United States District Court, E.D. California, Fresno Division
ROSALIE CUEVAS, ADOLFO GOMEZ-MORENO, REYNALDO TOLANO, and AGUSTIN AMBRIZ, on behalf of themselves and all others similarly situated, Plaintiffs,
DIAS & FRAGOSO, INC., a California Corporation; D & F AGRICULTURAL ENTERPRISES, INC., a California Corporation; GABRIEL M. DIAS; and JOHN L. FRAGOSO, Defendants.
ORDER GRANTING MOTION FOR FINAL APPROVAL OF CLASS AND
COLLECTIVE ACTION SETTLEMENT, AWARD OF SERVICE PAYMENTS, AND
AWARD OF ATTORNEY FEES AND COSTS
BARBARA A. McAULIFFE UNITED STATES MAGISTRATE JUDGE
January 10, 2020 Time: 10:00 a.m. Place: Courtroom 8 JOHN E.
HILL, State Bar No. 45338 ENRIQUE MARTINEZ, State Bar No.
206884 Law Offices of John E. Hill 333 Hegenberger Road, Ste.
500 Oakland, CA 94621 Telephone: (510) 588-1000 Facsimile:
(510) 632-1445 Email: firstname.lastname@example.org
Attorneys for Plaintiffs & Putative Class
Rosalie Cuevas, Adolfo Gomez-Moreno, Reynaldo Tolano, and
Agustin Ambriz filed this class and collective action
alleging unpaid overtime compensation, failure to provide
meal and rest breaks, failure to reimburse work-related
expenses, failure to pay reporting time wages, and derivative
claims against Defendants Dias & Fragoso, Inc., D & F
Agricultural Enterprises, Inc., Gabriel M. Dias, and John L.
Fragoso. The claims arise under the Fair Labor Standards Act,
29 U.S.C. § 201 et seq. (“FLSA”),
the California Labor Code, California Business &
Professions Code § 17200 et seq., and the
California Private Attorney General Act, Cal. Lab. Code
§ 2698 et seq. (“PAGA”). Pending
before the Court is the motion for final approval of the
Amended Stipulation and Agreement to Settle Class and
Collective Action (“Settlement Agreement”). The
Court heard oral argument on January 10, 2020. Class Counsel
Enrique Martinez appeared by telephone on behalf of
Plaintiffs and William Woolman appeared by telephone on
behalf of Defendants. No. objectors appeared at the hearing.
For the reasons set forth below, and as stated on the record,
the motion for final approval is HEREBY GRANTED.
Order Granting Motion for Preliminary Approval of Class and
Collective Action Settlement, the Court found that the Rule
23(a) prerequisites and Rule 23(b)(3) requirements were met
for the Rule 23 class. The Court is not aware of any new
facts that would affect its findings in support of class
certification. The Court previously conditionally certified
the collective action for the FLSA class under 29 U.S.C.
§ 216(b), and the Court is not aware of any new facts
that would support decertification of the FLSA class.
Order Granting Motion for Preliminary Approval of Class and
Collective Action Settlement, the Court found that the Class
Notice was reasonably clear and should be reasonably
understandable to the Settlement Class. It also found that
the Class Notice satisfied the requirements under Rule 23 and
the Due Process Clause. The Claims Administrator mailed
English and Spanish versions of the Class Notice and the
Dispute Form to all class members at their last known
addresses. The Class Notice adequately described all of the
relevant and necessary parts of the proposed Settlement
Agreement, the request for service payments to the Named
Plaintiffs for serving as class representatives, and Class
Counsel's request for an award of attorney fees and
the Court conditionally certified the FLSA collective action
on May 2, 2018, the Court ordered that notice be sent to
members of the FLSA collective action informing them about
the FLSA claim and their right to opt into the FLSA
collective action by July 31, 2018. The FLSA Notice mailed as
part of preliminary approval was properly sent only to
individuals who timely opted in, and it informed them about
their FLSA payment.
preliminary approval of the class and collective action, the
Court initially declined to grant final approval of the
settlement agreement because not all members of the class for
the class period preliminarily approved by the Court had been
provided notice of the settlement. The Court subsequently
ordered that a notice and dispute form be sent to the
additional class members and the Claims Administrator mailed
the class notice and dispute forms to these class members on
November 6, 2019. The class members had 30 days after mailing
to object, request to be excluded or dispute their number of
pay periods. No. objections were filed and there are no
terms of the Settlement Agreement are fair, reasonable, and
adequate under Rule 23(e), and are a fair and reasonable
resolution of a bona fide dispute under the FLSA.
Plaintiffs' case was strong, but there were potential
uncertainties, both on the merits and as to class
certification. The parties had sufficient information to make
an informed decision about settlement. The settlement fund
will provide substantial relief to class members now, while
avoiding the risks, delays, and expense of continued
litigation. Further, Class Counsel's experienced opinion
is that the settlement is fair, reasonable and adequate. The
settlement is also the product of arms-length negotiations.
The parties engaged in mediation with a professional mediator
experienced in wage and hour class actions. Although the
mediation did not result in settlement, it facilitated that
the parties' continued settlement discussions which
ultimately led to their agreement to settle the action. No.
class member has objected to the Settlement Agreement. There
are no signs of collusion. The Court finds that the
uncertainty and delay of further litigation support the
reasonableness and adequacy of the $775, 000 common fund
established pursuant to the Settlement Agreement. Any funds
remaining in the trust account will be paid to Valley
Children's Hospital, a nonprofit organization, as cy
pres recipient. The exception is unclaimed FLSA wages,
which will be redistributed among members of the collective
awards of $7, 500 for each Named Plaintiff are reasonable, in
light of the significant time and energy they expended on
this matter and the risks they faced in serving as class
Counsel seeks $193, 750 in attorney fees, which is equivalent
to 25 percent of the common fund and the benchmark for a
reasonable fee award in the Ninth Circuit. Here, a lodestar
cross-check confirms the reasonableness of the percentage
award. Class Counsel Enrique Martinez and contract attorney
Jocelyn Sperling both have extensive experience and, for
purposes of the lodestar cross-check, the Court finds that an
hourly rate of $400 is reasonable. The Court will use the
reasonable hourly rate of $100 for the paralegals. The Court
reviewed the time entries and finds that the hours expended
were reasonable. Class Counsel has cut some hours, and has
not included time spent on the fee portion of the motion.
Utilizing these rates, the lodestar cross-check is higher
than the 25 percent amount of $193, 750 and awarding 25
percent of the common fund does not result in a windfall.
Offices of John E. Hill expended more than $23, 780.89 in
costs in the representation of Plaintiffs and the class and
collective action. The costs were primarily for mediator
fees, data entry expenses, filing fees, travel expenses to
meet with class members, and mailing costs. The costs
expended were reasonable and necessary. As discussed at the
hearing, the amount requested in costs exceeds the $23,
000.00 amount agreed upon by the parties in the Settlement
Agreement and preliminarily approved by the Court. Absent any
objection from the parties, the Court therefore will award
$23, 000.00 in costs.
foregoing reasons, IT IS HEREBY ORDERED that:
purposes of this Order, the Court adopts the terms defined in
the Settlement Agreement.
Court finds that the Rule 23(a) prerequisites and Rule
23(b)(3) requirements are met for the Settlement Class, and
the requirements are met for ...