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Victoria Tice, etc., v. Trader Joe’s Company

Case Number

20CV00892

Case Type

Civil Law & Motion

Hearing Date / Time

Wed, 09/06/2023 - 10:00

Nature of Proceedings

Motion of Plaintiff for Final Approval of Class Action Settlement

Tentative Ruling

For Plaintiff Victoria Tice and Plaintiff class: Larry W. Lee, Max W. Gavron, Diversity Law Law Group, P.C.; William L. Marder, Polaris Law Group

For Defendant Trader Joe’s Company:  Helene Wasserman, Shannon R. Boyce, Melissa Velez, Littler Mendelson P.C.

RULING

For the reasons set forth herein, the motion of Plaintiff for final approval of the class action settlement is granted. The Court will sign the proposed Order filed concurrently with the motion. A copy of this tentative ruling is to be attached to the Order.

Background

On February 14, 2020, Plaintiff Victoria Tice, individually and on behalf of all others similarly situated, filed her complaint against Defendant Trader Joe’s Company (TJC) asserting causes of action for violation of Labor Code sections 201 to 203 (by the Plaintiff and Plaintiff class) and for violation of Labor Code section 2698 et seq. (by Plaintiff on behalf of aggrieved employees).

The complaint alleges that TJC issued payment of final wages to separated employees in the form of a paycard without authorization, by which these employees improperly incurred fees, and thereby TJC failed timely to pay all wages to separated employees as required by law. (E.g., Complaint, ¶ 21.) The complaint asserts these claims first as a putative class action on behalf of Tice and a class of all former employees employed by TJC at any time from February 14, 2017, through the present who were separated for any reason, were paid wages while employed via a non-paycard method, but upon separation received their final wages in the form of a paycard. (Complaint, ¶ 17.) The complaint also asserts these claims on behalf of all aggrieved employees from February 10, 2019, through the present, pursuant to the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.). (Complaint, ¶ 37.)

On April 6, 2020, TJC filed its answer to the complaint, generally denying the allegations thereof and asserting 37 affirmative defenses.

On November 17, 2020, the parties attended a mediation with a professional mediator, Gig Kyriacou, which, after a full day of arm’s-length negotiations, did not result in any agreement. (Gavron decl., ¶ 3.)

The parties thereafter engaged in further substantial litigation and eventually reached a settlement. (Gavron decl., ¶ 4.)

On March 13, 2023, Plaintiff filed a motion for preliminary approval of the class action settlement. Preliminary approval was granted by this Court on May 3, 2023, and a hearing on final approval was scheduled for September 6, 2023.

Pursuant to the order granting preliminary approval, on May 18, 2023, Phoenix Settlement Administrators (Phoenix) received the class list from defense counsel which contained names, last known mailing addresses, and social security numbers for each class member from February 14, 2017, to January 11, 2023, which is the class period. (Mitzner decl., ¶ 3.) Defense counsel provided a supplemental file on May 26, 2023, with the termination date of each class member in order for Phoenix to determine which class members worked from February 10, 2019, to January 11, 2023. (Ibid.) The final mailing list contained 951 class members. (Ibid.)

On May 22, 2023, Phoenix conducted a National Change of Address search in an attempt to update the class list of addresses to reflect accurate information. (Mitzner decl., ¶ 4.) On June 5, 2023, Phoenix mailed the approved notice, in English and Spanish, to all 951 class members. (Mitzner decl., ¶ 5 & exh. A.) As of August 14, 2023, seven notices have been returned to Phoenix without forwarding addresses. (Mitzner decl., ¶ 6.) Phoenix attempted to locate current mailing addresses using TransUnion TLOxp. (Ibid.) Update addresses were obtained for all seven returned notices and they were promptly re-mailed to those class members. (Ibid.) No notices remain undeliverable. (Mitzner decl., ¶ 7.)

As of August 14, 2023, Phoenix has received one request for exclusion with the deadline to request exclusion being July 20, 2023. (Mitzner decl., ¶ 8.) As of August 14, 2023, Phoenix has not received any notices of objection or workweek disputes from class members. (Mitzner decl., ¶¶ 9, 10.) Each settlement class member will receive an equal individual settlement share of approximately $135.03. (Mitzner decl., ¶ 11.)

The net settlement amount of $128,280.59 available to pay class members was calculated by subtracting attorneys’ fees in the amount of $113,333.33, costs of $52,386.08, Plaintiff enhancement payment of $10,000.00, PAGA settlement of $25,000.00, and settlement administration costs of $11,000.00 from the $340,000.00 gross settlement amount. (Mitzner decl., ¶ 13.)

The $25,000.00 PAGA settlement amount is to be paid 75% to the Labor and Workforce Development Agency (LWDA) and 25% is to be paid to all current and former hourly non-exempt individuals who are or were employed by TJC during the PAGA period with each aggrieved employee receiving an equal individual payment of approximately $6.57. (Mitzner decl., ¶ 14.)

Plaintiff now moves for final approval of the settlement.

No opposition or other response has been filed to this motion.

Analysis

“A settlement or compromise of an entire class action, or of a cause of action in a class action, or as to a party, requires the approval of the Court after hearing.” (Cal. Rules of Court, rule 3.769(a).) “Any party to a settlement agreement may serve and file a written notice of motion for preliminary approval of the settlement. The settlement agreement and proposed notice to class members must be filed with the motion, and the proposed order must be lodged with the motion.” (Cal. Rules of Court, rule 3.769(c).)

As noted above, the Court granted preliminary approval of the class action on May 3, 2023.

In granting preliminary approval of the settlement, the Court set this hearing for final approval and ordered notice be given to the class members. (Cal. Rules of Court, rule 3.769(e), (f).) The Court finds that notice has been given to the class in the manner specified by the Court.

“Before final approval, the Court must conduct an inquiry into the fairness of the proposed settlement.” (Cal. Rules of Court, rule 3.769(g).)

The settlement was reached following post-mediation negotiations and the agreement is attached as exhibit A to the corrected declaration of attorney Max W. Gavron in support of Plaintiff’s motion for preliminary approval, filed on April 18, 2023. The agreement provides for a settlement class defined as:

“[A]ll former employees of Defendants who were employed in the State of California at any time during the Class Period who received their final wages on a paycard, but for whom Defendants do not currently have a written authorization for payment of final wages via pay card.” (Stipulation, ¶ I(2).) The “Class Period” is defined as February 14, 2017, through January 11, 2023. (Stipulation, ¶ I(6).)

The Stipulation includes a settlement under PAGA. (Stipulation, ¶ I(23)-(25).) The PAGA Period is defined as February 10, 2019, though January 11, 2023. (Stipulation, ¶ I(24).)

The settlement terms include:

The gross settlement amount is $340,000. (April 18, 2023 Gavron decl., ¶ 11; Stipulation, ¶ I(17).) The gross settlement amount consists of attorney fees (not to exceed $113,333.33), a class representative incentive payment (not to exceed $10,000.00), a PAGA Payment ($25,000.00), settlement administration costs (not to exceed $11,000.00), litigation costs (not to exceed $55,000), and individual settlement payments. (Gavron decl., ¶ 11; Stipulation, ¶¶ I(4), (8), (17), (18), (23), III(9).) The net settlement amount consists of the gross settlement amount less payments other than the individual settlement payments (for a net amount of $125,666.67, using all not to exceed amounts). (Stipulation, ¶ III(9).) Individual settlement payments will be determined by equally dividing the net settlement amount by the number of participating class members, and, if applicable, adding the amount due to the PAGA member from the PAGA Payment. (Stipulation, ¶ III(9)(a).) Any unclaimed settlement payments after 180 days of the mailing of the individual settlement checks will be redistributed to the State Bar Justice Gap Fund as a cy pres recipient. (Stipulation, ¶ 10.)

In consideration for the settlement, the class members release their claims arising from the allegations of the complaint, including unknown claims. (Stipulation, ¶ III(1).) The released claims are defined as: “[A]ll claims, rights, demands, liabilities and causes of action that are alleged or could have been alleged based on the facts, allegations and/or claims asserted in the operative complaint in this action including the following claims: (i) failure to pay wages timely at time of termination or resignation (Labor Code§§ 201-203, 212, 213). This release shall apply to claims arising during the Class Period.” (Stipulation, ¶ I(30).) Based upon the allegations of the complaint, the Court understands the release as pertaining specifically to claims of failure to pay wages timely by virtue of the manner of the payment as alleged in the complaint.

Notice is to be provided in a form approved by the Court by first-class mail to all class members. (Stipulation, ¶ III(6).) “ ‘The principal purpose of notice to the class is the protection of the integrity of the class action process. . . .’ ” (Cho v. Seagate Technology Holdings, Inc. (2009) 177 Cal.App.4th 734, 745.) “The notice ‘ “must fairly apprise the class members of the terms of the proposed compromise and of the options open to the dissenting class members.” ’ ” (Id. at p. 746.) “A class action settlement notice should present information neutrally, simply, and understandably. The notice should allow class members to evaluate a proposed settlement. Notice should describe the formula or plan for computing individual settlement class member recoveries.” (Duran v. Obesity Research Institute, LLC (2016) 1 Cal.App.5th 635, 644.) As noted, notice was properly provided to all class members and provided all of the pertinent information regarding the settlement.

“At the final approval hearing, ‘the Court must conduct an inquiry into the fairness of the proposed settlement.’ [Citation.]” (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 93.) “Because a Court evaluating certification of a class action that settled prior to certification is considering certification only in the context of settlement, the Court’s evaluation of the certification issues is somewhat different from its consideration of certification issues when the class action has not yet settled. In some ways, the Court’s review of certification of a settlement-only class is lessened; as no trial is anticipated in a settlement-only class case, ‘the case management issues inherent in the ascertainable class determination need not be confronted.’ [Citation.]” (Id. at pp. 93-94.) “However, other certification issues, ‘those designed to protect absentees by blocking unwarranted or overbroad class definitions’ require heightened scrutiny in the settlement-only class context ‘for a Court asked to certify a settlement class will lack the opportunity, present when a case is litigated, to adjust the class, informed by the proceedings as they unfold.’ [Citation.]” (Id. at p. 94.)

“Class certification requires proof (1) of a sufficiently numerous, ascertainable class, (2) of a well-defined community of interest, and (3) that certification will provide substantial benefits to litigants and the Courts, i.e., that proceeding as a class is superior to other methods. [Citations.] In turn, the ‘community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.’ [Citation.]” (Fireside Bank v. Superior Court (2007) 40 Cal.4th 1069, 1089.)

Plaintiffs have presented evidence that, as defined, the there is a numerous, ascertainable class. (April 18, 2023 Gavron decl., ¶¶ 13, 16-21.) Plaintiffs have presented evidence that there is a well-defined community of interest consisting of former employees who received their final wages on a paycard, but for whom Defendants do not currently have a written authorization for payment of final wages via paycard. (Ibid.) The class representative appears to have claims typical of the class and appears to be able to adequately represent the class. (See March 13, 2023 Tice decl., ¶¶ 2-4.) There thus appears to be reasonable support for provisional certification of the settlement class.

“The burden is on the proponent of the settlement to show that it is fair and reasonable. However, ‘a presumption of fairness exists where: (1) the settlement is reached through arm’s-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the Court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.’ [Citation.]” (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 245, disapproved on other grounds in Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260, 269, 274, fn. 4.)

Plaintiffs present evidence that the settlement occurred following reasonable investigation and discovery by experienced counsel through arm’s length bargaining with a knowledgeable and experienced mediator. (April 18, 2023 Gavron decl., ¶¶ 6-8.) Plaintiffs separately present evidence that the terms of the settlement are reasonable given the risks of litigation and the potential or likely outcomes at trial. (Id. at ¶¶ 19-20.) It appears to the Court on the evidence now presented that the settlement is fair and reasonable.

In its preliminary approval, the Court found that the incentive payment of $10,000.00 to class representative Tice appeared reasonable. There is ample evidence the incentive payment is reasonable. (Tice decl., ¶¶ 5-7.) The same presumption of fairness applying to the overall settlement terms applies here. The Court finds that the incentive payment of $10,000.00 to Tice is reasonable and will be approved.

In its preliminary approval, the Court found that settlement administration costs, payable to Phoenix in the amount of $11,000.00, are reasonable. The Court finds this to be a reasonable amount.

Plaintiff’s counsel moves for an order approving Plaintiff’s attorney fees in the amount of $113,333.33. (one-third of the gross settlement amount). Plaintiff has provided evidence that the attorney fee amount sought is less than the lodestar amount based upon current billing rates and total time expended. (Gavron decl., ¶¶ 17 & exh. A; Marder decl., ¶ 13 & exh. A.) Plaintiffs estimate that more time will be spent to attend the hearing on final approval and finalizing the settlement terms. (Gavron decl., ¶ 16.) After considering the time spent, the risk incurred, and the check against the lodestar amount presented by Plaintiffs, the Court finds the one-third percentage of the settlement for attorneys’ fees to be fair and reasonable. (See Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 506.)

The preliminary approval authorized up to $55,000.00 in litigation costs. By way of the current motion, Plaintiff’s counsel claims ligation costs of $52,386.08. (Gavron decl., ¶ 18 & exh. B.) The Court also finds the litigation expenses of $52,386.08 to be fair and reasonable. The motion to approve payment from the settlement amount of the requested fees and costs will be granted.

Based upon all of the evidence presented and the arguments of the parties, the Court determines that the settlement is fair and reasonable in all respects. Accordingly, the motion for final approval of class actions settlement will be granted.

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