Judge: Curtis A. Kin, Case: 19STCV27487, Date: 2023-03-07 Tentative Ruling

Case Number: 19STCV27487    Hearing Date: March 7, 2023    Dept: 72

MOTION FOR FINAL APPROVAL OF

CLASS ACTION AND PAGA SETTLEMENT

Date:               3/7/23 (9:30 AM)

Case:               Stephanie Ouellette v. MKTG, Inc. et al. (19STCV27487)

TENTATIVE RULING:

Plaintiff Stephanie Ouellette’s Motion for Final Approval of Class Action and PAGA Settlement is GRANTED CONDITIONALLY, subject to the submission of the revised Settlement Agreement to the Labor Workforce and Development Agency.

The Court finds that, based on the risks that plaintiff will not obtain or maintain class certification and that the litigation is time-consuming and potentially subject to appeal (Gold Decl. ¶ 25 & Ex. 1 at 22:1-18) and that, with respect to plaintiff’s Private Attorney General Act claim, the Court may reduce any award or decline to impose the amount of penalties sought by plaintiff (Id. at 20:2-18, 21:9-25), a Gross Settlement Sum of $5 million is fair, adequate, and reasonable.

Class Counsel also submits evidence that the average settlement disbursement to the 1,525 Participating Class Members is $1,679.58 and the average settlement disbursement to the 1,426 PAGA Members is $87.66. (Singh Decl. ¶¶ 10-12.) Further, no objections or requests for exclusion were received. (Id. ¶ 7.)

With respect to the request for attorney fees, Class Counsel’s lodestar is $1,232,829.25. (Gold Decl. ¶¶ 38, 39 & Ex. 6; Hart Decl. ¶ 16 & Ex. A.) Considering that Class Counsel litigated the instant action on contingency basis, the Court finds that the request for fees in the amount of $1,666,666.67 is reasonable, notwithstanding that the fee award is more than the lodestar. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 [court may adjust lodestar based on contingent nature of fee award].)

Plaintiff’s request for $222,980.96 in costs is also reasonable and adequately supported. (Gold Decl. ¶¶ 40, 41 & Ex. 7; Hart Decl. ¶ 18 & Ex. B.)

In finding the allocation of fees and costs reasonable, the Court further notes that a fee award of $1,750,000 and a cost award of $250,000 was preliminarily approved. (11/21/22 Preliminary Approval Order at ¶ 8.) Class Counsel’s election to receive a smaller fee and cost award will result in an increase to the Class Member Payout Fund. (Settlement § 3.7.2 [“If any of Class Counsel’s fees and costs or Class Representative’s Service Awards are reduced by the Court, these funds will revert to the Class Member Payout Fund”].)

In addition, based on the risks of plaintiff’s participation in this action, the work toward settlement of this action, and the signing of a general release instead of a release for wage and hour violations, the request for $30,000 as a service award is reasonable. (See generally Ouellette Decl.)

However, with respect to the PAGA claims, plaintiff stated that she provided notice to the Labor and Workforce Development Agency (“LWDA”) of the pending settlement on September 20, 2022. (Gold Decl. ¶ 32 & Ex. 5; Labor Code § 2699(l)(2) [“The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court”].) However, in response to the Court’s concerns regarding the initially proposed Settlement, the parties revised the executed Settlement Agreement on or about November 10, 2022. (11/21/22 Preliminary Approval Order; Gold Decl. ¶ 28 & Ex. 2.) Plaintiff is required to submit the revised Settlement Agreement to the LWDA.

The motion is GRANTED CONDITIONALLY, subject to plaintiff’s submission of the revised Settlement Agreement to the Labor Workforce and Development Agency. Plaintiff Stephanie Ouellette is ordered to serve the revised Settlement Agreement on the Labor and Workforce Development Agency within five (5) days hereof. Thirty (30) days after submission of the revised Settlement Agreement to the LWDA, plaintiff is ordered to serve and file a declaration averring to service of the revised Settlement Agreement on the LWDA and whether any response (as well as the nature of any such response) was received.