Justin Lopez v. Americold Logistics, LLC

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 JUSTIN LOPEZ, on behalf of himself and No. 1:20-cv-00308-NONE-EPG others similarly situated, 12 ORDER APPROVING JOINT STIPULATION Plaintiff, OF SETTLEMENT, DISMISSING 13 PLAINTIFF’S INDIVIDUAL CLAIMS WITH v. PREJUDICE, DISMISSING CLASS CLAIMS 14 WITHOUT PREJUDICE, AND DIRECTING AMERICOLD LOGISTICS, LLC, a CLERK OF COURT TO ASSIGN DISTRICT 15 Delaware company, JUDGE AND CLOSE CASE 16 Defendant. (Doc. No. 17) [17] 18 Presently before the court is the parties’ stipulation for court approval of their agreement 19 to settle plaintiff’s individual claims under the Fair Labor Standards Act (“FLSA”) and California 20 law and to dismiss plaintiff’s individual claims with prejudice. (Doc. No. 17.) Though plaintiff 21 Justin Lopez (“plaintiff”) initiated this putative class action, plaintiff does not now seek to 22 conditionally certify a collective or class action, and the parties have stipulated to dismiss any 23 class claims without prejudice. (Id. ¶ 14.) Pursuant to the parties’ settlement agreement and 24 Federal Rules of Civil Procedure 23 and 41, the parties seek dismissal of this action in its entirety, 25 with the court retaining jurisdiction for the sole purpose of enforcing their settlement agreement. 26 (Id.) The court noted that the parties’ stipulation lacked the requisite information needed to 27 determine whether the overall settlement agreement is fair and reasonable and therefore directed 28 the parties to file supplemental briefing. (Doc. No. 18.) The parties filed a joint supplemental 1 brief on July 9, 2021. (Doc. No. 19.) For the reasons set forth below, the court will grant the 2 parties’ joint stipulation of settlement. 3 BACKGROUND 4 Defendant employed plaintiff as a non-exempt hourly warehouse worker from 5 approximately 2006 to 2018. (Doc. No. 1 at 22 ¶ 6, 23 ¶ 9.) On February 22, 2019, a putative 6 class action titled Contreras v. Americold Logistics, LLC (“Contreras”), was filed against 7 defendant in the San Bernardino County Superior Court alleging violations of California wage 8 and hour laws. (Doc. No. 17 ¶ 3.) Defendant removed the Contreras action to U.S. District 9 Court for the Central District of California on April 10, 2019, but subsequently, on May 2, 2019, 10 the named plaintiff in Contreras filed a second complaint against defendant in the San Bernardino 11 County Superior Court alleging wage and hour violations under the Private Attorneys General 12 Act (“PAGA”). (Id. ¶¶ 4–5.) On June 17, 2019, pursuant to a joint stipulation, the district court 13 authorized the named plaintiff in Contreras to file a first amended complaint, which effectively 14 incorporated the PAGA claims into the state law claims. (Id. ¶ 6.) Plaintiff in this case was a 15 putative class member in the Contreras action. (Id. ¶ 8.) 16 On January 16, 2020, plaintiff initiated the present putative class action in the Stanislaus 17 County Superior Court asserting the same claims as those brought in the Contreras action. (Doc. 18 Nos. 1, 17 ¶ 8.) Thereafter, on February 27, 2020, defendant removed the pending action to this 19 federal court. (Doc. No. 1.) 20 During the pendency of this action, the parties in Contreras ultimately reached a class 21 action settlement, and the district court granted their motion for preliminary approval of the class 22 action settlement on September 17, 2020. (Doc. No. 17 ¶¶ 7–8.) Plaintiff received notice of the 23 settlement, but he chose to opt out of it and was the only putative class member to do so. (Id. ¶ 24 8.) The Contreras class action settlement was approved by the district court on March 11, 2021, 25 and as a result, “all claims of the class members in the Lopez action were thereby resolved.” (Id.; 26 see Ex. C, Pl.’s RJN, Doc. No. 19-1 at 73–77.) On the same day, counsel in the present action 27 entered into a verbal agreement to settle this case on behalf of plaintiff and notified this court that 28 a settlement was reached on March 18, 2021. (Doc. No. 17 at ¶ 9.) 1 On April 23, 2021, the parties filed a stipulation for approval of their settlement 2 agreement. (Doc. No. 17.) The settlement agreement provides that this action will be dismissed 3 in its entirety, with plaintiff’s individual claims being dismissed with prejudice, and in 4 consideration defendant will pay a gross settlement amount of $16,000. (Id. ¶¶ 12, 14.) The 5 gross settlement amount consists of three separate payments: (1) $1,000 to plaintiff toward 6 settlement of his FLSA claim; (2) $6,000 to plaintiff toward settlement of his state law claims; 7 and (3) $9,000 to plaintiff’s counsel for attorneys’ fees and costs. (Id. ¶ 12.) The parties seek 8 final court approval of the FLSA portion of the settlement only. (Id. ¶ 32.) 9 In support of the parties’ joint stipulation for approval of their settlement, plaintiff filed 10 declarations from his counsel, Costa Kerestenzis and Sarah Kanbar, in which both attorneys 11 explain why they believe that the parties’ settlement is fair and reasonable. (Doc. Nos. 17-1, 1912 2.) In her declaration, attorney Kanbar also describes her experience litigating class actions as 13 well as the experience of attorney Kerestenzis in wage and hour litigation and provides 14 summaries of her and attorney Kerestenzis’ billing records and expenses for litigating this action. 15 (Doc. No. 19-1 ¶¶ 5–6, 19–21.) 16 LEGAL STANDARD 17 Under the FLSA, an employee may file a civil action against an employer that fails to 18 adhere to the FLSA’s guarantees. 29 U.S.C. § 216 (b); see also Genesis Healthcare Corp. v. 19 Symczyk, 569 U.S. 66, 69 (2013) (“The FLSA establishes federal minimum-wage, maximum20 hour, and overtime guarantees that cannot be modified by contract.”). Because an employee 21 cannot waive claims under the FLSA, the claims may not be settled without supervision of either 22 the Secretary of Labor or a district court. See Barrentine v. Ark.-Best Freight Sys., Inc., 450 U.S. 23 728, 740 (1981); Beidleman v. City of Modesto, No. 1:16-cv-01100-DAD-SKO, 2018 WL 24 1305713, at *1 (E.D. Cal. Mar. 13, 2018); Yue Zhou v. Wang’s Rest., No. 05-cv-0279 PVT, 2007 25 WL 2298046 , at *1 n.1 (N.D. Cal. Aug. 8, 2007). In evaluating whether to approve an agreement 26 to settle an individual’s FLSA claims, one district court explained, “[i]n reviewing a private 27 FLSA settlement, the court’s obligation is not to act as caretaker but as gatekeeper; it must ensure 28 that private FLSA settlements are appropriate given the FLSA’s purposes and that such 1 settlements do not undermine the Act’s purposes.” Goudie v. Cable Commc’ns, Inc., No. 08-cv2 507-AC, 2009 WL 88336 , at *1 (D. Or. Jan. 12, 2009). 3 The Ninth Circuit has not established criteria for district courts to determine whether an 4 FLSA settlement should be approved. Dunn v. Teachers Ins. & Annuity Ass’n of Am., No. 13-cv5 05456-HSG, 2016 WL 153266 , at *3 (N.D. Cal. Jan. 13, 2016). Rather, district courts in this 6 circuit routinely apply the Eleventh Circuit standard, which looks to whether the settlement is a 7 fair and reasonable resolution of a bona fide dispute. Id.; see also Lynn’s Food Stores, Inc. v. 8 United States, 679 F.2d 1350 , 1352–53 (11th Cir. 1982); Milburn v. PetSmart, Inc., No. 1:18-cv9 00535-DAD-SKO, 2019 WL 1746056 , at *4 (E.D. Cal. Apr. 18, 2019); Selk v. Pioneers Mem’l 10 Healthcare Dist., 159 F. Supp. 3d 1164, 1172 (S.D. Cal. 2016); Nen Thio v. Genji, LLC, 14 F. 11 Supp. 3d 1324, 1333 (N.D. Cal. 2014). “A bona fide dispute exists when there are legitimate 12 questions about the existence and extent of Defendant’s FLSA liability.” Selk, 159 F. Supp. 3d 13 at 1172 (internal quotation marks and citations omitted). A court will not approve a settlement 14 when there is certainty that the FLSA entitles plaintiffs to the compensation they seek, because 15 doing so would shield employers from the full cost of complying with the statute. Id. 16 District courts in this circuit have also taken note of the “unique importance of the 17 substantive labor rights involved” in settling FLSA actions and adopted a “totality of 18 circumstances approach that emphasizes the context of the case.” Id. at 1173. With this 19 approach, a “district court must ultimately be satisfied that the settlement’s overall effect is to 20 vindicate, rather than frustrate, the purposes of the FLSA.” Id. Settlements that reflect a fair and 21 reasonable compromise of issues that are actually in dispute may be approved to promote the 22 efficiency of encouraging settlement of litigation. McKeen-Chaplin v. Franklin Am. Mortg. Co., 23 No. 4:10-cv-05243-SBA, 2012 WL 6629608 , at *2 (N.D. Cal. Dec. 19, 2012). 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 1 ANALYSIS1 2 A. Plaintiff’s Request for Judicial Notice 3 Plaintiff requests that the court take judicial notice of the following court documents from 4 the Contreras case: (1) the memorandum of points and authorities in support of preliminary 5 approval of class action settlement in Contreras (Exhibit A); (2) the memorandum of points and 6 authorities in support of final approval of class action settlement in Contreras (Exhibit B); and (3) 7 the order granting final approval of class action settlement (Exhibit C). (See Doc. No. 19-1.) 8 Defendant has not objected to plaintiff’s request. 9 A court may “judicially notice a fact that is not subject to reasonable dispute because it: 10 (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and 11 readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. 12 Evid. 201(b). The court may also take judicial notice of matters of public record. Lee v. City of 13 L.A., 250 F.3d 668 , 688–89 (9th Cir. 2001). When a court takes judicial notice of a document, “it 14 may do so not for the truth of the facts recited therein, but for the existence of the [record], which 15 is not subject to reasonable dispute over its authenticity.” Id. at 690 (internal quotation marks and 16 citation omitted). Here, the court will take judicial notice of the documents filed in the Contreras 17 case. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741 , 746 (9th Cir. 2006) (“We 18 may take judicial notice of court filings and other matters of public record.”) (citation omitted). 19 B. FLSA Settlement 20 1. Bona Fide Dispute 21 Here, plaintiff alleges that he was not compensated for donning and doffing protective 22 gear before and after his shift. (Doc. No. 19 at 4.) According to the parties, “[i]t should be noted [23] 1 Unlike the settlement of plaintiff’s FLSA claim, the portion of the settlement allocated to [24] plaintiff’s individual state law claims does not require court approval because no class has been 25 certified and the parties have stipulated to dismiss the putative class claims without prejudice. (Doc. No. 17 ¶ 32); see Fed. R. Civ. P. 23(e), Advisory Committee Notes (2003 amendment) 26 (requiring “approval only if the claims, issues, or defenses of a certified class are resolved by settlement, voluntary dismissal, or compromise.”) (emphasis added); see also Voluntary 27 Dismissal, MCLAUGHLIN ON CLASS ACTIONS § 6.1 (17th ed.) (“[W]here no class has been certified, voluntary dismissal or settlement of a putative class action in federal court is governed [28] 1 that while Plaintiff did not allege an FLSA violation in the operative Complaint, the donning and 2 doffing claim is compensable under both the federal and State law.” (Id. at 3; see also Kanbar 3 Decl., Doc. No. 19-2 ¶ 12 (stating that plaintiff “did not make any claim under the FLSA because 4 all of his claims were covered under applicable state law.”).) Defendant maintains, however, that 5 there was “a facially-neutral rounding policy when compensating employees for donning and 6 doffing.” (Kanbar Decl., Doc. No. 19-2 ¶ 14.) According to plaintiff’s counsel, “Defendant’s 7 Counsel explained that in conducting discovery in Contreras, there was insufficient evidence to 8 establish full liability against Defendant, including the existence of a facially-neutral rounding 9 policy when compensating employees for donning and doffing.” (Kanbar Decl., Doc. No. 19-2 ¶ 10 14.) In the motion for preliminary approval of class action settlement in Contreras, the parties in 11 that case provided the following: 12 Although the [defendant’s] rounding policy itself is facially neutral, Plaintiff contends the additional policies resulted in the rounding 13 policy [not] being applied in a fair and neutral manner. Plaintiff asserted that [defendant]’s rounding policy essentially encompassed 14 “only rounding down” so that only the employer/[defendant] benefits from it. Silva v. See’s Candy Shops (2016) 7 Cal. App. 5th 235 , 249 15 (See’s Candy II). If and when applied in this manner, the end result, as Plaintiff claims, was an alleged amount of time in which Class 16 Members were undercompensated. Khoury Decl. ¶16. 17 Plaintiff contends that Defendant failed to pay for pre- and post-shift work, including donning and doffing time. Employees at Plaintiff’s 18 location were allegedly required to report to a pre-start meeting, which began at the beginning of the scheduled shift. Plaintiff alleges 19 that upon completion of the pre-start meeting, employees then immediately started working. To [] be ready for the pre-start 20 meeting, Class Members were required to change into the proper refrigeration cold gear, and to have performed their fork lift 21 inspection prior to the start of their prestart meeting. Plaintiff claims this required pre-shift work typically took approximately 30 minutes. 22 Khoury Decl. ¶17. 23 [Defendant] disputes the entirety of Plaintiff’s contentions. [Defendant] asserts that its rounding process is[] facially neutral and 24 does not favor the Company. Statistically, the punches more often round forward, meaning that at the beginning of the day they facially 25 favor the employer, whereas at the end of the day the rounding favors the employees in terms of minutes gained/lost. Moreover, 26 [defendant] asserts that Plaintiff has not presented evidence that a majority of warehouse employees actually worked after punching 27 before their scheduled shifts. 28 (Ex. A, Pl.’s RJN, Doc. No. 19-1 at 14–15; see also Kanbar Decl., Doc. No. 19-2 ¶ 8 (stating the 1 claim in Contreras that “Defendant failed to pay for all hours worked due to an unlawful 2 rounding policy for donning and doffing time” is, in part, “the thrust of the operative Complaint 3 in the instant case”).) 4 The court has considered the parties’ arguments and agrees that a bona fide dispute exists 5 as to defendant’s liability under the FLSA. Approval of the parties’ proposed settlement 6 agreement in this case thus would not thwart the purposes of the FLSA. The court therefore 7 proceeds to consider the fairness and reasonableness of the proposed settlement. 8 2. Whether the Proposed FLSA Settlement is Fair and Reasonable 9 To determine whether a FLSA settlement is fair and reasonable, the court evaluates the 10 “totality of the circumstances” within the context of the purposes of the FLSA. Slezak v. City of 11 Palo Alto, No. 16-cv-03224-LHK, 2017 WL 2688224 , at *3 (N.D. Cal. June 22, 2017). Courts in 12 this circuit have considered the following factors when determining whether a settlement is fair 13 and reasonable under the FLSA: (1) the plaintiff’s range of possible recovery; (2) the stage of 14 proceedings and amount of discovery completed; (3) the seriousness of the litigation risks faced 15 by the parties; (4) the scope of any release provision in the settlement agreement; (5) the 16 experience and views of counsel and the opinion of participating plaintiffs; and (6) the possibility 17 of fraud or collusion. See Selk, 159 F. Supp. 3d at 1173 ; Slezak, 2017 WL 2688224 , at *3. The 18 court addresses each of these factors below. 19 a. Plaintiff’s Range of Possible Recovery 20 Under the terms of the settlement agreement, defendant will pay plaintiff a total of $1,000 21 toward the settlement of plaintiff’s FLSA claim. (Doc. No. 17 ¶ 12(a).) Plaintiff estimates that 22 the maximum recovery for his donning and doffing claim would be approximately $3,500, 23 making the amount of $1,000 a 28 percent recovery of plaintiff’s claim. (Doc. No. 19 at 4; 24 Kanbar Decl., Doc. No. 19-2 ¶¶ 12–13.) Had he not opted out of the Contreras settlement, 25 “[p]laintiff would have been entitled to $1,588.59 for both his donning and doffing claim and his 26 State law claims.” (Doc. No. 19 at 4 (citing 29 U.S.C. § 254 ; Kanbar Decl., Doc. No. 19-2 ¶ 10).) 27 Because it appears that plaintiff will be compensated in an amount more than what he would have 28 received under the Contreras settlement, consideration of this factor weighs in favor of approving 1 the settlement agreement. 2 b. The Stage of the Proceedings and the Amount of Discovery Completed 3 The court is also required to evaluate the stage of the proceedings and the amount of 4 discovery completed to ensure that “the parties carefully investigated the claims before reaching a 5 resolution.” Ontiveros v. Zamora, 303 F.R.D. 356, 371 (E.D. Cal. 2014). Consideration of this 6 factor will weigh in favor of approval if the parties have sufficient information to make an 7 informed decision regarding settlement. Linney v. Cellular Alaska P'ship, 151 F.3d 1234 , 1239 8 (9th Cir. 1998). 9 Here, although no formal discovery was conducted in this case, plaintiff’s counsel 10 “reviewed the filings and discovery in Contreras.” (Kanbar Decl., Doc. No. 19-2 ¶ 11.) The 11 parties here relied on the “extensive discovery [that] was conducted in Contreras, a case that 12 alleges identical claims and causes of action,” and “information about [plaintiff’s] employment 13 was passed between the parties informally.” (Doc. No. 19 at 5 (citing Kanbar Decl., Doc. No. 1914 2 ¶¶ 10–11).) Significantly, the discovery from the Contreras case revealed that “Defendant 15 raised defenses casting doubt as to the strength of Plaintiff’s claims.” (Id. (citing Kanbar Decl., 16 Doc. No. 19-2 ¶¶ 12–15).) Under these circumstances, the court finds that the parties had 17 sufficient information to reach an appropriate settlement. 18 c. The Seriousness of the Litigation Risks Faced by the Parties 19 Courts favor settlement where “there is a significant risk that litigation might result in a 20 lesser recover[y] for the class or no recovery at all.” Bellinghausen v. Tractor Supply Co., 306 21 F.R.D. 245, 255 (N.D. Cal. 2015). Here, plaintiff claims that “[t]here is a significant likelihood 22 that [plaintiff] may not prevail on his claim or recover less at trial” in light of the defenses raised 23 by defendant to plaintiff’s claim that he was not compensated for time spent donning and doffing. 24 (Doc. No. 19 at 6; see also Kanbar Decl., Doc. No. 19-2 ¶ 14 (defendant maintaining that there 25 was “a facially-neutral rounding policy when compensating employees for donning and 26 doffing.”).) Accordingly, because there is a substantial risk that plaintiff would not prevail on his 27 claims at trial, consideration of this factor weighs in favor of approval of the parties’ FLSA 28 settlement. 1 d. The Scope of Any Release Provision in the Settlement Agreement 2 “A FLSA release should not go beyond the specific FLSA claims at issue in the lawsuit 3 itself.” Slezak, 2017 WL 2688224 , at *5. Expansive release of claims would allow employers to 4 unfairly extract valuable concessions from employees using wages that they are guaranteed by 5 statute. See Moreno v. Regions Bank, 729 F. Supp. 2d 1346, 1351 (M.D. Fla. 2010) (“An 6 employee who executes a broad release effectively gambles, exchanging unknown rights for a 7 few hundred or a few thousand dollars to which he is otherwise unconditionally entitled.”). 8 Courts are therefore hesitant to approve settlement agreements that release claims that are not 9 directly related to the allegations brought in the case. See Daniels v. Aeropostale W., Inc., No. C 10 12-05755 WHA, 2014 WL 2215708 , at *4 (N.D. Cal. May 29, 2014) (rejecting proposed FLSA 11 settlement in which 60 percent of collective-action opt-in members did not receive any payment 12 in exchange for a release provision that extended beyond the FLSA limits of the case); McKeen– 13 Chaplin, 2012 WL 6629608 , at *5 (rejecting a FLSA settlement in part because the release 14 provision exceeded the breadth of allegations in the action and released unrelated claims that 15 plaintiffs may have against defendants). 16 The parties’ settlement agreement in this case contains, in part, the following release 17 provision: 18 “Released Claims” means any and all claims, known and unknown, asserted and unasserted, that Plaintiff had or may have had against 19 Defendant or any of the Released Parties. Such claims include, but are not limited to: breaches of contract, whether written, oral or 20 implied; violations of any public policy; tort claims, including but not limited to intentional infliction of emotional distress and 21 negligent infliction of emotional distress, defamation, misrepresentation, and fraud; retaliation claims; common law claims; 22 claims arising from or related to Plaintiff’s employment with Defendant, and any other claims for damages, costs, fees, or other 23 expenses, including attorneys’ fees; and any violations of the following statutes, laws, and regulations: Fair Labor Standards Act, [24] 29 U.S.C. §§ 200 , et seq., Title VII of the Civil Rights Act of 1964, as amended; The Civil Rights Act of 1991; Sections 1981 through 25 1988 of Title 42 of the United States Code, as amended; The Americans with Disabilities Act of 1990, as amended; The Age 26 Discrimination in Employment Act of 1967, as amended; the Older Workers Benefit Protection Act; the Employment Retirement 27 Income Security Act of 1974, as amended; the Occupational Safety and Health Act, as amended; the Sarbanes-Oxley Act of 2002; the 28 Family and Medical Leave Act of 1993, as amended; the California 1 Fair Employment and Housing Act – Cal. Gov’t Code § 12900 et seq.; the California Family Rights Act – Cal. Gov’t Code § 12945.2 2 et seq.; the California Unruh Civil Rights Act – Civ. Code § 51 et seq.; the California Whistleblower Protection Law – Cal. Lab. Code 3 § 1102.5; the California Occupational Safety and Health Act, as amended – Cal. Lab. Code § 6300 et seq., and any applicable 4 regulations thereunder; the California Business and Professions, Civil, Government and Labor Code; the Labor Code Private 5 Attorneys General Act of 2004 – Cal. Lab. Code § 2698 et seq.; and any other federal, state, or local civil employment law, statute, 6 regulation, or ordinance capable of being released by Plaintiff, excluding any claims that cannot be released as a matter of law. [7] 8 (Doc. No. 17 ¶ 11.) According to the parties, plaintiff agrees to release defendant “of all known 9 and unknown claims that arise from the same operative facts outlined in the original Complaint.” 10 (Doc. No. 19 at 6.) Furthermore, the parties contend that the “Unknown Claims” or “Unknown 11 Released Claims” are explicitly limited “to the specific claims at issue in the Complaint.” (Id.; 12 see Doc. No. 17 ¶ 11 (defining such claims to mean “any Claim, which arises out of the wage and 13 hour and payroll practices alleged or which could have been alleged under the facts pled in the 14 Complaint . . .”).) 15 Contrary to the parties’ assertions, the court finds that the settlement agreement includes a 16 broad release provision that is not limited to a release of plaintiff’s FLSA claims. For example, 17 the definition of “Released Claims” includes breach of contract and tort claims, neither of which 18 were alleged in the present action. Such a broad release provision usually weighs against 19 approval of the parties’ settlement. However, in the court’s view, the inclusion of such a broad 20 release provision in this case does not preclude approval of the settlement agreement when 21 considering the totality of the circumstances. Most importantly here, the release pertains solely to 22 plaintiff, not to any putative class or collective members, because the parties have agreed to settle 23 plaintiff’s individual claims only. Moreover, it appears clear that plaintiff is not unconditionally 24 entitled to the full $7,000 he would be paid under the settlement. Rather, as shown by his own 25 calculations, he would be entitled to less than a third of that amount. Thus, under the proposed 26 settlement, plaintiff is in essence being compensated for agreeing to a broad release of claims he 27 might have against his former employer. 28 ///// 1 e. The Experience and Views of Counsel and the Opinion of Plaintiff 2 In determining whether a settlement is fair and reasonable, “[t]he opinions of counsel 3 should be given considerable weight both because of counsel's familiarity with th[e] litigation and 4 previous experience with cases.” Larsen v. Trader Joe's Co., No. 11-cv-05188-WHO, 2014 WL 5 3404531, *5 (N.D. Cal. July 11, 2014). Here, plaintiff’s counsel has considerable experience in 6 litigating and settling labor and employment class action cases and has represented to the court 7 that this settlement is fair, reasonable, and in the best interests of plaintiff. (Kanbar Decl., Doc. 8 No. 19-2 ¶¶ 5–7, 17.) In addition, plaintiff had an opportunity to review the terms of the 9 settlement agreement and ultimately accepted its terms and signed the agreement. (Doc. No. 17 10 at 17; Kanbar Decl., Doc. No. 19-2 ¶ 16.) Accordingly, consideration of this factor weighs in 11 favor of approval of the FLSA settlement. 12 f. The Possibility of Fraud or Collusion 13 Here, the parties assert that there is a low possibility of fraud or collusion because they 14 “assessed the maximum penalties that [plaintiff] would have been entitled to, the settlement in the 15 Contreras litigation, and provided Plaintiff the opportunity to assess the amounts allocated for his 16 settlement and attorneys’ fees when agreeing to the settlement agreement.” (Doc. No. 19 at 7 17 (citing Kanbar Decl., Doc. No. 19-2 ¶¶ 11–15).) 18 In addition, there is nothing in the record before the court to suggest that plaintiff’s 19 counsel “allowed the pursuit of their own self-interests . . . to infect the negotiation.” In re 20 Bluetooth Prods. Liab. Litig., 654 F.3d 935, 947 (9th Cir. 2011). The payment for attorneys’ fees 21 and costs does not detract from plaintiff’s recovery, as plaintiff will receive more than the full 22 amount of what he would have received if he opted-in to the Contreras settlement. As such, this 23 settlement lacks any evidence of more “subtle signs” of collusion, such as, for example, when 24 counsel receive a disproportionate distribution of the settlement, or when the plaintiff class 25 receives no monetary distribution but counsel are “amply rewarded.” Id. at 947 . 26 Upon considering the totality of the circumstances, as reviewed above, the court finds that 27 the proposed settlement is fair and reasonable. 28 ///// 1 C. Attorneys’ Fees and Costs 2 Because FLSA settlements require court approval, payment of attorneys’ fees from 3 settlement proceeds is also subject to review by the court. See Avila v. L.A. Police Dep’t, 758 4 F.3d 1096 , 1104–05 (9th Cir. 2014) (reviewing an award of attorneys’ fees under the 5 FLSA); Dunn, 2016 WL 153266 , at *9 (N.D. Cal. Jan. 13, 2016) (“The Court retains the authority 6 to determine what fees are reasonable [in an FLSA settlement].”); Selk, 159 F. Supp. 3d at 7 1180 (“Where a proposed settlement of FLSA claims includes the payment of attorney’s fees, the 8 court must also assess the reasonableness of the fee award.”) (quoting Wolinsky v. Scholastic Inc., [9] 900 F. Supp. 2d 332, 336 (S.D.N.Y. 2012)). 10 Here, the court will use the lodestar method to assess the reasonableness of the amount of 11 attorneys’ fees because the settlement agreement provides for payment of fees separate and apart 12 from the amount to be paid to plaintiff, i.e., this is not a common fund case. See Roberts v. City 13 of Chula Vista, No. 16-cv-1955-MMA-DHB, 2017 WL 6541105 , at *6 (S.D. Cal. Dec. 21, 2017) 14 (using lodestar method where plaintiff’s counsel’s “fees and costs are not coming out of 15 plaintiffs’ recovery”). Under the lodestar method, courts multiply “the number of hours the 16 prevailing party reasonably expended on the litigation by a reasonable hourly rate.” Camacho v. 17 Bridgepoint Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008). “Although in most cases, the lodestar 18 figure is presumptively a reasonable fee award, the district court may, if circumstances warrant, 19 adjust the lodestar to account for other factors which are not subsumed within it.” Ferland v. 20 Conrad Credit Corp., 244 F.3d 1145 , 1149 n.4 (9th Cir. 2001). 21 Under the terms of the settlement agreement, plaintiff’s counsel will be paid $9,000 in 22 attorneys’ fees and costs. (Doc. No. 19 at 9.) In light of plaintiff’s counsel’s lodestar ($34,750) 23 and expenses ($830), the parties assert that the amount of $9,000 is fair and reasonable. (Id. at 24 11.) 25 In calculating the lodestar, plaintiff’s counsel utilized hourly rates of $400 for attorney 26 Kerestenzis and $350 for attorney Kanbar. (Kanbar Decl., Doc. No. 19-2 ¶¶ 19–20); see also 27 Emmons v. Quest Diagnostics Clinical Labs., Inc., No. 1:13-cv-00474-DAD-BAM, 2017 WL 28 749018, at *8 (E.D. Cal. Feb. 27, 2017) (adopting as reasonable rates between $370 and $495 for 1 || associates, and $545 and $695 for senior counsel and partners). Moreover, plaintiffs counsel’s 2 | lodestar shows that 97.5 hours were expended on this case. (Kanbar Decl., Doc. No. 19-2 4] 193 | 20 (stating attorney Kerestenzis expended 12.5 hours and attorney Kanbar expended 85 hours).) 4 | Accordingly, the lodestar for attorney Kerestenzis is $5,000, and the lodestar for attorney Kanbar 5 || is $29,750, which brings the total to $34,750. (Kanbar Decl., Doc. No. 19-2 Jj 19-20.) Thus, the 6 | negotiated amount of attorneys’ fees and costs of $9,000 is substantially less than counsel’s 7 | lodestar amount. In the court’s view, 97.5 hours is not an unreasonable amount of time for, 8 | among other things, investigating the case, preparing court documents, holding various 9 | discussions with plaintiff, and engaging in settlement discussions. (See id.) 10 Accordingly, the court finds the amount for attorneys’ fees and costs provided for in the 11 | parties’ settlement agreement is fair and reasonable under these circumstances. 12 CONCLUSION 13 For the reasons stated above, 14 1. The parties’ joint stipulation (Doc. No. 17) is GRANTED; 15 2. The parties’ settlement agreement including the amount to be paid for attorneys’ fees 16 | and costs is approved as fair, adequate, and reasonable, and the parties shall perform the 17 | settlement agreement in accordance with its terms; 18 3. The court expressly retains jurisdiction over this action for purposes of enforcing the 19 | parties’ settlement agreement; 20 4. Plaintiff’s individual claims in this action are DISMISSED with prejudice; 21 5. Plaintiffs class and collective action claims are DISMISSED without prejudice; 22 6. This action is hereby DISMISSED; and 23 7. The Clerk of the Court is directed to assign a district judge for the purpose of closing 24 | the case and then to close this case. 25 | IT IS SO ORDERED. me □ 26 Li fa £5 Dated: _ October 4, 2021 eee Te — 27 UNITED STATES DISTRICT JUDGE