Opinion
2:16-cv-08979-AB-AGR 2:20-cv-02401-AB-AGR
07-16-2021
SEVAG CHALIAN, et al., Plaintiffs, v. CVS PHARMACY, INC., a Rhode Island corporation; CVS RX SERVICES, INC., a New York corporation; GARFIELD BEACH Cv. LLC, a California limited liability company; and DOES 1 thru 100, inclusive, Defendants.
[PROPOSED] ORDER AND JUDGMENT GRANTING (1)
MOTION FOR ORDER GRANTING FINAL APPROVAL
OF CLASS ACTION
SETTLEMENT AND (2) MOTION
FOR AWARD OF ATTORNEYS'
FEES, COSTS, AND CLASS
REPRESENTATIVE INCENTIVE/SERVICE AWARDS
André Birotte Jr. Judge of the United States District Court for the Central District of California
This matter came before the Court for hearing on December 4, 2020 for final approval of the Settlement. The parties have submitted their Global Settlement Agreement (“Settlement Agreement”) evidencing their proposed settlement (the “Settlement”), which this Court preliminarily approved in its August 5, 2020 Order. In accordance with the preliminary approval order, Settlement Class Members have been given notice of the terms of the Settlement and the opportunity to object to it. In addition, pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. § 1715 (“CAFA”), the Attorney Generals of each state where Settlement Class members resided at the time notice was issued have been given notice of the Settlement. Notice of this Settlement was also provided to the Labor and Workforce Development Agency.
The Court has received and considered the Global Settlement Agreement dated March 2, 2020, as amended by the First Amendment to Global Settlement Agreement dated November 6, 2020 and the Second Amendment to Global Settlement Agreement dated March 19, 2021 which the Court hereby approves (all attached hereto as Exhibit A), the supporting papers filed by the parties, and the evidence and argument received by the Court at the final approval hearing on December 4, 2020. For the reasons explained at length in the Court's concurrently-issued ORDER GRANTING PLAINTIFFS' MOTION FOR FINAL APPROVAL AND FOR AN AWARD OF ATTORNEYS' FEES, AND OVERRULING OBJECTIONS, the Court GRANTS final approval of the Settlement, and HEREBY ORDERS and MAKES DETERMINATIONS as follows:
1. The Motion for Order Granting Final Approval of Class Action Settlement and Motion for Award of Attorneys' Fees, Costs, and Class Representative Incentive/Service Awards are hereby granted in their entirety.
2. All terms used herein shall have the same meaning as defined in the
Settlement Agreement, attached as Exhibit A.
3. This Court has jurisdiction over the subject matter of this litigation and over all Parties to this litigation pursuant to the CAFA, including all Settlement Class Members.
4. Pursuant to Federal Rules of Civil Procedure and due process, the Court hereby finally approves the Settlement set forth in the Settlement Agreement, as amended, and finds that such Settlement is, in all respects, fair, reasonable and adequate to the Settlement Class and to each Settlement Class Member, that the Settlement is ordered finally approved, and that all terms and provisions of the Settlement should be and hereby are ordered to be consummated. The Court further finds that the Settlement Agreement, as amended, and the Settlement set forth therein were entered into in good faith following arms-length negotiations and is non-collusive, and that the Settlement Classes as defined in the Settlement Agreement be certified for settlement purposes only pursuant to Fed.R.Civ.P. 23(b)(3).
5. The Court further finds that the Parties have conducted extensive and costly investigation and research and counsel for the Parties are able to reasonably evaluate their respective positions. The Court also finds that settlement at this time will avoid additional substantial costs, as well as avoid the delay and risks that would be presented by the further prosecution of this case. The Court has noted the significant benefits to the Settlement Class Members under the Settlement. The Court also finds that the Settlement Classes (defined in the Settlement Agreement and below) are properly certified for settlement purposes only under Fed.R.Civ.P. 23(b)(3) and are therefore finally certified for settlement purposes only.
6. The Settlement Agreement, as amended, attached as Exhibit A, shall be enforced according to its terms.
7. For purposes of this Judgment, the following Settlement Classes will be certified (collectively referred to as the “Settlement Class”):
a. Pharmacist Settlement Class: All hourly, non-exempt retail pharmacists who worked in Regions 65 or 72 in California between July 20, 2012 and the date of the Preliminary Approval Order, whose claims are not subject to arbitration and who have not previously released and/or adjudicated the Released Claims, and whose LEARNet and/or Site Minder data indicates activity when time punch records do not show he or she was clocked-in; and
b. Retail Pharmacy Settlement Class: Any person who is not a member of the Pharmacist Settlement Class who held an hourly, non-exempt position in a CVS retail pharmacy in the State of California between August 3, 2014 and the date of the Preliminary Approval Order who has not previously released and/or adjudicated the Released Claims.
8. The following Settlement Class Members have validly opted-out of this action and are thus not bound by the Rule 23 settlement:
| SIMID | FirstName | LastName |
| 5748 | Neil | Patel |
| 6269 | Felicia | Ivy |
| 6315 | Daisy | Tavares |
| 13684 | Kazim | Cevik |
| 14595 | Yousef | Trabouly |
| 19651 | Pauline | Mikhail |
| 12570 | Marlcos | Abayhon |
| 19341 | Mehrnaz | Akhavan |
| 8294 | Isabel | Alexander |
| 4173 | Behnam | Amir-Behboudi |
| 6538 | Samantha | Andrews |
| 15149 | Jaweed | Assar |
| 20088 | Marisol | Baez |
| 17671 | Kristina | Bailey |
| 13016 | Johni | Ballout |
| 11486 | Brianna | Bertrand |
| 272 | Carmen | Blanco |
| 16870 | Dayna | Bowles |
| 7181 | Anne | Cabrera |
| 2340 | Abel | Cachola |
| 8946 | Deisy | Campbell |
| 2352 | Heather | Cano |
| 828 | Celia | Carlton |
| 5157 | Steven | Chalker |
| 9424 | Maisha | Cherry |
| 2267 | Robyn | Corry |
| 16088 | Margee Mae | Dela Cruz |
| 9972 | Jose | Delgado |
| 17656 | Hardeep | Dhillon |
| 19069 | Michelle | Dias |
| 10940 | Meredieth | Dorado |
| 18907 | Regine Angela | Duhon |
| 2871 | Lamise | Elsayed |
| 2026 | Masoumeh | Esfandiari |
| 16671 | Consuelo | Estrada- Rodriguez |
| 17291 | Mary Fatouh | Albana |
| 17259 | Brittany | Francisco |
| 10054 | Diane | Gailey |
| 7533 | Candice | Gamez |
| 13048 | Elizabeth | Gardner |
| 12988 | Beshoy | Gerges |
| 2794 | Randall | Gibbs |
| 13626 | Devonna | Gilmore |
| 153 | Rachel | Goff |
| 8421 | Roxanna | Gonzalez |
| 1447 | Mehrnaz | Hakimi |
| 3166 | Stephanie | Han |
| 4997 | Tatiana | Hartz |
| 18078 | Jasmine | Hashemieh-Estes |
| 17146 | Deborah | Haycox |
| 3253 | Lisa | Helgerson |
| 10376 | Joanna | Hernandez |
| 17789 | Maribel | Hernandez |
| 16630 | Kaitlyn | Holdren |
| 5596 | Heng | Hsu |
| 22165 | Ryan | Hyams |
| 2439 | Mahran | Izoli |
| 23025 | Nikkolae | Jacinto |
| 23411 | Melanie | Jipp |
| 16937 | Jeanny | Keota |
| 8450 | Harleen | Khaira |
| 9308 | Myoungja | Kim |
| 23150 | Diane | Kim |
| 20697 | Tiffany | King |
| 8620 | Philip | Kitchen |
| 4404 | Amaris | Lane |
| 19661 | Shaina | Larmore |
| 18278 | Lyna | Le |
| 13859 | Michelle | Masshar |
| 2924 | Kelly | Matsuura |
| 13251 | Nora | Meincke |
| 8236 | Kyrollos | Mekail |
| 18263 | Shirin | Moghtanei |
| 19186 | Patricia | Moore |
| 5123 | Betty | Nabizadeh |
| 18384 | Maikel | Nagib |
| 22403 | Trent | Nelson |
| 12127 | Nikkie | Nguyen |
| 1718 | Marlon | Ordenana |
| 19930 | Shivjot | Pabla |
| 13117 | Elisha | Pennington |
| 23700 | Silva | Petrosyan |
| 3275 | Lieu | Pham |
| 23101 | Sarah | Pollard |
| 19579 | Steve | Quan |
| 24118 | Aryan | Rabbani |
| 23179 | Randall | Radtke |
| 23811 | Mariam | Rafiqi |
| 15683 | Tiffany | Samouha |
| 15855 | Michael | Schmidt |
| 4561 | Debbie | Schultz |
| 1178 | Daniel | Setiawan |
| 18681 | Pontea | Shabkhiz |
| 23120 | Azaria | Shahbazian |
| 19351 | David | Stillman |
| 7464 | Jay | Surati |
| 600 | Amaar | Taha |
| 16850 | Alani | Tong |
| 923 | Robert | Wilson |
| 20569 | Mitchell | Woothen |
| 5031 | Jessica | Xe |
| 17989 | Amir | Zand |
Three (3) Settlement Class Members validly objected to the Settlement:
1. Tina Lee
2. Parvin Ghassemian
3. Trent Andrews
After thorough review and careful consideration, the Court overrules all objections made to the Settlement. The “proper standard for approval of the proposed [class action] settlement is whether it is fair, reasonable, adequate, and free from collusion-not whether the class members could have received a better deal in exchange for the release of their claims.” In re Linkedin User Privacy Litig., 309 F.R.D. 573, 583 (N.D. Cal. 2015). “In reviewing the proposed settlement, a court need not address whether the settlement is ideal or the best outcome, but only whether the settlement is fair, free of collusion, and consistent with plaintiff's fiduciary obligations to the class.” In re Regulus Therapeutics Inc. Sec. Litig., No. 3:17-CV-182-BTM-RBB, 2020 WL 6381898, at *2 (S.D. Cal. Oct. 30, 2020); Wilson v. TE Connectivity Networks, Inc., No. 14-CV-04872-EDL, 2019 WL 4242939, at *5 (N.D. Cal. Sept. 6, 2019) (same); see Hanlon v. Chrysler Corp., 150 F.3d 1011, 1027 (9th Cir. 1998). For the reasons explained in the concurrently-issued Order, the Court finds the proposed Settlement is fair, reasonable, adequate, and free from collusion. The Court further finds Plaintiffs and their counsel have met their fiduciary obligations to the class.
9. As of the Settlement Effective Date, each and every Released Claim as set forth in the Settlement Agreement, as amended, of each and every Settlement Class Member is and shall be deemed to be conclusively released as against the Released Parties. All Settlement Class Members as of the Effective Date are hereby forever barred and enjoined from prosecuting the Released Claims against the Released Parties.
10. The Settlement Administrator, Simpluris, Inc., shall establish a settlement fund to be funded by Defendants in accordance with the provisions of the Parties' Settlement Agreement. The Settlement Administrator shall distribute: (1) checks representing the individual settlement amounts made payable to the Settlement Class Members; (2) Class Counsel's reasonable attorneys' fees and costs; (3) the Class Representatives Incentive/Service Awards; (4) payment to the LWDA; and (5) employee and employer payroll taxes. The manner and timing of said payments shall be in accordance with the Settlement Agreement attached hereto as Exhibit A. The Court finds the manner and timing of payment is fair and reasonable. Any residual settlement funds remaining as a result of settlement checks that remain uncashed for the period set forth in the Settlement Agreement shall be paid to the unclaimed wages fund of the State of California. For administering the settlement, Simpluris shall be paid $98,750.00 out of the Gross Settlement Amount.
11. Pursuant to Rule 23(g) of the Federal Rules of Civil Procedures, the Court hereby confirms the appointment of Michael S. Morrison of Alexander Morrison and Fehr LLP, Michael H. Boyamian and Armand R. Kizirian of Boyamian Law, Inc., Thomas W. Falvey of the Law Offices of Thomas W. Falvey, R. Craig Clark and Alicja A. Urtnowski of Clark Law Group, and Walter Haines of United Employees Law Group as Class Counsel.
12. The Court hereby awards Class Counsel a reasonable attorneys' fee in the amount of $2,592,836.65, and their litigation costs in the amount of $32,385.77. As explained in the concurrently-issued Order, these amounts are fair and reasonable in light of Class Counsel's experience, the degree of success and the benefits being conferred on the Class, the work performed on the case, and the litigation costs incurred, among other factors. The Court further finds that Class Counsel has adequately represented the interests of the Settlement Class and do not have any conflicts of interests with respect to their representation of the Settlement Class. The Court further finds that the $2,592,836.65 of the $10,371,346.60 common fund requested by Class Counsel for attorneys' fees is also reasonable under the lodestar cross-check. In re Bluetooth Headset Prod. Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011). This amount represents a 1.34 multiplier of the lodestar, which the Court finds reasonable.
13. The Court further approves the Class Representative Incentive/Service awards for the Class Representatives as follows: Ten Thousand U.S. Dollars and Zero Cents ($10,000.00 U.S.D.), each, to Sevag Chalian, Sigfredo Cabrera, Enko Telahun, and Christine McNeely; and Three Thousand U.S Dollars and Zero Cents ($3,000.00) to Patrick Brennan, each ($43,000 in total). The Court finds that the Class Representatives have adequately represented the Settlement Class and do not have any conflicts of interest affecting their status as Class Representatives for the Settlement Class.
14. The California Labor and Workforce Development Agency (“LWDA” shall be paid $56,250, which is its 75% share of the PAGA penalty.
15. The Court finds that the Settlement treats Class Members equitably relative to each other and that the distribution formula for the Settlement is fair, reasonable, and equitable.
16. The Court finds that the Notice provided to the Settlement Class complied with the Requirements of Fed. R. Civ. Proc. R. 23. Specifically, the Notice to the Settlement Class Members was the best notice that was practicable under the circumstances, and provided individual notice to all Settlement Class Members who could be identified through reasonable effort. The Notice also clearly and concisely states in plain, easily understood language: (i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires; (v) that the court will exclude from the class any member who requests exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(c)(3).
17. The term “Final Effective Date” as used herein refers to the date the settlement becomes final as stated in the Settlement Agreement attached herewith.
18. The Court shall maintain jurisdiction of this matter pursuant to enforce the terms of the Settlement Agreement.
19. Each party is to bear their own costs, except as expressly provided in this Order and Judgment.
EXHIBIT MATTER OMITTED.