Parker v. Cherne Contracting Corporation

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 BEATRICE PARKER, et al., Case No. 18-cv-01912-HSG

8 Plaintiffs, ORDER GRANTING MOTION FOR

FINAL APPROVAL OF CLASS

9 v. ACTION AND PAGA SETTLEMENT

AND MOTION FOR AWARD OF

10 CHERNE CONTRACTING ATTORNEYS’ FEES AND COSTS, AND

CORPORATION, INCENTIVE AWARDS

11

Defendant. Re: Dkt. Nos. 103, 106

12

13 Pending before the Court are Plaintiffs’ motions for final approval of class action

14 settlement and for attorneys’ fees, costs, and incentive awards. Dkt. Nos. 103, 106. The Court

15 held a final fairness hearing on December 2, 2021. For the reasons detailed below, the Court

16 GRANTS final approval. The Court also GRANTS Plaintiffs’ motion for attorneys’ fees, costs,

17 and incentive awards.

18 I. BACKGROUND

19 A. Factual Background

20 Plaintiff Parker worked for Defendant as an hourly-paid driver/driver-foreman at the

21 Tesoro refinery in Martinez, California. See Dkt. No. 81 (“Class Cert. Order”) at 2. Plaintiff

22 Gurule worked for Defendant as an hourly-paid pipefitter at the Tesoro refinery in Martinez,

23 California and at the Chevron refinery in Richmond, California. Id. Plaintiffs contend that

24 Defendant operated under a policy known as “in on the employee’s time and out on the

25 employer’s time,” under which employees are not paid for the time spent badging in, traveling

26 from a refinery gate to the work site within the refinery, and obtaining and donning required safety

27 gear, but are paid for the time spent removing the required safety gear, traveling back to the gate,

1 Based on that conduct, Plaintiffs allege that Defendant failed to pay the statutory minimum

2 wage for all compensable time worked; failed to provide accurate, itemized wage statements;

3 failed to pay all statutory minimum wages due upon termination; and failed to pay wages in the

4 time frame set by law. Id. Plaintiffs allege that Defendant violated California Business &

5 Professions Code §§ 17200, et seq., and California Labor Code §§ 201-203, 204b, 226(a), 550-

6 552, 1194, 1194.2, 1197, 1197.1, 1199(a), 1199(b) and 1199(c). Id. Plaintiffs sought to certify a

7 class of 2,361 hourly employees who worked in 49 different job positions and proposed two

8 subclasses: a “Waiting Time Subclass” and a “Wage Statement Subclass.” Id.

9 B. Procedural Background

10 Plaintiff Parker filed the initial class action complaint on February 13, 2018; the First

11 Amended Complaint on February 23, 2018; the Second Amended Complaint on February 11,

12 2019; and the operative Third Amended Complaint on November 23, 2020, adding Plaintiff

13 Gurule as a named plaintiff. See Dkt Nos. 1-1, 32, 81, 82. Defendant moved to dismiss the

14 original complaint on collective bargaining preemption grounds. Dkt. No. 8. On January 29,

15 2019, the Court granted in part and denied in part Defendant’s motion, dismissing the unpaid

16 overtime and missed-meal-period claims based on its finding that collective bargaining

17 agreements precluded those claims. Dkt. No. 30.

18 Plaintiffs moved for class certification in late 2019. Dkt. No. 55. The Court deferred

19 ruling on the class certification motion to allow Defendant to file its motion for summary

20 judgment. Dkt. Nos. 64, 70. The Court held a hearing on both motions on August 6, 2020. Dkt.

21 No. 80. On November 20, 2020, the Court issued its Class Certification Order denying in part and

22 granting in part the Motion for Class Certification and granting the motion to amend the

23 complaint. Class Cert. Order. The Court denied certification of the unpaid wage-related claim but

24 granted certification of the Wage Statement Sub-Class, defined as: “all of Defendant’s former

25 hourly employees who worked for Defendant in California between December 18, 2016 and June

26 6, 2019 and received paper wage statements that did not have Defendant’s full name and address

27 printed on them.” Id.

C. Settlement Agreement

1

Following discovery and an all-day mediation session, the parties agreed to settle the entire

2

action on the terms detailed below. Dkt. No. 106 (or “Mot.”) at 5-7. Plaintiffs moved for

3

preliminary approval of the Settlement on June 8, 2021, which the Court granted on July 29, 2021.

4

See Dkt. Nos. 93, 97. Plaintiffs then filed a motion on September 17, 2021, seeking an order

5

awarding Class Counsel’s fees and costs, Class Representative Incentive Awards, General Release

6

Payments, and settlement administration costs. Dkt. No. 103 (“Fees Mot.”). Plaintiffs moved for

7

final settlement approval on October 28, 2021. Dkt. No. 106. The key terms of the Settlement

8

Agreement are as follows:

9

i. The Settlement Class and Aggrieved Employee Definitions

10

“Class Members” are defined as “[a]ll current and former hourly employees who worked

11

for Defendant in California and received one or more paper paychecks during the Class Period.”

12

Dkt. No. 93-1, Ex. A (“Settlement Agreement” or “SA”) § I.H. Settlement Class Members are

13

“all Class Members who do not submit a valid Request for Exclusion.” Id. § I.RR. The Class

14

Period is December 18, 2016 through June 6, 2019. Id. §§ I.I, II.A. Defendant identified 1,891

15

Class Members who received 28,343 paper paychecks during the Class Period. Mot. at 8.

16

For the PAGA claims, the Settlement defines “Aggrieved Employees” to mean “all current

17

and former hourly employees who worked for Defendant in California at any time during the

18

PAGA Period.” SA § I.B. The PAGA Period is December 18, 2016 through February 22, 2021.

19

Id. § I.BB. There are 2,211 Aggrieved Employees, of which 1,891 are also Class Members. Mot.

20

at 8.

21

ii. Settlement Benefits

22

The Settlement provides that Defendant will fund a Maximum Settlement Amount

23

(“MSA”) in the amount of $2,500,000 to resolve the claims covered by the Settlement. SA §§

24

I.W, III.A. After subtracting out the amounts allocated to the PAGA Payment, Class Counsel’s

25

fees and costs, the General Release Payments, Class Representative Incentive Awards, and the

26

settlement administration costs, the remaining funds, referred to as the Net Settlement Amount,

27

will distributed in full to the Settlement Class Members. Id. §§ I.X and III.L.2, see also §§ I.F,

1 I.J., I.R, I.AA, III.C, III.L.3-L.6. The Net Settlement Amount is estimated to be at least

2 $1,146,500. Mot. at 9. Defendant does not have any reversionary interest in the MSA. Id.

3 iii. Settlement Payments

4 The Settlement Agreement provides that Settlement Class Members will receive individual

5 settlement payments without having to submit a claim form. SA § III.L.2.a. To calculate each

6 Settlement Class Member’s share of the Net Settlement Amount, the Settlement Administrator

7 will first divide the respective Qualified Paper Paychecks for each Settlement Class Member by

8 the total Qualified Paper Paychecks for all Settlement Class Members, resulting in the Payment

9 Ratio for each Settlement Class Member. Id. § III.L.2.a.1. Each Settlement Class Member’s

10 Payment Ratio will then be multiplied by the Net Settlement Amount. Id.

11 Class Counsel estimates that the maximum average potential value of each certified Class

12 Member’s Labor Code § 226(a) claim is $1,490.38. See Mot. at 10. Through the Settlement, each

13 Settlement Class Member is expected to receive an Individual Settlement Payment of, on average,

14 $606.61.78. Id. That means that the Settlement provides Settlement Class Members with 40.68%

15 of their potential recovery for the Labor Code § 226(a) claim. Id.

16 The parties have also agreed to allocate $500,000 of the MSA to settle the PAGA claims.

17 SA §§ I.AA, III.L.5. Aggrieved Employees are entitled to 25% of that amount ($125,000), which

18 will be distributed according to a formula set forth in the Settlement Agreement. Mot. at 10. On

19 average, each Aggrieved Employee is expected to receive a payment of $56.54. Id. at 9.

20 iv. Cy Pres Distribution

21 The parties have agreed that any unclaimed funds will be divided in half and distributed

22 equally to the parties’ two cy pres recipients. Mot. at 11. The two cy pres recipients are Build

23 California, a 501(c)(3) organization that is working to develop a future workforce for the

24 construction industry from often under-represented communities, and The Beavers Charitable

25 Trust, which provides endowments and scholarships for universities feeding the construction

26 industry. Id. All funds sent to The Beaver Charitable Trust must be directed to a university

27 located in California. Id. None of the Parties’ counsel has any relationship to the selected

1 to Aggrieved Employees remain uncashed more than 90 days after their issuance, the remaining

2 funds will be paid to the California Labor & Workforce Development Agency (“LWDA”). Id. at

3 12.

4 v. Settlement Class Member Release, PAGA Release, and General Release

5 The Settlement Agreement provides for a Limited Release applicable to the Settlement

6 Class Members. SA §§ III.B, I.MM, I.NN. Under the Limited Release, Plaintiffs and Settlement

7 Class Members will release only the claims in the operative Third Amended Complaint under

8 Labor Code § 226 based on the failure to provide compliant wage statements, together with

9 interest, fees, and costs related to that failure. Id. §§ III.B, I.MM.

10 The Settlement Agreement provides a separate PAGA Release under which Plaintiff

11 Parker, individually and as a representative acting as a proxy or agent of the LWDA, releases the

12 Released Parties of and from all claims for civil penalties, attorneys’ fees, and litigations costs

13 under PAGA. Id. § III.D. No individual Class Members or Aggrieved Employees are providing a

14 PAGA Release. See Mot. at 13.

15 In addition to the certified Labor Code § 226 claim, Plaintiffs Parker and Gurule have

16 individual wage and hour claims that remain part of the action. SA § III.C. In exchange for a

17 payment of $20,000 to each named Plaintiff, the named Plaintiffs will provide a General Release

18 of their claims against the Released Parties, as set forth in § I.C of the Settlement Agreement. Id.

19 The General Release Payments are in addition to each Plaintiff’s Class Representative Incentive

20 Award, Individual Settlement Payment, and Individual PAGA Payment. Id. Plaintiffs have

21 applied for the Court’s approval of the General Release Payments with the motion for attorneys’

22 fees and costs. Mot. at 13.

23 II. DISCUSSION

24 A. Final Settlement Approval

25 i. Class Certification

26 Because no facts have changed that would affect the Court’s certification of the Wage

27 Statement Class since the Court certified that class on November 20, 2020, this order incorporates

1 19.

2 ii. The Settlement

3 “The claims, issues, or defenses of a certified class may be settled . . . only with the court’s

4 approval.” Fed. R. Civ. P. 23(e). The Court may finally approve a class settlement “only after a

5 hearing and on finding that it is fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2); Officers

6 for Justice v. Civil Serv. Comm’n of the City and County of San Francisco, 688 F.2d 615, 625 (9th

7 Cir. 1982) (“The district court’s role in evaluating a proposed settlement must be tailored to fulfill

8 the objectives outlined above. In other words, the court’s intrusion upon what is otherwise a

9 private consensual agreement negotiated between the parties to a lawsuit must be limited to the

10 extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or

11 overreaching by, or collusion between, the negotiating parties . . . .”). To assess whether a

12 proposed settlement comports with Rule 23(e), the Court “may consider some or all” of the

13 following factors: (1) the strength of plaintiff’s case; (2) the risk, expense, complexity, and likely

14 duration of further litigation; (3) the risk of maintaining class action status throughout the trial;

15 (4) the amount offered in settlement; (5) the extent of discovery completed, and the stage of the

16 proceedings; (6) the experience and views of counsel; (7) the presence of a governmental

17 participant; and (8) the reaction of the class members to the proposed settlement. Rodriguez v.

18 West Publ’g Corp., 563 F.3d 948, 963 (9th Cir. 2009); see also Hanlon, 150 F.3d at 1026. “The

19 relative degree of importance to be attached to any particular factor” is case specific. Officers for

20 Justice, 688 F.2d at 625.

21 In addition, “[a]dequate notice is critical to court approval of a class settlement under Rule

22 23(e).” Hanlon, 150 F.3d at 1025. As discussed below, the Court finds that the proposed

23 settlement is fair, adequate, and reasonable, and that Class Members received adequate notice.

24 a. Adequacy of Notice

25 Under Federal Rule of Civil Procedure 23(e), the Court “must direct notice in a reasonable

26 manner to all class members who would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1).

27 Rule 23(c)(2)(B) requires “the best notice that is practicable under the circumstances, including

1 must “clearly and concisely state in plain, easily understood language” the nature of the action, the

2 class definition, and the class members’ right to exclude themselves from the class. Fed. R. Civ.

3 P. 23(c)(2)(B). Although Rule 23 requires that reasonable efforts be made to reach all class

4 members, it does not require that each class member actually receive notice. See Silber v. Mabon,

5 18 F.3d 1449, 1454 (9th Cir. 1994) (noting that the standard for class notice is “best practicable”

6 notice, not “actually received” notice).

7 Under the Notice Plan preliminarily approved by the Court, Defendant provided the

8 Settlement Administrator with each Class Member’s contact information and the number of paper

9 paychecks issued to each Class Member during the Class Period. See Dkt. No. 97 at 6. The

10 Settlement Administrator then updated and verified addresses as necessary before sending the

11 Settlement Notice and Claim Form via first-class U.S. mail. Id. In the event a Notice Packet was

12 returned, the Settlement Administrator conducted address follow-up and re-mailed the Notice

13 Packet to any updated address. Id. at 7.

14 The Settlement Administrator executed this plan and mailed out the Court-approved Notice

15 to the Class Members. See Mot. at 15. Ultimately, only 34 of 1,891 Notices were deemed

16 undeliverable. Id. Considering this 98.2% success rate, the Court finds that the Notice Plan

17 previously approved by the Court was well-implemented and complies with Rule 23(c)(2)(B). See

18 id. The Court further finds that the parties have sufficiently provided the best practicable notice to

19 the Class Members.

20 b. Fairness, Adequacy, and Reasonableness

21 Having found the notice procedures adequate under Rule 23(e), the Court next considers

22 whether the entire settlement comports with Rule 23(e).

23 1. Strength of Plaintiff’s Case and Litigation Risk

24 Approval of a class settlement is appropriate when plaintiffs must overcome significant

25 barriers to make their case. Chun-Hoon v. McKee Foods Corp., 716 F. Supp. 2d 848, 851 (N.D.

26 Cal. 2010). Courts “may presume that through negotiation, the Parties, counsel, and mediator

27 arrived at a reasonable range of settlement by considering Plaintiff’s likelihood of recovery.”

1 Apr. 22, 2010). Additionally, difficulties and risks in litigating weigh in favor of approving a

2 class settlement. Rodriguez, 563 F.3d at 966. “Generally, unless the settlement is clearly

3 inadequate, its acceptance and approval are preferable to lengthy and expensive litigation with

4 uncertain results.” Ching v. Siemens Indus., Inc., No. 11-cv-04838, 2014 WL 2926210, at *4

5 (N.D. Cal. June 27, 2014) (quotations omitted).

6 Plaintiffs explain that they would face significant costs, risks, and delay if the case

7 proceeded to trial. Mot. at 15-17. In particular, Plaintiffs state that they might have difficulty

8 countering Defendant’s arguments that no Class Member suffered any damages related to the

9 issuance of wage statements and that Plaintiffs will be unable to prove “knowing and intentional

10 failure” under Labor Code § 226(e). Id. And as explained below, the Settlement Agreement

11 ensures a favorable recovery for the class. Accordingly, these factors weigh in favor of approving

12 the settlement. See Ching, 2014 WL 2926210, at *4 (favoring settlement to protracted litigation).

13 2. Settlement Amount

14 The Court finds that the amount offered in settlement weighs in favor of approval. The

15 Net Settlement Amount is estimated to be at least $1,146,500 and will be distributed to Settlement

16 Class Members in full. Mot. at 17. Each Individual Settlement Payment is estimated to be

17 $606.61.129, on average. Id. And in addition to their Individual Settlement Payment, each Class

18 Member will receive a pro rata share of the Aggrieved Employees’ $125,000 portion of the PAGA

19 Payment, which is estimated to be $56.54, on average. Id. For context, Class Counsel has

20 calculated the maximum value of the Labor Code § 226(a) class claim as $2,742,300.132. The

21 $2,500,000 Maximum Settlement Amount therefore represents 91% of the maximum damage

22 calculation for the largest claim. The Court finds that this settlement amount falls well “within the

23 range of reasonableness” considering the risks and costs of litigation and therefore favors

24 approval.

25 3. Extent of Discovery Completed and Stage of Proceedings

26 The Court also finds that Class Counsel had sufficient information to make an informed

27 decision about the merits of the case. As Plaintiffs explain, the parties reached settlement only

1 judgment motion and Plaintiffs’ class certification motion. Mot. at 18. Moreover, the parties also

2 engaged in extensive good-faith, arms-length negotiations, including a full-day mediation session

3 with the Honorable Jeffrey K. Winikow (Ret.), a mediator with experience mediating wage and

4 hour class actions. Id. After more than three years of extensive litigation, the Court is persuaded

5 that Class Counsel entered the settlement discussions with sufficient understanding of the factual

6 and legal issues to allow them to assess the likelihood of success on the merits. This factor weighs

7 in favor of approval.

8 4. Experience and Views of Counsel

9 The Court next considers the experience and views of counsel. “[P]arties represented by

10 competent counsel are better positioned than courts to produce a settlement that fairly reflects each

11 party’s expected outcome in litigation.” Rodriguez, 563 F.3d at 967 (quotations omitted). Here,

12 Class Counsel believes this Settlement to be an “excellent result” for the Class Members. See

13 Mot. at 19. This opinion is bolstered by the fact that Class Counsel has significant experience in

14 complex employment class litigation, including actions involving paycheck claims. Id. The Court

15 recognizes, however, that courts have diverged on the weight to assign counsel’s opinions.

16 Compare Carter v. Anderson Merch., LP, 2010 WL 1946784, at *8 (C.D. Cal. May 11, 2010)

17 (“Counsel’s opinion is accorded considerable weight.”), with Chun-Hoon, 716 F. Supp. 2d at 852

18 (“[T]his court is reluctant to put much stock in counsel’s pronouncements. . . .”). This factor’s

19 impact is modest but favors approval.

20 5. Reaction of Class Members

21 “[T]he absence of a large number of objections to a proposed class action settlement raises

22 a strong presumption that the terms of a proposed class settlement action are favorable to the class

23 members.” Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 528–29 (C.D. Cal.

24 2004); In re Linkedin User Privacy Litig., 309 F.R.D. 573, 589 (N.D. Cal. 2015) (“A low number

25 of opt-outs and objections in comparison to class size is typically a factor that supports settlement

26 approval.”).

27 Because only one of 1,890 Class Members opted out, and because no Class Member has

1 Mot. at 19.

2 * * *

3 After considering and weighing the above factors, the Court finds that the settlement

4 agreement is fair, adequate, and reasonable, and that the settlement Class Members received

5 adequate notice.1 Accordingly, Plaintiffs’ motion for final approval of the class action settlement

6 is GRANTED.

7 B. Attorneys’ Fees, Costs and Expenses, and Incentive Award

8 Class Counsel also asks the Court to approve: (1) an award of attorneys’ fees in the amount

9 of $750,000 to Class Counsel; (2) reimbursement of $39,383.59 in litigation expenses advanced

10 by Class Counsel; (3) payment of the Class Representative Incentive Awards in the amount of

11 $5,000 to Plaintiff Parker and $2,500 to Plaintiff Gurule; (4) General Release Payments to

12 Plaintiff Parker and Plaintiff Gurule in the amount of $20,000 each for the release of their

13 individual claims that would otherwise need to be tried; and (5) payment of settlement

14 administration costs to RG2 Claims Administration LLC in the amount of $16,000. See Fees Mot.

15 at 2; Dkt. No. 106-3.

16

17

1 Plaintiffs also seek the Court’s approval of the PAGA portion of the Settlement, including the

18 $500,000 PAGA Payment, the distribution plan for the PAGA Payment and Notice of PAGA

Settlement, and the PAGA Release. See Mot. at 23. The parties proceed as if California state law

19 governs the Court’s review of the PAGA Settlement, but do not address the choice of law issue.

“The Ninth Circuit has yet to decide whether plaintiffs bringing a PAGA claim in federal court

20

must satisfy the requirements of Rule 23, and the district courts in California are split on the

21 issue.” Ortiz v. CVS Caremark Corp., No. C -12-05859 EDL, 2014 U.S. Dist. LEXIS 36833, at *4

(N.D. Cal. Mar. 18, 2014); see also Evans v. Wal-Mart Stores, Inc., No. CV 17-07641-AB (KKX),

22 2020 WL 6253695, at *12 (C.D. Cal. Sept. 14, 2020) (“While the issue of PAGA's applicability to

state class-certification requirements is settled, whether Rule 23 class certification is required for

23 maintenance of a PAGA claim in federal court is less clear.”); Canela v. Costco Wholesale Corp.,

965 F.3d 694, 700 (9th Cir. 2020) (explaining why PAGA causes of action “[a]re nothing like

24

Rule 23 class actions”) ( opinion amended and superseded on denial of reh'g, 971 F.3d 845 (9th

25 Cir. 2020). Recognizing this uncertainty, the Court notes that Plaintiffs do not intend to

administer the PAGA portion of the Settlement claim materially differently from the Labor Code §

26 226 portion of the Settlement and therefore finds that the PAGA Settlement is fair, reasonable, and

adequate under either standard, for the reasons explained above. See Mot. at 22-23; see also

27 Baumann v. Chase Inv. Servs. Corp., 747 F.3d 1117, 1122 (9th Cir. 2014) (explaining how Rule

i. Attorneys’ Fees

1

a. Legal Standard

2

Class counsel is entitled to an award of reasonable attorneys’ fees and reimbursement of

3

litigation expenses from the common fund they created for the benefit of a class. See Fed. R. Civ.

4

P. 23(h); Staton v. Boeing Co., 327 F.3d 938, 967 (9th Cir. 2003). The purpose of the “common

5

fund” doctrine is to avoid unjust enrichment by requiring “those who benefit from the creation of

6

the fund [to] share the wealth with the lawyers whose skill and effort helped create it.” In re

7

Wash. Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1300 (9th Cir. 1994). The district court

8

has discretion over the amount of attorney fees to award. Vizcaino v. Microsoft Corp., 290 F.3d

9

1043, 1048 (9th Cir. 2002).

10

In a common fund case, the Court may choose either (1) the lodestar method or (2) the

11

percentage-of-the-fund to calculate reasonable attorneys’ fees. Id. at 1047. Under the percentage-

12

of-recovery method, twenty-five percent of a common fund is the benchmark for attorneys’ fees

13

awards. See, e.g., In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 942 (9th Cir. 2011)

14

(“[C]ourts typically calculate 25% of the fund as the ‘benchmark’ for a reasonable fee award,

15

providing adequate explanation in the record of any ‘special circumstances’ justifying a

16

departure.”); Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1311 (9th Cir. 1990).

17

Whether the Court awards the benchmark amount or some other rate, the award must be supported

18

“by findings that take into account all of the circumstances of the case.” Vizcaino, 290 F.3d at

19

1048.

20

Under the lodestar method, a “lodestar figure is calculated by multiplying the number of

21

hours the prevailing party reasonably expended on the litigation (as supported by adequate

22

documentation) by a reasonable hourly rate for the region and for the experience of the lawyer.”

23

In re Bluetooth, 654 F.3d at 941 (citations omitted). “[T]he established standard when determining

24

a reasonable hourly rate is the rate prevailing in the community for similar work performed by

25

attorneys of comparable skill, experience, and reputation.” Camacho v. Bridgeport Fin., Inc., 523

26

F.3d 973, 979 (9th Cir. 2008) (quotations omitted). Generally, “the relevant community is the

27

forum in which the district court sits.” Id. (citations omitted). Typically, “affidavits of the

1 plaintiffs’ attorney and other attorneys regarding prevailing fees in the community, and rate

2 determinations in other cases . . . are satisfactory evidence of the prevailing market rate.” United

3 Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). “In addition to

4 affidavits from the fee applicant, other evidence of prevailing market rates may include affidavits

5 from other area attorneys or examples of rates awarded to counsel in previous cases.” Schuchardt

6 v. Law Office of Rory W. Clark, 314 F.R.D. 673, 687 (N.D. Cal. 2016).

7 Although the choice between lodestar and percentage calculation depends on the

8 circumstances, either method may have its place in determining reasonable compensation for

9 creating a common fund. Six Mexican Workers, 904 F.2d at 1311.

10 b. Analysis

11 Class Counsel asks the Court to approve an award of attorneys’ fees in the amount of

12 $750,000, which is about 30% of the amount Defendant will pay to the settlement fund. See Fees

13 Mot. at 12. Counsel acknowledges that its requested attorneys’ fees are greater than the 25%

14 benchmark but contends that the higher percentage is warranted given the contingency nature of

15 this case, the uncertainty of the outcome, the quality of the counsel, and Class Counsel’s

16 preclusion from other employment. See id. at 14.

17 The Court finds that the higher percentage is reasonable and justified for the following

18 reasons. First, and most significantly, class counsel obtained significant results for the class

19 members. As discussed in Section II.A.ii, the Settlement Agreement provides an available Net

20 Settlement Amount of at least $1,146,500 to be distributed in full to Settlement Class Members.

21 See Mot. at 21. Second, no Class Member objected to the Settlement and only one of 1,890 Class

22 Members opted out, which suggests strong support for the settlement’s outcome. See Mot. at 19.

23 And third, class counsel assumed substantial risk in litigating this action on a contingency fee

24 basis and incurring costs without the guarantee of payment for its efforts. See Fees Mot. at 15.

25 Using the lodestar method to cross-check, the Court notes that Class Counsel’s various

26 hourly rates multiplied by the over 1500 attorney hours billed to date results in a total lodestar to

27 date of approximately $1,133,580 and a total expected lodestar of approximately $1,140,580. See

1 Counsel to calculate the lodestar are reasonable and in line with prevailing rates in this district for

2 personnel of comparable experience, skill, and reputation. See, e.g., Hefler v. Wells Fargo & Co.,

3 No. 16-CV-05479, 2018 WL 6619983, at *14 (N.D. Cal. Dec. 18, 2018) (rates from $650 to

4 $1,250 for partners or senior counsel, $400 to $650 for associates); In re Volkswagen “Clean

5 Diesel” Mktg., Sales Practices, & Prod. Liab. Litig., No. 2672 CRB (JSC), 2017 WL 1047834, at

6 *5 (N.D. Cal. Mar. 17, 2017) (billing rates ranging from $275 to $1600 for partners, $150 to $790

7 for associates, and $80 to $490 for paralegals reasonable “given the complexities of this case and

8 the extraordinary result achieved for the Class.”). Thus, Class Counsel’s fee request of

9 $750,000.00 amounts to a negative multiplier, or approximately 66% of the anticipated $1,140,580

10 lodestar. This is a reasonable request. In recognition of the favorable settlement, the substantial

11 risks of litigation, and the financial burden assumed, the Court GRANTS attorneys’ fees of

12 $750,000.00.

13 ii. Costs and Expenses

14 An attorney who has created a common fund for the benefit of the class is entitled to

15 reimbursement of reasonable litigation costs from that fund. See Harris v. Marhoefer, 24 F.3d 16,

16 19 (9th Cir. 1994) (quotations omitted). Class Counsel is accordingly entitled to recover “those

17 out-of-pocket expenses that would normally be charged to a fee paying client.” Id.

18 Having reviewed the submissions of Class Counsel, the Court finds that their requests for

19 unreimbursed expenses are reasonable. Class Counsel requests reimbursement of $39,383.59 in

20 costs and expenses incurred in connection with the litigation. See Fees Mot. at 20. As

21 demonstrated by detailed billing records submitted to the Court, the incurred costs include

22 filing fees, legal research fees, mediation fees, mailing charges, federal express costs, hotels,

23 travel costs, meals, and deposition transcripts. See id. These reflect the type of expenses routinely

24 charged to paying clients. See, e.g., Torres v. Pick-A-Part Auto Wrecking, No. 116-CV-01915,

25 2018 WL 3570238, at *9 (E.D. Cal. July 23, 2018) (finding that ordinary out-of-pocket expenses

26 include “(1) meals, hotels, and transportation; (2) photocopies; (3) postage, telephone, and fax; (4)

27 filing fees; (5) messenger and overnight delivery; (6) online legal research; (7) class action

1 Response Secs. Litig., 497 F. Supp. 2d 1166, 1177 (S.D. Cal. 2007) (same). And the amount

2 requested is also within range of approval. See, e.g., Carlin v. DairyAmerica, Inc., 380 F. Supp.

3 3d 998, 1024 (E.D. Cal. 2019) (reimbursing $823,904.04 for costs including filing fees, copying,

4 postage, document storage, depositions, travel, experts, transcripts, computer research, the cost of

5 the mediator, and common-fund contributions). The Court is satisfied that these costs were

6 reasonably incurred and GRANTS the motion for costs in the amount of $39,383.59.

7 iii. Class Representative Service Award

8 Class Counsel seeks an incentive award of $5,000 for Plaintiff Parker, who was the

9 original named plaintiff, and $2,500 for Plaintiff Gurule. See Fees Mot. at 20-21.

10 Named plaintiffs are eligible for “reasonable incentive payments.” Staton, 327 F.3d at

11 977; Rodriguez, 563 F.3d at 958 (“Incentive awards are fairly typical in class action cases.”).

12 These payments are designed to “compensate class representatives for work done on behalf of the

13 class, to make up for financial or reputational risk undertaken in bringing the action, and,

14 sometimes, to recognize their willingness to act as a private attorney general.” Rodriguez, 563

15 F.3d at 958–59. Nevertheless, the Ninth Circuit has cautioned that “district courts must be vigilant

16 in scrutinizing all incentive awards to determine whether they destroy the adequacy of the class

17 representatives[.]” Radcliffe v. Experian Info. Solutions, Inc., 715 F.3d 1157, 1165 (9th Cir. 2013)

18 (quotations omitted). This is particularly true where “the proposed service fees greatly exceed the

19 payments to absent class members.” Id.

20 The district court must evaluate an incentive award using “relevant factors includ[ing] the

21 actions the plaintiff has taken to protect the interests of the class, the degree to which the class has

22 benefitted from those actions, . . . [and] the amount of time and effort the plaintiff expended in

23 pursuing the litigation[.]” Id. at 977. In the Ninth Circuit, courts have found that $5,000 is a

24 “presumptively reasonable” service award. See Noroma v. Home Point Fin. Corp., No. 17-CV-

25 07205-HSG, 2019 WL 1589980, at *8 (N.D. Cal. Apr. 12, 2019); see also Harris v. Vector Marketing

26 Corp., 2012 WL 381202, at *7 (N.D. Cal. 2012) (“Several courts in this District have indicated

27 that incentive payments of $ 25,000 are quite high and/or that, as a general matter, $ 5,000 is a

1 reasonable amount.”).

2 The Court finds that the requested service awards are reasonable to compensate Plaintiffs

3 for their efforts for the following reasons. First, the Court finds that both named plaintiffs have

4 taken actions to protect the interests of the class. Class Counsel maintain that both named class

5 plaintiffs assisted in investigating and substantiating the claims alleged, preparing the complaints,

6 communicating with counsel, responding to discovery requests, and preparing for mediation and

7 settlement. Fees Mot. at 21. Second, as previously explained, their efforts led to favorable results

8 for the entire class. Third, the Court recognizes that both named plaintiffs also accepted some risk

9 by bringing this action. Both explain that they are concerned about the possible repercussions to

10 their future job opportunities because they brought wage and hour lawsuits against their

11 employers. See Dkt. No. 103-3; Dkt. No. 103-4. Finally, both Plaintiffs devoted their time to this

12 case. Plaintiff Parker brought this lawsuit in early 2018 after hearing complaints from several of

13 her co-workers and she has been actively involved since. See Dkt. No. 103-3. Plaintiff Gurule

14 necessarily devoted less time to this action, since he only entered the case on November 23, 2020,

15 when Plaintiffs filed a third amended complaint. See Dkt. No. 82. However, he explains in his

16 declaration that he spent significant time actively participating in the litigation, particularly

17 relating to his deposition. See Dkt. No. 103-4. Moreover, his requested service award is

18 appropriately significantly less than Plaintiff Parker’s.

19 Plaintiff Parker and Plaintiff Gurule are entitled to compensation for their work on behalf

20 of the class and for the financial or reputational risk they undertook to litigate this case. The Court

21 bears in mind that the proposed service fees of $5000 and $2500, respectively, are several times

22 greater than the payments to absent class members, since each Class Member’s individual

23 settlement payment is estimated to be $606.61.12, on average. See Mot. at 17. But after

24 reviewing their declarations, and considering the circumstances of this lengthy case, the Court

25 finds that the requested service awards are reasonable to compensate Plaintiffs for their efforts.

26 iv. General Release Payments

27 Named Plaintiffs Parker and Gurule have individual claims against Defendant that would

1 Mot. at 22. Accordingly, the Settlement Agreement also provides that Plaintiffs Parker and

2 Gurule will release all their individual claims in exchange for a payment of $20,000 each. See SA

3 §§ III.L.3 and II.C. This “General Release” does not apply to or affect the Settlement Class

4 Members. See Mot. at 22. The Court finds that the General Release Payments invite no risk of

5 preferential treatment because the Settlement Class Members will not be subject to or affected by

6 the General Release. Moreover, Named Plaintiffs provide calculations reasonably justifying these

7 amounts based on the estimated value of their individual claims. See Dkt. No. 103-3; Dkt. No.

8 103-4. The General Release Payment is therefore approved.

9 v. Settlement Administrator Costs

10 As part of the preliminary approval process, the Court approved the hiring of RG2 Claims

11 as the Settlement Administrator. See Dkt. No. 97 at 6, 10. In so doing, the Court also tentatively

12 approved the payment to RG2 Claims of up to $16,000 to perform all the duties required to

13 administer the settlement. Id. The Settlement Administrator has submitted a declaration and

14 invoice stating that the total cost for services in connection with the administration of the

15 Settlement, including fees incurred and anticipated future costs, are $16,000. See Dkt. No. 106-3.

16 For the reasons explained in the Court’s Preliminary Settlement Approval Order, see Dkt. No. 97,

17 the Court finds this request reasonable.

18 III. CONCLUSION

19 Accordingly, the Court GRANTS the motion for final approval of class action settlement

20 and GRANTS the motion for attorneys’ fees, costs, and incentive awards. The Court approves the

21 settlement amount of $2,500,000. The Court also approves (1) Class Counsel’s request for an

22 award of attorneys’ fees in the amount of $750,000; (2) Class Counsel’s request for payment of

23 current actual costs incurred in the amount of $39,383.59; (3) the Class Representative Incentive

24 Awards in the amount of $5,000 for Plaintiff Parker and $2,500 for Plaintiff Gurule; (4) the

25 General Release Payments in the amount of $20,000 each to Plaintiff Parker and Plaintiff Gurule;

26 and (5) payment to RG2 Claims for the costs it incurred administering this settlement in the

27 amount of $16,000.

] settlement agreement in accordance with the terms of the settlement agreement. The parties are

2 || further directed to file a short stipulated final judgment of two pages or less within 14 days from

3 || the date of this order. The judgment need not, and should not, repeat the analysis in this Order.

4 IT IS SO ORDERED.

5 Dated: December 9, 2021

°

woke S. GILLIAM, JR.

7 United States District Judge

8

9

10

1]

16

Z 18

19

20

21

22

23

24

25

26

27

28