Frank Cuellar v. First Transit, Inc.

O

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

FRANK CUELLAR, individually and Case No. 8:20-cv-01075-JWH-JDE

on behalf of other persons similarly

situated,

ORDER GRANTING MOTION

Plaintiff, FOR ATTORNEYS’ FEES, COSTS,

SERVICE AWARD, AND

v. ADMINISTRATION COSTS [ECF

No. 46] AND MOTION FOR FINAL

FIRST TRANSIT INC., an active Ohio APPROVAL OF CLASS ACTION

Corporation; SETTLEMENT [ECF No. 47]

FIRST VEHICLE SERVICES, INC.,

an active Ohio Corporation; and

DOES 1 through 10,

Defendants.

Before the Court are two unopposed motions of Plaintiff Frank Cuellar,

individually and on behalf of all others similarly situated, in this class action case. In his

first motion, Cuellar seeks attorneys’ fees, litigation costs, a service award as the class

representative, and administration costs to the court-appointed settlement administrator,

Phoenix Administrators.1 In his second motion, Cuellar asks for final approval of the class

action settlement.2 The Court conducted a hearing on the Motions in October 2023.

After considering the papers filed regarding the Motions and the arguments that counsel

made during the hearing,3 the Court orders that the Motions are GRANTED, as set forth

herein.

I. BACKGROUND

This is a wage-and-hour class action. In his Second Amended Complaint, Cuellar

alleges that Defendants First Transit, Inc. and First Vehicle Services, Inc. violated wage-

and-hour laws in the following ways:

• failing to provide meal periods, rest periods, and accurate wage statements;

• failing to pay wages generally and failing to pay wages in a timely manner at

termination or separation;

• failing to reimburse business expenses;

• failing to maintain payroll records;

• violating the Unfair Business Practices Act, Cal. Bus. & Prof. Code §§ 17200, et

seq.; and

• incurring penalties pursuant to the Private Attorneys General Act (“PAGA”).4

A. Factual Allegations

Defendants, who are in the transportation services business, employed Cuellar as a

bus driver. Cuellar worked in that capacity from November 2018 to January 25, 2019.5

Cuellar alleges that Defendants did not pay all of the wages that Cuellar had earned,

1 Pl.’s Mot. for Att’ys’ Fees, Costs, Service Award, and Administration Costs (the

“Motion for Attorneys’ Fees”) [ECF No. 46].

2 Pl.’s Mot. for Final Approval of Class Action Settlement (the “Motion for Final

Approval”) [ECF No. 47].

3 The Court considered the documents of record in this action, including the following

papers: (1) Motion for Attorneys’ Fees (including all attached declarations); and (2) Motion for

Final Approval (including the attached declaration).

4 Motion for Final Approval 1:20-2:5.

5 Second Am. Compl. (the “Amended Complaint”) [ECF No. 45] 2:26-3:2.

including accrued vacation wages, at the time of his termination.6 Cuellar alleges that,

during his employment, Defendants deprived him of lawful meal and rest periods; they

did not pay him all of the wages, including overtime, to which he was entitled; and they

failed to provide him with accurate and legally compliant itemized wage statements.7

Cuellar alleges that those failures were the result of Defendants’ consistent policies,

which violate wage-and-hour laws.8 Cuellar, on behalf of himself and all class members,

seeks an award of unpaid wages, penalties, equitable relief, and attorneys’ fees and costs,

pursuant to wage-and-hour laws.9 He also seeks injunctive relief, restitution, and

disgorgement of Defendants’ illegally obtained benefits.10 Finally, Cuellar seeks an award

of unpaid wages and other compensation, penalties, and reasonable attorneys’ fees and

costs under PAGA.11

B. Procedural History

Cuellar filed his original Class Action Complaint in Orange County Superior Court

in January 2020.12 Defendant First Transit filed its answer in state court and

subsequently removed this action to this court in June 2020.13 Cuellar, on behalf of

himself and all similarly situated parties, filed his First Amended Complaint, per the

parties’ stipulation, adding a claim for relief under PAGA,14 and Defendants answered.15

The parties engaged in substantial discovery, “including the production of

thousands of lines of electronic documents and data including all relevant policies and

procedures and detailed class metrics as they relate to the asserted claims.”16 The parties

then participated in private mediation with Scott S. Markus at Signature Resolutions.17

Mediation was fruitful: the parties stipulated to continue the class certification process

6 Id. at 3:3-5.

7 Id. at 3:6-8.

8 See id. at 3:9-4:6.

9 Id. at 4:7-10 (seeking relief under Cal. Lab. Code §§ 201, 202, 203, 204, 210, 226, 226.7,

227.3 510, 512, 1194, 1194.2, 2800, and 2802).

10 Id. at 4:11-14 (seeking relief under Cal. Bus. & Prof. Code §§ 17200, et seq.).

11 Id. at 4:15-19.

12 See Notice of Removal to Federal Court Pursuant to 28 U.S.C. §§ 1332, 1441, and 1446

[ECF No. 1] 2:25-27.

13 Id.

14 See Stipulation to File First Am. Compl. [ECF No. 12]; First Am. Compl. [ECF No. 13].

15 See Answer to Am. Compl. [ECF No. 14].

16 Motion for Final Approval 13:28-14:2.

17 See Order/Referral to ADR [ECF No. 15]; Motion for Final Approval 2:13-15.

three times before filing a notice of their settlement in August 2022.18 Cuellar filed an

unopposed Motion for Preliminary Settlement Approval in September 2022, and this

Court ordered its preliminary approval in June 2023.19 In the interim, Defendants served

a copy of the settlement agreement on the Attorneys General of the United States and of

each state where class members reside, in compliance with the Class Action Fairness Act,

28 U.S.C. § 1715.20 Pursuant to the settlement agreement, the parties stipulated to file

the Second Amended Complaint, which “harmoniz[es] the scope of the class and claims

as between the [s]ettlement [a]greement and the [Second Amended] Complaint.”21 The

Court granted Cuellar leave to file a Second Amended Complaint,22 which he did in July

2023.23 Cuellar filed his Motion for Attorneys’ Fees and Motion for Final Approval, the

instant motions, in September 2023.24

II. FINAL APPROVAL OF THE SETTLEMENT AGREEMENT

A. Overview

As summarized in the Motion for Final Approval,25 the settlement agreement

establishes a non-reversionary settlement amount of $4,363,000 for the benefit of the

settlement class.26 This figure equates to a recovery of between $3.59 (minimum) and

$1,208.18 (maximum) per class member, as recovery by each class member depends upon

the duration of his or her employment during the class period plus an enhancement to

former employees; the average recovery will be $244.26 per class member.27 The

settlement amount includes $250,000 to be allocated for the PAGA claim; $187,500 to be

18 See Notice of Settlement [ECF No. 31].

19 See Motion for Settlement Approval of Class Action, Prelim. [ECF No. 33]; Order

Granting Prelim. Approval of Class Action Settlement (the “Order Granting Preliminary

Approval”) [ECF No. 42].

20 See Notice of Lodgment of CAFA Settlement Notice Materials in Supp. of Mot. for

Prelim. Approval of Settlement [ECF No. 34].

21 Stipulation to File Amended Complaint [ECF No. 43] 2:10-11.

22 See generally Order Granting Pl. Leave to File Amended Complaint [ECF No. 44].

23 See generally Amended Complaint.

24 See generally Motion for Attorneys’ Fees; Motion for Final Approval.

25 See generally Motion for Final Approval.

26 Id. at 1:3-14.

27 Id. at 5:25-6:3.

allocated to the Labor and Workforce Development Agency; and $62,500 to be payable to

PAGA members.28

Individualized class notices were circulated to class members in both English and

Spanish, which informed them:

• of the nature of the action;

• of the definition of the settlement class certified;

• of the class claims, issues, or defenses, and the class period;

• that a class member may enter an appearance through counsel if the member so

desires;

• that the Court will exclude from the settlement any class member who requests

exclusion;

• of the time and manner for requesting exclusion;

• of the binding effect of a class judgment on class members under Rule 23(c)(3) of

the Federal Rules of Civil Procedure; and

• that they have a right to object, and how to do so.29

Each class notice included an individualized estimated recovery, assuming 100%

participation, and the number of workweeks attributable to that class member.30 As of the

time of the hearing on the instant Motions, the administrator had received no objections

to the settlement, no workweek disputes, and eight requests for exclusion (representing

only 0.07% of the total class).31

B. Legal Standard

The Federal Rules of Civil Procedure require court approval for class-action

settlements. Fed. R. Civ. P. 23(e). When the parties reach a settlement agreement before

class certification, district courts use a two-step process to approve a class-action

settlement. See Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). First, the Court

must certify the proposed settlement class. See id. Second, the Court may finally approve

a class action settlement “only after a hearing and on finding that the settlement . . . is

fair, reasonable and adequate.” Fed. R. Civ. P. 23(e)(2); see also Staton, 327 F.3d. at 952.

The Federal Rules instruct the Court to consider the following factors:

28 Id. at 15:13-16.

29 Id. at 3:6-13.

30 Id. at 3:14-20.

31 Second Suppl. Decl. of Kevin Lee with Respect to Notice and Settlement Administration

(the “Second Supplemental Lee Declaration”) [ECF No. 48] 2:7-16.

(A) the class representatives and class counsel have adequately represented

the class;

(B) the proposal was negotiated at arm’s length;

(C) the relief provided for the class is adequate, taking into account:

(i) the costs, risks, and delay of trial and appeal;

(ii) the effectiveness of any proposed method of distributing relief to

the class, including the method of processing class-member claims;

(iii) the terms of any proposed award of attorneys’ fees, including

timing of payment; and

(iv) any agreement required to be identified under Rule 23(e)(3); and

(D) the proposal treats class members equitably relative to each other.

Fed. R. Civ. P. 23(e)(2). Additionally, with respect to Rule 23(e)(2)(C)(iii), the Ninth

Circuit directs district courts to undertake an additional search for more “subtle signs

that class counsel have allowed pursuit of their own self-interests and that of certain class

members to infect the negotiations,” regardless of “whether a settlement agreement has

been negotiated before a class has been certified or after.” Westfall v. Ball Metal Beverage

Container Corp., 2021 WL 4206851, at *4 (E.D. Cal. Sept. 16, 2021) (citing Briseño v.

Henderson, 998 F.3d 1014, 1023 (9th Cir. 2021)). The purpose of scrutinizing the fee

arrangement is to look for “potential collusion or unfairness to the class.” Briseño, 998

F.3d at 1026. The Ninth Circuit instructs this Court to analyze three factors: (1) whether

counsel “receive[d] a disproportionate distribution of the settlement”; (2) whether the

parties agreed to a “clear sailing arrangement”; and (3) whether the settlement includes a

“kicker” or “reverter” clause. Id. at 1026-27.

In the Ninth Circuit, courts also consider the eight “Churchill factors”:

(1) the strength of the plaintiff’s case; (2) the risk, expense, complexity, and

likely duration of further litigation; (3) the risk of maintaining class action

status throughout the trial; (4) the amount offered in settlement; (5) the

extent of discovery completed and the stage of the proceedings; (6) the

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

participant; and (8) the reaction of the class members of the proposed

settlement.

Kim v. Allison, 8 F.4th 1170, 1178 (9th Cir. 2021) (quoting In re Bluetooth Headset Prod.

Liab. Litig., 654 F.3d 935, 946 (9th Cir. 2011), which was citing Churchill Vill. v. Gen.

Elec., 361 F.3d 566 (9th Cir. 2004)); see also Officers for Justice v. Civil Serv. Comm’n of

S.F., 688 F.2d 615, 625 (9th Cir. 1982) (noting that the list of factors is “by no means an

exhaustive list”).

Finally, the district court must approve or reject the settlement as a whole. See

Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998) (“It is the settlement taken

as a whole, rather than the individual component parts, that must be examined for overall

fairness.”). The Court may not delete, modify, or rewrite particular provisions of the

settlement. Id. The Court must remain cognizant that the settlement “is the offspring of

compromise; the question . . . is not whether the final product could be prettier, smarter

or snazzier, but whether it is fair, adequate and free from collusion.” Id. In determining

whether a proposed settlement should be approved, the Ninth Circuit has a “strong

judicial policy that favors settlement, particularly where complex class action litigation is

concerned.” Class Plaintiffs v. Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992).

C. Analysis

1. Settlement Class Certification and Heightened Rule 23(e) Inquiry

This Court preliminarily certified the proposed settlement class in its prior order,32

although formal class certification has not yet occurred. Because settlement occurred

before formal class certification, this Court applies “a higher standard of fairness and a

more probing inquiry than may normally be required under Rule 23(e)” to its final

approval. Saucillo v. Peck, 25 F.4th 1118, 1130 (9th Cir. 2022). Because the Court finds

that a “probing inquiry” of the Rule 23(e) criteria and the Ninth Circuit factors, as

discussed below, favors approval, the Court certifies the settlement class for final

approval of the settlement. See id.

2. Rule 23(e)(2) Factors

a. Adequacy of Representation by Class Representatives and Class

Counsel

Under Rule 23(e)(2)(A), the first factor to be considered is whether the class

representative and class counsel have adequately represented the class. This analysis

includes, for example, “the nature and amount of discovery” undertaken in the litigation,

32 See Order Granting Preliminary Approval 2.

or “the actual outcomes of other cases.” Fed. R. Civ. P. 23(e)(2)(A), 2018 Advisory

Comm. Notes.

In this case, several aspects of the litigation suggest that this factor weighs in favor

of approval. First, Class Counsel—Zorik Mooradian and Haik Hacopian of Mooradian

Law, a Professional Corporation33—have extensive experience with class action litigation,

and they have actively litigated this case for years.34 Second, the parties reached

settlement only after vigorous litigation, including “investigation of the operative facts

and applicable law” and “the production of thousands of lines of electronic documents

and data including all relevant policies and procedures and detailed class metrics as they

relate to the asserted claims.”35 The parties also conducted expert analysis.36 The Court

therefore finds that Cuellar and Class Counsel have adequately represented the proposed

settlement class, which weighs in favor of final approval of the settlement agreement.

b. Arm’s Length Negotiations

The Court must next consider whether the settlement agreement “was negotiated

at arm’s length.” Fed. R. Civ. P. 23(e)(2)(B). As with the preceding factor, this factor

can be “described as [a] ‘procedural’ concern . . . looking to the conduct of the litigation

and of the negotiations leading up to the proposed settlement.” Fed. R. Civ. P. 23(e)(2),

2018 Advisory Comm. Notes.

Although the Court was not involved in the negotiations directly, mediator Scott S.

Markus is “a well-respected mediator with significant wage and hour experience.”37 The

parties reached settlement after a full-day mediation before Markus.38 The presence and

assistance of an experienced mediator in the settlement process strongly suggests “that

the settlement is non-collusive.” Satchell v. Fed. Express Corp., 2007 WL 1114010, at *4

(N.D. Cal. Apr. 13, 2007); see also Goodwin v. Winn Mgmt. Grp. LLC, 2017 WL 3173006,

at *8 (E.D. Cal. July 26, 2017) (concluding that that the settlement was the product of

informed, arm’s length negotiations by the parties where settlement resulted from, among

other things, a full day of mediation); Pederson v. Airport Terminal Services, 2018 WL

33 Id.

34 See Decl. of Zorik Mooradian (the “Mooradian Declaration”)[ECF No. 46-2]; Decl. of

Haik Hacopian (the “Hacopian Declaration”) [ECF No. 46-3]; Motion for Final Approval 14:18-

22.

35 Motion for Final Approval 13:27-14:3.

36 Id. at 14:7-8.

37 Id. at 9:27-28; see also Scott Slater Markus, Signature Resolution,

https://signatureresolution.com/neutral-CPT/scott-markus/.

38 Id. at 14:6-7.

2138457, at *7 (C.D. Cal. April 5, 2018) (approving a preliminary settlement when the

oversight “of an experienced mediator” reflected non-collusive negotiations). In sum,

because it appears that the parties negotiated at arm’s length, this factor weighs in favor

of final approval.

c. Adequacy of Relief Provided for the Class

The third factor is whether “the relief provided for the class is adequate, taking

into account: (i) the costs, risks, and delay of trial and appeal; (ii) the effectiveness of any

proposed method of distributing relief to the class, including the method of processing

class-member claims; (iii) the terms of any proposed award of attorneys’ fees, including

timing of payment; and (iv) any agreement required to be identified under Rule 23(e)(3).”

Fed. R. Civ. P. 23(e)(2)(C). Under this factor, the relief “to class members is a central

concern.” Fed. R. Civ. P. 23(e)(2)(C), 2018 Advisory Comm. Notes.

i. Costs, Risks, and Delay of Further Litigation

“A[] central concern [when evaluating a proposed class action settlement] . . .

relate[s] to the cost and risk involved in pursuing a litigated outcome.”

Fed. R. Civ. P. 23(e)(2), 2018 Advisory Comm. Notes. In this regard, the test of a

settlement is not the maximum amount that the plaintiffs might have recovered, but,

rather, whether the settlement is within a reasonable range. See Rodriguez v. West

Publishing Corp., 563 F.3d 948, 965–66 (9th Cir. 2009) (noting that “district judges

naturally arrive at a reasonable range for settlement by considering the likelihood of a

plaintiffs’ or defense verdict, the potential recovery, and the chances of obtaining it,

discounted to present value”).

As Cuellar notes, this case “had evolving issues as to whether and to what extent

class members were entitled to additional wages and breaks.”39 Continuing to litigate

these issues—through class certification, trial, and an inevitable appeal by either party—

would likely take “several years” and would result in enormous expense without any

certainty that the class members would receive a remedy.40 Additionally, subsequent

review by district courts could have jeopardized any chance of recovery for the class, as

the law continues to evolve. This Court therefore finds that the settlement amount of

$4,363,000 is adequate given the costs, risks, and delay of continued litigation.

39 Id. at 12:13-14.

40 Id. at 12:14-19.

ii. Effectiveness of the Method of Distributing Relief

The Court must next consider “the effectiveness of any proposed method of

distributing relief to the class, including the method of processing class-member claims.”

Fed. R. Civ. P. 23(e)(2)(C). “Often it will be important for the court to scrutinize the

method of claims processing to ensure that it facilitates filing legitimate claims.”

Fed. R. Civ. P. 23(e), 2018 Advisory Comm. Notes. “A claims processing method should

deter or defeat unjustified claims, but the court should be alert to whether the claims

process is unduly demanding.” Id.

The Court finds that the method for distributing relief is adequate, as the funds are

distributed directly to the class members (except those whose notice packets were

returned as undeliverable without a forwarding address) as individual settlement checks,

which are valid for 180 days and contain language to effectuate opt-in for purposes of the

Fair Labor Standards Act.41 Thus, the Court finds that this factor weighs in favor of final

approval.

iii. Proposed Award of Attorneys’ Fees and the Briseño Flags

The third prong that the Court must consider when assessing the adequacy of the

relief relates to “the terms of any proposed award of attorneys’ fees, including timing of

payment.” Fed. R. Civ. P. 23(e)(2)(c). In considering the proposed award of attorneys’

fees, the Court must be on watch for three “red flags” that tend to show collusion. See

Westfall, 2021 WL 4206851, at *4.

The first flag is raised “when counsel receives a disproportionate distribution of

the settlement[.]” Kaupelis v. Harbor Freight Tools, 2021 WL 4816833, at *10 (C.D. Cal.

Aug. 11, 2021). Here, Class Counsel request $1,308,900—30% of the $4,363,000

Settlement Fund—in attorneys’ fees and $45,315.39 in expenses; Class Counsel would

thus net slightly more than 31% of the Settlement Fund.42

The Court finds that these fees are “on the higher side,” but still reasonable. See

Westfall, 2021 WL 4206851, at *5 (“While 33 percent is on the higher side, it is a far cry

from the concerning 88 percent fee in Briseño.”). Moreover, because the Court finds that

the fees and expenses are not unreasonable on the whole, see infra Part III.A., this flag is

not triggered. Accord Ochinero v. Ladera Lending, Inc., 2021 WL 4460334, at *6 (C.D. Cal.

July 19, 2021) (granting final approval of a settlement when the court found a request for

41 Id. at 6:23-7:8.

42 See Motion for Attorneys’ Fees 2:18-3:8.

attorneys’ fees—equivalent to 33% of the settlement—and $20,000 in out-of-pocket

expenses to be reasonable).

The second red flag is raised when the parties negotiate a “clear sailing

arrangement,” under which the defendant agrees not to challenge a request for an agreed-

upon attorney’s fee. Kaupelis, 2021 WL 4816833, at *10. “A clear sailing provision

signals the potential that a defendant agreed to pay class counsel excessive fees in

exchange for counsel accepting a lower amount for the class members.” Briseño, 998 F.3d

at 1026–27. Although Cuellar’s Motion for Attorneys’ Fees is unopposed, the settlement

agreement has no clause explicitly requiring Defendants to refrain from challenging a fee

request. Additionally, the settlement agreement includes language making it binding on

the parties, even if the Court declines the requested attorneys’ fees. Therefore, the

second flag is not triggered.

Lastly, the third flag is raised when the agreement contains a “kicker” or

“reverter” clause that “returns unawarded fees to the defendant, rather than the class.”

Kaupelis, 2021 WL 4816833, at *10. Here, there is no reverter clause; instead, the

settlement agreement contains a provision that delivers unclaimed monies to Legal Aid at

Work, a 26 U.S.C. § 501(c)(3) non-profit legal services organization that assists low-

income working families.43 Thus, the third flag is similarly not triggered, such that none

of the Briseño flags is clearly raised.

iv. Agreement Identification Requirement

The Court must also evaluate any agreement made in connection with the

proposed settlement. See Fed. R. Civ. P. 23(e)(2)(C)(iv) & (e)(3). Here, the settlement

agreement presently before the Court is the only agreement. Thus, the Court need not

evaluate any additional agreements outside of the settlement agreement. Accord Alvarez,

2021 WL 1234878, at *8. Thus, all four prongs under Rule 23(e)(2)(C) favor granting

final approval.

d. Equitable Treatment of Class Members

The final Rule 23(e)(2) factor turns on whether the proposed settlement “treats

class members equitably relative to each other.” Fed. R. Civ. P. 23(e)(2)(D). “Matters

of concern could include whether the apportionment of relief among class members takes

appropriate account of differences among their claims, and whether the scope of the

release may affect class members in different ways that bear on the apportionment of

relief.” Fed. R. Civ. P. 23(e)(2)(D), 2018 Advisory Comm. Notes.

43 Motion for Final Approval 7:11-14.

The Court finds the treatment of the class members to be equitable because

“[r]ecovery by each individual [c]lass [m]ember is dependent on [the] duration of [their]

employment during the [c]lass [p]eriod plus an enhancement to former employees,

allocated on a workweek basis and which corresponds to extent of potential harm suffered

by each [c]lass [m]ember.”44 Moreover, the service award for Cuellar—discussed below,

see infra Part III.C.—does not disturb that finding, in view of the evidence submitted

speaking to his level of involvement through four-and-a-half years of discovery and

litigation. Therefore, this factor weighs in favor of granting final approval.

3. The Ninth Circuit “Churchill Factors”

Having found that all four factors under Rule 23(e)(2) favor granting final

approval, the Court now turns to the eight “Churchill factors” that the Ninth Circuit uses

to evaluate the fairness of a settlement agreement.

a. Strength of Plaintiff’s Case

“An important consideration in judging the reasonableness of a settlement is the

strength of plaintiffs’ case on the merits balanced against the amount offered in the

settlement.” Vasquez, 266 F.R.D. at 488. The proposed settlement is “not to be judged

against . . . what might have been awarded in a judgment in favor of the class.” Id. This

factor is generally satisfied when plaintiffs overcame barriers to make their case. See

Chun-Hoon v. McKee Foods Corp., 716 F. Supp. 2d 848, 851 (N.D. Cal. 2010).

Because the parties did not file motions to dismiss or motions for summary

judgment, the Court lacks firsthand exposure to the true strengths and weaknesses of the

parties’ respective positions. However, Cuellar has described “significant hurdles on the

underlying unpaid wage, meal period, and rest break claims,” including Defendants’

highly compliant written policies and the myriad individualized issues that would make

certification difficult.45 Indeed, with respect to the individualized issues, the Court notes

that the settlement agreement takes the individualized claims into account;46 those claims

would likely be vigorously litigated in the absence of a settlement agreement.

Accordingly, the Court finds that this factor supports final approval.

44 Id. at 5:25-28.

45 See id. at 11:19-28.

46 See id. at 5:25-28.

b. Risk, Expense, Complexity, and Likely Duration of Further

Litigation

The second factor in assessing the fairness of the proposed settlement is the

complexity, expense, and likely duration of the lawsuit if the parties had not reached a

settlement agreement. See Officers for Justice, 688 F.2d at 625. Because this factor closely

mirrors the requirement in Rule 23(e) concerning “the costs, risks, and delay of trial and

appeal,” the Court finds that it need not duplicate its analysis.

Fed. R. Civ. P. 23(e)(2)(C)(i); see also id., 2018 Advisory Comm. Notes (noting that many

of these factors “focus on comparable considerations”). As discussed above, see supra

Part II.C.2.c.i., this factor weighs in favor of granting final approval.

c. Risk of Maintaining Class Action Status through Trial

Although the Court had preliminarily certified the class, the certification was for

settlement purposes only. An “order that grants or denies class certification may be

altered or amended before the final judgment.” Fed. R. Civ. P. 23(c)(1)(C).

Cuellar’s Motion for Final Approval did not explicitly address this factor, but it did

note that, as discussed in his Motion for Preliminary Approval, the “myriad of

individualized issues . . . would require that [Cuellar] tread uncharted waters in crafting a

certification theory,” as “certification would involve assessment of the relationship

between individual employees and their managers across multiple locations to see how

breaks occurred or how they were provided[, a]nd . . . would involve looking at specific

instances [of off-the-clock work] to determine whether the employer was aware that such

work was performed or not.”47 The Court thus finds that the complexity of the class

certification process and Defendants’ opposition posed a risk to maintaining the class

through trial. Accordingly, this factor weighs in favor of final approval.

d. Amount Offered in Settlement

The fourth factor in assessing the fairness of the proposed settlement is the

amount offered. “Of course, the very essence of a settlement is compromise, ‘a yielding

of absolutes and an abandoning of highest hopes.’” Officers for Justice, 688 F.2d at 624

(citing Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977)). The Ninth Circuit has

explained that “the proposed settlement is not to be judged against a hypothetical or

speculative measure of what might have been achieved by the negotiators.” Id. at 625.

Rather, any analysis of a fair settlement amount must account for the risks of further

litigation and trial, as well as expenses and delays associated with continued litigation.

47 Id. at 11:21-28.

Here, the parties agreed to settle all claims for a total sum of $4,363,000.48 This

figure equates to a recovery of between $3.59 (minimum) and $1,208.18 (maximum) per

class member, as recovery by each class member depends upon the duration of his or her

employment during the class period plus an enhancement to former employees; the

average recovery will be $244.26 per class member.49 Accordingly, the Court continues

to find that the settlement amount is appropriate. See, e.g., Gallegos v. Atria Mgmt. Co.,

LLC, 2019 WL 13295795, at *6 (C.D. Cal. Jan. 28, 2019) (approving a wage-and-hour

class settlement with an average individual recovery of $51.22 per class member). In view

of the risks of continued litigation and the substantial recovery for the class, this factor

favors final approval of the settlement agreement. See Aarons v. BMW of N. Amer., LLC,

2014 WL 4090564, at *11 (C.D. Cal. Apr. 29, 2014) (noting that while settlements will

not make most class members completely whole, class members will “discount their

claims to obtain a certain and timely recovery, rather than bear the significant risk and

delay associated with further litigation”); Vasquez, 266 F.R.D. at 489 (noting that “the

risk of continued litigation balanced against the certainty and immediacy of recovery from

the [s]ettlement” is a relevant factor).

e. Extent of Discovery and Stage of Proceedings

The fifth factor requires the Court to gauge whether Cuellar had sufficient

information to make an informed decision about the merits of his case. See In re Mego, 213

F.3d 454, 459 (9th Cir. 2000). The more discovery that has been completed, the more

likely it is that the parties have “a clear view of the strengths and weaknesses of their

cases.” Young v. Polo Retail, LLC, 2007 WL 951821, at *4 (N.D. Cal. Mar. 28, 2007)

(internal quotation marks omitted).

In his Motion for Final Approval, Cuellar argues that the parties reached a

settlement only after extensive discovery, including “the production of thousands of lines

of electronic documents and data including all relevant policies and procedures and

detailed class metrics as they relate to the asserted claims” and expert analysis.50 That

production gives the Court confidence that Cuellar possessed sufficient information to

make an informed decision about the settlement. See Young, 2007 WL 951821, at *4.

Additionally, because the parties conducted settlement negotiations with the assistance of

a mediator, the Court has further reason to conclude that the parties possessed “a clear

view of the strengths and weaknesses of their cases.” Vasquez, 266 F.R.D. at 489

(quoting In re Warner Commc’ns Sec. Litig., 618 F. Supp. 735, 745 (S.D.N.Y. 1985), aff’d,

48 Id. at 1:3-14.

49 Id. at 5:25-6:3.

50 Id. at 13:27-14:3 & 14:7-8.

798 F.2d 35 (2d Cir. 1986)). As such, this factor weighs in favor of granting final approval

of the settlement agreement.

f. Experience and View of Counsel

The sixth factor that the Court considers is the experience of counsel, because

“[t]hey are the ones who are most closely acquainted with the facts of the underlying

litigation.” Vasquez, 266 F.R.D. at 489. “Parties represented by competent counsel are

better positioned than courts to produce a settlement that fairly reflects each party’s

expected outcome in litigation.” In re Pac. Enters. Sec. Litig., 47 F.3d 373, 378 (9th Cir.

1995). However, while counsel’s views are instructive, they do not entitle the plaintiff to

a presumption of fairness. See Roes, 1-2 v. SFBSC Mgmt., LLC, 944 F.3d 1035, 1049 (9th

Cir. 2019).

Here, Class Counsel have extensive experience handling class action cases.51 The

Court is satisfied that their experience has allowed them to evaluate the merits of the

claims and the risks associated with prosecuting them. Class Counsel also staunchly

support the final outcome as fair and reasonable.52 The Court accordingly credits Class

Counsel’s determination and finds that this factor weighs in favor of final approval.

g. Presence of a Governmental Participant

Because no government entity participated in this case, the seventh factor is

irrelevant. See Klee v. Nissan N. Am., Inc., 2015 WL 4538426, at *9 (C.D. Cal. July 7,

2015), aff’d (Dec. 9, 2015).

h. Reaction of the Class Members to the Proposed Settlement

Finally, in evaluating the fairness, adequacy, and reasonableness of the settlement,

the eighth factor that courts consider is the reaction of the class to the settlement. See

Molski v. Gleich, 318 F.3d 937, 953 (9th Cir. 2003). “It is established that the absence of a

large number of objections to a proposed class action settlement raises a strong

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

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

(C.D. Cal. 2004); see also Arnold v. Fitflop USA, LLC, 2014 WL 1670133, at *8 (S.D. Cal.

Apr. 28, 2014) (concluding that the class members’ reaction to the settlement “presents

the most compelling argument favoring settlement”). Here, no class member has

51 Id. at 14:18-21.

52 Id. at 14:23-25.

objected to the settlement agreement, and only eight of the 11,026 class members—

constituting 0.07%—opted out.53 That fact weighs strongly in favor of final approval.

4. Conclusion on Final Settlement Approval

In conclusion, all factors used to assess the adequacy, fairness, and reasonableness

of a class settlement—including both the factors prescribed to the Court under

Rule 23(e)(2) and the additional Ninth Circuit “Churchill factors”—point in favor of

granting final approval. Therefore, the Court GRANTS the Motion for Final Approval

of the settlement.

III. ATTORNEYS’ FEES, COSTS, SERVICE AWARD, AND

ADMINISTRATION COSTS

A. Attorneys’ Fees

Under the settlement agreement, Class Counsel are permitted to seek the Court’s

approval of attorneys’ fees and any documented and reasonable out-of-pocket expenses.

Class Counsel have requested approval of attorneys’ fees totaling $1,308,900, which

represents 30% of the settlement fund.

“In a certified class action, the court may award reasonable attorneys’ fees and

nontaxable costs that are authorized by law or by the parties’ agreement.”

Fed. R. Civ. P. 23(h). “Where a settlement produces a common fund for the benefit of

the entire class, courts have discretion to employ either the lodestar method or the

percentage-of-recovery method” when determining the reasonableness of a request for

attorneys’ fees. Bluetooth Headset Prod. Liab. Litig., 654 F.3d at 942. Each method is

discussed below.

1. Percentage-of-the-Recovery Method

Applying the percentage-of-recovery method, district courts within the Ninth

Circuit typically calculate “25% of the fund” as the “benchmark” for a reasonable fee

award. Id.; see also In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 949 (9th Cir.

2015). A departure from the 25% benchmark requires an “adequate explanation in the

record for any ‘special circumstances’ justifying [the] departure.” In re Optical Disk

Drive Prods. Liab. Antitrust Litig., 959 F.3d 922, 942 (9th Cir. 2020).

53 Second Supplemental Lee Declaration 2:7-16.

Here, Class Counsel request that the Court approve a fee award of $1,308,900,

equivalent to 30% of the settlement amount. The standard 25% award would earn Class

Counsel $1,090,975. Because Class Counsel’s request departs from the 25% benchmark,

the Ninth Circuit instructs the Court to consider five factors to determine whether the

fees reasonably compensate counsel for their efforts in creating the common fund:

“(1) the results achieved; (2) the risk of litigation; (3) the skill required and the quality of

work; (4) the contingent nature of the fee and the financial burden carried by the

plaintiffs; and (5) awards made in similar cases.” In re Omnivision Techs., Inc., 559

F. Supp. 2d 1036, 1046 (N.D. Cal. 2008) (citing Vizcaino v. Microsoft Corp., 290 F.3d

1043, 1048-50 (9th Cir. 2002)). “The mere fact that the defendant agrees to pay the fees

does not detract from the need to carefully scrutinize the fee award.” Zubia v. Shamrock

Foods Co., 2017 WL 10541431, at *5 (C.D. Cal. Dec. 21, 2017) (internal quotations

omitted).

a. Results Achieved

“The overall result and benefit to the class from the litigation is the most critical

factor in granting a fee award.” Omnivision, 559 F. Supp. 2d at 1046. Class Counsel

argue that the results in this case were exceptional. They point to the $4,363,900 non-

reversionary fund—which equates to an average individual award of $244.46—as

justification; they describe this award as “significant.”54 And Class Counsel point to

other “similar wage and hour class action settlements” that received approval for rates

above the benchmark with awards ranging from $60 to $179 per individual class

member.55 However, other similar wage-and-hour class action settlements not cited by

Class Counsel achieved much more “significant” awards, and some were nonetheless

denied an award over the benchmark. See, e.g., Howard Fan v. Delta Air Lines, Inc., 2020

WL 5044614, at *3 (C.D. Cal. May 20, 2020) (finding that an expected recovery of

$636.52 per class member was not “so exceptional as to support an upward adjustment to

the fee award” above the 25% benchmark); Pagh v. Wyndham Vacation Ownership, Inc.,

2021 WL 3017517, at *2 (C.D. Cal. Mar. 23, 2021) (finding an average award of $1,029.73

per class member to be “excellent”). And the Court sees no evidence that “counsel

pursued this case in the absence of supporting precedents” or “in the face of agreements

signed by the class members forsaking benefits”—the presence of which influenced other

courts to deem a settlement outcome exceptional. See, e.g., Vizcaino, 290 F.3d at 1048.

The wage-and-hour laws are not novel, and class action lawsuits arising under them are

not new. On balance, these findings suggest that Class Counsel achieved a strong result

54 See Motion for Attorneys’ Fees 2:18-23.

55 Id. at 8:5-18.

for the class, but not necessarily an exceptional one. Thus, this factor does not justify

departing from the Ninth Circuit’s 25% benchmark.

b. Risk of Litigation

Class Counsel argue that the award is justified in view of the risk of further

litigation. Here, the Court agrees. “The risk that further litigation might result in

Plaintiffs not recovering at all, particularly a case involving complicated legal issues, is a

significant factor in the award of fees.” Omnivision, 559 F. Supp. 2d at 1046-47. The

Court looks at how continuing the litigation could jeopardize chances of recovery, as well

as the complexity of the legal issues involved. See Vizcaino, 290 F.3d at 1048; Thomas v.

Dun & Bradstreet Credibility Corp., 2017 WL 11633508, at *19 (C.D. Cal. Mar. 22, 2017).

In view of the risk, expense, complexity, and likely duration of continued litigation, see

supra Parts II.C.2.c.i. & II.C.3.b., the Court finds that this factor weighs in favor of

granting the requested fees.

c. Skill Required and Quality of Work

The Court next considers the skill required to prosecute and manage this litigation,

as well as Class Counsel’s overall performance. See Omnivision, 559 F. Supp. 2d at 1047.

A fee award of one-third of the settlement fund is justified where class counsel “has

significant experience in the particular type of litigation at issue.” Marshall v. Northrop

Grumman Corp., 2020 WL 5668935, at *3 (C.D. Cal. Sept. 18, 2020), appeal dismissed,

2021 WL 1546069 (9th Cir. Feb. 16, 2021) (awarding 33% of the settlement fund when the

law firm “actually pioneer[d] complex ERISA 401(k) excessive fee litigation”).

Class Counsel aver that they have “significant wage and hour and class action

experience.”56 They list numerous such cases in which they have represented the

plaintiff class.57 And Class Counsel assert that they “[z]ealously and [s]uccessfully

[p]rosecuted this [c]ase.”58 However, because the action here never went to trial and

motion practice was limited, the Court had little opportunity to gauge Class Counsel’s

performance first-hand. Cf. Boyd v. Bank of Am. Corp., 2014 WL 6473804, at *10 (C.D.

Cal. Nov. 18, 2014) (noting that the attorneys’ “experience was demonstrated . . . over

3,000 hours litigating the case”); Omnivision, 559 F. Supp. 2d at 1047 (observing that

plaintiffs’ counsel “survived two motions to dismiss”). Furthermore, the Court has little

insight into the mediation process and any skill demonstrated therein. Therefore, the

56 Id. at 9:14-15.

57 See Mooradian Declaration 2:21-4:7; Hacopian Declaration 1:21-2:23.

58 Motion for Attorneys’ Fees 8:22.

Court finds that this factor is neutral, since the Court lacks sufficient exposure to the

attorneys’ overall performance needed to affirm higher fees.

d. Contingent Nature of the Fee

“It is an established practice in the private legal market to reward attorneys for

taking the risk of non-payment by paying them a premium over their normal hourly rates

for winning contingency cases.” In re Washington Pub. Power Supply Sys. Sec. Litig., 19

F.3d 1291, 1299 (9th Cir. 1994). As such, departing from the benchmark 25% may be

warranted when attorneys work on a contingency basis, especially for protracted periods

of time. See Vizcaino, 290 F.3d at 1050.

Here, Class Counsel argue that they worked on a contingency fee basis and

invested more than $45,000 in upfront costs.59 While it is not clear precisely when the

attorneys began work, it is clear from the docket that they filed this lawsuit in January

2020.60

Taking those facts into account, the Court finds that Class Counsel certainly took

on risk, but that the risks were not as great as other cases in which a court concluded that

an upward departure from the benchmark was warranted. On one hand, because Class

Counsel took the case on a contingency basis, they inherently faced the risk of walking

away with nothing after investing substantial resources in this matter. That fact favors an

upward departure. On the other hand, cases in which that factor justifies an upward

departure tend to endure far more protracted lawsuits. See, e.g., Vizcaino, 290 F.3d at

1050 (finding a 28% contingency fee was warranted when the lawsuit “extended over

eleven years, entailed hundreds of thousands of dollars of expense, and required counsel

to forgo significant other work, resulting in a decline in the firm’s annual income”)

(emphasis added); Omnivision, 559 F. Supp. 2d at 1047 (the lawsuit spanned three years

and the lawyers worked “7,500 uncompensated hours”) (emphasis added). Here, the

case had been ongoing for three-and-a-half years at the time of the hearing.61 And the

three attorneys comprising Class Counsel say that they will have invested just over 590

hours in total, including 20 estimated future hours, which equates to slightly fewer than

five 40-hour work weeks per attorney.62 In view of those facts, this factor weighs against

granting an upward departure.

59 Id. at 10:21-27.

60 See Compl. [ECF No. 1-1].

61 See id.

62 See Motion for Attorneys’ Fees 13:25-14:13.

e. Awards Made in Similar Cases

The requested award in this settlement is on par with awards authorized in similar

cases, in which other district courts have approved fee awards in excess of the 25%

benchmark in similar wage-and-hour class actions. See, e.g., Pagh, 2021 WL 3017517, at *2

(finding that an award of 30% of the gross settlement amount was reasonable); Howell v.

Advantage RN, LLC, 2020 WL 5847565, at *4–*5 (S.D. Cal. Oct. 1, 2020) (approving an

award of 33.33% of total settlement amount); Contreras v. Worldwide Flight Servs., Inc.,

2020 WL 2083017, at *6–*7 (C.D. Cal. Apr. 1, 2020) (same); Brown v. CVS Pharmacy,

Inc., 2017 WL 3494297, at *6-*7 (C.D. Cal. Apr. 24, 2017) (awarding 30% of the common

fund in attorneys’ fees in a wage-and-hour class action settlement); Hightower v.

JPMorgan Chase Bank, N.A., 2015 WL 9664959, at *12 (C.D. Cal. Aug. 4, 2015)

(approving attorneys’ fees of 30% of the settlement fund). The Court concludes, then,

that similar cases establish that some upward departure from the benchmark may be

appropriate here.

2. The Lodestar Method and Lodestar Cross-Check

Under the lodestar method, the Court “multipl[ies] the number of hours the

prevailing party reasonably expended on the litigation . . . by a reasonable hourly rate for

the region and for the experience of the lawyer.” Bluetooth Headset Prod. Liab. Litig., 654

F.3d at 941. Although the lodestar figure is “presumptively reasonable,” the Court may

adjust it upward or downward reflecting a host of “reasonableness” factors, “including

the quality of representation, the benefit obtained for the class, the complexity and

novelty of the issues presented, and the risk of nonpayment.” Id. at 941-42.

Here, Class Counsel will have worked nearly 700 hours collectively, including 20

estimated future hours—10 each by Zorik Mooradian and Haik Hacopian.63 Rates of

$650/hour, $450/hour, $300/hour, and $100/hour for Attorney Zorik Mooradian,

Attorney Haik Hacopian, Attorney Nanor Kamberian, and Paralegal Kim Fortin,

respectively, yield a lodestar figure between $329,759 and $340,759, depending upon

whether the calculation includes estimated hours.

63 Id.

Timekeeper Hourly Total Total hours Total Lodestar

Rate hours (including

(excluding estimated

estimated hours)

hours)

Zorik Mooradian $650 326 336 Between

$211,900 and

$218,400

Haik Hacopian $450 211.42 221.42 Between

$95,139 and

$99,639

Nanor $300 32.6 32.6 $9,780

Kamberian

Kim Fortin $100 129.4 129.4 $12,940

(Paralegal)

Total: 699.42 719.42 Between

$329,759 and

$340,759

The Court turns to the 2022 Real Rate Report: An Analysis of Law Firm Rates,

Trends, and Practices, WOLTERS KLUWER (2022 ed.) (the “Real Rate Report”), as a

useful guidepost to assess the reasonableness of these hourly rates in the Central District.

See Mann v. FCA US LLC, 2020 WL 7978500, at *3 (C.D. Cal. Nov. 11, 2020). The Real

Rate Report offers several relevant data points for fees in the Central District. In Los

Angeles, partners who practice labor and employment law at mid-sized firms64 have an

hourly rate ranging from $567 (first quartile) to $870 (third quartile), with a median rate

of $677. See Real Rate Report 178. Labor and employment associates in Los Angeles

have an hourly rate ranging from $335 (first quartile) to $525 (third quartile), with a

median rate of $380. Id. at 27. Employment litigation paralegals generally have an hourly

rate ranging from $180 (first quartile) to $290 (third quartile), with a median rate of $234.

Id. at 49. Thus, Class Counsel’s requested rates for all attorneys and paralegals fall

64 The Real Rate Report examines rate data at mid-sized firms (quantified as firms with 501

to 1,000 lawyers) and large firms (quantified as firms with more than 1,000 lawyers). Mooradian

Law, Class Counsel’s firm, is small, with only five attorneys listed on its website. See About Us,

Mooradian Law, https://www.mooradianlaw.com/about-us/. Thus, the Court would expect

Class Counsel’s rates to be even lower than the median rates listed in the Real Rate Report, as

rates tend to increase with firm size. See generally Real Rate Report.

directly in line with their counterparts in the community.65 Thus, the Court finds that the

requested hourly rates are reasonable.

The Court now turns to the lodestar cross check, which entails an evaluation of the

multiplier implied by Class Counsel’s requested fees ($1,308,900) and Class Counsel’s

lodestar fees (computed above as between $329,759 and $340,759). The lodestar

calculation results in a multiplier of between 3.84 and 3.97.66 This multiplier is on the

high end, but nevertheless in the range, of lodestar multipliers awarded in wage-and-hour

class actions. See, e.g., Reyes v. Experian Info. Sols., Inc., 856 F. App’x 108, 110 (9th Cir.

2021) (finding that a 25% award with a 2.88 multiplier was similar to awards “routinely

approved” by courts in the Ninth Circuit); Attia v. Neiman Marcus Group, LLC, 2019 WL

13089601, at *7 (C.D. Cal. Feb. 25, 2019) (quoting Parkinson v. Hyundai Motor Am., 796

F. Supp. 2d 1160, 1170 (C.D. Cal. 2010)) (“multipliers may range from 1.2 to 4 or even

higher”); Vizcaino, 290 F.3d at 1051–54 (affirming a 25% fee recovery, explaining that the

3.65 multiplier “was within the range of multipliers applied in common fund cases” and

recognizing that courts applied multipliers of 1.0 to 4.0 in 83% of 23 class action suits

surveyed).

If the Court were to award the standard 25% ($1,090,975) instead, then the

resulting multiplier would be between 3.20 and 3.31. The multiplier for a 25% award is

similarly on the high end, but nevertheless in the range, of awards in similar cases. See id.

And if the Court were to apply the median industry rates for each team member, see Real

Rate Report at 49, 178, rather than their rates as requested, the multiplier on the standard

25% award ($1,090,975) would be between 3.10 and 3.17, and the multiplier on Class

Counsel’s requested 30% award ($1,308,900) would be between 3.69 and 3.81.67 All

65 Mooradian’s rate is slightly below the median rate for partners; Hacopian’s rate is above

the median rate for associates; Kamberian’s rate is slightly below the first quartile rate for

associates; and Fortin’s rate is slightly below the rate for paralegals.

66 Lodestar multipliers are calculated by dividing the requested percentage award by the

lodestar rate.

67 Applying the median industry rates from the Real Rate Report:

Timekeeper Industry Total hours Total hours Total Lodestar

Median (excluding (including

Hourly Rate estimated estimated

hours) hours)

Zorik $677 326 336 Between $220,702

Mooradian and $227,472

Haik $380 211.42 221.42 Between $80,339.60

Hacopian and $84,139.60

industry-standard rates result in lodestar multipliers that are on the high end, but

nevertheless in the range, of awards in similar cases. See id.

3. Conclusion on Attorneys’ Fees

In this case, Class Counsel obtained strong results for the class; the risk of non-

recovery at the outset of litigation was equivalent to the risk in any other wage-and-hour

class action cases (because obtaining class certification is sometimes difficult in wage-and-

hour cases); and the efforts of Class Counsel throughout this litigation appear to have

been satisfactory, although the Court does not have first-hand experience with the

excellence that they claim.68 In summary, the Court finds that two of the five factors

evaluated in the percentage-of-recovery method justify some upward departure, whereas

the other three do not. Asking for 30% of the Settlement Fund with a 3.84 to 3.97 lodestar

multiplier, seems quite high if considered in a vacuum. But in view of the facts that

similar wage-and-hour class actions tend to award 30% fees69 and that Class Counsel’s low

hourly rates may account for an inflated lodestar multiplier,70 Class Counsel’s requested

30% fee is reasonable. As such, the Court GRANTS the Motion for Attorneys’ Fees of

30% of the settlement award.

B. Costs

In their moving papers, Class Counsel state that they incurred litigation costs

totaling $45,315.39.71 Those costs represent only 1.04% of the total settlement award.

Class Counsel assert that this total is less than the $50,000 contemplated by the

Settlement.72 Because the costs are less than estimated, see Jiangchen v. Rentech, Inc.,

Nanor $380 32.6 32.6 $12,388

Kamberian

Kim Fortin $234 129.4 129.4 $30,279.60

(Paralegal)

Total: 699.42 719.42 Between

$343,709.20 and

$354,279.20

68 See supra Parts III.A.1.a-e.

69 See supra Part III.A.1.e.

70 See supra Part III.A.2.; see also Motion for Attorneys’ Fees 12:1-14:13 (applying the

“Laffey Matrix” rates to find a 2.32 lodestar multiplier).

71 Motion for Attorneys’ Fees 17:20-21.

72 Id. at 17:21-22.

2019 WL 5173771, at *11 (C.D. Cal. Oct. 10, 2019), and they appear to be reasonable and

incurred for the benefit of the class, see In re United Energy Corp. Solar Power Modules Tax

Shelter Inv. Sec. Litig., 1989 WL 73211, at *6 (C.D. Cal. Mar. 9, 1989), the Court

APPROVES the request that costs be reimbursed.

C. Service Award

Class Counsel request that this Court grant a service award to Cuellar for serving

as the class representative. Service awards, also known as “[i]ncentive awards,” are

“fairly typical” in class action cases. Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 958 (9th

Cir. 2009). They are discretionary in nature and are “intended to compensate class

representatives for work done on behalf of the class, to make up for financial or

reputational risk undertaken in bringing the action, and . . . to recognize their willingness

to act as a private attorney general.” Id. at 958-59. “[D]istrict courts . . . evaluate the

propriety of requested incentive payments ‘using relevant factors includ[ing] the actions

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

has benefitted from those actions, . . . the amount of time and effort the plaintiff expended

in pursuing the litigation . . . and reasonabl[e] fear[s of] workplace retaliation.’” Roes, 1-2,

944 F.3d at 1057 (quoting Staton, 327 F.3d at 977 (affirming $5,000 service awards but

rejecting $20,000 awards as unreasonable)).

“Generally, in the Ninth Circuit, a $5,000 incentive award is presumed

reasonable.” Lee v. Glob. Tel*link Corp., 2018 WL 4625677, at *12 (C.D. Cal. Sept. 24,

2018) (TCPA case); Bravo v. Gale Triangle, Inc., 2017 WL 708766, at *19 (C.D. Cal.

Feb. 16, 2017) (finding a $5,000 award reasonable for the class representatives’

participation throughout the litigation and the risk to their reputation); see also Roes, 1-2,

944 F.3d at 1057. When the incentive award is unusually large, especially “relative to the

size of the cash payments that can be claimed by class members,” courts consider this

discrepancy a “serious red flag[] that the defendants may have tacitly bargained for the

named plaintiffs’ support for the settlement by offering them significant additional cash

awards.” Id. (citing Staton, 327 F.3d at 975) (“finding that payments to certain identified

class members that were ‘on average, sixteen times greater’ than the damages that other

unnamed class members would receive, and together made up roughly 6% of the total

settlement, ‘raise[d] serious concerns as to [the settlement’s] fairness, adequacy and

reasonableness,’ particularly because there was ‘no sufficient justification in the record

for this differential in the amount of damage awards and the process for awarding

them’”) (emphasis added).

Class Counsel declare that Cuellar “has spent an extensive amount of time

assisting [c]lass [c]ounsel in litigation,” including “me[eting] with an hav[ing] . . .

numerous oral and written communications with [them].”73 For that effort, Class

Counsel ask for a $10,000 award. That sum is roughly 40-times the average individual

award that class members will receive (and more than eight-times the largest individual

award); $10,000 represents roughly 0.23% of the overall Settlement Award.

In view of Cuellar’s engagement in this litigation over the past four-and-a-half

years, the Court finds a service award fair and reasonable. But given the gaping delta

between Class Counsel’s proposed service award and the average individual award for

class members, the Court finds that a lower service award is more appropriate. A $5,000

service award is still roughly 20-times the average individual award that class members

will receive and roughly four-times the largest individual award. Accordingly, the Court

APPROVES $5,000 as a service award for Cuellar and DIRECTS that it be paid

pursuant to the terms of the settlement agreement.

D. Administration Costs

Finally, Class Counsel request $52,575.71 in administration costs for Phoenix

Administrators, the Court-appointed settlement administrator.74 This request “appears

to be reasonable, as those costs relate to designing and executing the administration of the

settlement agreement, including mailing notices and processing correspondence from

members of the class.” Brooks v. Life Care Centers of Am., Inc., 2015 WL 13298569, at *5

(C.D. Cal. Oct. 19, 2015). Thus, the Court APPROVES an award of those costs.

IV. DISPOSITION

For the foregoing reasons, the Court hereby ORDERS as follows:

1. Final approval of the class action settlement is GRANTED.

2. An award of attorneys’ fees at a rate of 30% of the settlement award

($1,308,900) is GRANTED.

3. An award of litigation costs in the amount of $45,315.39 is GRANTED.

4. A service award for the named Plaintiff, Frank Cuellar, in the amount of

$5,000, is GRANTED.

73 Motion for Attorneys’ Fees 18:9-11.

74 Id. at 19:13-14.

5. An award of administration costs for Phoenix Administrators in the amount

of $52,575.71 is GRANTED.

6. Judgment shall issue accordingly.

IT IS SO ORDERED.

Dated: January 8, 2024 . OY.

John . Holcomb

NITED STATES DISTRICT JUDGE

AL