Tai Hang v. Old Dominion Freight Line, Inc.

O

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

TAI HANG and Case No. 5:21-cv-00287-JWH-DTBx

ROBERT CANALES, on behalf of

themselves and all others similarly

situated, ORDER GRANTING MOTION

FOR FINAL APPROVAL OF

Plaintiffs, CLASS ACTION SETTLEMENT

[ECF No. 51]

v.

OLD DOMINION FREIGHT LINE,

INC., a Virginia corporation; and

DOES 1 to 100, inclusive,

Defendants.

I. SUMMARY OF DECISION

Before the Court is the unopposed motion of Plaintiffs Tai Hang and Robert

Canales, individually and on behalf of all others similarly situated (collectively,

“Plaintiffs”), in this class action case. In their motion, Plaintiffs seek final approval of the

class action settlement, attorneys’ fees, reimbursement of attorneys’ and administration

costs, and a service award for each named Plaintiff.1 The Court conducted a hearing on

the Motion in December 2023. After considering the Motion papers and the arguments

that counsel during the hearing, the Court orders that the Motion is GRANTED for the

reasons set forth herein.

II. BACKGROUND

This is a wage and hour class action. In the operative Fifth Amended Complaint,

Plaintiffs allege that Defendant Old Dominion Freight Line, Inc. violated wage and hour

laws in the following ways:

• failing to pay minimum wages;

• failing to pay overtime wages;

• failing to provide legally compliant rest periods;

• failing to authorize and permit all paid rest periods;

• failing to provide legally compliant meal periods;

• failing to reimburse for necessary business expenses;

• failing to timely furnish accurate itemized wage statements;

• violating Cal. Labor Code § 203;

• incurring penalties pursuant to Cal. Labor Code § 2699; and

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

seq.2

A. Factual Allegations

Hang worked for Old Dominion “as an hourly-paid, non-exempt ‘dock worker’

employee from approximately August 2007 to August 11, 2020.”3 Canales worked for

Old Dominion “as an hourly-paid, non-exempt ‘dock worker’ employee from

1 Pls.’ Mot. for Final Approval of Class Action Settlement (the “Motion”) [ECF No. 51].

2 See generally Fifth Am. Compl. (the “Amended Complaint”) [ECF No. 50].

3 Amended Complaint ¶ 6.

approximately January 28, 2018, to October 2, 2020.”4 Plaintiffs allege that during their

employment, Old Dominion failed to pay minimum wages and overtime,5 deprived them

of lawful rest and meal periods,6 failed to reimburse for necessary business expenses,7 and

failed to provide them in a timely manner with accurate and legally compliant itemized

wage statements.8 Plaintiffs assert that those failures were the result of Old Dominions’s

consistent policies, which violate wage and hour laws and laws against unfair business

practices.9 Plaintiffs, on behalf of themselves and all class members, seek compensatory

relief with interest, penalties, equitable relief, and attorneys’ fees and costs, pursuant to

wage and hour laws.10 They also seek injunctive relief, restitution, and disgorgement of

Defendants’ illegally obtained benefits.11 Finally, they seek unpaid compensation,

penalties, and reasonable attorneys’ fees and costs under PAGA.12

B. Procedural History

Plaintiffs filed their original Class Action Complaint in San Bernadino County

Superior Court in November 202013 and their First Amended Complaint, also in state

court, in December 2020.14 Old Dominion was served in the state court action later that

month,15 and Old Dominion removed the action to this Court in February 2021.16

Plaintiffs filed their Second Amended Complaint in March 2021,17 which Old Dominion

moved to dismiss.18 The Court granted Old Dominion’s motion, dismissing Plaintiffs’

pleading with leave to amend.19 Plaintiffs filed their Third Amended Complaint in July

4 Id. at ¶ 9.

5 Id. at ¶¶ 34-50.

6 Id. at ¶¶ 51-83.

7 Id. at ¶¶ 84-89.

8 Id. at ¶¶ 90-111.

9 Id. at ¶¶ 112-134.

10 See id. at 39:12-43:12.

11 Id.

12 Id.

13 Notice of Removal [ECF No. 1] ¶ 1.

14 Id. at ¶ 2.

15 Id. at ¶ 4.

16 See generally id.

17 Second Am. Compl. [ECF No. 9].

18 Def.’s Mot. to Dismiss and/or Strike Pls.’ Second Am. Compl. Pursuant to

Fed. R. Civ. P. 12(6)(6) and/or 12(f) [ECF No. 12].

19 Order on Mot. of Def. to Dismiss and/or Strike Second Am. Compl. [ECF No. 17].

2021.20 Old Dominion again moved to dismiss,21 and the Court granted in part and

denied in part that motion.22 Pursuant to the Court’s order, Plaintiffs filed their Fourth

Amended Complaint in August 2022,23 and Old Dominion answered.24

The parties engaged in “extensive factual and legal research, formal discovery

including propounding and responding to written interrogatories, the production of

documents, and a full-day [m]ediation with David Rotman.”25 Although the parties did

not reach a settlement during the mediation, further negotiations with the assistance of

Mr. Rotman proved fruitful:26 the parties informed the Court of their settlement and

moved for its approval in July 2022.27 Defendants served a copy of the settlement

agreement on the Attorney General of the United States and the Attorneys General of

each state in which a class member resides, in compliance with the Class Action Fairness

Act, 28 U.S.C. § 1715.28

The Court preliminarily approved the settlement agreement in August 2023.29

Pursuant to the settlement agreement and the Court’s Preliminary Approval Order,

Plaintiffs filed their Fifth Amended Complaint in November 2023.30 They filed the

instant Motion for Final Approval the same day.31

20 Third Am. Compl. [ECF No. 18].

21 Def.’s Mot. to Dismiss and/or Strike Pls.’ Third Am. Compl. Pursuant to

Fed. R. Civ. P. 12(6)(6) and/or 12(f) [ECF No. 20].

22 Order Granting in Part and Denying in Part the Mot. of Def. Old Dominion Freight Line,

Inc. to Dismiss and/or Strike Portion of Pls.’ Third Am. Compl. [ECF No. 34].

23 Fourth Am. Compl. [ECF No. 35].

24 Answer to Fourth Am. Compl. [ECF No. 36].

25 Motion 8:21-23.

26 Id. at 3:15-20.

27 Mot. for Order Granting Prelim. Approval for Class and Representative Action

Settlement [ECF No. 46]; Notice of Proposed Class Action Settlement [ECF No. 47].

28 Notice of Proposed Class Action Settlement Pursuant to Class Action Fairness Action

[ECF No. 47].

29 Order Granting Pls.’ Mot. for Prelim. Approval of Class and Representative Action

Settlement (the “Preliminary Approval Order”) [ECF No. 49].

30 See Amended Complaint.

31 See Motion.

III. FINAL APPROVAL OF THE SETTLEMENT AGREEMENT

A. Overview

As summarized in the Motion, the settlement agreement establishes a non-

reversionary settlement amount of $2,850,000 for the benefit of the settlement class.32

That figure equates to an average recovery of approximately $823.53 per class member;

the highest recovery will be approximately $3,799.61.33 The settlement amount includes

$50,000 for PAGA claims—$37,500 will be allocated to the Labor and Workforce

Development Agency and $12,500 will be payable to PAGA members.34

Individualized class notices were circulated to class members, which informed

them of the following:

• the nature of the action;

• the definition of the settlement class certified;

• 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;

• the time and manner for requesting exclusion;

• 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.35

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

participation, and the number of workweeks attributable to that class member.36 As of the

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

the settlement, no workweek disputes, and no requests for exclusion.37

32 Id. at 3:23-25.

33 Id. at 4:2-3.

34 Id. at 4:16-19.

35 See Decl. of Lisa Pavlik for Rust Consulting, Inc. & Ex. A (the “Pavlik Declaration and

Class Notice”) [ECF No. 51-2 Exs. 1 & 1.A].

36 See id.

37 See id.; see also Minutes of Final Approval of Class Action Settlement (the “Hearing on

the Motion”) [ECF No. 52] (confirming the same as of the morning of December 14, 2023).

B. Legal Standard

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

settlements. See 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 Rules instruct the Court to consider the following factors:

(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 the district 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”).

Lastly, 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. See 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,38

although formal class certification had not yet occurred. Because the parties reached a

settlement 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.

38 See Preliminary Approval Order.

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. That analysis

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

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—the Law Offices of Kevin T. Barnes, the Law Offices

of Raphael A. Katri, and Stonebrook Law (collectively, “Class Counsel”)39—have

extensive experience with wage and hour class action litigation, and they actively litigated

this case for three years.40 Second, the parties reached settlement only after vigorous

litigation, through two orders on motions to dismiss and five versions of the complaint in

this Court, including “extensive research for and during the litigation, review of hundreds

of pages of documents, a full-day [m]ediation with David Rotman, Esq., . . . and after

consultation with an [expert] economist regarding potential damage exposure.”41 The

Court therefore finds that Plaintiffs 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 consideration, 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 David

Rotman is “very experienced in wage and hour class action cases.”42 The parties reached

39 See id. at ¶ 3.

40 See Decl. of Kevin T. Barnes (the “Barnes Declaration”) [ECF No. 51-2]; Decl. of

Raphael A. Katri (the “Katri Declaration”) [ECF No. 51-3]; Decl. of Joseph Tojarieh (the

“Tojarieh Declaration”) [ECF No. 51-4]; Motion 10:5-12 & 12:27-13:2.

41 Motion 12:7-10.

42 Id. at 7:20; see also David A. Rotman—Mediated Negotiations,

https://davidrotman.net/html/mediators-david-rotman.html.

a settlement after a full-day mediation before Mr. Rotman and follow-on negotiations with

his assistance.43 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 2138457, at *7 (C.D. Cal. April 5, 2018)

(approving preliminary settlement where 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 assesses 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 Plaintiffs note, they “had not yet prevailed on class certification when the

Parties reached [settlement].”44 Continuing to litigate these issues would involve

substantial risks—“including the risk that the Court might not certify the class, or

43 Id. at 3:15-20.

44 Motion 10:9-10.

decertify it at a later time, the risk of proving liability and damages at trial, and keeping

the verdict through appeal”45—and would likely take multiple years and represent an

enormous expense without certainty that the class members would receive a remedy.

Additionally, subsequent review by district courts could jeopardize any chance of

recovery for the class, as the law continues to evolve. This Court therefore finds that the

settlement amount of $2,850,000—out of Defendant’s estimated $5,026,891 class

exposure—is adequate given the costs, risks, and delay of continued litigation.

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

will be distributed to the class members with no claim form requirement.46 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 $832,199.67—approximately 29.2% of the

$2,850,000 Settlement Fund—in attorneys’ fees and $20,038.30 in attorney expenses;47

Class Counsel would thus net just under 30% of the Settlement Fund in total.

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

45 Id. at 11:11-13.

46 Id. at 3:18-19 & 3:24.

47 Id. at 4:10-12.

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 IV.A.-B., this flag

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

Cal. July 19, 2021) (giving final approval of a settlement where the court found to be

reasonable a request for attorneys’ fees—equivalent to 33% of the settlement—and

$20,000 in out-of-pocket expenses).

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. See 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 the instant Motion is unopposed, the settlement agreement has no

clause explicitly requiring Defendants to refrain from challenging a fee request.48

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

parties, even if the Court declines the requested attorneys’ fees.49 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.50 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

48 See Preliminary Approval Order, Ex. 1 (Stipulation for Leave to File Fifth Am. Compl.

and for Settlement and Release of Class Action and PAGA Claims).

49 Id.

50 Motion 3:19-20.

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.

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

recovery by each individual class member is dependent on the number of workweeks and

PAGA pay periods credited to them.51 Moreover, the service awards for Hang and

Canales—discussed below, see infra Part IV.C.—do not disturb that finding, in view of

the evidence submitted that speaks to their level of involvement through the life of this

case and the risk that they have taken through their participation. Therefore, this factor

weighs in favor of granting final approval.

3. The Ninth Circuit’s “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).

The Court has presided over this case through two motions to dismiss and five

versions of the Complaint. Based upon that perspective alone, the Court is comfortable

finding that Plaintiffs advanced a strong case that would continue to be litigated

vigorously in the absence of this settlement agreement. Furthermore, with respect to the

individualized issues, the settlement agreement takes the individualized claims into

account; those claims would likely be vigorously litigated in the absence of a settlement

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

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

51 See Pavlik Declaration and Class Notice.

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 concludes 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 III.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.52 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).

The Court agrees with Plaintiffs’ argument in their Motion on this factor: “the

risks of obtaining class certification and a subsequent motion by Defendant to decertify all

or parts of the case prior to trial and throughout the trial itself are substantial.”53 The

Court thus finds that the complexity of the class certification process and Defendant’s

likely opposition, as forecasted by their multiple motions to dismiss, pose 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.

Here, the parties agreed to settle all claims for a total sum of $2,850,000.54 That

figure equates to an average individual recovery of approximately $823.53 and a maximum

individual recovery of approximately $3,799.61.55 The Court continues to find that the

settlement amount is appropriate. See, e.g., Gallegos v. Atria Mgmt. Co., LLC, 2019 WL

52 See Preliminary Approval Order.

53 Motion 10:10-12.

54 Id. at 3:23-25.

55 Id. at 4:2-3.

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 Plaintiffs had sufficient

information to make an informed decision about the merits of their 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 their Motion, Plaintiffs argue that the parties reached a settlement only after

they “aggressively litigated this matter for over three years, which allowed the Parties to

base their assessment of the matter on extensive research for and during the litigation,

review of hundreds of pages of documents, a full-day Mediation with David Rotman,

Esq., multiple Motions to Dismiss and the Court’s rulings thereto and after consultation

with an economist regarding potential damage exposure.”56 That history gives the Court

confidence that Plaintiffs 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, 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

56 Id. at 12:5-10.

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.57 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 support the

final outcome as fair and reasonable.58 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 litigating this case,59 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 opted

out or objected to the settlement agreement.60 That fact weighs strongly in favor of final

approval.

57 See id. at 12:27-13:2.

58 Id. at 13:2-5.

59 The Labor Workforce Development Agency will receive payment upon final approval of

the settlement, but it did not participate in the case. See id. at 13:7-12.

60 See id. at 2:9-10; see also Hearing on the Motion (confirming the same as of the morning of

December 14, 2023).

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.

IV. ATTORNEYS’ FEES, COSTS, SERVICE AWARDS, 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 $832,199.67, which

represents approximately 29.2% of the settlement fund.61

In the Ninth Circuit, “the fee applicant bears the burden of submitting ‘evidence

supporting the hours worked and rates claimed.’” Fischer v. SJB-P.D. Inc., 214 F.3d 1115,

1121 (9th Cir. 2000) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The Ninth

Circuit has “a ‘preference’ for contemporaneous records” but has “never held that they

are absolutely necessary.” Id. Rather, “fee requests can be based on ‘reconstructed

records developed by reference to litigation files.’” Id. (quoting Davis v. City & Cnty. of

San Francisco, 976 F.2d 1536, 1542 (9th Cir. 1992), opinion vacated in part on denial of

reh’g, 984 F.2d 345 (9th Cir. 1993)).

“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. In re Bluetooth Headset Prod. Liab. Litig., 654 F.3d 935, 942 (9th Cir.

2011). 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

61 Id. at 4:10-12.

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).

Here, Class Counsel request that the Court approve a fee award of $832,199.67,

which is equivalent to approximately 29.2% of the settlement amount. The standard 25%

award would earn Class Counsel $712,500. Because Class Counsel’s request departs

from the 25% benchmark, the Ninth Circuit instructs the Court to consider the following

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 settlement is “outstanding.”62 The average individual recovery

(approximately $823.53)63 achieved for the class members possibly falls in the range of

awards considered by this Court to be deserving of a rate higher than 25%. Compare

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) with

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”). But

the Court sees no strong 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—although, during the

hearing on the Motion, Class Counsel argued convincingly that Augustus v. ABM Sec.

Servs., Inc., 2 Cal. 5th 257 (2016), as modified on denial of reh’g (Mar. 15, 2017), created

62 Id. at 18:5.

63 Id. at 4:2-3.

ambiguous precedent with respect to wage and hour class action lawsuits for rest periods

greater than 10 minutes.64 On balance, those findings suggest that Class Counsel

achieved a strong result for the class, but not necessarily an exceptional one. Thus, this

factor does not plainly 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.65 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 III.C.2.c.i. & III.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 settlement fund where the

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

Class Counsel aver that they have “substantial experience in wage and hour and

class action cases.”66 They list numerous such cases in which they have successfully

represented the plaintiff class.67 And Class Counsel assert that they expended

“substantial effort” and faced “substantial obstacles” in prosecuting the case.68 Here,

Plaintiffs’ case survived two motions to dismiss, which weighs in Class Counsel’s favor.

See Omnivision, 559 F. Supp. 2d at 1047 (observing that the plaintiffs’ counsel “survived

two motions to dismiss”). However, because the action here never went to trial, the

64 See Hearing on the Motion.

65 Motion 17:16-18:11.

66 Id. at 7:13-14; see also id. at 12:27-13:2.

67 See generally Barnes Declaration; Katri Declaration; Tojarieh Declaration.

68 Motion 18:4-7.

Court has had limited opportunity to gauge Class Counsel’s performance first-hand

beyond those two motions. 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”). Furthermore, the Court had little insight into the

mediation process and any skill demonstrated therein. Nonetheless, during the hearing

on the Motion, Class Counsel noted that The Law Offices of Kevin T. Barnes was the

first in the country to bring this type of class action lawsuit, and counsel argued

convincingly that Augustus created ambiguous precedent with respect to wage and hour

class action lawsuits for rest periods longer than 10 minutes—precedent that demanded

great skill to litigate this case successfully.69 Therefore, the Court finds that this factor

weighs in favor of Plaintiffs’ attorneys.

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 “wholly contingent [basis] and

the case presented far more risk that the usual contingent fee case.”70 They invested

$20,038.30 upfront.71 While it is not clear precisely when the attorneys began work, it is

apparent from the docket that they filed this lawsuit in November 2020.72

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

assumed risk, although the risk was not as great as in other cases where an upward

departure from the benchmark was warranted. On one hand, because Class Counsel took

the case on contingency, 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 this factor justifies an upward departure tend to be more

protracted. See, e.g., Vizcaino, 290 F.3d at 1050 (finding that a 28% contingency fee was

warranted where 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

69 See Hearing on the Motion.

70 Motion 16:4-5.

71 Id. at 23:16.

72 Notice of Removal [ECF No. 1] ¶ 1.

1047 (lawsuit spanned three years and lawyers worked “7,500 uncompensated hours”)

(emphasis added). Here, the case has been ongoing for approximately three years at the

time of the hearing.73 And the three attorneys comprising Class Counsel say that they will

have invested “at least 392.8 hours” in total, which equates to just over three 40-hour

work weeks per attorney.74 In view of those facts, this factor weighs slightly against

granting an upward departure.

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 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.” In re 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 allege that they worked approximately 392.8 hours

collectively:75

73 See id.; see also infra Part IV.A.2., calling Class Counsel’s claimed hours into question.

74 Motion 19:1-2.

75 Id.

• The Law Offices of Kevin T. Barnes: Attorney Kevin Barnes asserts that he

worked 192.6 hours at a rate of $825/hour.76 He avers that his former partner,

Gregg Lander, incurred an additional 97.1 hours on behalf of his firm, for a total of

289.7 attorney hours (the vast majority of all hours claimed by Class Counsel).77

• The Law Offices of Raphael A. Katri: Attorney Raphael Katri asserts that he

worked 39.8 hours at a rate of $700/hour.78

• Stonebrook Law: Attorney Joseph Tojarieh states that he did not keep

contemporaneous billing records in this case, but he estimates that he worked

63.3 hours at a rate of $675/hour.79

Class Counsel’s alleged hours billed and resulting lodestar calculation are summarized in

the table below:

Timekeeper Hourly Rate Total Hours Total Lodestar

(including

estimated)

Kevin Barnes $825 192.6 $158,895.00

(named partner)

Gregg Lander $750 97.1 $72,825.00

(partner)

Raphael Katri $700 39.8 $27,860.00

(named partner)

Joseph Tojarieh $675 63.3 $42,727.50

(founding partner)80

TOTAL 392.8 $302,307.50

76 Barnes Declaration ¶ 15; see also Supp. Decl. of Kevin T. Barnes (the “Barnes

Supplemental Declaration”) [ECF No. 53].

77 See Barnes Declaration ¶¶ 15 & 16; see also Barnes Supplemental Declaration.

78 Katri Declaration ¶ 7.

79 Tojarieh Declaration ¶¶ 8-11.

80 See Our Founder, Stonebrook Labor & Employment Law,

https://www.laborlawfirm.com/about/joseph-tojarieh/.

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 firms 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.

Here, the charging attorneys are (or were, in the case of Mr. Lander) all partners in

their respective firms. Their rates all fall within the range outlined in the Real Rate

Report, although Mr. Barnes’ rate is at the very high end and Mr. Lander’s rate is also on

the high end.

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

multiplier implied by Class Counsel’s requested fees ($832,199.67) and Class Counsel’s

lodestar fees (computed above as $302,307.50). The lodestar calculation results in a

multiplier of approximately 2.75. If the Court were to award the standard 25% ($712,500)

instead, then the resulting multiplier would be approximately 2.36. Those multipliers are

each squarely 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).

3. Conclusion on Attorneys’ Fees

In this case, Class Counsel obtained strong, but not exceptional, 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 has only limited first-hand

experience with the excellence that they claim. In summary, the Court finds that three of

the five factors evaluated in the percentage-of-recovery method justify some upward

departure, whereas the other two do not. Balancing those factors and exercising its

discretion, the Court GRANTS Class Counsel’s request for $832,199.67 in attorneys’

fees (approximately 29.2% of the settlement fund).

B. Costs

In their Motion, Class Counsel state that they incurred litigation costs totaling

$20,038.30.81 Those costs represent only 0.7% of the total settlement award. Because the

costs 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 cost reimbursement request.

C. Service Awards

Class Counsel request that this Court grant two service awards, one each to Hang

and Canales, for serving as the class representatives. 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); 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

81 Motion 23:15-16.

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 Hang and Canales spent many hours in support of

litigating this case82 and that they “risk being blackballed from their work” for their

participation.83 For that effort, Class Counsel ask for a $10,000 award to each.84 $10,000

is roughly 12-times the average individual award that class members will receive, and

together, the requested service awards represent roughly 0.7% of the overall Settlement

Award.

In view of the named Plaintiffs’ engagement in this litigation over the past three

years, the Court finds service awards 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 for

Canales, where Hang’s name appears in the caption and he therefore faces more risk to

his job prospects by virtue of his participation in this case. Accordingly, the Court

APPROVES a $10,000 service award for Hang and a $7,500 service award for Canales

and DIRECTS that the awards be paid pursuant to the terms of the settlement

agreement.

D. Administration Costs

Finally, Class Counsel request $26,000 in administration costs for Rust

Consulting, the claims administrator.85 That 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 these costs.

82 Id. at 23:28-24:7.

83 Id. at 24:20-22.

84 Id. at 23:24-25.

85 Id. at 23:16-18.

V. 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 in the amount of $832,199.67 is GRANTED.

3. An award of litigation costs in the amount of $20,038.30 is GRANTED.

4. A service award for each of the two named Plaintiffs, Tai Hang and Robert

Canales is GRANTED. Specifically, Hang is awarded $10,000, and Canales is awarded

$7,500.

5, An award of administration costs for Rust Consulting in the amount of

$26,000 is GRANTED.

6. Judgment will issue accordingly.

IT IS SO ORDERED.

Dated: May 14, 2024

John . Holcomb

NITED STATES DISTRICT JUDGE

Ar