Rivas v. BG Retail, LLC

          ORDER (1) GRANTING PLAINTIFF'S MOTION FOR FINAL APPROVAL OF SETTLEMENT AND (2) GRANTING IN PART PLAINTIFF'S MOTION FOR ATTORNEYS' FEES, COSTS, AND CLASS REPRESENTATIVE INCENTIVE AWARD [RE: ECF 63, 61]

          BETH LABSON FREEMAN UNITED STATES DISTRICT JUDGE.

         Plaintiff Sophia Rivas (“Plaintiff”) and Defendants BG Retail, LLC, dba Naturalizer, and Caleres, Inc. (“Defendants”) have entered into Class Action Settlement Agreement (“Settlement Agreement” or “Settlement”) in this wage and hour class action.

         Two motions are before the Court: (1) Plaintiff's Motion for Final Approval of Class Action Settlement (“Mot. for Approval”, ECF 63) and (2) Plaintiff's Motion for Attorneys' Fees, Costs, Expenses, and Class Representative Incentive Award (“Mot. for Fees”, ECF 61). On December 10, 2019, the Court heard oral arguments on both motions (the “Hearing”). For the reasons discussed below and those stated on the record at the Hearing, Plaintiff's Motion for Final Approval of Class Action Settlement is GRANTED and Plaintiff's Motion for Attorneys' Fees, Costs, Expenses, and Class Representative Incentive Award is GRANTED IN PART.

         I. BACKGROUND

         Defendants operate a chain of retail footwear stores under the brand name “Naturalizer.” Complaint (“Compl.”) ¶ 26, ECF 2, Exh. A. Defendants operate 15 stores in California. Id. Plaintiff worked for Defendants as a non-exempt, hourly paid Store Manager from approximately April 2011 to December 2015 at the Milpitas, California store location. Id. ¶ 4. Plaintiff filed this class action on September 29, 2016, in the Superior Court of the State of California, County of Santa Clara. See Compl. The Complaint asserts ten (10) causes of actions under various California labor and business codes. See generally Compl. On November 4, 2016, Defendants removed the action to this District. ECF 1, 2. On January 30, 2019, the parties appeared before the Honorable Joseph C. Spero, United States Magistrate Judge, for a judicial settlement conference. ECF 50. As a result, the parties entered into a Settlement Agreement. Class Action Settlement Agreement (“Agreement”), ECF 57-1, Exh. 1.

         II. THE SETTLEMENT AGREEMENT

         The principal terms of the Settlement provide for the following:

         (1) A Settlement Class defined as: All persons who are or were employed by Defendants in a non-exempt, hourly-paid position in any of Defendants' California “Naturalizer” retail locations from September 30, 2012 until July 25, 2019. Agreement ¶ 1.20.

         (2) An all-inclusive and non-reversionary Gross Settlement Amount of $175, 000 (including employer payroll taxes). Agreement ¶¶ 1.12, 7.1. The Gross Settlement Amount includes: (a) a Remaining Distribution Fund^[1] which will be allocated to all Class Members who do not opt out of the Settlement Class on a pro-rata basis according to the number of weeks each Class Member worked during the Class Period and without the need to submit claims for payment (id. ¶¶ 1.17, 8.1); (b) attorneys' fees not to exceed $78, 750 and litigation costs and expenses not to exceed $20, 000 to Plaintiff's Counsel, Capstone Law APC (“Plaintiff's Counsel” or “Class Counsel”) (id. ¶¶ 1.11, 7.3); (c) settlement administration costs of $6, 500, to the court-appointed settlement administrator, ILYM Group, Inc. (id. ¶¶ 1.11, 7.4); and (d) a class representative service award of $2, 500 to Sophia Rivas for her services on behalf of the Settlement Class (id. ¶¶ 1.7, 7.2). The average estimated payment is $170.59, the lowest is $0.37, and the highest is $952.26. Declaration of Farrah Ghaffarirafi (“Ghaffarirafi Decl.”) ¶ 9, ECF 63-2.

         In exchange for the Gross Settlement Amount, Class Members who do not opt out will agree to release the Released Claims, which are defined as:

Plaintiffs' allegations in the Action and in the Amended Complaint that Defendants (1) failed to pay overtime; (2) failed to pay minimum wages; (3) failed to provide meal periods; (4) failed to provide rest periods; (5) failed to pay wages due timely upon termination of employment; (6) failed to provide itemized wage statements to employees; (7) failed to compensate for split-shifts; (8) failed to reimburse employees for certain business expenses; (9) engaged in unfair business practices; and (10) violated California Labor Code §§ 201, 202, 203, 204, 210, 226, 226.7, 510, 512, 558, 1194, 1194.2, 1197, 1197.1, 1198, and 2802, California Business and Professions Code §§ 17200 et seq., as well as claims that could have been brought in the Complaint.

         Agreement ¶¶ 1.3.

         III. PRELIMINARY APPROVAL AND NOTICE PLAN

         On July 25, 2019, the Court issued an order which (1) granted preliminary approval of the class action settlement; (2) preliminarily certified the class; (3) appointed Ms. Rivas as class representative; (4) appointed Plaintiff's counsel (Capstone Law APC) as Class Counsel; (5) approved ILYM Group, Inc. as the Settlement Administrator; and (6) approved the proposed Class Notice. See Order Granting Motion for Preliminary Approval of Class Action Settlement (“Prelim. Order”), ECF 60. The Court directed notice by mail and set deadline of October 14, 2019 for objections and exclusions. Id. ¶ 11.

         As authorized by the Court, the parties engaged ILYM to provide settlement administration services. Ghaffarirafi Decl. ¶ 2. On July 26, 2019, ILYM received the Class Notice prepared jointly by Class Counsel and counsel for Defendants and approved by the Court. Id. ¶ 3. The Class Notice summarized the Settlement's principal terms, provided Class Members with an estimate of how much they would be paid if the Settlement received final approval, and advised Class Members about how to opt out of the Settlement and how to object. Id., Exh. A.

         Separately, counsel for Defendants provided ILYM with a mailing list (the “Class List”), which included each Class Member's full name, last known address, Social Security Number, and information necessary to calculate payments. Ghaffarirafi Decl. ¶ 3. The mailing addresses contained in the Class List were processed and updated using the National Change of Address Database maintained by the U.S. Postal Service. Id. ¶ 4. On August 14, 2019, ILYM mailed Class Notices to Class Members via First-Class U.S. mail. Id. Class Members were given 60 days to opt out or object to the Settlement. Id., Exh. A. No. Class Members objected to the Settlement and only one Class Member opted out of the settlement Class. Id. ¶¶ 6-7.

         IV. MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

         A. The Class Meets the Requirements for Certification under Rule 23

         A class action is maintainable only if it meets the four requirements of Rule 23(a):

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims or ...