-DTB Tracy Dawn Trauth et al v. Spearmint Rhino Companies Worldwide Inc et al, No. 5:2009cv01316 - Document 337 (C.D. Cal. 2012)
Court Description: ORDER GRANTING PLAINTIFFS' RENEWED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT (DOC. NO. 317) AND GRANTING IN PART PLAINTIFFS' RENEWED MOTION FOR ATTORNEYS' FEES (DOC. NO. 311) by Judge Virginia A. Phillips: For the foregoing reasons, the Court GRANTS the Dancers' Motion for Final Approval of Class Action Settlement and their Motion for Attorneys' Fees and Incentive Awards. The Dancers are hereby awarded $2,301,024.50 in fees, $73,270.77 in costs, and incentive payments as enumerated in the preceding section. 311 317 (am) Modified on 10/5/2012 (am).
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-DTB Tracy Dawn Trauth et al v. Spearmint Rhino Companies Worldwide Inc et al Doc. 337 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ) 11 TRACY DAWN TRAUTH, et ) al., ) 12 Plaintiffs, ) ) 13 ) v. ) 14 ) SPEARMINT RHINO ) 15 COMPANIES WORLDWIDE, ) INC., et al. ) 16 Defendants. ) 17 ________________________ ) Case No. EDCV 09-01316-VAP (DTBx) ORDER GRANTING PLAINTIFFS' RENEWED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT (DOC. NO. 317) AND GRANTING IN PART PLAINTIFFS' RENEWED MOTION FOR ATTORNEYS' FEES (DOC. NO. 311) 18 19 Plaintiffs' Renewed Motions for Final Approval of 20 Class Action Settlement (Doc. No. 317) and for Attorneys' 21 Fees and Incentive Awards (Doc. No. 311) came before the 22 Court for hearing on August 30, 2012. For the reasons to 23 follow, the Court GRANTS the Motion for Final Approval 24 and GRANTS the Motion for Attorneys' Fees IN PART. 25 26 27 28 Dockets.Justia.com 1 2 I. BACKGROUND The Court has discussed the factual and procedural 3 history of this matter at length, most recently in its 4 June 21, 2012, Minute Order ("June 21 Order") (Doc. No. 5 305), in which it denied Plaintiffs' last attempt to 6 procure the Court's approval of the proposed settlement 7 of this class action. The Court therefore offers only 8 the barest recitation of the facts necessary to place the 9 current Motions in context. 10 11 Plaintiffs Tracy Dawn Trauth, Christeen Rivera, 12 Jennifer Blair, Victoria Omlor, Jasmine Wright, Anicia 13 Vintimilla, Marsha Ellington, Selena Denise Pelaez, 14 Nicole Garcia, Reah Navarro, Tami Sanchez, Rose 15 Shakespeare, Ashley Malott King, and Connie Linne, as 16 representatives of a nationwide class of "exotic dancers" 17 (collectively, "Dancers"), are moving to settle a three18 year old class action against Defendants, the operators 19 of a group of "adult entertainment" venues ("Clubs"). 20 The Dancers charge that the Clubs classify Dancers 21 improperly as independent contractors, thereby depriving 22 them of benefits that employees are guaranteed under 23 federal law (i.e., the Fair Labor Standards Act ("FLSA"), 24 29 U.S.C. §§ 201, et seq.) and various states' laws. 25 26 The Dancers and Clubs entered into a Settlement 27 Agreement ("Agreement") (Ex. A to Decl. of Hart 28 2 1 Robinovitch (“Robinovitch Decl.”) (Doc. No. 318-1)), the 2 relevant provisions of which are as follows: 3 4 • Within six months, the Clubs will no longer treat 5 Dancers as independent contractors or lessees; 6 instead the Clubs will treat Dancers "as either 7 employees or owners (e.g. shareholder, limited 8 partner, partner, member or other type of ownership 9 stake)" of any Clubs in existence at the time of 10 settlement. 11 Dancers will no longer be charged stage fees (i.e., 12 fees a Dancer pays for the privilege of performing at 13 a Club). (Doc. No. 318-1 ¶ 4.2.) In California, (Id. ¶ 4.1.) 14 15 • After deducting from the agreed-upon $12,970,000 16 gross settlement amount the cost of administering the 17 settlement (see id. ¶ 5.4), incentive payments for 18 class representatives (see id. ¶ 5.6.1), and any 19 attorneys' fees awarded to class counsel (see id. ¶ 20 5.5.2), 50.14 percent of the remaining settlement 21 amount is allocated to California Dancers; 42.69 22 percent to Nevada Dancers, and 7.16 percent to 23 Kentucky, Idaho, Texas, Nevada, and Florida Dancers 24 (see id. ¶ 5.7.2). 25 26 • 27 Dancers' claims will be paid on a claims-made basis; i.e., a Dancer who does not submit a written claim 28 3 1 against the settlement fund will not be paid, even 2 though she may still be bound by the settlement. 3 (See id. ¶ 5.7.1) 4 claimed, the remainder reverts to the Clubs – with 5 the exception of a non-reversionary amount of 6 $2,723,700. If the entire settlement is not (See id. ¶ 5.8.) 7 8 • 9 Any portion of the non-reversionary amount remaining after payment of Dancers' claims will be first used 10 towards incentive payments for most of the class 11 representatives (see id. ¶¶ 5.6.1, 5.6.2); if there 12 is still any portion of the non-reversionary amount 13 remaining, ten percent of that amount will be 14 distributed on a pro rata basis to Dancers who 15 submitted claims against the settlement fund, and the 16 rest "shall be distributed over a five year period" 17 to the Los Angeles County Bar Association Foundation 18 – Domestic Violence Project, Foundation for an 19 Independent Tomorrow, Women at Work – Job Resource 20 Center, and the National Association of Working Women 21 (see id. ¶ 5.8). 22 23 • The Clubs will not oppose the payment of incentive 24 awards to class representatives of up to $15,000 for 25 Tracy Dawn Trauth and up to $6,250 each for Jennifer 26 Blair, Christeen Rivera, Victoria Omlor, Jasmine 27 Wright, Anicia Vintimilla, Marsha Ellington, Selena 28 4 1 Denise Pelaez, Nicole Garcia, Reah Navarro, and Tami 2 Sanchez. 3 oppose awards of up to $1,000 each for Rose 4 Shakespeare, Connie Linne, and Ashley Malott King; 5 those awards, however, will not be paid from the 6 $12,970,000 settlement fund. (Id. ¶ 5.6.1.) They also agree not to (Id. ¶ 5.6.2.) 7 8 • 9 Any Dancer who does not file a timely request to opt out of the class – whether or not she submitted a 10 claim to settlement funds – will, by effect of the 11 Agreement, be deemed to have released the Clubs "from 12 any and all claims, liabilities, demands, causes of 13 action, or lawsuits, known or unknown . . . whether 14 legal, statutory, equitable or of any other type of 15 form, whether under federal law (excluding any and 16 all claims arising under the FLSA . . . ) or state 17 law . . . that in any way relate to or arise out of 18 or in connection with acts, omissions, facts, 19 statements, matters, transactions, or occurrences 20 that have been or could have been alleged in [this 21 action], including but not limited to overtime, 22 minimum wages, missed or inadequate meal periods and 23 rest breaks, unpaid tip income, reimbursement for 24 uniform costs, itemized wage statement violations, 25 record keeping violations, and waiting time penalties 26 . . . ." (See, e.g., id. ¶ 7.1.) 27 28 5 1 • Any Dancer who does file a timely claim, however, 2 will be deemed to have opted-in to an FLSA collective 3 action, and will release any FLSA claim against the 4 Clubs, as well any of the state law claims discussed 5 above. (See id. ¶ 7.7.) 6 7 • The Clubs agree not to oppose an award of attorneys' 8 fees, as long as the award is no greater than 9 $2,500,000, to be deducted from the gross settlement 10 amount of $12,970,000. (See id. ¶¶ 5.5.1, 5.5.2.) 11 12 The Court considers the Dancers' Motion for Final 13 Approval, which would have the effect of settling both 14 their FLSA and state law claims, under the following 15 legal standards. 16 17 18 II. LEGAL STANDARD At the preliminary approval stage, the Court 19 considered whether the proposed settlement "(1) 20 appear[ed] to be the product of serious, informed, non21 collusive negotiations; (2) ha[d] no obvious 22 deficiencies; (3) d[id] not improperly grant preferential 23 treatment to class representatives or segments of the 24 class; and (4) f[ell] within the range of possible 25 approval," Harris v. Vector Mktg. Corp., No. C-08-5198 26 EMC, 2011 WL 1627973, at *7 (N.D. Cal. Apr. 29, 2011) 27 ("Harris II") – all through the lens of the same criteria 28 6 1 the Court applies now to determine whether the proposed 2 settlement should be approved finally. The difference, 3 however, is the "[c]loser scrutiny," id., with which the 4 Court now considers the following factors. 5 6 A. Settling a Class Action Certified Under Federal Rule 7 of Civil Procedure 23 8 Under Federal Rule of Civil Procedure 23, certifying 9 a class for the sole purpose of settling a class action 10 is a two-step process, requiring a court to "ratify both 11 the propriety of the certification and the fairness of 12 the settlement." Staton v. Boeing Co., 327 F.3d 938, 952 13 (9th Cir. 2003). First, the proposed class must meet the 14 familiar criteria for certification outlined in Federal 15 Rules of Civil Procedure 23(a) and (b) – e.g., numerosity 16 of claimants in the proposed class (Rule 23(a)(1)), 17 commonality of the questions of law and fact among them 18 (Rule 23(a)(2)), typicality of the claims they present 19 (Rule 23(a)(3)), and adequacy of their representation 20 before the court (Rule 23(a)(4)) – that would apply in 21 the absence of a settlement agreement. Amchem Prods., 22 Inc. v. Windsor, 521 U.S. 591, 619-22 (1997); see Narouz 23 v. Charter Commc'ns, LLC, 591 F.3d 1261, 1266 (9th Cir. 24 2010) (noting that "[t]o obtain class certification" for 25 settlement purposes, "a class plaintiff has the burden of 26 showing that the requirements of Rule 23(a) are met and 27 that the class is maintainable pursuant to Rule 23(b)"); 28 7 1 see Fed. R. Civ. P. 23(a). Indeed, a court must pay 2 "undiluted, even heightened, attention" to Rule 23's 3 requirements when certifying a case for settlement, 4 because the court "will lack the opportunity, present 5 when a case is litigated, to adjust the class, informed 6 by the proceedings as they unfold." Amchem Prods., Inc., 7 521 U.S. at 620. 8 9 In this case, the Dancers seek class certification 10 pursuant to Rule 23(b)(3). Thus, in addition to finding 11 the proposed class meets Rule 23(a)'s numerosity, 12 typicality, commonality, and adequacy requirements, a 13 court must find either "that the questions of law or fact 14 common to class members predominate over any questions 15 affecting only individual members, and that a class 16 action is superior to other available methods for fairly 17 and efficiently adjudicating the controversy," Fed. R. 18 Civ. P. 23(b)(3). In making the requisite findings under 19 Rule 23(b)(3), the court considers "the class members' 20 interest in individually controlling the prosecution or 21 defense of separate actions," Fed. R. Civ. P. 22 23(b)(3)(A), "the extent and nature of any litigation 23 concerning the controversy already begun by or against 24 class members," Fed. R. Civ. P. 23(b)(3)(B), and "the 25 desirability or undesirability of concentrating the 26 27 28 8 1 litigation of the claims in the particular forum," Fed. 2 R. Civ. P. 23(b)(3)(C).1 3 4 If a settlement class meets Rule 23's criteria and 5 the court approves preliminarily of the settlement of the 6 case, the court turns to the second step: it must hold a 7 hearing to determine whether to finalize the settlement, 8 thereby binding the entire class. 9 23(e)(2). Fed. R. Civ. P. In carrying out its charge to determine 10 whether a settlement proposal is "fair, reasonable, and 11 adequate," id., the court considers a variety of factors, 12 including at least the following: 13 14 (1) the strength of the plaintiff's case; (2) 15 the risk, expense, complexity, and likely 16 duration of further litigation; (3) the risk of 17 maintaining class action status throughout the 18 trial; (4) the amount offered in settlement; (5) 19 the extent of discovery completed and the state 20 of the proceedings; (6) the experience and views 21 of counsel; (7) the presence of a governmental 22 participant; and (8) the reaction of the class 23 members of the proposed settlement. 24 25 1 The inquiry made traditionally under Federal Rule of Civil Procedure 23(b)(3)(D), i.e., whether trying the 26 case as a class action "would present intractable 27 management problems," is unnecessary when a class is certified solely for the purpose of settlement. Amchem 28 Prods., Inc., 521 U.S. at 620. 9 1 In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 2 935, 946 (9th Cir. 2011) (quoting Churchill Vill., L.L.C. 3 v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004)). 4 5 The Manual for Complex Litigation suggests further 6 inquiries for a court reviewing a proposed settlement, 7 including: asking "whether class or subclass members 8 have the right to request exclusion from the settlement, 9 and, if so, the number exercising that right"; inquiring 10 about "the fairness and reasonableness of the procedure 11 for processing individual claims under the settlement"; 12 and evaluating whether "the named plaintiffs are the only 13 class members to receive monetary relief or are to 14 receive monetary relief that is disproportionately 15 large." Manual for Complex Litigation (Fourth) § 21.62. 16 (2004). 17 18 B. Settling an FLSA Collective Action 19 Settling a Rule 23 class action requires the 20 existence of a class; settling an FLSA collective action 21 first requires the existence of an FLSA collective 22 action.2 The FLSA authorizes "any one or more employees 23 for and in behalf of himself or themselves and other 24 employees similarly situated" to sue an employer for 25 26 2 The action prescribed by the FLSA is known commonly as a collective, rather than a class, action. Sarviss v. 27 Gen. Dynamics Info. Tech. Inc., 663 F. Supp. 2d 883, 902 28 (C.D. Cal. 2009). 10 1 unpaid minimum wages or unpaid overtime compensation, 2 provided that "[n]o employee shall be a party plaintiff 3 to any such action unless he gives his consent in writing 4 to become such a party and such consent is filed in the 5 court in which such action is brought." 6 216(b). 29 U.S.C. § In other words, in an FLSA collective action 7 "each plaintiff must opt into the suit," rather than out 8 of it (as in a Rule 23 class action). McElmurry v. U.S. 9 Bank Nat'l Ass'n, 495 F.3d 1136, 1139 (9th Cir. 2007) 10 (emphasis in original). 11 12 Plaintiffs in a collective action must be "similarly 13 situated"; the meaning of that phrase, however, remains 14 undefined in the Ninth Circuit. Mitchell v. Acosta 15 Sales, LLC, 841 F. Supp. 2d 1105, 1115 (C.D. Cal. 2011). 16 The typical approach of courts in the Central District of 17 California is to require the plaintiff who proposes a 18 collective action to meet the light burden of showing not 19 that she and her proposed class are identically 20 positioned, just similarly so – a test that reduces 21 typically to requiring the plaintiff to substantiate with 22 affidavits her "allegations that the putative class 23 members were together the victims of a single decision, 24 policy, or plan." Id. (quoting Sarviss v. Gen. Dynamics 25 Info. Tech. Inc., 663 F. Supp. 2d 883, 903 (C.D. Cal. 26 2009) (internal quotation omitted)). 27 28 11 1 Before a putative collective action is tried, 2 however, a court may – though it need not, absent 3 argument that the employees are not situated similarly – 4 take a second, more rigorous look at the class, enquiring 5 as to "'(1) the disparate factual and employment settings 6 of the individual plaintiffs; (2) the various defenses 7 available to the defendants with respect to the 8 individual plaintiffs; and (3) fairness and procedural 9 considerations.'" Mitchell, 841 F. Supp. 2d at 1116 10 (quoting Edwards v. City of Long Beach, 467 F. Supp. 2d 11 986, 990 (C.D. Cal. 2006)); see Edwards, 467 F. Supp. 2d 12 at 989-90 (noting that the FLSA contains no 13 "certification" requirement or protocol to which courts 14 must adhere; certification of a collective action is 15 instead merely "an effective case management tool") 16 (citing Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165, 17 170–72 (1989)). 18 19 Whatever role a court plays in certifying an FLSA 20 class, it is not bound to exercise the same oversight of 21 the settlement of a collective action as it must a class 22 action under Federal Rule of Civil Procedure 23(e). 23 Whereas the court's role in supervising the settlement of 24 a class action "protects unnamed class members 'from 25 unjust or unfair settlements affecting their rights,'" 26 Amchem Prods., Inc., 521 U.S. at 623 (quoting 7B Charles 27 Alan Wright, et al., Federal Practice & Procedure § 1797 28 12 1 (3d ed.)), members of an FLSA collective action have 2 opted-in affirmatively; a court's involvement in the 3 management of their action "has less to do with the due 4 process rights" of those to be bound by a settlement, 5 "and more to do with the named plaintiffs' interest in 6 vigorously pursuing the litigation and the district 7 court's interest in 'managing collective actions in an 8 orderly fashion,'" McElmurry, 495 F.3d at 1139 (quoting 9 Hoffmann–LaRoche Inc., 493 U.S. at 173).3 10 11 Having elaborated on the criteria it applies in 12 analyzing the Dancers' Motion, the Court now turns to 13 that task. 14 15 III. DISCUSSION 16 The Court denied the Dancers' previous motion for 17 approval of settlement in this case for three discrete 18 reasons. (See June 21 Order at 15-16.) First, the 19 Dancers failed to satisfy Rule 23(a)'s typicality and 20 adequacy requirements, because they offered no class 21 representatives for the subclasses comprised of Dancers 22 working at Clubs in Kentucky, Florida, Idaho, and Texas. 23 24 25 26 27 28 3 Moreover, it appears to be an open question whether and when members of an FLSA class who opt in may withdraw from the collective action, and what effects their prior participation has after their withdrawal. See Adams v. Sch. Bd. of Hanover Cnty., No. 3:05CV310, 2008 WL 5070454, at *17-*19 (E.D. Va. Nov. 26, 2008) (noting that "[n]o published case discusses the procedures a court must undertake when a party who had opted-in seeks to withdraw"). 13 1 (See id. at 16-17.) Second, the cy pres provision in the 2 Agreement's previous iteration defied the law of this 3 circuit. (See id. at 18-19.) Third, the Agreement 4 released the FLSA claims of even those class members who 5 did not opt in to the FLSA collective action. 6 at 21-23.) (See id. The Dancers have now rectified each of those 7 flaws, and as the Court noted, "[t]he Agreement otherwise 8 appears . . . to be fair, adequate, and reasonable."4 9 (Id. at 19.) 10 11 Thus, for the reasons set forth in the June 21 Order, 12 the Court finds that the Dancers satisfy Rule 23(a)'s 13 numerosity and commonality requirements, and as they now 14 have class representatives for each subclass, its 15 typicality and adequacy requirements. The Court finds 16 further that the Dancers' choice of charitable 17 organizations to receive the otherwise unallocated 18 portion of the settlement fund's non-reversionary amount 19 satisfies the Ninth Circuit's requirements for cy pres 20 awards. Finally, the language of the Agreement now makes 21 clear that only those Dancers who file claims will be 22 deemed to have opted in to an FLSA subclass, and thus 23 24 4 Aside from the objections received before, and 25 addressed in, the Court's June 21 Order, the Court has received an objection from a class member that states 26 simply that the class member believes the settlement is unfair, with no further explanation. The Court has 27 considered that objection, and determined that without elaboration, it is an insufficient basis to disapprove 28 the settlement. 14 1 that only those Dancers will release their FLSA claims 2 against the Clubs. Accordingly, the Court GRANTS the 3 Dancers' Motion for Final Approval of Class Action 4 Settlement, and turns to their Motion for Attorneys' Fees 5 and Incentive Awards. 6 7 A. Attorneys' Fees 8 In addition to costs, the Dancers seek $2,500,000 in 9 attorneys' fees for their counsel, either calculated as a 10 percentage of the $12,970,000 gross settlement amount or 11 using the lodestar method. The Court calculates the 12 Dancers' attorneys' fees using the lodestar method, see 13 Fischel v. Equitable Life Assurance Soc'y, 307 F.3d 997, 14 1006 (9th Cir. 2002) ("the district court has the 15 discretion to apply either the lodestar method or the 16 percentage-of-the-fund method in calculating a fee 17 award"). The Court has conducted a line-item review of 18 the billing records submitted in this case from each of 19 the billing professionals. 20 21 To apply the lodestar method, the Court must "first 22 calculat[e] the 'lodestar.'" Caudle v. Bristow Optical 23 Co., Inc., 224 F.3d 1014, 1028 (9th Cir. 2000) (citation 24 omitted). The Court determines the 'lodestar' amount by 25 multiplying the number of hours reasonably expended on 26 the litigation by a reasonable hourly rate. Id.; McGrath 27 v. Cnty. of Nevada, 67 F.3d 248, 252 (9th Cir. 1995) 28 15 1 (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). 2 Next, the Court must decide whether to adjust the 3 'presumptively reasonable' lodestar figure based upon the 4 factors listed in Kerr v. Screen Extras Guild, Inc., 526 5 F.2d 67, 69-70 (9th Cir. 1975), cert. denied, 425 U.S. 6 951 (1976), that have not been subsumed in the lodestar 7 calculation.5 Caudle, 224 F.3d at 1028-29. 8 9 In determining a reasonable number of hours, the 10 Court must examine detailed time records to determine 11 whether the hours claimed are adequately documented and 12 whether any of them are unnecessary, duplicative, or 13 excessive. Chalmers v. City of Los Angeles, 796 F.2d 14 1205, 1210 (9th Cir. 1986), reh'g denied, amended on 15 other grounds, 808 F.2d 1373 (9th Cir. 1987) (citing 16 Hensley, 461 U.S. at 433-34). To determine a reasonable 17 rate for each attorney, the Court must look to the rate 18 19 20 21 22 23 24 25 26 27 28 5 Kerr was decided before the lodestar approach was adopted by the Supreme Court in Hensley, 461 U.S. at 433, as the starting point for determining reasonable fees. In Kerr, the Ninth Circuit adopted the 12-factor test articulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974); this analysis identified the following factors for determining reasonable fees: (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the "undesirability" of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. 16 1 prevailing in the community for similar work performed by 2 attorneys of comparable skill, experience, and 3 reputation. Id. at 1210-11 (citing Blum v. Stenson, 465 4 U.S. 886, 895 n.11 (1984)). 5 6 To the extent that the Kerr factors are not addressed 7 in the calculation of the lodestar, they may be 8 considered in determining whether the fee award should be 9 adjusted upward or downward, once the lodestar has been 10 calculated. 11 434). Id. at 1212 (citing Hensley, 461 U.S. at There is a strong presumption that the lodestar 12 figure represents a reasonable fee. Jordan v. Multnomah 13 Cnty., 815 F.2d 1258, 1262 (9th Cir. 1987) (citing 14 Pennsylvania v. Delaware Valley Citizens' Council for 15 Clean Air, 478 U.S. 546, 565 (1986)). 16 17 The Dancers seek to adjust their lodestar upward 18 using the multiplier method. A court may adjust the 19 lodestar upward or downward using a multiplier. An 20 upward adjustment of the lodestar is appropriate only in 21 extraordinary cases, such as when the attorneys faced 22 exceptional risks of not prevailing or not recovering any 23 fees. Chalmers, 796 F.2d at 1212. See also Blum, 465 24 U.S. at 903 (Brennan, J., concurring); Hensley, 461 U.S. 25 at 448 (Brennan, J., concurring in part, dissenting in 26 part); Pennsylvania, 478 U.S. at 565 (upward adjustments 27 are “proper only in certain ‘rare’ and ‘exceptional’ 28 17 1 cases”). This case is not an extraordinary, rare, or 2 exceptional case, and therefore, application of a 3 multiplier to adjust the lodestar upward is inappropriate 4 and unwarranted. 5 6 The party seeking attorneys' fees bears the burden of 7 "submitting evidence supporting the hours worked and the 8 rates claimed." Hensley, 461 U.S. at 433. A fee 9 applicant can meet this basic requirement by listing the 10 hours worked by each person at the firm and identifying 11 the general subject matter of his or her time 12 expenditures. See Fische v. SJB-P.D. Inc., 214 F.3d 13 1115, 1121 (9th Cir. 2000). 14 15 In addition to the voluminous materials the Dancers 16 submitted to justify the $2,500,000 in attorneys' fees 17 they seek, the Court considers the amount of time it took 18 the parties to manage the logistics of settling this 19 litigation. The Court notes that in the course of this 20 case: 21 22 • Five days before the hearing on a Motion for 23 Preliminary Approval (Doc. No. 119), the Dancers 24 submitted to the Court a revised settlement 25 agreement, and a declaration of counsel that it was 26 substantially the same as the agreement the Court was 27 already evaluating. Instead, the revised agreement 28 18 1 made various substantive changes to the agreement 2 then before the Court, including in the relief to 3 which the Dancers would be entitled and the amount of 4 fees their attorneys would receive. 5 Order at 7.) (See June 21 6 7 • The Dancers then filed an Amended Motion for 8 Preliminary Approval (Doc. No. 132), which "failed in 9 many respects . . . to set forth the necessary 10 elements for the Court to certify a settlement 11 class." 12 denied. (See June 21 Order at 7.) The motion was 13 14 • Next, the Dancers filed a Second Motion for 15 Preliminary Approval (Doc. No. 159) that accompanied 16 an agreement purporting to bind Clubs who were not 17 parties to the litigation. 18 The Court therefore denied that motion, too. (See June 21 Order at 8.) 19 20 • The Dancers filed their first Motion for Final 21 Approval of Class Action Settlement (Doc. No. 244) 22 slightly over a year ago; however, after realizing a 23 number of Dancers had been excluded inadvertently 24 from the parties' calculations in reaching their 25 settlement, the Dancers and Clubs returned to the 26 drawing board. (See June 21 Order at 9.) 27 28 19 1 • The Dancers submitted a new settlement agreement, for 2 which they sought the Court's approval. (See Doc. 3 No. 265.) 4 Motion, which the Court therefore denied. 5 No. 268; see generally June 21 Order at 9.) Again, there were deficiencies in the (See Doc. 6 7 • The Dancers filed a "Third Amended Motion for Final 8 Approval of Class Action Settlement" (Doc. No. 288); 9 the Court denied that for the reasons set forth at 10 the beginning of Section III of this Order. 11 also June 21 Order at 9, 15-16.) (See 12 13 The Court therefore considers the bills submitted by 14 the Dancers' counsel against this background. 15 Plaintiffs’ counsel argued at the August 30 hearing of 16 this Motion that most of the false steps in the course of 17 this litigation were the result of the defense’s mistakes 18 or oversights, a contention that appears well-taken as to 19 some of the history of the resubmission of the motions 20 for settlement agreement approval. 21 22 After careful review of the billing records, the 23 Court concludes that plaintiffs’ request for fees 24 incurred is reasonable, after deductions for certain 25 amounts as described below. Hensley v. Eckerhart, 461 26 U.S. 424, 433 (1983) (“The most useful starting point for 27 determining the amount of a reasonable fee is the number 28 20 1 of hours reasonably expended on the litigation multiplied 2 by a reasonable hourly rate.”) Plaintiffs have 3 represented that the fees charged by plaintiff’s counsel 4 are “more than reasonable when compared to the billing 5 rates for persons with similar experience and background 6 in the Southern California marketplace.” (Robinovitch 7 Decl. at ¶ 35; see also Declaration of Christopher P. 8 Ridout (“Ridout Decl.”) at ¶ 20 (“rates charges . . . are 9 reasonable and within the range of rates awarded to 10 attorneys practicing within the Central District of 11 California”); Declaration of Caleb Marker (“Marker 12 Decl.”) at ¶ 36.) Based on the Court’s familiarity with 13 the rates charged by other firms in the Southern 14 California legal community, the hourly rates of between 15 $475-700 for partners (See Robinovitch Decl. at ¶ 26-27; 16 Ridout Decl. at ¶ 11; Declaration of Stephen M. Harris at 17 ¶ 8); $350 for of counsel (See Marker Decl. at ¶ 23); 18 $250-495 for other attorneys (See Ex. B to Robinovitch 19 Decl.); and $150 for law clerk and paralegal fees (Ridout 20 Decl. at ¶ 11; Robinovitch Decl. at ¶ 28) are reasonable. 21 Plaintiffs also represent that the hours spent on the 22 litigation were reasonable. (Robinovitch Decl. at ¶ 30; 23 Ridout Decl. at ¶ 10; Marker Decl. at ¶ 21.) In 24 addition, after reviewing the costs requested by 25 plaintiffs, the Court concludes that they were reasonably 26 incurred in prosecuting the case. 27 28 21 1 After reviewing each billing entry, the Court finds 2 it necessary and appropriate to reduce the fees requested 3 by the Dancers for (1) time spent on irrelevant issues or 4 tasks upon which excessive time was spent or billed, 5 e.g., preparation of pro hac vice applications, (2) other 6 unnecessary, excessive, or duplicative entries, and (3) 7 time charged for clerical or secretarial tasks. For 8 example, several of the billing attorneys billed time for 9 analyzing the Court’s notices regarding their own filing 10 deficiencies. The bills submitted from at least two of 11 the Dancers’ attorneys also contain repeated billings for 12 excessive time spent for reviewing minute orders from the 13 Court that stated nothing more than a hearing was 14 conducted, and the matter taken under submission. The 15 Court finds it indefensible that an attorney who had 16 attended the hearing would then charge for 24 minutes of 17 his time to review the clerk’s two or three sentence 18 minute order, or even six minutes to do so. 19 20 Several attorneys engaged regularly in the practice 21 of splitting among many billing entries activities that 22 should be consolidated in one. For example, on January 23 26, 2010, Mr. Ridout appears to have engaged in a 24 correspondence with Mr. Garrell, to which he devoted 25 seven separate line items, each one taking one-tenth or 26 two-tenths of an hour. It thus appears that each message 27 in the correspondence warranted its own line item. 28 22 1 Presumably Mr. Ridout rounds up from zero minutes to six 2 minutes (one-tenth of an hour) each time he undertakes a 3 task. Thus, if Mr. Ridout takes one minute to read a 4 message from Mr. Garrell, then takes three minutes to 5 read a subsequent message, rather than billing for six 6 minutes (four minutes rounded up to the nearest tenth of 7 an hour), he bills for 12 minutes (one minute rounded up 8 to the nearest tenth of an hour plus three minutes 9 rounded up to the nearest tenth of an hour). These are 10 but a few examples of the type of billing for which the 11 Court has deducted time when it reviewed the fees sought 12 in this case. 13 14 The amount of fees and costs requested, as well as 15 the reduction in fees, is listed below. 16 17 Rideout and Lyons, LLP (not including Caleb Marker) 18 • Amount of Fees Requested: $591,465.00 19 • Deductions: $40,095.00 20 • Balance: $551,370.00 21 • Amount of Costs Requested: $5,687.30 22 23 Ridout and Lyons, LLP (Caleb Marker only) 24 • Amount of Fees Requested: $622,072.50 25 • Deductions: $78,480.00 26 • Balance: $543,592.50 27 • Amount of Costs Requested: $5,668.76 28 23 1 2 Zimmerman Reed, PLLP 3 • Amount of Fees Requested: $729,642.50 4 • Deductions: $26,425.00 5 • Balance: $703,217.50 6 • Amount of Costs Requested: $35,287.88 7 8 Knapp, Petersen & Clarke 9 • Amount Requested: $484,987.00 10 • Deductions: $53,697.50 11 • Balance: $431,289.50 12 • Amount of Costs Requested: $23,441.83 13 14 The Law Offices of Robert L. Starr 15 • Amount Requested: $88,935.00 16 • Deductions: $17,380 17 • Balance: $71,555.00 18 • Amount of Costs Requested: $3,185.00 19 20 B. Incentive Awards 21 Given the time they invested in this matter, and the 22 professional and personal risk to which being named 23 plaintiffs subjected them, the Dancers also seek 24 incentive awards for their class representatives as 25 follows: 26 27 28 24 1 • For Tracy Dawn Trauth, $15,000 for "over 163.5 hours" 2 of "time for the benefit of the [Dancers]." (See 3 Decl. of Tracy Dawn Trauth (Doc. No. 314-4) ¶ 27.) 4 5 • For Jennifer Blair, $6,250 for 30 hours of time spent 6 aiding in the litigation of this matter. 7 of Jennifer Blair (Doc. No. 314-6) ¶ 19.) (See Decl. 8 9 • For Christeen Rivera, $6,250 for 60 hours of time 10 spent aiding in the litigation of this matter. 11 Decl. of Christeen Rivera (Doc. No. 314-5) ¶ 35.) (See 12 13 • For Victoria Omlor, $6,250 for 35 hours of time spent 14 in connection with this litigation. 15 Victoria Omlor (Doc. No. 314-9) ¶ 20.) (See Decl. of 16 17 • For Jasmine Wright, $6,250 for 40 hours of time spent 18 aiding in the litigation of this matter. 19 of Jasmine Wright (Doc. No. 314-14) ¶ 31.) (See Decl. 20 21 • For Anicia Vintimilla, $6,250 for 35 hours spent 22 aiding in the litigation of this matter. 23 of Anicia Vintimilla (Doc. No. 314-13) ¶ 20.) (See Decl. 24 25 • For Marsha Ellington, $6,250 for 25 hours spent 26 aiding in the litigation of this matter. 27 of Marsha Ellington (Doc. No. 314-8) ¶ 20.) 28 25 (See Decl. 1 2 • For Selena Denise Pelaez, $6,250 for 25 hours spent 3 aiding in the litigation of this matter. 4 of Selena Denise Pelaez (Doc. No. 314-10) ¶ 20.) (See Decl. 5 6 • For Nicole Garcia, $6,250 for 20 hours spent aiding 7 in the litigation of this matter. 8 Nicole Garcia (Doc. No. 314-7) ¶ 20.) (See Decl. of 9 10 • For Reah Navarro, $6,250 for 20 hours spent aiding in 11 the litigation of this matter. 12 Navarro (Doc. No. 314-12) ¶ 20.) (See Decl. of Reah 13 14 • For Tami Sanchez, $6,250 for 20 hours spent aiding in 15 the litigation of this matter. 16 Sanchez (Doc. No. 314-11) ¶ 20.) (See Decl. of Tami 17 18 • For Rose Shakespeare, $1,000 for 15 hours spent 19 aiding in the litigation of this matter. 20 of Rose Shakespeare (Doc. No. 314-15) ¶ 29.) (See Decl. 21 22 • For Connie Linne, $1,000 for 15 hours spent aiding in 23 the litigation of this matter. 24 Linne (Doc. No. 314-16) ¶ 29.) 25 26 27 28 26 (See Decl. of Connie 1 • For Ashley Malott King, $1,000 for 15 hours spent 2 aiding in the litigation of this matter. (See Decl. 3 of Ashley Malott King (Doc. No. 314-17) ¶ 29.) 4 5 In determining whether and how much to award class 6 representatives in incentive payments, courts are to 7 consider the representatives' actions in protecting the 8 interests of the class, the degree to which those actions 9 benefitted the class, the amount of time and effort the 10 representatives spent pursuing the litigation, and the 11 representatives' reasonable fear of being retaliated 12 against for their visible participation. Staton, 327 13 F.3d at 977 (citing Cook v. Niedert, 142 F.3d 1004, 1016 14 (7th Cir. 1998)). Courts also consider the number of 15 representatives being awarded incentive payments, the 16 proportion of the payments to the settlement amount, and 17 the size of each payment. Staton, 327 F.3d at 977. 18 19 Here, the Court observes that while the total amount 20 of the proposed incentive payments is a small fraction of 21 the total settlement amount, awarding some of the 22 proposed payments would mean giving the named 23 representatives as much as $312.50 per hour for their 24 time on the basis of boilerplate declarations. Moreover, 25 there is scant evidence that any representative faced a 26 real risk of retaliation; as to the one representative 27 who claimed to have been retaliated against, the Clubs 28 27 1 offered a declaration indicating that she was banned from 2 their premises because she appeared there while not 3 working and disrupted the workplace activities of others 4 to carry on social conversations. (See Omlor Decl. ¶ 13; 5 but see Decl. of Kathy Vercher (Doc. No. 325-1) ¶ 2.) 6 Accordingly, the Court will allow incentive payments as 7 follows: 8 9 • Tracy Dawn Trauth: $10,000 10 11 • Jennifer Blair: $5,000 12 13 • Christeen Rivera: $5,000 14 15 • Victoria Omlor: $5,000 Jasmine Wright: $5,000 16 17 • 18 19 • Anicia Vintimilla: $5,000 20 21 • Marsha Ellington: $2,500 22 23 • Selena Denise Pelaez: $2,500 24 25 • Nicole Garcia: $2,500 26 27 • Reah Navarro: $2,500 28 28 1 2 • Tami Sanchez: $2,500 3 4 • Rose Shakespeare: $1,000 5 6 • Connie Linne: $1,000 7 8 • Ashley Malott King: $1,000 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 1 2 IV. CONCLUSION For the foregoing reasons, the Court GRANTS the 3 Dancers' Motion for Final Approval of Class Action 4 Settlement and their Motion for Attorneys' Fees and 5 Incentive Awards. The Dancers are hereby awarded 6 $2,301,024.50 in fees, $73,270.77 in costs, and incentive 7 payments as enumerated in the preceding section. 8 9 10 11 Dated: October 5, 2012 12 VIRGINIA A. PHILLIPS United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30
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