Judge: Bruce G. Iwasaki, Case: 21STCV10027, Date: 2023-01-25 Tentative Ruling

Case Number: 21STCV10027    Hearing Date: January 25, 2023    Dept: 58

Judge Bruce G. Iwasaki

Hearing Date:             January 25, 2023

Case Name:                Jernigan v. Pro Unlimited, Inc., et al.

Case No.:                    21STCV10027

Motion:                       Motion for Final Approval of Class and Representative Action Settlement

Moving Party:             Plaintiffs Jenee Jernigan and Teri A. Garza-Haban

Responding Party:      Unopposed

Background

            Jenee Jernigan and Teri A. Garza-Haban filed a complaint on behalf of themselves, other aggrieved employees, and the State of California, against Defendants Pro Unlimited (Pro) and Airbnb, Inc for (1) failure to reimburse its current and former employees for home office expenses in California and (2) Private Attorneys General Act (PAGA) penalties for that failure during the coronavirus pandemic.  On June 7, 2022, the Court approved the PAGA Settlement as to the PAGA claims between Plaintiff Jernigan and AirBnB, Inc. 

On July 18, 2022, the Court granted preliminary approval of class and representative action settlement.  The figures are the same with the main difference being a reduction from the originally anticipated litigation costs of $26,000.00 to actual costs of $4,019.73.  This increases the total net settlement amount to $241,980.27, not including PAGA penalties.  Plaintiffs now move for final approval.

Discussion

Settlement Approval

            The Court has previously considered the fairness of the settlement through evaluating whether the agreement was the result of arm’s length bargaining, sufficient investigation and discovery, and the experience of counsel.  The only remaining factor is the number of objectors.  

            Since the preliminary approval, the Settlement Administrator, CPT Group, Inc. (CPT), mailed out the Notice of Pendency of Class PAGA Action to 6,250 class members, of which 56 were returned from the Post Office.  (Singh Decl., ¶¶ 5-8.)  After performing additional skip traces to locate update addresses, a total of 19 were re-mailed and 37 were undeliverable.  No objections were received and a total of only 20 members submitted valid opt-out requests.  (Id. at ¶¶ 8-12.)  Thus, there are 6,230 participating class members, which is 99.68% of the entire settlement class.  (Id. at ¶ 13.)  The average net individual settlement payment is $38.72, with the maximum being $126.19.  (Id. at ¶ 16.)

            Based upon its prior finding that the Settlement was fair, adequate, and reasonable, and given the lack of objections, the Court grants final approval of the settlement.

Attorney Fees and Costs

            The Court preliminarily approved $150,000.00 as 33% of the Gross Settlement Amount and costs not to exceed $25,000.00.  The final request is for $150,000.00 in fees and a total of $4,019.73 in costs.  Counsel provides declarations detailing the lodestar amounts for each of Plaintiffs’ firms: $113,265.27 for Ackermann & Tilajef, P.C., and $46,042.83 for India Lin Bodien.  The combined amount is $159,308.10, which amounts to a negative multiplier.  (Ackermann Decl., ¶ 17.)

            “[W]hen class action litigation establishes a monetary fund for the benefit of the class members, and the trial court in its equitable powers awards class counsel a fee out of that fund, the court may determine the amount of a reasonable fee by choosing an appropriate percentage of the fund created. The recognized advantages of the percentage method—including relative ease of calculation, alignment of incentives between counsel and the class, a better approximation of market conditions in a contingency case, and the encouragement it provides counsel to seek an early settlement and avoid unnecessarily prolonging the litigation [citations]—convince us the percentage method is a valuable tool that should not be denied our trial courts.”  (Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 503.)  “[T]rial courts . . . retain the discretion to forgo a lodestar cross-check and use other means to evaluate the reasonableness of a requested percentage fee.”  (Id. at p. 506.)  However, courts have adopted a practice of cross-checking the lodestar against the value of the class recovery because the award is then “anchored” in the time spent by counsel.  (Lealao v. Beneficial California, Inc. (2000) 82 Cal.App.4th 19, 45.) 

            Here, both of Plaintiffs’ counsel have set forth their extensive experience and actions taken in litigating this case.  (Ackermann Decl., ¶¶ 11-17; Bodien Decl., ¶¶ 3-8.)  A detailed itemization is provided.  (Ibid., Ex. A.)  The work conducted includes pre-litigation investigation, drafting pleadings, communications between parties, interviews, extensive legal research and analysis, and preparing and hearings.  (Ibid.)  Counsel also obtained a significant monetary recovery for the class, no objections were received, and the average individual settlement is reasonable based on the number of months of liability.  (Ackerman Decl., ¶ 11.) 

The Court finds that the one-third fee award is consistent with fee awards in class action cases, and the itemized billing entries are reasonable.¿ (See¿Chavez v. Netflix, Inc.¿(2008) 162 Cal.App.4th 43, 66, fn. 11; see also Consumer Privacy Cases (2009) 175 Cal.App.4th 545, 557, n.13 [“ ‘ “Empirical studies show that . . . fee awards in class actions average around one-third of the recovery” ’ ” with 25% being the benchmark]; Alson v. NCAA (In re NCAA Athletic Grant-in-Aid Cap Antitrust Litigation) (9th Cir. 2019) 768 F.App’x 651, 653 [“We have permitted awards of attorney’s fees ranging from 20 to 30 percent of settlement funds, with 25 percent as the benchmark award”].)  Moreover, the cross-reference of the fees reveals that the one-third recovery approximates the lodestar amount, and actually results in a negative multiplier of approximately 6%.  Accordingly, the fees are reasonable, and the request is granted.

            In addition, counsel seeks $4,019.73, comprised of $2,291.60 from Ackermann & Tilajef, P.C., and $1,728.13 from India Bin Bodien.  The preliminary request was for $25,000.00. The request is granted.  The declarations and itemized ledger sufficiently justify these costs.  (Ackermann Decl., Ex. B; Bodien Decl., ¶ 16.)  

Settlement Administrator Fees

            The Court preliminarily approved $26,000.00 for settlement administration costs based on the prior itemization provided by CPT.  Plaintiffs now submit a declaration from Laura Singh, a case manager for CPT, who attests to the work and incurred costs.  (Singh Decl., ¶¶ 4-13, 17.)  The Court grants the requested amount of $26,000.00.

Conclusion

            The Court approves the motion for final approval of class action settlement.