The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 TAIRA DE BERNARDI, et al., Case No. 18-cv-04597-HSG
8 Plaintiffs, ORDER GRANTING PRELIMINARY
APPROVAL
9 v.
Re: Dkt. No. 91
10 CITY AND COUNTY OF SAN
FRANCISCO,
11
Defendant.
12
ABDULLAH WAZWAZ, et al.,
13 Case No. 18-cv-05580-HSG
Plaintiffs,
14 Re: Dkt. No. 121
v.
15
CITY AND COUNTY OF SAN
16 FRANCISCO,
17 Defendant.
18
Pending before the Court are the unopposed motions for preliminary approval of a FLSA
19
collective action settlement filed by Plaintiffs in the matters of De Bernardi, et al. v. City and
20
County of San Francisco, Case No. 4:18-cv-04597-HSG and Wazwaz, et al. v. City and County of
21
San Francisco, Case No. 4:18-cv-05580-HSG. De Bernardi, Dkt. No. 91, Wazwaz, Dkt. No. 121;
22
(“Mot.”).1 The parties have reached a settlement regarding Plaintiffs’ claims and now seek
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preliminary court approval. On May 20, 2021, the Court held a hearing on the parties’ motions for
24
preliminary approval. De Bernardi, Dkt. No. 97, Wazwaz, Dkt. No. 125. For the reasons set forth
25
below, the Court GRANTS Plaintiffs’ motions for preliminary approval of the collective
26
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1 settlement.
2 I. BACKGROUND
3 A. Factual and Procedural Background
4 As current and former employees of Defendant City and County of San Francisco,
5 Plaintiffs in both cases allege that Defendant violated the Fair Labor Standards Act (“FLSA”).
6 Specifically, the FLSA requires an employer to compensate employees for cashed out or used
7 compensatory time off (“CTO”) at their “regular rate” of pay.” 29 U.S.C. § 207(o)(3)-(4). On
8 July 30, 2018, Plaintiffs Taira De Bernardi and Stephen Val Kirwan filed a complaint against
9 Defendant for failure to pay the regular rate of pay for cash-out or use of CTO. De Bernardi, Dkt.
10 No. 1. On September 12, 2018, Plaintiffs Abdullah Wazwaz, Jason Moore, Kenneth Yeung, and
11 Brian Kam also filed a complaint against Defendant alleging similar CTO claims, in addition to
12 allegations that Defendant excluded certain cash incentives from the calculation of the regular rate
13 of pay used to pay overtime.2 Wazwaz, Dkt. No. 1. Defendant filed answers to both complaints
14 denying various allegations and raising various affirmative defenses. De Bernardi, Dkt No. 14;
15 Wazwaz, Dkt. No. 24.
16 Defendant later indicated that it “completed the process of updating its pay practices for all
17 City employees on December 1, 2018.” See De Bernardi, Dkt. No. 91-6 Declaration of Gregg
18 McLean Adam (“Adam Decl.”) ¶ 14 (citing Defendant’s Settlement Conference Statement); De
19 Bernardi, Dkt. No. 91-7 Declaration of David E. Mastagni (“Mastagni Decl.”) ¶ 14, Ex. C. And
20 Defendant issued retroactive payments totaling approximately $1.4 million to affected employees
21 “for the difference, if any, between the base rate of pay and the regular rate for CTO used or
22 cashed out during the three-years preceding November 30, 2018.” Mot. at 3, 12–13; see Adam
23 Decl. ¶ 14.
24
25
2 Specifically, the Wazwaz Plaintiffs alleged that Defendant was excluding cash incentives paid to
certain employees possessing intermediate and advanced POST certificates (“POST Pay”). But
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Defendant “produced documents and information demonstrating that POST Pay was included in
the calculation of the Wazwaz Plaintiffs’ ‘regular rate’ during the relevant time period.” Mastagni
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Decl. ¶ 16. And “[a]fter meeting and conferring, the parties confirmed POST Pay had been
1 On December 11, 2018, the Court issued an order relating the Wazwaz action to the De
2 Bernardi action. De Bernardi, Dkt No. 32; Wazwaz, Dkt. No. 36. In January, 2019, the Court
3 granted the parties’ stipulation to consolidate the actions for pre-trial purposes and referred the
4 cases to a magistrate judge for settlement. De Bernardi, Dkt Nos. 42, 44; Wazwaz, Dkt. No. 52,
5 55. The Court also granted the parties’ stipulations to both conditionally certify their respective
6 actions as FLSA collective actions and provide notice to potential collective action members. De
7 Bernardi, Dkt No. 40; Wazwaz, Dkt. No. 65. Following the notice period, a combined total of
8 1,833 current or former City employees opted in. Mot. at 3. However, a review of payroll records
9 demonstrated that nearly two-thirds of these individuals “did not have recoverable damages under
10 the FLSA because they did not (1) “earn CTO,” (2) “have compensatory time cashed out or used
11 during the recoverable period,” or (3) “earn premiums that should have been included in the
12 regular rate of pay for their compensatory time during the applicable recovery period.” Mot. at 4.
13 In November, 2019, the parties participated in a settlement conference with Magistrate
14 Judge Corley, during which the parties reached a settlement in principle. De Bernardi, Dkt No.
15 74; Wazwaz, Dkt. No. 101. The parties subsequently filed a notice of conditional settlement
16 pending approval of the San Francisco Board of Supervisors. De Bernardi, Dkt No. 75; Wazwaz,
17 Dkt. No. 102. In February 2021, the Board of Supervisors approved the proposed settlement, and
18 the Mayor subsequently signed an ordinance approving the settlement. De Bernardi, Dkt No. 90;
19 Wazwaz, Dkt. No. 120.
20 B. Settlement Agreement
21 As previously noted, with the assistance of Judge Corley, the parties reached a global
22 settlement. The key terms of the settlement agreement (“SA”), De Bernardi, Dkt No. 91-1;
23 Wazwaz, Dkt. No. 121-1, are as follows:
24 Settlement Benefits:
25 Defendant will pay a settlement amount of $503,506.33, plus additional fees for settlement
26 administrative expenses. SA at 3–5. The determined amount of $503,506.33 includes settlement
27 payments in the amount of $192,006.33 to be allocated to “Recovery Plaintiffs” in both cases who
1 award of $1,250 to each of the De Bernardi Named Plaintiffs, and administrator’s fees and costs
2 incurred up to the settlement conference in the amount of $94,000.3 See id.
3 The individual amount paid to Plaintiffs with a valid FLSA claim is based on the backpay
4 amounts already issued by Defendant. Id. at 4. The amount owed to each Recovery Plaintiff is
5 identified in Exhibit 2-A to the settlement agreement. The settlement provides no recovery to “No
6 Recovery Plaintiffs” who “consented to join either of the [a]ctions but who, based on a review of
7 payroll records, are now owed any back wages because they did not use any compensatory time or
8 have compensatory time cashed out during the applicable period, or they did not earn premiums
9 that should have been included in the regular rate of pay for their compensatory time during the
10 applicable recovery period.” Id. at 3.
11 Release: The Named Plaintiffs and each Recovery Plaintiff who signs the settlement
12 agreement will release:
any and all liabilities, claims, demands, contracts, debts, damages,
13 acts or omissions, obligations and causes of action of every nature,
kind and description, in law, equity, or otherwise, whether or not now
14 known or unknown, which heretofore do or may exist, in any way
arising out of, connected with or related in any way to the payment of
15 overtime (Wazwaz) and/or the cash out or use of compensatory time
(De Bernardi and Wazwaz), as asserted in the Action in which such
16 Named Plaintiff or Recovery Plaintiff is a plaintiff, as well as any
attorneys’ fees and costs incurred in connection with the negotiation,
17 terms and execution of this Agreement, up to and including the date
that, respectively, such Named Plaintiff or Recovery Plaintiff signs
18 this Agreement (the “Signature Date”) (hereafter, the “Released
Claims”). The release in this Paragraph 3 includes, but is not limited
19 to, release of any matter, cause or thing in any way arising out of,
connected with or related to the Action in which the releasing Named
20 Plaintiff or Recovery Plaintiff is a plaintiff, which includes any and
all past, pending or contemplated lawsuits; claims; other
21 administrative charges; and grievances brought by or on behalf of
such Named Plaintiff or such Recovery Plaintiff against any Releasee
22 in any way arising out of, connected with or relating to the payment
of overtime (Wazwaz) and/or the cash out or use of compensatory
23 time (De Bernardi and Wazwaz), as asserted in the Action to which
24
3 “Recovery Plaintiffs” means “those current or former City employees who consented to join
25
either of the Actions and who received Retro Payments, which fully compensated them for unpaid
back wages. SA at 2–3. “No Recovery Plaintiffs” means “those current or former City employees
26
who consented to join either of the Actions but who, based on a review of payroll records, are not
owed any back wages because they did not use any compensatory time or have compensatory time
27
cashed out during the applicable recovery period, or they did not earn premiums that should have
the releasing Named Plaintiff or Recovery Plaintiff is a plaintiff,
1 through the Signature Date.
2
Id. at 6. This release includes a waiver of rights under Section 1542 of the California Civil Code.
3
Id. at 7.
4
Conditions of Settlement: The payment of the settlement sums and the releases are
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contingent on the following events:
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a. Approval by the San Francisco Board of Supervisors;
7
b. Preliminary Approval by the District Court of the settlement
8 commemorated in the Agreement;
9 c. Approval of the Agreement by all Recovery Plaintiffs identified
in Exhibit A-2, by execution of this Agreement; and
10
d. Final Approval by the District Court, including the dismissal
11 without prejudice of all No Recovery Plaintiffs and those
Recovery Plaintiffs who do not execute this Agreement.
12
Id. at 8–9.
13
If any Recovery Plaintiffs “do not execute this Agreement,” then the City may choose to:
14
“(i) remove the condition of having all Recovery Plaintiffs execute this Agreement and (ii) make
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the Agreement binding only as to all Recovery Plaintiffs who execute it. In this event, any Recovery
16
Plaintiffs who do not sign this Agreement will be dismissed without prejudice from the Action in
17
which they are Plaintiffs, in connection with the [C]ourt’s order of Final Approval.” Id. at 9.
18
If the City chooses to remove condition (c), then the administrator will “reimburse the City
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the sums specified un Exhibit A-2 as payable to the Recovery Plaintiffs who do not execute” the
20
settlement agreement. Id.
21
Incentive Award: The settlement agreement contemplates a service award of $1,250 each
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for the two lead De Bernardi Named Plaintiffs, Taira De Bernardi and Stephen Val Kirwan. Id. at
23
5.
24
Attorneys’ Fees and Costs: Counsel for De Bernardi will seek $150,000 and counsel for
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Wazwaz will seek $65,000. Id. at 4–5.
26
II. LEGAL STANDARD
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Because employees cannot waive their rights under the FLSA, FLSA collective action
1 settlements require court approval. See Bisaccia v. Revel Sys. Inc., No. 17-CV-02533-HSG, 2019
2 WL 3220275, at *4 (N.D. Cal. July 17, 2019) (“Bisaccia II”) (citation omitted); Estorga v. Santa
3 Clara Valley Transportation Auth., No. 16-CV-02668-BLF, 2020 WL 7319356, at *2 (N.D. Cal.
4 Dec. 11, 2020) (citation omitted).4 To determine whether a proposed FLSA settlement warrants
5 approval, courts in this district apply the Eleventh Circuit’s standard set out in Lynn’s Food Stores,
6 Inc. v. United States, 679 F.2d 1350 (11th Cir. 1982). See Slezak v. City of Palo Alto, No. 16-CV-
7 03224-LHK, 2017 WL 2688224, at *1 n.1 (N.D. Cal. June 22, 2017) (collecting cases).
8 Specifically, the court must consider whether the proposed settlement constitutes “a fair and
9 reasonable resolution of a bona fide dispute over FLSA provisions.” Lynn’s Food Stores, 679
10 F.2d at 1354–55. “If a settlement in an employee FLSA suit does reflect a reasonable compromise
11 over issues . . . that are actually in dispute,” the court may approve the settlement “to promote the
12 policy of encouraging settlement of litigation.” Id. at 1354.
13 III. DISCUSSION
14 A. Bona Fide Dispute
15 The Court first considers whether there is a bona fide dispute. “A bona fide dispute exists
16 when there are legitimate questions about the existence and extent of the defendant’s FLSA
17 liability.” Estorga, 2020 WL 7319356, at *3 (citation omitted). Plaintiffs contend that the
18 settlement agreement resolves questions concerning Defendant’s liability because Defendant
19 maintains that its failure to pay CTO at the regular rate was in good faith and not willful. Mot. at
20 6. Plaintiffs note that any recovery would be drastically reduced or eliminated if Defendant
21 proved either of these contentions. Id. The Court agrees and finds that a bona fide dispute exists
22 about the extent of damages with respect to liquidated damages and the applicable statute of
23 limitations.
24 First, the settlement agreement provides for a “virtual award of full, non-discounted
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4 Approval of a FLSA collective action settlement is not formally required at the preliminary
stage. Bisaccia v. Revel Sys. Inc., No. 17-CV-02533-HSG, 2019 WL 861425, at *5 (N.D. Cal.
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Feb. 22, 2019) (“Bisaccia I”). But at the hearing, Plaintiffs’ counsel explained that the parties
1 liquidated damages.”5 Mot. at 7. “The FLSA mandates liquidated damages in an amount equal to
2 the unpaid overtime compensation unless an employer acted in ‘good faith’ and had ‘reasonable
3 grounds’ to believe that it was not violating the FLSA.” Scalia v. Emp. Sols. Staffing Grp., LLC,
4 951 F.3d 1097, 1102 (9th Cir. 2020), cert. denied, 141 S. Ct. 1376, 209 L. Ed. 2d 121 (2021)
5 (citing 29 U.S.C. §§ 216(b), 260). “These liquidated damages represent compensation, and not a
6 penalty.” Loc. 246 Util. Workers Union of Am. v. S. California Edison Co., 83 F.3d 292, 297 (9th
7 Cir. 1996) (citation omitted). Here, if Defendant showed that its payments were made in good
8 faith, then Plaintiffs’ claim of liquidated damages could be eliminated. And because the City
9 already issued the backpay owed, there would be no further damages owed if a jury rejected an
10 award of liquidated damages. See Mot. at 9. The settlement agreement resolves the dispute as to
11 Defendant’s good faith by effectively awarding full liquidated damages.
12 Second, the settlement agreement provides for a three-year statute of limitations.
13 “Ordinarily, a two-year statute of limitations applies to claims under the FLSA.” Scalia, 951 F.3d
14 at 1102 (citing 29 U.S.C. § 255(a)). But a three-year statute of limitations applies to a “willful
15 violation.” Id. “A violation is willful when the employer either knew or showed reckless
16 disregard for . . . whether its conduct was prohibited by the [FLSA.]” Id. (internal quotations and
17 citation omitted). “The three-year term can apply where an employer disregarded the very
18 ‘possibility’ that it was violating the statute.” Alvarez v. IBP, Inc., 339 F.3d 894, 908–09 (9th Cir.
19 2003), aff’d, 546 U.S. 21, 126 S. Ct. 514, 163 L. Ed. 2d 288 (2005). Plaintiffs contend that
20 Defendant was on notice of its obligations under the FLSA because it had been previously sued
21 “over similar regular rate issues” and Plaintiffs’ counsel informed Defendant it was in violation of
22 the FLSA prior to filing the De Bernardi complaint. Mot. at 8 (citing Mastagni Decl. ¶ 15 and
23 Adam Decl. ¶¶ 9–11). But if Defendant showed its violation was not willful, then the standard
24 statute of limitations would affect the settlement value. Plaintiffs estimate that excluding the third
25 year of damages could reduce the settlement by as much as one-third. Mot. at 8; Mastagni Decl. ¶
26
5 Plaintiffs note that though the settlement agreement indicated the payments are “treated as
27
interest on the back wages” that Defendant already paid, they “represent the full equivalent of the
1 22. The settlement agreement resolves the willfulness dispute by extending the standard two-year
2 statute of limitations to three years.
3 Accordingly, the Court finds that a bona fide dispute exists under the FLSA. Further, the
4 purpose of the bona fide dispute requirement has been satisfied because the settlement provides for
5 full liquidated damages and a three-year statute of limitations. See Slezak, 2017 WL 2688224, at
6 *2 (citing Lynn Food Stores, 679 F.2d at 1353 n.8) (“The purpose of this analysis is to ensure that
7 an employee does not waive claims for wages, overtime compensation, or liquidated damages
8 when no actual dispute exists between the parties.”).
9 B. Fair and Reasonable Resolution
10 The Court next considers whether the proposed settlement is fair and reasonable. In
11 making this determination, courts consider the “totality of circumstances.” Estorga, WL 7319356,
12 at *3 (quoting Selk v. Pioneers Mem’l Healthcare Dist., 159 F. Supp. 3d 1164, 1173 (S.D. Cal.
13 2016)). And in looking to the totality of circumstances, courts balance the following factors: (1)
14 the plaintiff’s range of possible recovery; (2) the stage of proceedings and amount of discovery
15 completed; (3) the seriousness of the litigation risks faced by the parties; (4) the scope of any
16 release provision in the settlement agreement; (5) the experience and views of counsel and the
17 opinion of participating plaintiffs; and (6) the possibility of fraud or collusion. See, e.g., id.;
18 Slezak, 2017 WL 2688224, at *3.
19 i. Plaintiffs’ possible range of recovery
20 “[C]ourts in the Ninth Circuit have found FLSA cases settling for approximately 25%–
21 35% of the total possible recovery to be reasonable.” Estorga, 2020 WL 7319356, at *4
22 (collecting cases). Plaintiffs note that the settlement agreement provides Plaintiffs who have a
23 valid FLSA claim full liquidated damages for the maximum recovery period. Mot. at 9.
24 Plaintiffs’ counsel acknowledge that “the outcome of a trial, and the outcome of any appeals that
25 may follow, are inherently uncertain in terms of both outcome and duration.” Id. at 10 (citing
26 Mastagni Decl. ¶ 24 and Adam Decl. ¶ 20). Given the high recovery provided without the risk and
27 delay of further litigation, this factor weighs in favor of approval.
1 Courts “assess[] the stage of proceedings and the amount of discovery completed to ensure
2 the parties have an adequate appreciation of the merits of the case before reaching a settlement.”
3 Slezak, 2017 WL 2688224, at *4 (citation omitted). “If the parties have sufficient information to
4 make an informed decision about settlement, this factor will weigh in favor of approval.” Id.
5 (internal quotation marks omitted) (quoting Linney v. Cellular Alaska P’ship, 151 F.3d 1234, 1239
6 (9th Cir. 1998)). As previously noted, the parties reached a global settlement while participating
7 in a settlement conference and obtained approval of the settlement agreement from the Board of
8 Supervisors. As to the amount of discovery conducted, Plaintiffs note that they propounded
9 discovery “to understand both the specifics of how Defendant calculated back pay” and factual
10 issues concerning Defendants’ affirmative defenses that would affect both liquidated damages and
11 the statute of limitations. See Adam Decl. ¶ 18; Mastagni Decl. ¶ 19. Given the circumstances of
12 the case, the Court finds that the parties obtained and analyzed sufficient information relevant to
13 the most pertinent issues to enable them to assess the likelihood of success on the merits.
14 Accordingly, the Court finds this factor weighs in favor of approval.
15 iii. The seriousness of the litigation risks faced by the parties
16 “Courts will approve an FLSA settlement when there is a significant risk that litigation
17 could result in a lower recovery for the class or no recovery at all.” Estorga, 2020 WL 7319356,
18 at *5 (citation omitted). Plaintiffs acknowledge that the extent of Defendant’s liability as to
19 liquidated damages and the applicable statute of limitations is uncertain. See Adam Decl. ¶ 20.
20 As previously noted, a finding regarding Defendant’s alleged willfulness and lack of good faith
21 could eliminate or significantly reduce Plaintiffs’ recovery. Given the risk of a lesser recovery, or
22 potentially no recovery at all, this factor weighs in favor of approval.
23 iv. The scope of any release provision in the settlement agreement
24 “Courts in this Circuit have rejected blanket releases of all potential claims against the
25 employer for all unlawful acts whatsoever.” Estorga, 2020 WL 7319356, at *5 (collecting cases).
26 Plaintiffs note that the release does not extend to claims beyond the specific FLSA claims at issue
27 in De Bernardi and Wazwaz. Mot. at 11. Specifically, the release is limited to “any and all
1 action of every nature . . . in any way arising out of, connected with or related in any way to the
2 payment of overtime (Wazwaz) and/or the cash out or use of compensatory time (De Bernardi and
3 Wazwaz), as asserted in the Action.” SA at 6. And waiving rights under Section 1542 of the
4 California Civil Code is “a common and accepted practice in this District.” Estorga, 2020 WL
5 7319356, at *5 (N.D. Cal. Dec. 11, 2020) (citations omitted). Because the release is tailored to
6 cover the specific FLSA claims at issue, this factor weighs in approval.
7 v. The experience and views of counsel
8 Plaintiffs contend that the “opinions of counsel should be given considerable weight both
9 because of counsel’s familiarity with th[e] litigation and previous experience with cases.” Opp. at
10 11 (citing Larsen v. Trader Joe’s Co., No. 11-CV-05188-WHO, 2014 WL 3404531, at *5 (N.D.
11 Cal. July 11, 2014)). But “courts have taken divergent views as to the weight to accord counsel’s
12 opinions.” Van Kempen v. Matheson Tri-Gas, Inc., No. 15-CV-00660-HSG, 2017 WL 3670787,
13 at *6 (N.D. Cal. Aug. 25, 2017) (citations omitted); Bisaccia II, No. 2019 WL 3220275, at *6
14 (same). Here, the Court accords only modest weight to counsel’s views.
15 Plaintiffs’ counsel assert that the terms are “fair and reasonable” and that the settlement
16 amount provides “the maximum amount of damages any such Plaintiff could expect to achieve at
17 trial.” Mastagni Decl. ¶ 20; Adam Decl. ¶ 19. Wazwaz Plaintiffs’ counsel and De Bernardi
18 Plaintiffs’ counsel each have over a decade of experience litigating FLSA claims and have
19 obtained approval of several FLSA settlements. See Mastagni Decl. ¶ 6 (“I have approximately
20 twenty years of experience litigating wage and hour and employment law matters.”); Adam Decl.
21 ¶ 4 (“I have approximately fifteen (15) years of experience litigating FLSA and similar claims.”).
22 Accordingly, although the factor’s impact is modest, it weighs in favor of approval.
23 vi. The possibility of fraud or collusion
24 In assessing the terms of FLSA settlements, courts may consider the signs of collusion
25 described in In re Bluetooth Headset Prod. Liab. Litig., 654 F.3d 935, 947 (9th Cir. 2011). See
26 Estorga, 2020 WL 7319356, at *6; Jennings v. Open Door Mktg., LLC, No. 15-CV-04080-KAW,
27 2018 WL 4773057, at *8 (N.D. Cal. Oct. 3, 2018). Courts may find fraud or collusion (1) “when
1 monetary distribution but class counsel are amply rewarded,” (2) “when the parties negotiate a
2 ‘clear sailing’ agreement providing for the payment of attorney’s fees separate and apart from
3 class funds . . .;” and (3) “when the parties arrange for fees not awarded to revert to defendants
4 rather than be added to the class fund.” In re Bluetooth Headset Prod. Liab. Litig., 654 F.3d at
5 947 (citations omitted).
6 Here, the parties reached a global settlement through “arms’ length” negotiations and with
7 the assistance of Magistrate Judge Corley, indicating a lack of fraud or collusion. See Adam Decl.
8 ¶ 15; Mastagni Decl. ¶ 17; see also Slezak, 2017 WL 2688224, at *5 (citation omitted) (noting that
9 the “likelihood of fraud or collusion [wa]s low . . . because the Settlement was reached through
10 arm’s-length negotiations, facilitated by an impartial mediator”). And the possibility of fraud or
11 collusion is further reduced given that the parties participated in extensive discovery prior to
12 reaching this settlement. See Mastagni Decl. ¶ 16; see also Estorga, 2020 WL 7319356, at *6
13 (citation omitted) (“The parties also engaged in lengthy litigation, including extensive discovery,
14 before reaching the proposed resolution, which reduces the possibility of fraud or collusion in this
15 settlement agreement.”). And as previously noted, the individual settlement amounts are based on
16 the backpay amounts already issued by Defendant. Mot. at 4. Although the proposed settlement
17 indicates that the City will be reimbursed for any Recovery Plaintiffs that do not submit a signed
18 settlement agreement, Plaintiffs’ counsel indicated that the City is not released from its obligation
19 if those Recovery Plaintiffs decide to pursue their claims individually.
20 In considering of the totality of the circumstances, the Court preliminarily finds that the
21 proposed settlement is a fair and reasonable resolution of a bona fide dispute.
22 C. Attorneys’ Fees and Costs
23 Courts may award reasonable attorneys’ fees and costs as part of a FLSA settlement. 29
24 U.S.C. § 216(b) (providing that, in a FLSA action, the court “shall, in addition to any judgment
25 awarded to the plaintiff or plaintiffs, allow a reasonable attorneys’ fee to be paid by the defendant,
26 and costs of the action”); see Estorga, 2020 WL 7319356, at *7. When deciding to award
27 attorneys’ fees and costs, the Court has discretion in a common fund case to choose either (1) the
1 1047 (9th Cir. 2002). Under the lodestar method, a “lodestar figure is calculated by multiplying
2 the number of hours the prevailing party reasonably expended on the litigation (as supported by
3 adequate documentation) by a reasonable hourly rate for the region and for the experience of the
4 lawyer.” In re Bluetooth, 654 F.3d at 941(citing Staton v. Boeing Co., 327 F.3d 938, 965 (9th Cir.
5 2003)). “[T]he established standard when determining a reasonable hourly rate is the rate
6 prevailing in the community for similar work performed by attorneys of comparable skill,
7 experience, and reputation.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008)
8 (quotations omitted).
9 Here, Plaintiffs’ counsel seek awards lower than the fees calculated using the lodestar
10 method and below the value of the time actually spent. De Bernardi counsel seek an award of
11 $150,000 for the 370 hours spent by Gregg Adam and Wendi Berkowitz. Adam Decl. ¶ 25.
12 Wazwaz counsel seeks an award of fees and costs amounting to $65,000 for all firm time,
13 amounting to approximately 319 hours. Mastagni Decl. ¶ 34. Having reviewed Plaintiffs’
14 counsels’ filings, the Court finds these requests are within the realm of reasonableness and counsel
15 in favor of preliminary approval. The Court will more fully evaluate the reasonableness of any
16 request for attorneys’ fees, costs, and incentive awards at the final fairness hearing.
17 * * *
18 Having weighed the relevant factors, the Court preliminarily finds that the settlement
19 agreement presents a fair and reasonable resolution of a bona fide dispute and that the proposed
20 attorneys’ fees and costs are within a reasonable range.6 Accordingly, the Court GRANTS
21 preliminary approval. The Court DIRECTS the parties to include both a joint proposed order and
22 a joint proposed judgment when submitting their motion for final approval.
23 D. Proposed Notices
24 Plaintiffs prepared four separate notices to all Plaintiffs who consented to join the actions,
25 including for (1) De Bernardi Recovery Plaintiffs, (2) Wazwaz Recovery Plaintiffs, (3) De
26
6 The settlement agreement provides for two incentive awards for each Named De Bernardi
27
Plaintiff in the amount of $1,250, but as previously noted, the Court will later consider the
1 Bernardi No-Recovery Plaintiffs, and (4) Wazwaz No-Recovery Plaintiffs. At the preliminary
2 approval hearing, the Court directed the parties to revise the initial notice forms to clearly provide
3 all Plaintiffs with an opportunity to object to the proposed settlement in writing prior to the final
4 fairness hearing. See Dkt. No. 125. Plaintiffs request that the Court approve the revised notice
5 forms attached to the parties’ subsequent stipulation as Exhibits A, B, C, and C. See De Bernardi,
6 Dkt. No. 98, Wazwaz, Dkt. No. 126. All notices inform Plaintiffs of the nature of the action and
7 the terms of the settlement, including the administrator costs incurred and the attorneys’ fees and
8 costs to be requested by class counsel.
9 Each notice informs all Plaintiffs that they have at least two options, including “do
10 nothing,” in which case the “claim will be dismissed without prejudice.” The second option
11 allows Plaintiffs to file an objection in writing prior to the final approval hearing and indicates that
12 they may also appear at the final approval hearing. The notices inform the No-Recovery Plaintiffs
13 that further investigation revealed that they were not in fact underpaid CTO and thus not entitled
14 to a share of the settlement fund. The notices inform Recovery Plaintiffs that they “must sign and
15 return the Release to the third party administrator no later than sixty [] days from the date of the
16 mailing of th[e] notice,” that the settlement amounts will be released by the City to the third-party
17 administrator within forty-five days after the final approval of the settlement, and that the third
18 party administrator will send a check for each Plaintiff’s share of the settlement fund within thirty-
19 days after the funds are released by the City. The Recovery Plaintiffs are further notified that they
20 will not receive their share and their claim will be dismissed without prejudice if the third-party
21 administrator does not timely receive their signed Release.
22 The Court approves the proposed notices, including the process for responding to the
23 proposed notices and the process for objections.
24 IV. CONCLUSION
25 The parties are DIRECTED to meet and confer and stipulate to a schedule of dates for
26 each event listed below, which shall be submitted to the Court within seven days of the date of this
27 Order:
Deadline for Settlement Administrator to mail
2 notice to all Collective Action Members
Deadline for receipt of signed releases or written
3 objection(s) to the settlement
Deadline for Administrator to deliver final
4 accounting of releases and objections to parties
5 Deadline for City to file notice of intention Po
Filing deadline for final approval motion Po
6 Final approval hearing PO
4
8 IT IS SO ORDERED.
9 Dated: 6/1/2021
10 Alaywrd 5 Sbl □□□
HAYWOOD S. GILLIAM, JR.
11 United States District Judge
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