Renteria v. Stemilt Ag Services

1 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Sep 09, 2021 SEAN F. MCAVOY, CLERK 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON [4] OMAR PALMA RENTERIA, No. 2:20-cv-00392-SMJ 5 individually and on behalf of all others similarly situated, ORDER GRANTING FINAL 6 Plaintiff, APPROVAL OF CLASS ACTION SETTLEMENT [7] GILBERTO GOMEZ GARCIA, 8 individually and on behalf of all others similarly situated, and JONATHAN 9 GOMEZ RIVERA, individually and on behalf of all others similarly situated, [10] Intervenor11 Plaintiffs, 12 v. 13 STEMILT AG SERVICES LLC, a solely owned subsidiary of Stemilt Growers 14 LLC, and DOES 1–10, 15 Defendants. [16] 17 Before the Court is Plaintiff Omar Palma Renteria and Intervenor Plaintiffs 18 Gilberto Gomez Garcia and Jonathan Gomez Rivera (collectively, “Plaintiffs”) 19 Motion for Final Approval of Class Action Settlement, ECF No. 33, and Stipulated 20 Motion for Approval of Certain Settlement Claims, ECF No. 39. Individual notice 1 complying with Federal Rule of Civil Procedure 23 was sent to the last-known 2 address of each member of the Class and supplemental notice procedures outlined 3 in the Settlement Agreement and approved by the Preliminary Approval Order have 4 been completed. The Court held a fairness hearing on final approval of the 5 settlement on September 9, 2021. Defendant does not object to final approval as 6 proposed by Plaintiffs. See ECF No. 41. The Court finds that good cause exists to 7 grant both motions and approve the class action settlement. 8 Accordingly, IT IS HEREBY ORDERED: 9 1. Plaintiffs’ Motion for Final Approval of Class Action Settlement, ECF 10 No. 33, is GRANTED. 11 2. The parties’ Stipulated Motion for Approval of Certain Settlement 12 Claims, ECF No. 39, is GRANTED. 13 3. Based on good cause shown, the Court APPROVES acceptance of all 14 valid settlement claims filed by Settlement Class Members under the 15 prior settlement even if those Settlement Class Members did not file 16 new Settlement Claim Forms. See ECF No. 39. 17 4. Unless otherwise provided herein, all capitalized terms in this Order 18 shall have the same meaning as set forth in the Settlement Agreement, 19 ECF No. 27-1 at 16–32, or Plaintiffs’ Motion for Preliminary 20 Approval, ECF No. 27. 1 5. The Court finds that notice to the Class has been completed in 2 conformity with the Preliminary Approval Order. The Court finds that 3 this notice was the best notice practicable under the circumstances, that 4 it provided due and adequate notice of the proceedings and of the 5 matters set forth therein, and that it fully satisfied all applicable 6 requirements of law and due process. 7 6. The Court finds that notice of the Settlement Agreement has been 8 provided to the United States Attorney General and the Attorney 9 General of each state in which any Class Member resides, in 10 accordance with 28 U.S.C. § 1715 . 11 7. The Court finds it has personal and subject matter jurisdiction over all 12 claims asserted in this litigation with respect to all members of the 13 Class. 14 8. Pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure, the 15 Court has CERTIFIED for settlement purposes the following Class: 16 All individuals who were employed by Stemilt AG Services LLC in the position of hand harvester, pruner, 17 picker, thinner, or farm worker and paid on a piece-rate basis at any time from May 21, 2015 to May 17, 2018. [18] 9. In connection with this certification, the Court has made the following [19] findings: [20] 1 A. The Class is so numerous that joinder of all members is 2 impracticable; 3 B. There are questions of law or fact common to the Class; 4 C. Plaintiffs’ claims are typical of the claims being resolved 5 through the proposed settlement; 6 D. Plaintiffs are capable of fairly and adequately protecting the 7 interests of the Class members in connection with the 8 settlement; 9 E. For purposes of determining whether the settlement is fair, 10 reasonable and adequate, common questions of law and fact 11 predominate over questions affecting only individual Class 12 members. Accordingly, the Class is sufficiently cohesive to 13 warrant settlement by representation; and 14 F. For purposes of settlement, certification of the Class is superior 15 to other available methods for the fair and efficient settlement 16 of the claims of the Class members. 17 10. The Court has APPOINTED Plaintiff Omar Palma Renteria and 18 Intervenor Plaintiffs Gilberto Gomez Garcia and Jonathan Gomez 19 Rivera as representatives of the Class. [20] 1 11. The Court has APPOINTED Marc Cote, Sean Phelan, and Anne 2 Silver of Frank Freed Subit & Thomas LLP and Joachim Morrison and 3 Xaxira Ponce de Leon of Columbia Legal Services as Class Counsel. 4 12. No objections to the Settlement have been lodged. 5 13. The terms set forth in the Settlement are APPROVED as being fair, 6 adequate, and reasonable in light of the degree of recovery obtained in 7 relation to the risks faced by the Class in litigating the claims. The 8 Class is properly certified as part of this settlement. The relief provided 9 to the Class under the Settlement Agreement is appropriate as to the 10 individual members of the Class and as a whole. 11 14. The Court finds the Settlement fair, reasonable, and adequate per the 12 requirements of Rule 23(e)(2). The following findings support the 13 Court’s determination: 14 A. The class representatives and class counsel, who have drawn on 15 extensive experience representing farm workers in wage-and16 hour class actions, have adequately represented the class; 17 B. The parties negotiated the proposal at arm’s length, through two 18 mediation sessions before an experienced mediator and 19 continued negotiations following mediation; [20] 1 C. The relief provided for the class is adequate, particularly in light 2 of the high costs, risks, and delay of trial and likely appeals, the 3 effectiveness of the claims process described in the Settlement 4 Agreement, the reasonable attorney fees awarded herein, and the 5 terms of the Settlement Agreement; 6 D. The Settlement treats class members equitably relative to one 7 another, as no segment of the class is excluded or treated 8 differently than any other. 9 15. The Court APPROVES the payment of $750,000 in attorney fees to 10 Class Counsel as fair and reasonable based on the “percentage of 11 recovery” approach. 12 A. When state substantive law applies to plaintiffs’ claims, attorney 13 fees are to be awarded in accordance with state law. Vizcaino v. 14 Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 2002). Because 15 Washington law governs the central claims in the case, attorney 16 fees must be awarded in accordance with Washington law. Id. 17 “Under Washington law, the percentage-of-recovery approach 18 is used in calculating fees in common fund cases.” Id. (citing 19 Bowles v. Dep’t of Ret. Sys., 121 Wn.2d 52, 72 , 847 P.2d 440 20 (1993)). 1 B. The benchmark in Washington for an attorney fee award in a 2 common fund settlement is twenty-five percent of the fund. Id.; 3 Bowles, 121 Wn.2d at 72–73. In accordance with Bowles and 4 Vizcaino, Class Counsel seek a benchmark fee of twenty-five 5 percent of the common fund. The Court finds no “special 6 circumstances” to depart from the benchmark award of twenty7 five percent in this case. See Bowles, 121 Wn.2d at 73 . The 8 approved attorney fee award of $750,000 is exactly twenty-five 9 percent of the $3,000,000 common fund. The twenty-five 10 percent fee is within the range of reasonableness set forth in 11 Bowles and Vizcaino and is consistent with fee awards in similar 12 class actions. 13 C. The Court reaches the conclusion that the twenty-five percent 14 fee award to Class Counsel is reasonable in this case after 15 analyzing (1) the exceptional results Class Counsel achieved for 16 the Class; (2) the diligent effort utilized by Class Counsel in 17 litigating the Class claims; (3) Class Counsel’s substantial 18 experience in complex litigation and the skill utilized to achieve 19 the settlement; (4) the hurdles to achieving and maintaining 20 certification of the Class, establishing and proving liability and 1 damages at trial; (5) the substantial risks Class Counsel took in 2 litigating this case on a contingency basis and paying costs; (6) 3 the fact that Class Counsel had to forgo other work due to their 4 duties and obligations to the Class; (7) the high-quality work 5 Class Counsel performed; and (8) the duration and complexity 6 of the litigation and scope of discovery. 7 D. No Class Member has objected to the requested fee award. 8 E. “[W]hile the primary basis of the fee award” for common fund 9 settlements “remains the percentage method, the lodestar may 10 provide a useful perspective on the reasonableness of a given 11 percentage award.” Vizcaino, 290 F.3d at 1050 . This Court has 12 performed a lodestar cross-check on the twenty-five percent fee. 13 The Court finds that payment of fees in the amount of $750,000 14 is fair and reasonable using a lodestar cross-check. 15 F. The Court APPROVES as reasonable Class Counsel’s total 16 lodestar amount of approximately $567,249.50 through August 17 19, 2021. The Court reaches this conclusion after analyzing (1) 18 the number of hours Class Counsel reasonably expended on the 19 litigation multiplied by counsel’s reasonable regular hourly 20 rates; (2) the substantial financial recovery Class Counsel 1 achieved for the Class; (3) the diligent and efficient effort 2 utilized by Class Counsel in litigating Plaintiffs’ claims; (4) 3 Class Counsel’s substantial experience in complex litigation and 4 skill utilized to achieve the Settlement; and (5) the hurdles to 5 certifying the Class and proving liability and damages at trial. 6 G. Class Counsel reasonably expended more than 1,500 hours in 7 this litigation and are expected to expend more hours through 8 settlement administration and distribution of settlement 9 payments. This Court APPROVES the hourly rates detailed in 10 the declarations of Marc Cote, Joachim Morrison, and Laura 11 Gerber. Lead Class Counsel’s regular hourly rates—$495 for 12 Marc Cote and $500 for Joachim Morrison—are reasonable 13 rates for class action litigators in this district. Considering all of 14 the attorneys’ experience, skill, and reputation in wage and hour 15 class action cases, the rates are reasonable. 16 H. Courts “routinely enhance[] the lodestar to reflect the risk of 17 non-payment in common fund cases.” Vizcaino, 290 F.3d at 18 1051 (quoting In re Wash. Pub. Power Supply Sys. Secs. Litig., [19] 19 F.3d 1291, 1300 (9th Cir. 1994)). This upward adjustment 20 (or “multiplier”) to an attorney’s lodestar is often warranted 1 based on the contingent nature of success or the quality of work 2 performed. See id. at 1051 (approving multiplier of 3.65). A 3 lodestar multiplier can also be based on the benefit obtained for 4 the class or the complexity and novelty of the issues presented. 5 In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935 , 941– 6 42 (9th Cir. 2011). In the Ninth Circuit, multipliers “ranging 7 from one to four are frequently awarded.” Vizcaino, 290 F.3d at 8 1051 n.6. Courts sometimes find higher multipliers appropriate 9 when using the lodestar method as a cross-check for an award 10 based on the percentage method. See, e.g., Steiner v. Am. Broad. 11 Co., Inc., 248 F. App’x 780, 783 (9th Cir. 2007) (finding a 12 multiplier of approximately 6.85 to be “well within the range of 13 multipliers that courts have allowed” when cross-checking a fee 14 based on a percentage of the fund). 15 I. Here, the twenty-five percent benchmark fee of $750,000 16 represents a lodestar multiplier of less than 1.32 on fees through 17 August 19, 2021. This multiplier will be reduced by the hours 18 Class Counsel expend on additional final approval work and 19 work to ensure Qualified Settlement Class Members are 20 appropriately paid their settlement awards. 1 J. Because this multiplier is well within the range of 2 reasonableness for percentage fee awards in common fund 3 cases, this Court approves the requested fee award of $750,000. 4 16. The Court APPROVES payment of $7,267.60 in litigation costs to 5 Class Counsel as fair and reasonable to compensate Class Counsel for 6 the relevant and necessary costs incurred in this case. 7 A. “Reasonable costs and expenses incurred by an attorney who 8 creates or preserves a common fund are reimbursed 9 proportionately by those class members who benefit from the 10 settlement.” In re Media Vision Tech. Sec. Litig., 913 F. Supp. 11 1362, 1366 (N.D. Cal. 1996). The settlement notices issued to 12 Class Members in this case indicated that litigation costs were 13 estimated to be $10,000. Class Counsel seek reimbursement of 14 less than the estimated amount. 15 17. Pursuant to the Settlement Agreement, the Court APPROVES 16 payment of $98,000 from the common fund to the Settlement 17 Administrator, CPT Group, Inc. and up to $25,000 to Centro de los 18 Derechos del Migrante, Inc. (“CDM”). 19 A. These payments are fair and reasonable to compensate the work 20 and costs incurred in administering the Settlement. 1 18. The Court APPROVES the service award payments of $6,000 each to 2 Plaintiff Omar Palma Renteria and Intervenor Plaintiffs Gilberto 3 Gomez Garcia and Jonathan Gomez Rivera. 4 A. These awards are reasonable and do not undermine Plaintiffs’ 5 adequacy as Class Representatives. Rather, these awards 6 reasonably compensate Plaintiffs Omar Palma Renteria and 7 Intervenor Plaintiffs Gilberto Gomez Garcia and Jonathan 8 Gomez Rivera for the time and effort each spent serving as class 9 representative, assisting in the investigation of their claims, 10 participating in and keeping abreast of the litigation, and 11 reviewing and approving the proposed settlement terms after 12 consulting with Class Counsel. 13 19. To ensure all Settlement Class Members have an adequate opportunity 14 to submit Settlement Claim Forms, any late Claim Forms received by 15 the Settlement Administrator by September 9, 2021, shall be 16 ACCEPTED AS TIMELY. 17 A. “Until the fund created by the settlement is actually distributed, 18 the court retains its traditional equity powers” over the class 19 settlement plan, including the authority to approve “late claims.” 20 Zients v. LaMorte, 459 F.2d 628 , 630–31 (2d Cir. 1972) 1 (allowing untimely claimants to receive payments from 2 settlement fund); see also In re Gypsum Antitrust Cases, 565 3 F.2d 1123 , 1128 (9th Cir. 1977) (citing Zients in support of the 4 conclusion “that the district court had discretion to grant late 5 claims”). 6 20. Each Qualified Settlement Class Member who submits a Settlement 7 Claim Form by September 9, 2021 shall be entitled to receive a 8 proportional share of the Net Settlement Fund, as set forth in Section 9 III.E.3 of the Settlement Agreement, after deduction of the amounts 10 awarded for attorney fees and costs, service awards, and settlement 11 administration expenses. 12 A. Each Qualified Settlement Class Member’s share will be based 13 on his or her hours worked in piecework activities as recorded 14 by Defendant. 15 B. Any Qualified Settlement Class Member who fails to cash or 16 deposit a disbursement check issued to that member after a 17 period of 180 calendar days has elapsed from the date on which 18 the disbursement check was issued will not receive a share of 19 the Settlement Fund but will be bound nevertheless by the terms 20 of the Settlement Agreement and Release. 1 21. Following the expiration of 180 calendar days after the Settlement 2 Administrator issues Settlement Checks, any Residual Funds from 3 uncashed checks will be distributed to the Northwest Justice Project as 4 a cy pres beneficiary. 5 22. The Settlement is BINDING on all Settlement Class members. 6 23. No later than seven calendar days following the Effective Date, 7 Defendant shall PAY the sum of $3,000,000 to the Settlement 8 Administrator, CPT. 9 A. Within three business days after receiving Defendant’s 10 payment, the Settlement Administrator shall PAY the Attorney 11 Fees Award and Cost Payment to Class Counsel and shall PAY 12 the Service Awards to the named Plaintiffs. 13 B. Within fourteen calendar days following Defendant’s 14 payment, the Settlement Administrator shall initiate the 15 Settlement Award payments as provided in the Settlement 16 Agreement. 17 24. As of the Effective Date and subject to Defendant’s payment of the 18 amounts stated in the Settlement Agreement, this Court DISMISSES 19 all claims that were or could have been asserted in the Action on the 20 basis of the allegations contained in the Complaint for the period of 1 May 21, 2015 to May 17, 2018, WITH PREJUDICE AND 2 WITHOUT COSTS (except as specifically provided in the 3 Settlement Agreement). 4 25. The entry of this Order is WITHOUT PREJUDICE to the rights of 5 the Parties to enforce the terms of the Settlement Agreement and the 6 rights of Class Counsel to seek the payment of fees and costs as 7 provided for in the Settlement Agreement. 8 26. Without affecting the finality of this Order, or the judgment to be 9 entered pursuant hereto, in any way, the Court RETAINS 10 JURISDICTION for purposes of enforcement of the Settlement and 11 addressing settlement administration matters and any such post12 judgment matters as may be appropriate under the Court’s rules. 13 27. The Clerk’s Office is directed to ENTER JUDGMENT and CLOSE 14 the file. 15 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and 16 || provide copies to all counsel. 17 DATED this 9" day of September 2021. 18 (Gn 4 enue an. +t. 19 ~ eh SALVADOR MENDOZASIR. 20 United States District Judge ORDER GRANTING FINAL APPROVAL OF CLASS ACTION