigating the case, Plaintiff served
discovery and exchanged information and documents.
(Blumenthal Decl. ¶ 6(b), Dkt. No. 67-1.) Class counsel
also reviewed documents provided by Plaintiff and Defendant,
and retained an expert to calculate damages. (Blumenthal
Decl. ¶ 6(d).) On April 23, 2018, the parties
participated in an all-day mediation with Gig Kyriacou.
(Blumenthal Decl. ¶ 6(g).) The parties engaged in
arms-length negotiations, and at the conclusion of the
mediation, the parties accepted the mediator's proposal.
(Blumenthal Decl. ¶ 6(g).)
December 4, 2018, Plaintiff filed an unopposed motion for
preliminary approval. (Dkt. No. 47.) On December 20, 2018,
the Court requested supplemental briefing. (Dkt. No. 50.) On
January 7, 2019, Plaintiff filed a supplemental declaration.
(Dkt. No. 52.) The supplemental declaration stated that the
settlement was limited only to the comm payments, or the
bonus paid to drivers required to use the lift assist for
handicapped children. (See Dkt. No. 52 ¶ 4a.)
January 23, 2019, the Court requested additional supplemental
briefing, noting that the then-operative complaint
“contains no facts related to ‘comm'
payments, lift payments, or bonuses in assisting handicapped
children.” (Dkt. No. 53 at 1.) On January 31, 2019,
Plaintiff for the first time clarified that the lift and comm
payments were a type of incentive compensation. (Dkt. No. 54
at 1.) Pursuant to the Court's order, Plaintiff filed the
operative complaint, which contained facts specific to the
claims being settled. (Dkt. No. 55 at 1-2; SAC ¶ 9.)
March 7, 2019, the Court held a hearing on March 7, 2019.
(Dkt. No. 58.) That same day, the Court granted
Plaintiff's motion for preliminary approval.
the terms of the settlement agreement
(“Settlement”), Defendants agree to pay a
“Gross Settlement Amount” of $435, 000.
(Blumenthal Decl., Exh. 2 (“Settlement
Agreement”) ¶¶ I.Q, III.A.) Of the Gross
Settlement Amount, Plaintiff's counsel seeks an
attorney's fee award of 25%, or $108, 750, costs not to
exceed $10, 000, settlement administration costs of $8,
662.50 and a service award for named Plaintiff of $10, 000.
(Settlement Agreement ¶¶ III.B.1-2, 4; see
also Molina Decl. ¶ 17, Dkt. No. 68.) The Gross
Settlement Amount also includes $10, 000 in penalties under
California's Private Attorneys General Act
(“PAGA”); $7, 500 shall be paid to the California
Labor and Workforce Development Agency (“LWDA”)
and $2, 500 will be part of the Net Settlement Amount for
distribution to participating class members. (Settlement
Agreement ¶ III.B.3.) This leaves a Net Settlement
Amount of $290, 087.50. (Molina Decl. ¶ 15.)
payments are calculated by: (1) dividing the Net Settlement
Amount by the total workweeks worked by all participating
class members during the class period, including a workweek
enhancement for former employees, and (2) multiplying the
result by each individual's total number of workweeks
worked during the class period. (Settlement Agreement ¶
III.C.2.) Former employees will receive a 2.0 enhancement
multiplier of their workweeks to account for their California
Labor Code § 203 waiting time penalty claim. (Settlement
Agreement ¶ III.C.2.)
claims being released by the Settlement are limited to the
“failure to pay overtime wages associated with the
payment of lift pay, and all related and derivative claims
based thereon, up to June 15, 2018, and which were alleged,
or could have been alleged, in the original Complaint or any
amended Complaint filed in the Action.” (Settlement
Agreement ¶ I.X.) All other claims, including those
related to uncompensated time between arriving at the bus
yard and logging in, will be dismissed without prejudice.
(Settlement Agreement ¶ III.F.1.) The class is limited
to individuals who worked for Defendant as bus drivers at
Defendant's San Francisco ...