Case 3:13-cv-05449-JD Document 139 Filed 09/23/15 Page 1 of 34 · FOR FINAL APPROVAL OF CLASS...

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PL.’S MOT. FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT – CASE NO. CV-13-05449-JD

593246.10

Laura L. Ho (SBN 173179) [email protected] Megan E. Ryan (SBN 264922) [email protected] GOLDSTEIN, BORGEN, DARDARIAN & HO 300 Lakeside Drive, Suite 1000 Oakland, CA 94612 Tel: (510) 763-9800 Fax: (510) 835-1417 Jonathan E. Gertler (SBN 111531) [email protected] Christian Schreiber (SBN 245597) [email protected] CHAVEZ & GERTLER LLP 42 Miller Avenue Mill Valley, CA 94941 Tel: (415) 381-5599 Fax: (415) 381-5572 Attorneys for Plaintiffs (additional attorneys listed on next page)

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

FEDERICO VILCHIZ VASQUEZ, JESUS VILCHEZ VASQUEZ, FRANCISCO DOMINGO CLAUDIO, ADA CAÑEZ, EMIGDIO MENDEZ, and CANDELARIA HURTADO for themselves and all others similarly situated, Plaintiffs, vs. USM, INC. dba USM SERVICES, INC., a Pennsylvania Corporation; Ross Stores, Inc. dba ROSS DRESS FOR LESS, a Delaware Corporation; ROSS STORES, INC. dba dd’s DISCOUNTS, a Delaware Corporation; and DOES 1 through 20, inclusive, Defendants.

Case No.: CV-13-05449-JD PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT Hon. James Donato Date: October 7, 2015 Time: 10:30 a.m. Dept: 11

Case 3:13-cv-05449-JD Document 139 Filed 09/23/15 of 34

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Maura Prendiville (SBN 257514) [email protected] Joanna Shalleck-Klein (SBN 275686) [email protected] LEGAL AID OF MARIN 30 North San Pedro Road, Suite 220 San Rafael, CA 94906 Tel: (415) 492-0230 Fax: (415) 492-0947 Juliet M. Brodie (SBN 248989) [email protected] STANFORD COMMUNITY LAW CLINIC 2117 University Avenue East Palo Alto, CA 94303 Tel: (650) 725-9200 Fax: (650) 326-4162


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TABLE OF CONTENTS Page

NOTICE OF MOTION AND MOTION .......................................................................................... i

MEMORANDUM OF POINTS AND AUTHORITIES ................................................................. 1

I. INTRODUCTION ................................................................................................... 1

II. OVERVIEW OF THE SETTLEMENT .................................................................. 3

III. FACTS ..................................................................................................................... 7

A. The Court Certified the Settlement Class, Appointed Class Counsel, and Granted Preliminary Approval of the Consent Decree. ........................ 7

B. The Distribution of Notice Has Complied with the Court’s Order. ............ 8

C. The Class Has Expressed Its Positive Reaction to the Consent Decree. ... 10

IV. ARGUMENT ........................................................................................................ 11

A. The Settlement is Fair, Reasonable, and Adequate and Should be Finally Approved. ...................................................................................... 11

1. The Class Received Adequate Notice of the Consent Decree. ...... 13

2. The Strength of Plaintiffs’ Case and the Risks of Proceeding with Litigation Support Final Approval. ....................................... 14

3. The Likely Expense and Duration of Further Litigation Favor Final Approval. .............................................................................. 15

4. The Risk of Maintaining Class Certification Favors Final Approval. ....................................................................................... 16

5. The Amount Offered to Settle the Claims Is Substantial and Weighs in Favor of Final Approval. .............................................. 16

6. Plaintiffs Had the Benefit of Extensive Discovery that Permitted Class Counsel to Calculate Class Damages and Make Informed Decisions Regarding Settlement. ................................................... 17

7. The Consent Decree Is Supported By Skilled and Experienced Class Counsel. ............................................................................... 18

8. The Positive Reaction of the Class Strongly Favors Approval. .... 19

B. The Class Representatives’ Requested Service Awards Are Reasonable and Appropriate. ........................................................................................ 20


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C. Class Counsel’s Requested Attorneys’ Fees and Costs Award Is Reasonable and Well-Justified. ................................................................. 22

CONCLUSION ............................................................................................................................. 25


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TABLE OF AUTHORITIES

Page(s)

Federal Cases

In re Am. Bank Note Holographics, Inc., 127 F. Supp. 2d 418 (S.D.N.Y. 2001) ...............................................................................................19

In Re Armored Car Antitrust Litig., 472 F. Supp. 1357 (N.D. Ga. 1979) ...................................................................................................17

In re Art Materials Antitrust Litig., 100 F.R.D. 367 (N.D. Ohio 1983) .....................................................................................................19

Bellinghausen v. Tractor Supply Co., No. 13-CV-02377-JSC, 2015 WL 1289342 (N.D. Cal. Mar. 20, 2015) ...........................................21

In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935 (9th Cir. 2011) .............................................................................................................12

Chun-Hoon v. McKee Foods Corp., 716 F. Supp. 2d 848 (N.D. Cal. 2010) .........................................................................................14, 16

Cody v. Hillard, 88 F. Supp. 2d 1049 (D.S.D. 2000) ...................................................................................................19

In re Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366 (S.D. Ohio 1990) ......................................................................................................19

Dyer v. Wells Fargo Bank, N.A., 303 F.R.D. 326 (N.D. Cal. 2014) ................................................................................................16, 21

Eddings v. Health Net, Inc., No. CV 10-1744-JST RZX, 2013 WL 3013867 (C.D. Cal. June 13, 2013) .....................................15

Franklin v. Kaypro Corp., 884 F.2d 1222 (9th Cir. 1989) ...........................................................................................................11

Glass v. UBS Fin. Servs. Inc., No. C-06-4068 MMC, 2007 WL 221862 (N.D. Cal. Jan. 26, 2007) .................................................16

In re Google Referrer Header Privacy Litig., No. 5:10-CV-04809 EJD, 2014 WL 1266091 (N.D. Cal. Mar. 26, 2014) ........................................14

Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) ...........................................................................................................12

Harris v. Vector Mktg. Corp., No. C-08-5198 EMC, 2012 WL 381202 (N.D. Cal. Feb. 6, 2012) ...................................................21


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Laguna v. Coverall N. Am., Inc., 753 F.3d 918 (9th Cir. 2014) .............................................................................................................23

Linney v. Cellular Alaska P’ship, 151 F.3d 1234 (9th Cir. 1998) ...........................................................................................................17

Mandujano v. Basic Vegetable Prods., Inc., 541 F.2d 832 (9th Cir. 1976) .............................................................................................................19

Montelongo v. Meese, 803 F.2d 1341 (5th Cir. 1986) ...........................................................................................................13

Nat’l Rural Telecomms. Coop. v. DirectTV, Inc., 221 F.R.D. 523 (C.D. Cal. 2004) .......................................................................................................12

In re NVIDIA Corp. Derivative Litig., No. C-06-06110-SBA, 2008 WL 5382544 (N.D. Cal. Dec. 22, 2008) .............................................18

Officers for Justice v. Civil Serv. Comm’n, 688 F. 2d 615 (9th Cir. 1982) ......................................................................................................12, 13

In re Omnivision Techs., Inc., 559 F. Supp. 2d 1036 (N.D. Cal. 2008) .......................................................................................16, 18

In re Online DVD-Rental Antitrust Litig., 779 F.3d 934 (9th Cir. 2015) .............................................................................................................21

Ozga v. U.S. Remodelers, Inc., No. C 09-05112 JSW, 2010 WL 3186971 (N.D. Cal. Aug. 9, 2010) ................................................21

Relente v. Viator, Inc., No. 12-CV-05868-JD, 2015 WL 2089178 (N.D. Cal. May 4, 2015) ................................................16

Relente v. Viator, Inc., No. 12-cv-05868-JD, 2015 WL 3613713 (N.D. Cal. June 9, 2015) .................................................23

Rodriguez v. West Publ’g Corp., 563 F.3d 948 (9th Cir. 2009) .............................................................................................................14

Rodriguez v. West Publ’g Corp., No. CV05-3222 R(MCx), 2007 WL 2827379 (C.D. Cal. Sept. 10, 2007) ........................................17

Rojas v. Brinderson Constructors, Inc., 567 F. Supp. 2d 1205 (C.D. Cal. 2008) .............................................................................................14

Six (6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301 (9th Cir. 1990) ...........................................................................................................13

Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003) .............................................................................................................12


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Torres v. Pet Extreme, No. 1:13-CV-01778-LJO-SA, 2014 WL 4354880 (E.D. Cal. Sept. 2, 2014) ...................................13

Trujillo v. City of Ontario, No. EDCV 04-1015-VAP, 2009 WL 2632723 (C.D. Cal. Aug. 24, 2009) .......................................21

Vedachalam v. Tata Consultancy Servs., Ltd, No. C 06-0963 CW, 2013 WL 3929129 (N.D. Cal. July 18, 2013) ..................................................21

Wren v. RGIS Inventory Specialists, No. C-06-05778, JLS, 2011 WL 1230826 (N.D. Cal. Apr. 1, 2011) ................................................23

State Cases

Castillo v. Toll Bros., Inc., 197 Cal. App. 4th 1172 (2011) ..........................................................................................................14

In re Cellphone Fee Termination Cases, 186 Cal. App. 4th 1380 (2010) ..........................................................................................................21

Hawkins v. TACA Int’l Airlines, S.A., 223 Cal. App. 4th 466 (2014) ............................................................................................................14

Partee v. Sierra Mountain Elec. Co., No. RG10495654, 2011 WL 5901159 (Cal. Super. Ct. Alameda Cnty. Feb. 15, 2011) ..................................................................................................................................................14

Sav-on Drug Stores, Inc. v. Super. Ct., 34 Cal. 4th 319 (2004) .......................................................................................................................20

Docketed Cases

Butler v. Home Depot, Inc., No. C 94-4335 SI (N.D. Cal. Jan. 14, 1998) .....................................................................................21

Emcor v. Transfield Servs., Inc., No. Civ-1:15-cv-03062-AT (S.D.N.Y. Apr. 20, 2015) .....................................................................22

Satchell v. Fedex Express, No. C 03-2659 SI (N.D. Cal. Aug. 14, 2007) ....................................................................................22

State Statutes

California Labor Code § 2810 ..............................................................................................................................14, 15, 16, 23 § 2810(a) ......................................................................................................................................2, 4, 5 § 2810(d) .........................................................................................................................................2, 4

California Private Attorneys General Act .........................................................................................1, 3, 6


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Rules

Fed. R. Civ. P. 23(b)(2) ..............................................................................................................................................15 23(b)(3) ..............................................................................................................................................15 23(c)(2) ..............................................................................................................................................13 23(e) ...................................................................................................................................................12 30(b)(6) ........................................................................................................................................17, 18


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NOTICE OF MOTION AND MOTION

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on October 7, 2015, at 10:30 a.m., or as soon thereafter as the

matter may be heard, in Courtroom 11 of the United States District Court of the Northern District of

California, located at 450 Golden Gate Avenue, San Francisco, California, Class Representatives

Federico Vilchiz Vasquez, Jesus Vilchez Vasquez, Ada Canas1, Emigdio Mendez, Candelaria Hurtado,

and Evelia Martinez (“Plaintiffs” or “Class Representatives”) will move, and hereby do move, this

Court for final approval of the proposed class action settlement consistent with the terms set forth in

the preliminarily approved Consent Decree (ECF No. 121-1). On September 1, 2015, Plaintiffs also

moved for an award of attorneys’ fees, costs, and service awards to be heard at the same time (ECF

No. 138).

The motion is based on this notice of motion and motion, the attached memorandum of points

and authorities, the declarations of Laura L. Ho, Jonathan E. Gertler, Maura Prendiville, Sandra Pappas

(Settlement Administrator), and Plaintiffs/Class Representatives (ECF 121-5-10), the proposed order

and judgment, the Fee Motion and its related papers (ECF 138), the pleadings and papers filed in this

case, and on any oral argument this Court permits. Defendants USM, Inc. and Ross Dress for Less

(“Defendants”) do not oppose this motion.

Dated: September 23, 2015 Respectfully submitted, GOLDSTEIN, BORGEN, DARDARIAN & HO /s/ Laura L. Ho

Laura L. Ho Attorneys for Plaintiffs and the Settlement Class

1 Ada Canas is the corrected spelling of Ada Cañez.


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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Plaintiffs and Class Representatives Federico Vilchiz Vasquez, Jesus Vilchez Vasquez, Ada

Canas, Emigdio Mendez, Candelaria Hurtado, and Evelia Martinez (“Plaintiffs” or “Class

Representatives”) move for final approval of a $1,000,000 non-reversionary class action settlement of

claims against Defendants USM, Inc. and Ross Dress for Less, (“Defendants”) and fees and costs of

$1,300,000. This is a class action brought under California law on behalf of current and former

janitors who provided daily maintenance services at Ross stores in California in connection with the

performance of a contract or agreement between USM and Ross for the provision of janitorial services.

Plaintiffs allege that Defendants violated California law by underfunding their janitorial contracts, such

that the janitors failed to receive minimum wage and other protections required under the Labor Code.

Plaintiffs also assert claims under the California Private Attorneys General Act of 2004 (“PAGA”)

based on Defendants’ alleged violations of California law.

On April 13, 2015, the Court granted preliminary approval of the Consent Decree. Order

Granting Mot. for Preliminary Approval of Class Action Settlement, ECF No. 134 (“Prelim. App.

Order”). Since that time, the Settlement Administrator distributed notice to 1,211 Class Members in

compliance with the Court’s preliminary approval order. The Settlement Class has responded very

favorably to the proposed settlement with no Class Member seeking exclusion or objecting to any of

the terms of the Consent Decree.

This positive response reflects the fact that the Class will receive substantial monetary relief.

The payment of $1,000,000 plus attorneys’ fees and costs is an excellent result for the Class. Given

the substantial monetary payment, each monetary Class Member can expect to receive an average

award of $728.18.

In addition to this substantial monetary relief, Plaintiffs also obtained critical prospective relief.

Under the terms of the Consent Decree, USM will require subcontractors to maintain records of the

janitors’ hours worked and will provide janitors with notice of their rights under the Labor Code.

USM will also review their subcontractors’ records for minimum wage violations, and will ensure that

the janitors receive minimum wage and overtime, including making payments directly to the janitors if


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needed. The Consent Decree also calls for Ross to revise its agreement with USM to ensure that

USM’s subcontracts track the language in Labor Code section 2810(d) – which outlines the provisions

necessary for a contract or agreement to be considered presumptively in compliance with section

2810(a). These provisions enumerate a variety of contract terms that are intended to provide assurances

that janitors are paid at least minimum wage and that the subcontractors carry a workers’ compensation

policy, maintain time records, and provide itemized wage statements. Consent Decree, ECF No. 121-1,

Exhibit A (“Consent Decree”), Section IV. Plaintiffs estimate the value of the injunctive relief over

the next three years totals more than $1.5 million resulting in a constructive common fund in excess of

$3,800,000 (the class fund, fees and costs, plus the monetization of three years of paid True Minimum

Labor Costs into the future). Preliminary Approval Mot., ECF No. 121 (“Prelim Mot.”) at 18; Pls.’

Mot. for Attorneys’ Fees, Costs and Service Awards, ECF No. 138 (“Fee Motion”) at 2.

As set forth in Plaintiffs’ Fee Motion, the requested fee award of $1,102,000, is a fair,

adequate, and reasonable award under the lodestar method because it is less than 44% of Class

Counsel’s lodestar to date and was brought under a statute with an attorneys’ fee provision. This

award is further supported by the fact that Plaintiffs and Class Counsel (1) have obtained an

unprecedented result for the Class, both in monetary and non-monetary terms; (2) faced considerable

risks in prosecuting this novel law; (3) brought about changes to Defendants’ practices in the form of

improved janitorial subcontracting practices and monitoring of subcontractors to ensure compliance

with California wage and hour laws, which provides a benefit to the Class beyond the three years of

monitoring in the Consent Decree; and (4) carried the heavy financial burden of representing Plaintiffs

and the Class on a contingency basis. Even when considered under the common fund approach, the

requested fee, which is 28.9% of the constructive common fund, is well justified for the reasons

described above. Class Counsel also seek reimbursement of $198,000 in costs reasonably incurred in

the prosecution of the case. Fee Motion at 19. Furthermore, the requested service awards of $5,000

each for Federico Vilchiz Vasquez, Jesus Vilchez Vasquez, Ada Canas; $3,000 each for Emigdio

Mendez and Candelaria Hurtado; and $1,000 for Evelia Martinez for their service as the Class

Representative Plaintiffs are appropriate for the significant risks they assumed in bringing this action,

the documented effort and time expended in representing the Settlement Class, the broader releases


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signed by them, and the relative value of the award when compared to the monetary benefit received

by the Class. Id.at 20-24. Plaintiffs also seek small awards of $500 for non-class representative Class

Members who spent time working with attorneys to tell their stories and prepare declarations in

support of the motion for class certification. Id.at 24-25.

When the monetary and non-monetary benefits of the Consent Decree are balanced against the

inherent risks of continued, protracted litigation, including potential denial of class certification or the

striking of Plaintiffs’ experts, the fairness, adequacy, and reasonableness of the proposed settlement is

confirmed. Accordingly, Plaintiffs respectfully request that this Court grant final approval of this

Consent Decree.

II. OVERVIEW OF THE SETTLEMENT

A summary of the Consent Decree follows:

1. Settlement Fund – Defendants will pay $1,000,000 into a Settlement Fund. Consent

Decree ¶ VII A. The Settlement Fund will be the sole source of the following

payments: monetary relief for the Plaintiffs and the Class; service awards for the Class

Representatives and Class Member declarants; PAGA payments to the State of

California; and, the costs of settlement administration. Id. ¶ VII A (a) – (c). If final

approval is granted, none of the funds will revert to Defendants. Id. ¶ VII A.

2. Net Settlement Fund – The Net Settlement Fund is the Settlement Fund of $1,000,000

less those amounts approved by the Court for service awards, PAGA payments to the

State, and the cost of notice and administration. Id. ¶ VII A. The Consent Decree states

that $27,500 is allocated for Collective Service Award Payments, $5,000 for PAGA

payments to the State, and $125,000 for the maximum cost of notice and administration,

which leaves $842,500.00 in the Net Settlement Fund. Id. ¶ VII A, C(4) & Ex. 4.

3. Prospective Relief – USM will begin to require subcontractors to maintain records of

the janitors’ hours worked and to provide janitors with notice of their rights under the

Labor Code. USM will then review these records for minimum wage violations and

will ensure that the janitors receive minimum wage and overtime, including making

payments directly to the janitors if needed. Id. ¶ VIII A(1) – (8) & Ex. 7. Ross will


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revise its agreement with USM to ensure that USM’s agreements with the

subcontractors track the language in section 2810(d) – which outlines the provisions

necessary for a contract or agreement to be considered presumptively in compliance

with section 2810(a) – to include assurances that janitors are paid at least minimum

wage and that the subcontractors carry a workers’ compensation policy, maintain time

records, and provide itemized wage statements. Id. ¶ VIII B.

4. Class Definition and Class Period – The injunctive relief Settlement Class is defined as:

“All persons currently providing Daily Maintenance Services at a Ross store in

California in connection with the performance of a contract or agreement between USM

and Ross for the provision of janitorial services.” Consent Decree ¶ IV A. The

monetary relief Settlement Class is defined as: “All persons who have provided Daily

Maintenance Service at a Ross store in California in connection with the performance of

a contract or agreement between USM and Ross for the provision of janitorial services

from September 5, 2009 until February 10, 2015, except those who file timely request

to opt out of and be excluded from the monetary relief provisions of the Consent

Decree.” Consent Decree ¶ IV B.

5. Scope of Release – The Class release contemplated by the proposed Consent Decree

releases all claims of Eligible Claimants alleged in the Second Amended Complaint

regarding the provision of Daily Maintenance Services at a Ross store in California in

connection with the provision of a contract or agreement between USM and Ross for

the provision of Daily Maintenance Services at a Ross store in California at any time

from September 5, 2009 until February 10, 2015. Consent Decree ¶ VI B. Eligible

Claimants are only those Class Members, who do not opt-out and who: (1) are mailed

Notice that is not returned as undeliverable; or (2) submit a timely and valid Claim

Form; or (3) current janitors who receive Notice from the subcontractors. Consent

Decree ¶ VII C(3).

6. Method of Allocation – The amount available for distribution to individual Class

Members will equal the Net Settlement Fund. Given the information currently


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available, all Eligible Claimants will receive an Automatic Payment of $145.63, which

is between $50 and $250 as specified in the Consent Decree. Declaration of Sandra

Pappas (“Pappas Decl.”) ¶ 21; Consent Decree ¶ VII C. All Eligible Claimants who

submit timely and valid Claim Forms are also eligible for an additional payment that

will vary based on the amount of information they provide on their Claim Form. Class

Members who provide details about their work history at a Ross Store are eligible for an

additional payment up to $575 (including the Automatic Payment) (together the

“Minimum Claimed Payment”) (Consent Decree ¶ VII C), while Class Members who

also include tax reporting information are entitled to an “Additional Claimed Payment”

up to a maximum of $16,500. The additional payments will be made on a pro rata basis

based on the number of store months worked by the Class Members who submitted

Complete Claim Forms. Id. All settlement proceeds will be paid out. Id. ¶ VII A. The

Net Settlement Class Amount, estimated to be $842,500, will be paid as statutory

damages to identified Class Members. Id. ¶ VII C(5)(c).

7. Claims Procedure – Settlement Class Members who have submitted timely and valid

Claim Forms within the one hundred and twenty (120) day period from the date of the

initial Settlement Notice mailing will receive, in addition to the Automatic Payment,

their pro rata share of the Settlement Class Settlement Proceeds. Id. ¶ VII C(1). None

of the proceeds will revert back to Defendants. Id. ¶ VII A. If there are uncashed

checks at the end of a 180-day period or any other residual, those settlement checks will

be void and residual funds will be paid to Centro Legal de La Raza in Oakland,

California (50%), Employee Rights Center in San Diego, California (25%), and

California Rural Legal Assistance, Inc. a state-wide network of 23 offices (25%). Id.

¶ VII E. All of these organizations provide legal services to low-wage janitorial

workers.

8. Settlement Administration – The Parties selected Heffler Claims Group to serve as the

Settlement Fund Administrator. Id. ¶¶ III, VII A. Consistent with the Court’s

preliminary approval order, the Settlement Administrator has, among other things,


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distributed the Settlement Notice and Claim Form, conducted address traces, re-mailed

notices upon request, conducted Spanish-language outreach to Class Members when

necessary, calculated estimated individual settlement awards, provided all counsel with

updates, and reported to the Court on the notice/claim form/opt out process. Pappas

Decl. ¶ 3, filed herewith. If the Consent Decree is approved, the Settlement

Administrator will also draw and distribute checks to the Settlement Class Members and

administer the Settlement Fund. Id. at 24. Settlement administration costs will not

exceed $125,000. Id. ¶ 25; Declaration of Laura L. Ho ISO Plaintiffs’ Motion for

Preliminary Approval of Class Action Settlement (“Ho Prelim. Decl.”) ¶ 24, ECF No.

121-1.

9. Class Notice – The Court-approved Class Notice of settlement (attached as Exhibit A to

the Pappas Declaration) explained the terms of the Consent Decree and how to receive a

settlement payment, object, and/or opt out. In order to claim his or her share of the

settlement, the Notice informed Settlement Class Members that they had to do nothing

to receive an Automatic Payment, but that they had to fill out and return a Claim Form

for a Minimum Claimed Payment or Additional Claimed Payment, which was

dependent on whether the Class Member provided tax identification. All objections and

requests for exclusion had to be completed and post-marked within one-hundred and

twenty (120) days from the initial mailing of the Notice.

10. Tax Consequences – All payments made to the Class Representatives and Eligible

Claimants will be considered payments for statutory damages, and not wages, which are

not subject to any withholdings or deductions, and will be reported on Form 1099-

MISC for tax purposes if required. Consent Decree ¶ VII C(5)(c).

11. PAGA Penalties – The Parties have agreed to allocate $5,000 to the payment of PAGA

penalties. Following the effective date of the Consent Decree, the Settlement

Administrator will send a check in the amount of $5,000.00 to the State of California.

12. Class Counsel’s Attorneys’ Fees, Costs, and Expenses – Consistent with the Consent

Decree and pursuant to their previously filed Fee Motion, Class Counsel seek an


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attorneys’ fees award of $1,102,000.00, and $198,000 in reimbursement of litigation

expenses. Consent Decree ¶ IX. Class Counsel has set forth the grounds supporting

their requested award, including that it is substantially less than Class Counsel’s

combined lodestar to date, it serves the purpose of fairly spreading the costs of fees

amongst the class of individuals benefiting from the Consent Decree, it represents a fair

award in light of the excellent results obtained in the face of significant litigation risks

faced by the Class and the contingency risks assumed by Class Counsel, and it

constitutes less than 28.9% of the constructive fund when the monetary value of the

prospective relief achieved is considered. See also Fee Motion. Defendants do not

oppose these requested attorneys’ fees and costs, and no Class Member, after receiving

notice of Plaintiffs’ requested attorneys’ fees and costs, has objected to or requested

exclusion because of the requested awards. The requested attorneys’ costs and

expenses award of no more than $198,000 is based primarily on deposition transcript

costs and expert witness fees and mediation fees and no Class Member has objected to

it. Fee Motion at 19-20.

13. Class Representative Service Award – Consistent with the Consent Decree and pursuant

to their previously filed Fee Motion, Plaintiffs have requested and explained the basis

for awarding each of them services awards that total $27,500 in recognition of the

benefit conferred on the Class, their efforts in achieving this Consent Decree, the

evidence of the time spent, assistance provided, and significant risks incurred by

Plaintiffs while representing the Class, as well as the full general release, which releases

their individual claims against Defendants, in exchange for the service awards. Consent

Decree ¶ VII(C)(4)(a); Fee Motion at 20-25.

III. FACTS

A. The Court Certified the Settlement Class, Appointed Class Counsel, and Granted Preliminary Approval of the Consent Decree.

On April 13, 2015, the Court granted preliminary approval of the Consent Decree. Prelim.

App. Order. In that Order, the Court certified an injunctive relief class comprised of “[a]ll persons


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currently providing Daily Maintenance Services at a Ross store in California in connection with the

performance of a contract or agreement between USM and Ross for the provision of janitorial

services” and a monetary relief class comprised of “[a]ll persons who have provided Daily

Maintenance Service at a Ross store in California in connection with the performance of a contract or

agreement between USM and Ross for the provision of janitorial services from September 5, 2009

until February 10, 2015, except those who file a timely request to opt out of and be excluded from the

monetary relief provisions of the Consent Decree.” The Court also granted approval of the proposed

Notice; concluded that the Ninth Circuit’s factors supported the preliminary approval of the Consent

Decree and that net recovery to the Class was fair, reasonable, and adequate in light of the strength of

Plaintiffs’ case, the risks of further litigation, and the significant value of the prospective relief

obtained; and set a date for the Final Approval Hearing. Id.

B. The Distribution of Notice Has Complied with the Court’s Order.

Class Counsel has not only complied with the Notice provisions approved by this Court on

April 13, 2015, but also engaged in significant outreach as part of the Notice process to inform janitors

of their right to submit claims and to assist in filling out Claim Forms. Many Class Members were

scared to participate initially because of worries about participating in an official court process,

retaliation, reputational harm, and perceived immigration consequences. Decl. of Laura L. Ho ISO

Pls.’ Mot. for Final Approval of Class Action Settlement (“Ho Final Decl.”) ¶ 5. All outreach was

consistent with the terms of the Preliminary Approval Order and Consent Decree, but Class Counsel’s

efforts were more expansive than originally envisioned given the high level of perceived concerns by

Class Members. Id. The following describes the efforts relating to Notice and outreach to help class

members to submit claims.

On or about February 17, 2015, the Settlement Administrator received a spreadsheet from Class

Counsel containing the names, last-known addresses, and telephone numbers (where available) of

Class Members. Pappas Decl. ¶ 7. The Settlement Administrator processed these mailing addresses,

traced names and addresses to obtain more recent addresses and re-mailed notices with updated, new

addresses using the National Change of Address Database maintained by the U.S. Postal Service. Id.

¶ 8. On or about April 24, 2015, the Settlement Administrator received an additional data file from


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Defendants’ Counsel containing the names and addresses of individuals employed by a subcontractor

providing services on the Ross account in California during the period from April 1, 2014 through

February 11, 2015 and who may have provided daily maintenance services at a Ross store in California

during that time period. Id. ¶ 9. The Settlement Administrator compared the names and addresses to

the Class Data already received and identified 144 records that did not match to the original Class Data

file and added those records to the Class Data file. Id.

On May 18, 2015, the Settlement Administrator mailed out Notices to 1,211 Class Members.

Id. ¶ 12. The Notice informed the Class about the Settlement terms, including (1) the maximum

Settlement Fund of $1,000,000; (2) the September 15, 2015 deadline to submit any objections, requests

for exclusion, or claim forms; (3) that Plaintiffs would seek up to $1,300,000 as an award for

attorneys’ fees and costs; and (4) that Plaintiffs would request service awards for the Class

Representatives and Declarants. Id.; Exs. A.

During the 120-day Notice response period, 314 notice packets were returned to the Settlement

Administrator by the U.S. Postal Service. Id. ¶ 15. The Settlement Administrator promptly re-mailed

notice packets to all individuals for whom it received forwarding addresses. Id. For the notice packets

returned as undeliverable, the Settlement Administrator conducted a trace to obtain an updated mailing

address. Id. As of the date of this filing, 171 notice packets remain undeliverable. Id. Approximately

85.88% of the Class Notices mailed out to the original or subsequent Class Member addresses were not

returned by the Post Office. Id. Given that only those Class Members with known addresses are

bound by the release, the Settlement Administrator’s mailing efforts effectively reached 100% of the

Class whose rights are affected by the settlement. Consent Decree ¶ VII C(3).

The Settlement Administrator included a toll free number in the Settlement Notice and created

a Settlement website, which Class Members could call or visit for information about the Consent

Decree. Pappas Decl. ¶ 3. During the 120-day notice period, the Settlement Administrator received a

total of 36 incoming calls from Class Members about the Consent Decree and responded to all of them.

Id. ¶ 16. All communications, including the Settlement website and the Notice, were available in both

Spanish and English.


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Pursuant to the terms of the Consent Decree, the Settlement Administrator also broadcast

Notice on radio in the Palm Springs area and published Notice in a Spanish-language newspaper, Hoy

L.A., in Los Angeles. Id. ¶ 13.

In May, 2015, USM subcontractors who cleaned Ross stores at that time also distributed Notice

to the janitors currently cleaning Ross stores per the terms of the Consent Decree. Ho Final Decl. ¶ 10.

Class Counsel also personally called all current USM subcontractors who clean Ross stores to explain

the Notice and to ask for the help of the subcontractors in encouraging janitors to fill out claim forms.

Id.

Class Counsel also distributed Notice to non-profits known to serve low-wage janitorial

workers in California so that non-profit staff could encourage past and present clients who might be

Class Members to fill out claim forms. Ho Final Decl. ¶ 11.

The Settlement Administrator also conducted a phone number trace based on the addresses it

had for Class Members. This resulted in outbound calls made to 938 Class Members who had not

submitted claim forms to remind them of their right to submit a claim form and the deadline by which

to do so. These calls were made by bilingual English-Spanish call operators. Pappas Decl. ¶ 14.

Finally, it became clear to Class Counsel that many Class Members felt most encouraged to file

claim forms after being personally contacted and reassured about their fears. Ho Final Decl. ¶ 12.

Class Counsel contracted with local organizations/contractors in Orange County, Los Angeles County,

San Diego County, and Sacramento County (counties with some of the highest concentration of Class

Members) to conduct door-to-door outreach at Class Members’ homes to help them to fill out claim

forms and to answer questions and assuage fears. Id.

Class Counsel also communicated directly with Class Members to ensure that they received

Notice of the Settlement and to answer any questions they had. Ho Final Decl. ¶ 13. Class Counsel

gave personal assistance to approximately twenty Class Members in submitting claim forms and Class

Counsel’s agents assisted approximately 109 people in submitting claim forms. Id.

C. The Class Has Expressed Its Positive Reaction to the Consent Decree.

Many Class Members expressed fears about participating in the settlement due to worries about

participating in an official court process, retaliation, reputational harm, and perceived immigration


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consequences. Despite this, not one Class Member expressed displeasure with the terms of the Consent

Decree. Ho Final Decl. ¶ 14. Class Members were grateful to the Plaintiffs who had the courage to

file the lawsuit to achieve a $1,000,000 result for the Class with significant injunctive relief. Id. Many

Class Members expressed hope that this Consent Decree would encourage companies to make sure

janitors are paid according to California laws. Id. As one Class Member said, “There was no one to

help us before and we have not received minimum wage for a long time. Thank you to the lawyers and

janitors who brought this case when our situation was ignored before.” Id.

No Class Member has filed an objection with the Court to the Consent Decree, its terms, or

Plaintiffs’ requested attorneys’ fees, costs, or service awards, nor has any Class Member submitted a

request to opt out. Pappas Decl. ¶¶ 17-18; Ho Final Decl. ¶ 15.

Approximately 36 Class Members made a telephone call to the Settlement Administrator but

none of them complained or criticized the terms of the Consent Decree. In addition, the Settlement

Administrator made 938 outgoing phone calls to remind Class Members to submit claims, none of

whom had anything negative to say about the terms of the Consent Decree. Pappas Decl. ¶¶ 14,16.

Should the Court grant final approval, the Settlement Administrator will mail checks promptly

and coordinate with Class Counsel to respond to any additional Class Member questions that may

arise. Id. ¶ 24.

IV. ARGUMENT

A. The Settlement is Fair, Reasonable, and Adequate and Should be Finally Approved.

Federal law strongly favors and encourages settlements, especially in class actions. See

Franklin v. Kaypro Corp., 884 F.2d 1222, 1229 (9th Cir. 1989) (“[I]t hardly seems necessary to point

out that there is an overriding public interest in settling and quieting litigation. This is particularly true

in class action suits.”) (citations omitted). Moreover, when reviewing a motion for approval of a class

settlement, the Court should give due regard to “what is otherwise a private consensual agreement

negotiated between the parties,” and must therefore limit the inquiry “to the extent necessary to reach a

reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion

between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and


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adequate to all concerned.” Officers for Justice v. Civil Serv. Comm’n, 688 F. 2d 615, 625 (9th Cir.

1982).

“Fed. R. Civ. P. 23(e) requires the district court to determine whether a proposed settlement is

fundamentally fair, adequate and reasonable.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th

Cir. 1998). The Court of Appeals will rarely overturn approval of a class action settlement unless “the

terms of the agreement contain convincing indications that the incentives favoring pursuit of self-

interest rather than the class’s interests in fact influenced the outcome of the negotiations and that the

district court was wrong in concluding otherwise.” Staton v. Boeing Co., 327 F.3d 938, 960 (9th Cir.

2003).

To determine whether a settlement agreement is fair, adequate and reasonable, a district court

must consider a number of factors including: (1) the strength of the plaintiff’s case; (2) the risk,

expense, complexity and likely duration of further litigation; (3) the risk of maintaining class action

status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed

and the stage of the proceedings; (6) the experience and views of counsel; and (7) the reaction of the

class members to the proposed settlement. Hanlon, 150 F.3d at 1026; see also In re Bluetooth Headset

Prods. Liab. Litig., 654 F.3d 935, 946 (9th Cir. 2011).2 These factors are not exclusive, and one factor

may deserve more weight than the others depending on the circumstances. Officers for Justice, 688

F.2d at 625. In some instances, “one factor alone may prove determinative in finding sufficient

grounds for court approval.” See Nat’l Rural Telecomms. Coop. v. DirectTV, Inc., 221 F.R.D. 523,

525-26 (C.D. Cal. 2004), citing Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1375-76 (9th Cir.

1993). It is the settlement taken as a whole—rather than its component parts—that must be reviewed

for overall fairness. Hanlon, 150 F.3d at 1026 citing Officers for Justice, 688 F.2d at 628. In addition,

[a]dequate notice is critical to court approval of a class settlement under Rule 23(e).” Hanlon, 150

F.3d at 1025.

As discussed below, the above factors support final approval of this Consent Decree.

2 Courts also consider the additional factor of the presence of a governmental participant, but that factor does not apply here.


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1. The Class Received Adequate Notice of the Consent Decree.

“[T]he class must be notified of a proposed settlement in a manner that does not systematically

leave any group without notice.” Officers for Justice, 688 F. 2d at 624. Here, the Settlement

Administrator fulfilled its duties in distributing the Court-approved notice packet to Class Members via

first class U.S.P.S. mail and performed address traces to re-mail any notices that were returned as

undeliverable. Pappas Decl. ¶¶ 12, 15. The settlement release only applies to janitors for whom

Plaintiffs have traceable addresses, current janitors who receive notice from the subcontractors, and

janitors who submit a claim form. Consent Decree ¶VII(C)(3). The Settlement Administrator and

Class Counsel also took additional steps to ensure that the Class received notice of this settlement and

understood the terms of the Consent Decree by creating a website and establishing a toll-free telephone

number – and all methods of communication were conducted in both English and Spanish. Pappas

Decl. ¶ 3. USM subcontractors who cleaned Ross stores also distributed Notice to janitors in May

2015. Additionally, the settlement was distributed to non-profits throughout California known to serve

low-wage janitorial workers; was broadcast on radio in the Palm Springs area; and was published in a

Spanish-language newspaper, Hoy L.A., in Los Angeles. Pappas Decl. ¶ 13; Ho. Final Decl. ¶¶ 9,11.

Plaintiffs also engaged in telephonic and in-person outreach to Class Members to ensure they received

Notice and to encourage them to file claim forms. See supra Section III(B); Ho. Final Decl. ¶¶ 8,12.

The cumulative effect of these efforts confirms that the Parties have sufficiently provided the

best practicable notice to the Class. Fed. R. Civ. Proc. 23(c)(2). Combination of mailed notice,

personally delivered notice, staffed telephone numbers, and notice by publication is often considered

the best notice that is practicable under the circumstances. See, e.g., Six (6) Mexican Workers v. Ariz.

Citrus Growers, 904 F.2d 1301, 1304 n.2 (9th Cir. 1990) (Class notification was achieved by mailing

notice to those farm workers for which accurate addresses existed, publication and radio

announcements in relevant U.S. and Mexican newspapers, and posting); Montelongo v. Meese, 803

F.2d 1341, 1352 (5th Cir. 1986) (mailing individual notice in English and Spanish to all persons

Plaintiffs could reasonably locate, publishing bilingual radio and newspaper announcements, and

personally contacting as many class members as possible was sufficient given the mobile, semi-literate

character of the migrant farmer class); Torres v. Pet Extreme, No. 1:13-CV-01778-LJO-SA, 2014 WL


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4354880, at *9 (E.D. Cal. Sept. 2, 2014) report and recommendation adopted, No. 1:13-CV-01778-

LJO, 2014 WL 4745924 (E.D. Cal. Sept. 23, 2014) (class notification approved for a combination of

mailed notice and notice by posting); In re Google Referrer Header Privacy Litig., No. 5:10-CV-

04809 EJD, 2014 WL 1266091, at *7 (N.D. Cal. Mar. 26, 2014) (preliminary approval granted for

notice in English and Spanish on Spanish websites, in the press, and a staffed telephone number).

2. The Strength of Plaintiffs’ Case and the Risks of Proceeding with Litigation Support Final Approval.

The Court should reaffirm that this Consent Decree is fair, reasonable, and adequate in light of

the strength of Plaintiffs’ claims and the risks faced with continued litigation, including risks to class

certification. Prelim. App. Order 3-4, ECF No. 134. Approval of a class settlement is proper when

“there are significant barriers plaintiffs must overcome in making their case.” Chun-Hoon v. McKee

Foods Corp., 716 F. Supp. 2d 848, 851 (N.D. Cal. 2010) (also finding acknowledgement by parties of

the possibility of decertification to support approval); see also Rodriguez v. West Publ’g Corp., 563

F.3d 948, 966 (9th Cir. 2009) (finding difficulties and risks of litigating a case weighs in favor of

approval of class settlements).

In Class Counsel’s view, Plaintiffs’ claims under California Labor Code section 2810 are

strong. However, California Labor Code section 2810 is a law with little judicial precedent, no

previous decision totally favorable for Plaintiffs,3 and statutory language on calculating damages that,

to date, has not been interpreted. Defendants have repeatedly attacked the analyses of Plaintiffs’

experts, Dr. Marc Bendick, Jr. and David Breshears, by arguing that: (1) the Ross janitorial timesheets

provide an unreliable basis for calculating damages; (2) Dr. Bendick’s calculation of the true minimum

wage, which includes workers’ compensation premiums, is inaccurate; and (3) Plaintiffs’ expert

reports and methods were internally inconsistent. Ho Prelim. Decl. ¶ 14; Opp’n to Mot. For Class

3 See Castillo v. Toll Bros., Inc., 197 Cal. App. 4th 1172 (2011) (upholding summary judgment against plaintiffs in part, and reversing in part); Partee v. Sierra Mountain Elec. Co., No. RG10495654, 2011 WL 5901159 (Cal. Super. Ct. Alameda Cnty. Feb. 15, 2011) (dismissed with prejudice); Hawkins v. TACA Int’l Airlines, S.A., 223 Cal. App. 4th 466, 468 (2014), reh’g denied (Feb. 18, 2014), review denied (May 14, 2014) (affirming the judgment in favor of defendants whose demurrers were sustained without leave to amend); Rojas v. Brinderson Constructors, Inc., 567 F. Supp. 2d 1205 (C.D. Cal. 2008) (motion to dismiss granted).


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Cert., ECF No. 89. Further, because there is no clear precedent on how to calculate statutory damages

under Labor Code section 2810, Plaintiffs faced substantial risks if the Court adopted Defendants’

proposed method of calculating damages. Ho Prelim. Decl. ¶ 14.

Defendants also challenged class certification by arguing that: (1) the proposed class is not

ascertainable and thus, not sufficiently numerous; (2) individualized determinations would overwhelm

any common issues; and (3) a class trial would be unmanageable by requiring individualized mini-

trials and would not be superior to individual actions. Ho Prelim. Decl. ¶ 15. While Plaintiffs’

Counsel remain confident that Plaintiffs would successfully certify a class given the uniform policies at

issue, and would ultimately prevail on the merits of their claims, Defendants’ Opposition to the Motion

for Class Certification raised an additional alternative possibility that the Court would only certify an

injunctive relief class under Rule 23(b)(2), but not a damages class under Rule 23(b)(3). In such a

case, the Class risked receiving no monetary relief. These uncertainties weigh in favor of final

approval.

3. The Likely Expense and Duration of Further Litigation Favor Final Approval.

“Settlement avoids the complexity, delay, risk and expense of continuing with the litigation and

will produce a prompt, certain, and substantial recovery for the Plaintiff class.” Eddings v. Health Net,

Inc., No. CV 10-1744-JST RZX, 2013 WL 3013867, at *3 (C.D. Cal. June 13, 2013) (internal citation

and quotation omitted). Absent settlement, Class Counsel anticipate a vigorous and lengthy challenge

to both class certification and the merits of Plaintiffs’ claims. Continued litigation would require

Plaintiffs to litigate class certification (and any possible motions to decertify), establish class-wide

liability, and then present evidence regarding damages and penalties. Such efforts would likely take

years and would require expert witness testimony in addition to substantial damages and industry

expert testimony exchanged. Additional, unforeseen costs, risks, and delays might also materialize,

including appellate proceedings. Even if Plaintiffs overcome all these obstacles and obtain a judgment

for the Class, the recovery might be of no greater value to Class Members, and indeed might be

substantially less valuable than the proposed Consent Decree. Thus, even in the best case, it could take

years to get relief for Class Members. And, the non-monetary relief that Plaintiffs obtained under this

Consent Decree – Defendants’ modification of their janitorial subcontracts and USM’s review of


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subcontractor records for minimum wage violations to ensure that the janitors receive minimum wage

and overtime, including making payments directly to the janitors if needed – is a benefit that is

particularly valuable the sooner it is implemented. This factor favors approval.

4. The Risk of Maintaining Class Certification Favors Final Approval.

As described in Section IV(A)(2), infra, Plaintiffs face several risks regarding class

certification, which weigh in favor of approval. See Chun-Hoon, 716 F. Supp. 2d at 850-51; Glass v.

UBS Fin. Servs. Inc., No. C-06-4068 MMC, 2007 WL 221862, at *4 (N.D. Cal. Jan. 26, 2007).

5. The Amount Offered to Settle the Claims Is Substantial and Weighs in Favor of Final Approval.

The Court previously found that the amount offered likely benefited the Class given the

strengths and weaknesses of Plaintiffs’ claims. Prelim. App. Order 3-4, ECF. No. 134. This finding

should be affirmed.

Here, the Consent Decree provides the Class immediate and meaningful monetary as well as

non-monetary results, which favors approval. Plaintiffs have recovered $1,000,000 on behalf of 1,157

Class Members. The expected average settlement payment per Class Member is $728.18, while the

highest award is expected to be $7,882.73. See Pappas Decl. ¶¶ 21-22. This recovery is a significant

result for the Class. Further, this expected Class recovery represents more than 100% of the recovery

that Class Counsel estimate would be likely at trial if Plaintiffs were to prevail at class certification and

liability but if the Court were to interpret section 2810 as Defendants argue. Prelim Mot. at 18. This

result is laudable and above the recoveries approved by Courts in the Northern District. See Relente v.

Viator, Inc., No. 12-CV-05868-JD, 2015 WL 2089178, at *2 (N.D. Cal. May 4, 2015) (granting final

approval to a settlement that provided an average recovery of $30 for consumers who paid between

$10.79 and $4,025 for tours); In re Omnivision Techs., Inc., 559 F. Supp. 2d 1036, 1042 (N.D. Cal.

2008) (approving settlement that constituted 6% of the maximum potential damages); Dyer v. Wells

Fargo Bank, N.A., 303 F.R.D. 326, 331 (N.D. Cal. 2014) (holding that “[b]ecause of the uncertainties


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attached to the litigation of these claims,” a recovery of approximately one-third of the potential value

of class plaintiffs’ claims was “fair and reasonable”).4

In addition, Plaintiffs have also achieved a valuable and lasting result from this lawsuit and

Consent Decree due to Defendants’ agreement to change their janitorial subcontracting practices and

USM’s agreement to monitor its subcontractors to ensure they are paying janitors their legally required

wages and benefits and to pay janitors directly if needed. Consent Decree ¶ VIII. Plaintiffs estimate

that the value of this prospective relief could total $1,512,000 over the next three years. Prelim Mot. at

8.

6. Plaintiffs Had the Benefit of Extensive Discovery that Permitted Class Counsel to Calculate Class Damages and Make Informed Decisions Regarding Settlement.

Courts look to the amount of exchanged information prior to the settlement to determine

whether the parties made an informed decision to settle. Linney v. Cellular Alaska P’ship, 151 F.3d

1234, 1239 (9th Cir. 1998). Here, the Parties had the benefit of substantial fact and expert discovery to

enable both sides to assess the claims and potential defenses in this action. In response to three sets of

interrogatories and two requests for production of documents, Defendants produced almost 116,000

pages of written discovery. Prelim Mot. at 19. Defendants produced extensive information about the

bidding and funding of the Defendants’ contracts and subcontracts, as well as Ross store janitor

timesheets, master service agreements, subcontracts, invoice payment records, and janitor I-9s.

Plaintiffs also deposed six Ross and USM witnesses pursuant to Fed. R. Civ. P. 30(b)(6). Id. Plaintiffs

produced almost 10,500 pages of documents and written responses to interrogatories, admissions, and

requests for production of documents and three Plaintiffs were deposed. Id. The Parties also

exchanged extensive expert discovery, including Plaintiffs’ three experts who produced six total expert

reports and Defendants’ four experts who each produced an expert report. Id. Furthermore, the Parties

4 Courts have routinely held that recoveries of less than the maximum estimate of damages constitute a result that is well within a reasonable range when compared with other class settlements. See, e.g., Rodriguez v. West Publ’g Corp., No. CV05-3222 R(MCx), 2007 WL 2827379, at *9 (C.D. Cal. Sept. 10, 2007) rev’d on other grounds 563 F.3d 948 (9th Cir. 2009) (approving settlement representing 30% of damages estimated by plaintiffs’ expert); In Re Armored Car Antitrust Litig., 472 F. Supp. 1357, 1373 (N.D. Ga. 1979), rev’d on other grounds, 645 F.2d 488 (collecting cases in which settlements with a value of 1% to 8% of the estimate total damages were approved).


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fully briefed the motion for class certification, as well as the Daubert motion and opposition relating to

Dr. Marc Bendick, Jr. Id. Through this exchanged discovery and litigation, the Parties were able to

accurately assess the legal and factual issues that would arise if the case proceeded to trial. Id.

Through this exchanged discovery and litigation, the Parties have become more informed about

the merits of Plaintiffs’ claims and Defendants’ defenses and better equipped to more accurately

estimate the Class’ damages. This candid assessment of the claims and defenses was further aided by

the mediation process and the assistance of a mediator skilled and experienced in wage and hour class

actions. Id. at 20. The comprehensive formal and informal discovery in this matter, along with the

evidence proffered in support of and in opposition to class certification, supports final approval of the

Consent Decree.

7. The Consent Decree Is Supported By Skilled and Experienced Class Counsel.

“The recommendations of plaintiffs’ counsel should be given a presumption of

reasonableness.” In re Omnivision Techs., Inc., 559 F. Supp. 2d at 1043 quoting Boyd v. Bechtel

Corp., 485 F. Supp. 610, 622 (N.D. Cal. 1979); In re NVIDIA Corp. Derivative Litig., No. C-06-

06110-SBA, 2008 WL 5382544, at *4 (N.D. Cal. Dec. 22, 2008) (“significant weight should be

attributed to counsel’s belief that settlement is in the best interest of those affected by the settlement.”).

Here, Class Counsel are fully informed about the current dispute and have decades of wage and hour

and class action experience.5 Class Counsel also continue to believe that the Consent Decree properly

balances the realistic monetary and injunctive relief available to the Class against the magnitude of the

risks of continued litigation and thus, is fair, adequate, and reasonable.6 Class Counsel came to

recommend this Consent Decree only after extensive written discovery; nine depositions; successfully

opposing Ross’ motion to dismiss; complete briefing of class certification and Daubert motions; and

extended mediation. Class Counsel’s well-qualified and experienced opinion of the Consent Decree is

5 Ho Prelim. Decl. ¶¶ 3, ECF No. 121-1; Declaration of Jonathan Gertler ISO Preliminary Approval of Class Action Settlement ¶¶ 6-9, ECF No. 121-4; Declaration of Paul Cohen ISO Preliminary Approval of Class Action Settlement ¶¶ 3-7, ECF No. 121-2; Declaration of Juliet Brodie ISO Preliminary Approval of Class Action Settlement ¶¶ 3-8, ECF No. 121-3. 6 Ho Final Decl. ¶3; Declaration of Jonathan Gertler ISO Final Approval (“Gertler Final Dec.”) ¶¶ 3-4; Declaration of Maura Prendiville ISO Final Approval (“Prendiville Final Decl.”) ¶ 3.


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further supported by that of an experienced and impartial mediator who assisted the Parties in reaching

this agreement. Prelim Mot. at 20. This factor favors approval.

8. The Positive Reaction of the Class Strongly Favors Approval.

The Ninth Circuit and other federal courts have made clear that the number or percentage of

class members who object to or opt out of the settlement is a factor of great significance. See

Mandujano v. Basic Vegetable Prods., Inc., 541 F.2d 832, 837 (9th Cir. 1976); see also In re Am. Bank

Note Holographics, Inc., 127 F. Supp. 2d 418, 425 (S.D.N.Y. 2001) (“It is well settled that the reaction

of the class to the settlement is perhaps the most significant factor to be weighed in considering its

adequacy.”) (internal quotation marks and citation omitted). Courts have confirmed that a relatively

low percentage of objectors or opt outs is a very strong sign of fairness that factors heavily in favor of

approval. See Cody v. Hillard, 88 F. Supp. 2d 1049, 1059-60 (D.S.D. 2000) (approving the relevant

settlement in large part because only 3% of the apparent class had objected to the settlement); In re

Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366, 372 (S.D. Ohio 1990) (approving the

relevant settlement and affording “substantial weight” to the fact that fewer than 5% of the class

members elected to opt out of the settlement); In re Art Materials Antitrust Litig., 100 F.R.D. 367, 372

(N.D. Ohio 1983) (approving the settlement and holding that the fact that none of the class members

had objected and a small percentage opted out of the settlement was “entitled to nearly dispositive

weight”).

As discussed above, after receiving notice and upon completion of the 120-day notice period,

none of the 1,157 Class Members filed an objection or sought an exclusion from the settlement. Pappas

Decl. ¶¶ 17-18. The Settlement Administrator received approximately 36 phone calls from Class

Members to date and none expressed any objections to the terms of the Consent Decree. Id. ¶ 16.

Further, not one Class Member, despite the extensive telephonic and personal outreach with a sizable

portion of the Class, expressed displeasure with the terms of the Consent Decree. Ho Final Decl. ¶¶

14-15. Class Members were grateful to the Plaintiffs who had the courage to file the lawsuit to achieve

a $1,000,000 result for the Class with significant injunctive relief. Id. Many Class Members expressed

hope that this Consent Decree would encourage companies to make sure janitors are paid according to


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California laws. Id. This overwhelming evidence of support for the Consent Decree favors final

approval.

B. The Class Representatives’ Requested Service Awards Are Reasonable and Appropriate.

Plaintiffs’ request for service awards of $5,000 each for Federico Vilchiz Vasquez, Jesus

Vilchez Vasquez, and Ada Canas; $3,000 each for Emigdio Mendez and Candelaria Hurtado; and

$1,000 for Evelia Martinez should be approved because they are reasonable and well-justified by the

facts presented here. Plaintiffs also seek small awards of $500 each for eleven7 non-class

representative members who spent time working with attorneys to tell their stories and prepare

declarations in support of the motion for class certification.

As set forth in greater detail in Plaintiffs’ Fee Motion, the requested service awards warrant

approval because the six Class Representatives: (1) assumed the risk of commencing and participating

in this lawsuit, including retaliation by their current employer, bad references by their former

employer, retaliation by a current employer for needing to take time off to participate in the litigation,

fear of participating in litigation as recent immigrants with limited educations in low-wage jobs, and

significant language barriers; (2) expended significant time, effort, and costs to move this litigation

forward and ultimately resolve it; (3) exposed themselves to the financial risk of Defendants’ costs if

Plaintiffs lost at trial; (4) sacrificed the pursuit of their individual claims against Defendants in order to

continue litigation of the Class claims; (5) signed a general release, which is broader than the Class

release; (6) furthered the twin California public policy goals of enforcing the Labor Code and making

appropriate use of the class action device (Sav-on Drug Stores, Inc. v. Super. Ct., 34 Cal. 4th 319, 340

(2004)); and, (7) not one Class Member (nor Defendants) has objected to this requested service award

after receiving Notice of it. See Fee Motion 20-25; Declarations of Federico Vilchiz Vasquez, Jesus

Vilchez Vasquez, Ada Canas, Emigdio Mendez, Candelaria Hurtado, and Evelia Martinez ISO

Preliminary Approval, ECF Nos. 121-5, 121-6, 121-7, 121-8, 121-9, 121-10. The courage of the

7 Eva Alarcon, Maria Luisa Garcia, Norma Elia Guerrero, Aracely Guzman, Maria Guadalupe Lopez, Selene Marquez, Amando Martinez, Barbara Martinez, Griselda Esparza (Martinez), Guadalupe Valadez, and Francisco Velez.


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janitors who brought this case, despite intense fears of retaliation and reputational harm, cannot be

overstated and appreciation of these janitors was expressed by Class Members. Ho Final Decl. ¶ 14.

Plaintiffs’ request for the payment of $5,000 or less in service awards to the six Class

Representatives is also consistent with the Ninth Circuit’s recent decision in In re Online DVD-Rental

Antitrust Litig., 779 F.3d 934 (9th Cir. 2015). See Fee Mot. at 20-21. Furthermore, the service awards

sought here are justified by the significant risks undertaken by those individuals participating in the

prosecution of the case. See, e.g., Dyer, N.A., 303 F.R.D. at 335-36 (approving $10,000 service award

because the plaintiff expended a significant amount of time prosecuting the action despite not signing a

general release or facing the risk of industry backlash); Harris v. Vector Mktg. Corp., No. C-08-5198

EMC, 2012 WL 381202, at *8 (N.D. Cal. Feb. 6, 2012) (awarding service payment of $12,500 where

the plaintiff signed a broader release than the class, spent approximately 100 hours prosecuting the

case, and the average payment was $100); Bellinghausen v. Tractor Supply Co., No. 13-CV-02377-

JSC, 2015 WL 1289342, at *17 (N.D. Cal. Mar. 20, 2015) (approving service award of $15,000 where

plaintiff spent 73 hours assisting counsel, signed a broader release than the class, risked defendant’s

costs if he had lost at trial, and faced industry notoriety for bringing the lawsuit).8

Plaintiffs also seek small service awards, which are routinely given to non-class representative

declarants by the courts. See Trujillo v. City of Ontario, No. EDCV 04-1015-VAP (SGLx), 2009 WL

2632723, at *5 (C.D. Cal. Aug. 24, 2009) ($10,000 awarded to non-class representatives because of the

contributions they made to the prosecution of the litigation and the risk of retaliation they experienced,

which were not shared by the class as a whole); Vedachalam v. Tata Consultancy Servs., Ltd, No. C 06-

0963 CW, 2013 WL 3929129, at *2 (N.D. Cal. July 18, 2013) ($1,000 awarded to non-class

representative declarants in light of their efforts on behalf of the class and the risk they took in

participating publically in the lawsuit); Butler v. Home Depot, Inc., No. C 94-4335 SI (N.D. Cal. Jan.

8 Plaintiffs’ requested service awards are also less than some awards approved by courts in other settlements. See, e.g., Ozga v. U.S. Remodelers, Inc., No. C 09-05112 JSW, 2010 WL 3186971, *3 (N.D. Cal. Aug. 9, 2010) (awarding $10,000 incentive award to both named plaintiffs); In re Cellphone Fee Termination Cases, 186 Cal. App. 4th 1380, 1393-94 (2010) (approving incentive awards of $10,000 to each class representative).


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14, 1998)9 ($4,000 to each of 80 class members who provided a declaration on behalf of the class);

Satchell v. Fedex Express, No. C 03-2659 SI (N.D. Cal. Aug. 14, 2007) ($5,000 to each of 18

declarants). For the same reasons as described above for the Class Representatives, these declarants

took on extraordinary risk in publicly participating in the lawsuit, and each spent several hours each

going over the facts of their stories and reviewing their declarations. Ho Fee Decl. ¶ 39.

Accordingly, all of these factors support the approval of the service awards requested by the

Class Representatives and Declarants.

C. Class Counsel’s Requested Attorneys’ Fees and Costs Award Is Reasonable and Well-Justified.

Plaintiffs request a reasonable attorneys’ fees award of $1,102,000 under the lodestar method,

which represents 44% of Class Counsel’s combined lodestar to date. This significant reduction to

Class Counsel’s lodestar, calculated based on reasonable hours expended and appropriate hourly rates,

strongly supports its reasonableness. The requested fee award is also reasonable under the common

fund approach because it is 28.9% of the constructive common fund, when taking into account the

monetary benefit of the injunctive relief. Plaintiffs previously submitted a Fee Motion on September

1, 2015, detailing the facts and law supporting their requested award for attorneys’ fees and costs,

which is incorporated by reference herein. See Fee Motion 1-20. Significantly, no Class Member has

objected to the requested fee and cost award after receiving notice of it. Pappas Decl. ¶¶ 17-18.

The Court should approve the requested fee award because it constitutes a 44% reduction of

Class Counsel’s current lodestar figure.10 As of September 21, 2015, that lodestar figure is

$2,488,004.5, which is the product of 6,547.25 reasonably incurred hours and hourly rates

9 Orders and other documents not available on Westlaw are submitted herewith in the Appendix of Authorities. 10 Plaintiffs’ request for fees is also significantly less than the fees incurred by Defendants through March 2015. In currently-pending breach of contract litigation involving Defendant USM’s current and former owners, USM’s current owner alleges that fees and costs incurred in this litigation through March 2015 were approximately $3.3 million. See Emcor v. Transfield Servs., Inc., No. Civ-1:15-cv-03062-AT (S.D.N.Y. Apr. 20, 2015), ECF No. 1, ¶ 30 (“To date, EMCOR has not received any payment from Transfield with respect to EMCOR’s defense of the California Action, even though as of March 31, 2015, EMCOR has incurred approximately $3.3 million in expenses, including reasonable attorneys’ fees, in connection therewith.”) (submitted for the Court’s convenience in the Appendix).


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commensurate with similarly experience practitioners in this District. Ho Final Decl. ¶¶ 16-17; Gertler

Final Decl. ¶ 5; Prendiville Final Decl. ¶ 8. Thus, the requested award is $1,386,004.5 less than Class

Counsel’s lodestar to date. While Plaintiffs seek a negative multiplier to their lodestar figure, the

circumstances here would actually support a positive multiplier because (1) the Consent Decree

obtained both an excellent monetary result as well as substantial prospective relief in the form of

current and future payment of prevailing wages for testing and inspection work; (2) Class Counsel

provided high quality and skilled representation of the Class; (3) that skill was necessary to tackle

novel and complex issues presented in this litigation, including Labor Code section 2810 which had

little success for Plaintiffs to-date; (4) the risk of representing the Class on a wholly contingency basis;

(5) courts faced with similar settlements have awarded commensurate fee awards under the lodestar

method. See, e.g., Relente v. Viator, Inc., No. 12-cv-05868-JD, 2015 WL 3613713, at *4 (N.D. Cal.

June 9, 2015) (awarding $500,000 in attorneys’ fees where the class shared a $515,000 settlement

fund); Wren v. RGIS Inventory Specialists, No. C-06-05778, JLS, 2011 WL 1230826, at *31 (N.D. Cal.

Apr. 1, 2011) (granting lodestar fee award of $11,307,449.62 where gross settlement fund totaled

$27,000,000); and, (6) the Class has expressed its strong support of the award as none have requested

exclusion or objected to it.

This fee award is also justifiable under the common fund theory as it is 28.9% of the

constructive common fund of $3,812,000 when taking into account the monetary benefit of

Defendants’ revised contracts and monitoring to ensure janitorial subcontractors are paying minimum

wage and agreement to pay minimum wage directly if it is found that a subcontractor is not following

the law. Consideration of the constructive common fund is appropriate here because courts recognize

that an appropriate fee award must take into account both the benefit conferred by the monetary as well

as non-monetary relief obtained. See, e.g., Relente, 2015 WL 3613713, at *3 (discussing the

importance of considering the value of the injunctive relief when considering the value of the total

fund); Laguna v. Coverall N. Am., Inc., 753 F.3d 918, 922-23 (9th Cir. 2014) (approving requested fee

award as a reasonable percentage of the constructive common fund that included the monetary value of

the settlement’s injunctive relief). Under the common fund approach, this award is also reasonable

because: (1) it achieves the dual purposes of a common fund award by spreading the litigation costs


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among those who benefited from the settlement while rewarding and encouraging competent counsel

to handle complex contingency cases; (2) it is a fair charge to the Class for the benefits conferred and

consistent with the expected legal marketplace, including Plaintiffs’ retainer terms with Class Counsel;

(3) it is in line with fees of 30-40% and greater in non-mega fund wage and hour settlements such as

here; (4) Plaintiffs have obtained an excellent result for the Class both in terms of monetary and

prospective relief; (5) Class Counsel have demonstrated a high degree of skill and quality of work,

which resulted in the exceptional results of this Settlement; (6) Class Counsel have undertaken the

financial burden of litigating this fiercely litigated case on a purely contingency basis by advancing

$197,690.75 in actual and expected costs and expending 6,547.25 hours so far without compensation

and with the risk of no recovery;11 (7) no Class Members objected to it and none opted out after

receiving notice of the requested attorneys’ fees and having the benefit of Plaintiffs’ filed Fee Motion

prior to the notice response deadline; and (8) this award, when compared to the lodestar crosscheck,

represents a substantial negative multiplier of Class Counsel’s lodestar to date where a positive

multiplier would be warranted.

The reasonableness of the requested fee award is further supported by the fact that Class

Counsel will, of course, continue to spend time on the case to bring it to conclusion. These tasks

include securing final approval, assuring payout to Class Members, responding to questions and

concerns of class members and the Settlement Administrator during the distribution process,

submitting the final accounting (if required by the Court), ensuring that any residue is distributed to the

cy pres recipients as set forth in the Consent Decree, and reviewing USM’s quarterly reports to Class

Counsel with the findings from its monitoring of its subcontractors to ensure janitors are paid

according to California law.

Plaintiffs also request a reimbursement of $198,000 for actual and expected reasonable

litigation costs associated with this case. As of September 21, 2015, Class Counsel has incurred

$197,690.75 in actual costs and expect to incur additional costs before this action is concluded. Ho

Final Decl. ¶ 18; Gertler Final Decl. ¶ 5; Prendiville Final Decl. ¶ 9. These costs should be approved

11 Ho Final Decl. ¶¶ 16-18; Gertler Final Decl. ¶ 5; Prendiville Final Decl. ¶¶ 8-9.


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because they were necessarily incurred in the prosecution of this action and are the type of expenses

that courts routinely reimburse. See Fee Mot. at 19-20.

CONCLUSION

Based on the foregoing, Plaintiffs respectfully request that this Court grant final approval of the

Consent Decree reached in this matter; award Class Counsel attorneys’ fees in the amount of

$1,102,000; costs of $198,000; award $5,000 each for Federico Vilchiz Vasquez, Jesus Vilchez

Vasquez, and Ada Canas; $3,000 each for Emigdio Mendez and Candelaria Hurtado; and $1,000 for

Evelia Martinez for their service as Class Representatives; award small awards of $500 to the eleven

declarants in accordance with the Consent Decree; and, enter the proposed order and judgment

accordingly.

Dated: September 23, 2015 Respectfully submitted,

GOLDSTEIN, BORGEN, DARDARIAN & HO /s/ Laura Lo. Ho Laura L. Ho Class Counsel


Case 3:13-cv-05449-JD Document 139 Filed 09/23/15 Page 1 of 34 · FOR FINAL APPROVAL OF CLASS...

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