Bond v. Ferguson Enterprises, Inc., No. 1:2009cv01662 - Document 56 (E.D. Cal. 2011)

Court Description: DRAFT MEMORANDUM DECISION for review by the parties. The parties shall review the attorneys fees calculations and adjustments presented on pages 28-34 of this draft memorandum decision and shall inform the Court of any errors by 4:00 pm on 6/22/11. Corrections may be suggested as electronic comments to this.pdf file or in a separate document, and should be both electronically filed and emailed to lisacoffman@caed.uscourts.gov. (Coffman, Lisa)

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1 UNITED STATES DISTRICT COURT 2 FOR THE EASTERN DISTRICT OF CALIFORNIA 3 4 LEE BOND, and RICHARD JAMES, 5 Plaintiff, 6 1:09-cv-1662 OWW MJS v. 7 8 9 [DRAFT] MEMORANDUM DECISION RE UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT (DOC. 41) AND FOR ATTORNEYS FEES AND COSTS (DOC. 48) FERGUSON ENTERPRISES, INC., Defendants. 10 11 I. INTRODUCTION 12 This is a wage-and-hour class action brought on 13 behalf of truck drivers employed by Ferguson Enterprises 14 Inc., in Kern County, California. Declaration of Craig 15 16 17 18 Ackermann, Doc. 44 ¶ 12; see also First Amended Complaint filed July 30, 2010. The action is brought on behalf of Plaintiffs and approximately 548 current and former 19 employees of Defendants from July 17, 2005 for alleged 20 violations of state wage-and-hour laws. Id. 21 The parties have entered into a Joint Stipulation of 22 Settlement Agreement. See Ackermann Decl., Doc. 30 at Ex. 23 1. A January 25, 2011 memorandum decision: (1) 24 25 26 27 28 conditionally certified a Settlement Class; (2) preliminarily approved the Class Settlement; (3) Class Counsel; (4) appointed Class Representatives; (5) appointed a settlement administrator, (6) approved the 1 1 class Notice and related materials for distribution; and 2 (7) required plaintiffs to submit a form of order 3 consistent with the decision within five (5) days 4 5 6 7 following electronic service. Doc. 35. Plaintiffs have filed a motion for final approval of the settlement, Docs. 41-42, along with numerous supporting declarations, 8 Docs. 43-46. Plaintiffs have also moved for approval of 9 their request for attorneys fees and costs, Docs. 48-49, 10 and filed the supporting declaration of Melissa M. 11 Harnett, Doc. 50. No objections to approval have been 12 received. 13 14 II. BACKGROUND 15 Plaintiffs allege that Defendants failed to provide 16 timely off-duty meal periods; failed to pay for missed, 17 on-duty and untimely meal periods; failed to provide 18 19 20 21 accurate itemized wage statements; and failed to pay all wages due upon termination or separation of employment. Plaintiffs sought to certify a class composed of 22 themselves and similarly situated individuals, and sought 23 declaratory relief and recovery of back wages, interest, 24 penalties, attorneys fees, and costs. See First Amended 25 Complaint ( FAC ), Doc. 21-1. 26 27 28 From November 2009 through the day of the settlement, the Plaintiffs conducted substantial formal and informal 2 1 discovery concerning the Defendant s policy and 2 practices. Harnett Decl., Doc. 43 at ¶ 42. Among other 3 discovery, Plaintiffs served document requests seeking 4 5 6 7 information on the size of the Class and identity of each of the Class members, and on Defendant s meal break policies, including the persons responsible for 8 developing, implementing and monitoring Defendant s meal 9 break policies. Id. at ¶ 45. Defendants produced a 10 variety of responsive documents including all of its meal 11 and rest period policies and several other categories of 12 13 14 15 responsive documents, but objected to most of the class discovery on the grounds that it violated the Class Members rights to privacy, and was premature and 16 irrelevant to a ruling on a class certification. Harnett 17 Decl., Doc. 31 at ¶ 46. Plaintiff s counsel reviewed the 18 information amassed during discovery including: analysis 19 of thousands of documents produced by Defendant, 20 including time records and payroll data for 34 class 21 22 23 24 members and Defendant s employment records; (2) analysis of Defendant s legal arguments; (3) obtaining more than thirty sworn declarations from former and current truck 25 drivers of Defendant; (4) taking the Rule 30(b)(6) 26 deposition of Defendant s corporate representative; (5) 27 analysis of class-wide violation rates on the automatic 28 3 1 deduction and meal break claims on the basis of a sample 2 of thirty-four (34) class members; (6) analysis of class- 3 wide violations and damages on derivative claims; and (7) 4 5 6 research of the applicable law with respect to Plaintiffs claims. Id. at ¶ 4. 7 8 9 10 11 12 III. SUMMARY OF THE SETTLEMENT The case was resolved with the aid of a mediator, Gig Kyraicou. The Settlement covers approximately 548 current and former truck drivers employed by Defendant in California from July 17, 2005 to the date the court 13 enters an Order of Preliminary Approval ( Class Period ), 14 excluding new truck drivers hired after November 3, 2010 15 and 46 truck drivers who previously signed severance 16 release agreements prior to the filing of the lawsuit 17 ( Class Members ). See Settlement, Doc. 30-1, Exhibit 1, 18 19 20 21 § 6. There will be no reversion of the Gross Settlement Amount to Defendant; see also Declaration of Craig J. Ackermannn, Doc. 30 at ¶ 48. 22 23 24 25 26 27 28 A. Gross Settlement Amount. Under $2,500,000 the Settlement, ( Gross Defendant Settlement will cover: 4 will Amount ). This pay up total to sum 1 ¢ 2 settlement awards to be paid to Class Members who timely submit valid claims ( Settlement Awards ); 3 ¢ 5 any payroll withholding on the Settlement Awards; ¢ 4 the Settlement Administrator s reasonable fees and expenses (no more than $18,000); 6 7 ¢ (subject to court approval) payments to Plaintiffs, 8 in addition to their Settlement Awards, of $11,250 9 each in compensation of their services as Class 10 Representatives; 11 ¢ 12 and (also subject to court approval) payments to 13 Class Counsel of no more than 30% of the Gross 14 Settlement Amount, or $675,000, for their reasonable 15 attorneys fees, as well as litigation costs, up to 16 $10,000. 17 18 See Settlement, § 6. There will be no reversion of the Gross Settlement Amount to Defendant. 19 20 21 22 23 24 25 26 27 28 B. Payment of Settlement Awards. After the other amounts are deducted, the balance of the Gross Settlement Amount, approximately $1,524,500 (the Net Settlement Amount ) will be distributed to all Class Members who timely submit valid claims ( Claimants ), based upon the following allocation formula: 5 1 The dollar amount payable to each member of the Class will be calculated by taking the Potential Gross Individual Settlement Proceeds , i.e., the Net Settlement Amount (estimated to be slightly more than $1,500,000) divided by the total number of weeks worked by all members of the Class during the Class Period, and then multiplied by the total number of weeks worked by each individual member of the Settlement Class. 2 3 4 5 6 7 Settlement, § 7(a). A Claim Form, which will be mailed to 8 Class Members with the Notice of Proposed Class Action 9 Settlement and Fairness Hearing ( Notice ), will include 10 for each Class Member the number of weeks actively worked 11 during the Class Period and the Class Member s estimated 12 Settlement Amount. Ackermannn Decl., Doc. 31 at ¶ 52. 13 For tax purposes, one-third (1/3) of each Settlement 14 15 Award will be deemed wages and two-thirds (2/3) will be 16 treated as penalties and interest. Settlement Awards will 17 be subject to applicable tax withholding and reporting. 18 Settlement, § 7(c). 19 The formula relies upon objective evidence of the 20 number of weeks worked during the Class Period. Class 21 22 23 24 25 26 27 28 Members can review and confirm this information, and the Claim Form permits Class Members to challenge the number of weeks worked. Settlement, § 7(e). C. Distribution of Unclaimed Funds and Uncashed Checks. If less than 60% of the Gross Settlement Amount is claimed and distributed to all Claimants, then each 6 1 Claimant s Settlement Award will be proportionately 2 increased, up to a maximum of 1.5 times their original 3 Settlement Award, until the total individual Settlement 4 5 6 7 Awards equals 60% of the Net Settlement Amount. If the combined total of all Claimants Settlement Awards at 1.5 times the original amount is still less than 60% of the 8 Gross Settlement Amount, the balance of the funds will be 9 paid to a 501(c)(3) nonprofit organization, to be agreed 10 upon by the parties and approved by the court. 11 Settlement, § 6(a). 12 13 14 D. Scope of the Release. The Settlement provides that all Class Members other 15 than those who elect not to participate in the Settlement 16 shall have released the Released Parties from the 17 Released Claims. The Notice contains the following 18 19 20 21 22 23 24 25 26 27 28 release: For purposes of this Notice and the Settlement Agreement, the Released Claims of the Settlement Class are defined as: All claims, demands, rights, liabilities, and causes of action, whether brought directly, representatively, or in any capacity, that were or could have been asserted in the Lawsuit based upon the facts alleged therein, whether in tort, contract, statute, rule, ordinance, order, regulation, or otherwise, including state, federal, and local laws, whether for economic damages, noneconomic damages, restitution, penalties, punitive damages, wages, premium payments, liquidated damages, attorneys fees, or any other type of recovery thereon, arising out of any act, omission, transaction, or event that occurred or is alleged to have occurred up to the date of this Agreement. 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Claims specifically included in this release without limitation are those for alleged failure to provide meal or rest breaks, alleged failure to pay for all hours worked based on the application of an automatic lunch deduction (including claims for unpaid overtime, whether known or unknown, arising during the Class Period for the Class Members based on the claims reasonably related to those alleged in the Lawsuit), alleged failure to provide accurate itemized wage statements, alleged failure to provide timely pay upon termination, alleged unfair competition by means of the foregoing, and any other claims arising out of alleged failure to pay wages or penalties or for any other claims asserted in the Lawsuit. This release shall be in addition to, and not in lieu of, any release previously executed by any member of the Settlement Class. With respect to the Released Claims, Plaintiffs and the members of the Settlement Class stipulate and agree that, upon the effective date of the settlement, all of them shall be deemed to have, and by operation of the Final Judgment shall have, expressly waived and relinquished, to the fullest extent permitted by law, the provisions, rights and benefits of Section 1542 of the California Civil Code, or any other similar provision under federal or state law that purports to limit the scope of a general release. Section 1542 provides: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Settlement Class Members shall fully and finally release and discharge Ferguson, and each of their past, present, or future officers, directors, owners, shareholders, employees, agents, principals, heirs, representatives, accountants, auditors, attorneys, consultants, insurers, and reinsurers, and their respective successors and predecessors in interest, subsidiaries, affiliates, parents, and each of their company-sponsored employee benefit plans, and all of their respective officers, directors, employees, 8 1 administrators, fiduciaries, trustees, and agents ( Released Parties ), from the Released Claims. 2 3 4 See Notice, Doc. 30, Ex. 1-A, § 5. E. 5 6 7 8 9 10 Any Class Member who so wishes may object or elect not to participate in the Settlement. The Notice fully explains the objection and opt-out procedures. See Notice, § 3. F. 11 12 13 14 Objections and Opt-Out Process Class Representative Payments; Class Counsel Attorneys Fees Payment and Class Counsel Litigation Expenses Payment. The settlement also permits Plaintiffs and their counsel to seek by separate motion: ¢ payments to Plaintiffs, in addition to their 15 16 Settlement Awards, of $11,250 each in 17 compensation of their services as Class 18 Representatives; and 19 ¢ payments to Class Counsel of no more than 30% of 20 the Gross Settlement Amount, or $675,000, for 21 their reasonable attorneys fees, as well as 22 litigation costs, up to $10,000. 23 24 See Settlement, § 6(b), (d). 25 26 27 28 III. DISCUSSION A. Certification of a Class for Settlement As the Class has only been conditionally certified, 9 1 final certification is required and is governed by 2 Federal Rule of Civil Procedure Rule 23. 3 4 1. Rule 23(a) Requirements. 5 Federal Rule of Civil Procedure 23(a) states in 6 pertinent part that [o]ne or more members of a class may 7 sue or be sued as representative parties on behalf of 8 all. As a threshold matter, in order to certify a class, 9 10 a court must be satisfied that 16 (1) the class is so numerous that joinder of all members is impracticable (the "numerosity" requirement); (2) there are questions of law or fact common to the class (the "commonality" requirement); (3) the claims or defenses of representative parties are typical of the claims or defenses of the class (the "typicality" requirement); and (4) the representative parties will fairly and adequately protect the interests of the class (the "adequacy of representation" requirement). 17 In re Intel Secs. Litig., 89 F.R.D. 104, 112 (N.D. Cal. 11 12 13 14 15 18 1981)(citing Fed. R. Civ. P. 23(a)). 19 20 21 a. Numerosity. Here, the proposed class is comprised of all 22 individuals who have been employed by Defendant in 23 California as truck drivers from July 17, 2005 to January 24 25 26 27 28 25, 2011, excluding new truck drivers from November 3, 2010 and 46 drivers who previously signed severance release agreements prior to the filing of this lawsuit. There are approximately 548 Class Members. Courts have 10 1 routinely found the numerosity requirement satisfied when 2 the class comprises 40 or more members. Ansari v. New 3 York Univ., 179 F.R.D. 112, 114 (S.D.N.Y. 1998). 4 5 6 7 Numerosity is also satisfied where joining all Class members would serve only to impose financial burdens and clog the court s docket. In re Intel Secs. Litig., 89 8 F.R.D. at 112. Here, the joinder of approximately 548 9 individual former employees would only further clog this 10 court s already overburdened docket. 11 b. 12 Common Questions of Fact and Law. 13 Commonality exists when there is either a common 14 legal issue stemming from divergent factual predicates or 15 a common nucleus of facts resulting in divergent legal 16 theories. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 17 (9th Cir. 1998). It does not require that all questions 18 19 20 21 of law or fact be common to every single member of the class. To satisfy the commonality requirement, plaintiffs need only point to a single issue common to the class. 22 Dukes v. Wal-Mart, Inc., 509 F.3d 1168, 1177 (9th Cir. 23 2007); Slaven v. BP Am., Inc., 190 F.R.D. 649, 655 (C.D. 24 Cal. 2000). 25 26 Here, Class Members share the following legal and factual questions: 27 28 ¢ Whether Defendant automatically deducted thirty 11 1 minutes worth of working time on the basis of 2 the unverified assumption that truck drivers 3 always took a half-hour, off-duty meal break and 4 in lieu of keeping contemporaneous or accurate 5 meal break records; 6 7 ¢ Whether Defendant failed to compensate truck 8 drivers for missed or untimely meal breaks with 9 an extra hour of premium pay; 10 ¢ 11 systematic daily method of relieving Class 12 Members of their duties for meal breaks; 13 14 ¢ 17 18 19 20 21 22 23 24 25 26 27 28 Whether Defendant failed to pay former employees all wages due at termination; and 15 16 Whether Defendant failed to implement a ¢ Whether the above practices violate the Labor Code and Wage Orders. Every Class Member was paid under the same pay practices as every other class members. The commonality requirement is satisfied. c. Typicality. Typicality is satisfied if the representatives claims arise from the same course of conduct as the class claims and are based on the same legal theory. See, e.g., Kayes v. Pac. Lumber Co., 51 F.3d 1449, 1463 (9th Cir. 1995)(claims are typical where named plaintiffs have the 12 1 same claims as other members of the class and are not 2 subject to unique defenses). Because every class member 3 was paid under the same pay practices as every other 4 5 6 7 8 9 10 11 12 class member, the Class Representatives claims are typical of those of the other Class Members. The typicality requirement is satisfied. d. Fair and Adequate Representation. The final Rule 23(a) requirement is that the class representative fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a)(4). The 13 proper resolution of this issue requires that two 14 questions be addressed: (a) do the named plaintiffs and 15 their counsel have any conflicts of interest with other 16 class members and (b) will the named plaintiffs and their 17 counsel prosecute the action vigorously on behalf of the 18 19 20 21 class? In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 462 (9th Cir. 2000). Both requirements are satisfied here. Class counsel, 22 Craig J. Ackermann, Esq., of Ackermann & Tilajef, P.C., 23 and Melissa M. Harnett, Esq., of Wassermand, Comden, 24 Casselmand & Esensten, L.L.P, have significant experience 25 litigating class actions, serving as class counsel, 26 27 28 representing plaintiffs in wage and hour litigation. See Harnett Decl., Doc. 31, ¶¶13-32. Ackermann Decl., Doc. 13 1 30, ¶¶70-71. Class counsel have no conflicts with the 2 class, Harnett Decl., Doc. 31, ¶¶ 5, 7, and have devoted 3 a significant amount of time to the lawsuit, Ackermann 4 5 6 7 Decl., Doc. 30, ¶ 72; Harnett Decl., Doc. 31, ¶ 11. In addition, the Class Representatives interests are completely aligned with those of the class. The Class 8 Representatives interest is in maximizing their 9 recovery. Although they will each receive an additional 10 $11,250, this amount is reasonable compensation for their 11 time and expense they devoted to pursuing this case. See 12 Harnett Decl., Doc. 31, ¶ 9. 13 14 2. 15 Once the threshold requirements of Rule 23(a) are 16 satisfied, a class may be certified only if the class 17 action satisfies the requirements of Rule 23(b)(1), 18 19 20 21 Certification of a Class under Rule 23(b)(3). (b)(2), and/or (b)(3). Here, the parties agree for purposes of the Settlement only that certification of the Class is appropriate under Rule 23(b)(3) because 22 questions of law or fact common to the members of the 23 class predominate over any questions affecting only 24 individual members, and ... a class action is superior to 25 other available methods for the fair adjudication of the 26 controversy. Fed. R. Civ. P. 23(b)(3). 27 28 14 1 2 3 4 B. The Terms of the Preliminary Approval Have Been Satisfied. The January 25, 2011 preliminary approval of the Settlement and conditional certification of the Class 5 ordered that the Class be sent notice of the Settlement, 6 approved the form of notice proposed by the parties, 7 approved the forms of claims for settlement share and 8 election not to participate, and set the hearing for 9 10 11 12 final approval. Doc. 35. The Settlement Administrator, Simpluris, has carried out the preliminary approval order to the extent possible. See generally Bui Declaration, 13 Doc. 40. On February 14, 2011, Class Notice Packets were 14 mailed to class members to all five hundred and fifty-two 15 (552) Class Members. Id. at ¶ 7. On March 11, 2011, the 16 Settlement Administrator mailed a reminder to class 17 members who had not yet submitted a Claim form or an Opt 18 19 20 21 Out and to do so by the March 21, 2011 deadline. Bui Decl., Doc. 40, at ¶ 8. By April 21, 2011, one hundred and sixteen (116) Class Notice Packets were returned by 22 U.S. Postal Service as undeliverable. Id. at ¶ 12. The 23 Settlement Administrator remailed two-hundred and ninety- 24 two (292) Class Notice Packets to either a newfound 25 address, a forwarding address provided by the U.S. Postal 26 27 28 Service, or to an address at the request of the Class Member. Id. Despite the Settlement Administrator s best 15 1 efforts, fifty-nine (59) Class Notice Packets remain 2 undeliverable because the administrator was unable to 3 find a deliverable address. Id. 4 5 6 7 Despite these difficulties, three-hundred and fortytwo (342)(61.96%) claim forms were received and accepted by the Settlement Administrator. Id. at ¶ 14. As of April 8 22, 2011, the Settlement Administrator has received one 9 (1) deficient Claim Form because they did not sign their 10 form; two (2) untimely Claim Forms; and fifteen (15) opt- 11 outs. Id. at ¶¶ 17-19. Additionally, no class member has 12 submitted to an objection to the Settlement. Id. at ¶ 21. 13 14 15 C. Approval of the Settlement. The court must approve any settlement ... of the 16 claims ... of a certified class. Fed. R. Civ. P. 17 23(e)(1)(A). A settlement may be approved only after a 18 19 20 21 hearing and on finding that it is fair, reasonable, and adequate. Fed. R. Civ. P. 23(e)(1)(C). Such approval is required to make sure that any settlement reached is 22 consistent with plaintiffs fiduciary obligations to the 23 class. See Ficalora v. Lockheed Cal. Co., 751 F.2d 995, 24 996 (9th Cir. 1985). The court also serves as guardian 25 for the absent class members who will be bound by the 26 27 28 settlement, and therefore must independently determine the fairness of any settlement. Id. However, the district 16 1 court s role in intruding upon what is otherwise a 2 private consensual agreement is limited to the extent 3 necessary to reach a reasoned judgment that the agreement 4 5 6 7 is not the product of fraud or collusion between the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable, and adequate to all 8 concerned. FDIC v. Alshuler, 92 F.3d 1503, 1506 (9th Cir. 9 1996). Therefore, the settlement hearing is not to be 10 turned into a trial or rehearsal for trial on the merits. 11 Officers for Justice v. Civil Service Com., 688 F.2d 615, 12 13 14 15 16 625 (9th Cir. 1982). Ultimately, the district court's determination is nothing more than an amalgam of delicate balancing, gross approximations, and rough justice. Id. In determining whether a settlement agreement is 17 fair, adequate, and reasonable to all concerned, a 18 district court may consider some or all of the following 19 factors: (1) the strength of the Plaintiff's case (2) the 20 risk, expense, complexity, and likely duration of further 21 22 23 24 litigation; (3) the risk of maintaining class action status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed; (6) 25 the stage of the proceedings; (7) the views and 26 experience of counsel; (8) any opposition by class 27 members; (9) the presence of a governmental participant. 28 17 1 Linney v. Cellular Alaska Pshp., 151 F.3d 1234,1242 (9th 2 Cir. 1998). This list of factors is not exclusive and the 3 court may balance and weigh different factors depending 4 5 6 7 8 9 on the circumstances of each case. Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1376 (9th Cir. 1993). 1. The Relative Strengths of the Parties Cases Supports Approval of the Settlement. If the litigation proceeds, Plaintiffs would face 10 significant risks. Ackermann Decl. at ¶¶ 66-9. For 11 example, the primary issue in this case revolves around 12 the provision of meal periods. However, the meaning of an 13 employer s obligation to provide meal periods under 14 15 16 17 California law is currently before the California Supreme Court (see Brinkley v. Public Storage, Inc., 198 P.3d 1087, 87 Cal.Rptr 674 (Jan. 14, 2009) (review granted) 18 and Brinker Restaurant Corp. v. Superior Court, 196 P.3d 19 216, 85 Cal.Rptr 388 (Oct. 22, 2008)(review granted). A 20 defense ruling in Brinker could impair Plaintiff s 21 ability to proceed on these causes of action. 22 23 24 25 26 Plaintiffs also face the risk that the class may not be certified. The issue of whether missed meal break claims for truckers may be certified is currently pending before the California Supreme Court in Brinker. If the 27 Court adopts the Brinker standard, then class 28 certification of Plaintiffs missed meal break claims 18 1 would be more difficult. See Brown v. Federal Express, 2 249 FRD 580, 585 (C.D. Cal. 2008) (denying class 3 certification of employees alleging employers denied them 4 5 6 7 meal breaks and rest breaks, and failed to pay additional one hour of pay to employees who missed meal breaks.) In light of these risks, the significant recovery is 8 fair, reasonable, and adequate, and is in the best 9 interest of the Settlement Class in light of all known 10 facts and circumstances. 11 12 13 14 15 16 2. The Settlement Amount is Fair and Reasonable. The Settlement provides for a payment of up to $2,250,000 by Defendants. The average settlement share is $2,781.93 per employee. Ackermann Decl., Doc. 44 at ¶ 71. 17 All Settlement shares will be distributed to each 18 Claimant on the basis of the number of weeks actively 19 worked by each Claimant during the Class Period. Harnett 20 Decl., Doc. 43 at ¶ 60. 21 22 23 24 25 The Class Representative Payments and the Class Counsel Attorneys Fees Payment are appropriate, and are separately approved below. Finally, the expected Settlement Administrator s fees 26 and costs of approximately $18,000 are reasonable in 27 light of the amount of work achieved. Id. at ¶ 64. 28 19 1 3. The Release is Appropriate. 2 3 As part of the Settlement, Class Members release the 4 following claims: all wage and hour related claims, 5 demands, rights, liabilities and causes of action, 6 whether brought directly, representatively, derivatively, 7 or in any capacity that were or could have been asserted 8 9 10 11 in the Lawsuit based upon the facts alleged therein arising out of any act, omission, transaction, or event affecting wage and hour related rights that occurred or 12 is alleged to have occurred up to the date of this 13 Agreement. See Ackermann Decl., Doc. 44 at Exhibit A. 14 These released claims appropriately track the breadth of 15 Plaintiffs allegations in the action and the settlement 16 does not release unrelated claims that class members may 17 have against defendants. 18 19 20 21 22 4. The Settlement Was the Product of Informed, Arm s Length Negotiations. The Settlement was reached after informed, arm s length negotiations between the parties. See Ackermann 23 Decl., Doc. 44 at ¶¶ 63-4. Plaintiffs counsel had access 24 to documents including all of the Defendant s meal and 25 rest period policies, their database of timekeeping 26 entries, and names and addresses of members of the class. 27 28 Id. at ¶¶ 27, 31. Plaintiffs counsel reviewed and 20 1 analyzed thousands of pages of material. Id. at ¶ 31. 2 Counsel was also informed by numerous interviews with 3 witnesses to the allegations. Id. at ¶ 32, 34. In 4 addition, there is no evidence of collusion. 5 6 7 8 9 10 11 12 5. Reaction of the Class Members. The reactions of the members of a class to a proposed settlement is a proper consideration for the trial court. Vasquez v. Coast Valley Roofing, 266 F.R.D. 482 (E.D. Cal. 2010) (citing 5 Moore s Fed. Practice § 23.85[2][d]). Class Representative s opinion of the 13 settlement are especially important as [t]he 14 representatives' views may be important in shaping the 15 agreement and will usually be presented at the fairness 16 hearing; they may be entitled to special weight because 17 the representatives may have a better understanding of 18 19 20 21 the case than most members of the class. Manual for Complex Litigation, Third, § 30.44 (1995). Here, the Class Representatives strongly support the 22 settlement. See Declaration of Lee Bond, Doc. 45, at ¶ 8- 23 9; Declaration of James Burkhart, Doc. 46, at ¶ 8-9. Each 24 of these Class Representatives and their attorneys have 25 extensive understanding of the merits of this settlement 26 27 28 having participated extensively in the strategy, formulation, filing, litigation and negotiation process. 21 1 See Bond Decl. at ¶ 3-8; Burkhart Decl. at ¶ 3-8. There 2 have been no objections to the Settlement by Class 3 Members or any other members of the public. 4 The settlement is fair and reasonable. 5 6 D. Class Counsel s Requested Fees and Costs. 7 By separate motion, Plaintiffs counsel also requests 8 approval of payments for attorneys fees and costs in the 9 10 11 12 amount of $675,000 and $10,000, respectively. Courts have long recognized the common fund or common benefit doctrine, under which attorneys who create a 13 common fund or benefit for a group of persons may be 14 awarded their fees and costs to be paid out of the fund. 15 Hanlon v. Chrysler Corp., 150 F.3d 1011, 1029 (9th Cir. 16 1998). [A] lawyer who recovers a common fund for the 17 benefit of persons other than himself or his client is 18 19 20 21 entitled to a reasonable attorney's fee from the fund as a whole. Staton v. Boeing Co., 327 F.3d 938, 972 (9th Cir. 2003) (quoting Boeing Co. v. Van Gemert, 444 U.S. 22 472, 478 (1980)). Awarding a percentage of the common 23 fund is particularly appropriate when each member of a 24 certified class has an undisputed and mathematically 25 ascertainable claim to part of a lump-sum judgment 26 27 28 recovered on his behalf. Id. (quoting Boeing Co., 444 U.S. at 478-79). 22 1 Here, where the Settlement requires lump sum 2 allocations to each Settlement Class and applies 3 distribution formulas pursuant to which each Class Member 4 5 6 7 8 who submits a valid claim will receive a mathematically ascertainable payment, application of the percentage of common fund doctrine is appropriate. The typical range of acceptable attorneys' fees in 9 the Ninth Circuit is 20% to 33 1/3% of the total 10 settlement value, with 25% considered the benchmark. 11 Powers v. Eichen, 229 F.3d 1249, 1256 (9th Cir. 2000); 12 13 14 15 Hanlon, 150 F.3d at 1029; Staton, 327 F.3d at 952. However, the exact percentage varies depending on the facts of the case, and in most common fund cases, the 16 award exceeds that benchmark. Knight v. Red Door Salons, 17 Inc., 2009 WL 248367 (N.D. Cal. 2009); see also In re 18 Activision Sec. Litig., 723 F. Supp. 1373, 1377-78 (N.D. 19 Cal. 1989) ( nearly all common fund awards range around 20 30% ). 21 22 23 24 Class Counsel seeks an attorney s fee award of $675,000, or thirty percent (30%), of the Maximum Settlement Value. When assessing whether the percentage 25 requested is reasonable, courts look to factors such as: 26 (a) the results achieved; (b) the risk of litigation; (c) 27 the skill required, (d) the quality of work; (e) the 28 23 1 contingent nature of the fee and the financial burden; 2 and (f) the awards made in similar cases. Vizcaino v. 3 Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir.2002); Six 4 5 6 Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301 (9th Cir.1990). 7 1. 8 The individual claims in this case concerned 9 10 11 12 The Results Achieved. defendants failure to pay class members for missed, onduty and untimely meal periods; unpaid wages on days when no off-duty meal break was taken; failure to pay all 13 wages due upon termination or separation of employment; 14 and failure to provide proper rest and meal periods. Such 15 claims would not ordinarily produce large recoveries per 16 claimant. Here, the recovery of up to $2,250,000 will 17 provide the 383 claimants with an average recover of 18 19 20 approximately $2,781.93 per claimant. Ackermann Decl., Doc. 44 at ¶ 71. 21 2. 22 There was some risk in pursuing this case. One of the 23 24 25 26 27 28 The Risks Involved. primary issues involved in this case has to do with the timely provision of rest and meal periods an issue that is currently before the California Supreme Court in the Brinker and Brinkley cases. It is unknown what the outcome of the Supreme Court s decision will be an 24 1 adverse decision that could be prejudicial to the 2 recovery in this case. 3 4 5 6 7 The Defendants also posed serious defenses to the claims. And defense counsel demonstrated that they were competent in defense of their client. Plaintiffs Counsel invested $587,315, in lodestar 8 time and $10,000 in costs in litigating this case with no 9 guarantee of recovery. 10 11 12 3. The Skill Required. This is a garden-variety wage and hour class action, 13 focused primarily on meal breaks, which required more 14 accounting analysis than actual legal resources. 15 case required locating and contacting over 500 members of 16 the class, communicating with over 250 class members to 17 ensure they received appropriate forms, obtaining new 18 19 20 21 The contact information for some members of the class, directing the work of the settlement administrator and litigating cutting-edge legal theories surrounding rest 22 and meal periods. Harnett Decl., Doc. 43 at ¶ 87. This is 23 entirely administrative work that could be accomplished 24 by paralegals. Class Counsel has extensive experience in 25 class action wage and hour litigation of this nature. See 26 id. at ¶¶ 5-28; Ackermann Decl., Doc. 44 at ¶¶ 4-11. 27 28 25 1 4. 2 This case was conducted on a contingent fee basis 3 4 The Contingent Nature of the Fee and the Financial Burden. against a well-represented Defendant. Counsel has 5 received no money from plaintiffs or any other source to 6 litigate this case. See Ackermann Decl. Doc., 43 at ¶¶ 7 78-89. The plaintiffs are all low-wage workers who could 8 not meaningfully contribute to any such expenses. 9 10 11 Plaintiffs counsel accepted this risk. Class Counsel was effective in effectuating a $2,250,000 settlement. 12 5. 13 The requested fee is comparable to similar wage and 14 15 hour cases litigated in the Central Valley. For example, this court has awarded the following fees: 16 17 ¢ ¢ 20 21 33.3% in Vasquez v. Coast Valley Roofing, 266 F.R.D. 482 (E.D. Cal. 2010), Case No. 1:07-cv-00227 OWW DLB; 18 19 Awards in Similar Cases. 30% in Vasquez v. Aartman, E.D. Cal. Case No. 1:02CV05624 AWI LJO; ¢ 22 31.25% in Baganha v. California Milk Transport, Case No. 1:01-cv-05729 AWI LJO; 23 24 ¢ 33.3% in Randall Willis et al. v. Cal Western 25 Transport, and Earl Baron et al. v. Cal Western 26 Transport, Coordinated Case No. 1:00-cv-05695 AWI 27 LJO; 28 26 1 ¢ 2 3 4 5 33.3% in Benitez, et al. v. Jeff Wilbur and Lisa Wilbur, Case No. 1:08-cv-01122 LJO GSA; ¢ 33.3% in Chavez, at al. v. Petrissans, Case No. 1:08cv-00122 LJO GSA. 6 Based on the overall success, skill employed, legal 7 risks associated with Plaintiffs claims, the financial 8 risks borne by Plaintiffs Counsel, and similar awards 9 made in similar cases, under a percentage-of-fund 10 approach the requested attorney s fee award of 30% of the 11 12 13 total recovery (or $675,000) is reasonable under the circumstances. 14 6. 15 Calculation of the lodestar amount may be used as a 16 17 18 19 20 Lodestar Cross-Check. cross-check to assess the reasonableness of the percentage award. Fernandez v. Victoria Secret Stores, 2008 WL 8150856 (C.D. Cal 2008); Vizacaino v. Microsoft Corp., 290 F.3d 1043, 1050-51 (9th Cir. 2002). First, the 21 court must calculate the lodestar amount by multiplying 22 the number of hours reasonably expended on the litigation 23 by a reasonable hourly rate. Cunningham v. County of Los 24 Angeles, 879 F.2d 481 (9th Cir. 1988). Next, the court 25 26 27 28 may increase or reduce the presumptively reasonable lodestar fee. Quesada v. Thomason, 850 F.2d 537, 539 (9th Cir. 1998) (citing City of Riverside v. Rivera, 477 U.S. 27 1 561 (1986)). 2 The billing records of Class Counsel Wasserman, 3 Comden, Casselman & Esensten, L.L.P and Ackermann & 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Tilajef, P.C. reveal the following hours billed by thirteen lawyers and three paralegals: NAME Wasserman, Comden, Casselman & Esensten, L.L.P. Steven Wasserman, partner Melissa Harnett, partner Cathy Garcia, associate Jesse Levin, associate Scarlett, associate Jordan Esensten, associate Alan Juavan, paralegal Andreas Nielsen, paralegal Dale Gordon, paralegal Susan House, Ackermann & Tilajef, P.C. Craig Ackermann, partner Tatiana Hernandez, associate Barry Goldstein, consultant Rachelle Tsarovsky, associate Charlie Stein, associate Pablo Orozco, associate Devin Coyle, associate Akiva Feinstein, legal assistant Rosie Salinas, paralegal Jonathan Melmed Total HOURS RATE TOTAL 1.6 109.2 52.4 229.2 21.5 8 181.4 90.9 78.6 9 $750 $670 $600 $290 $500 $290 $180 $180 $180 $180 $1,200.00 $73,164.00 $31,440.00 $66,468.00 $10,750.00 $2,320.00 $32,652.00 $16,362.00 $14,148.00 $1,620.00 123.5 355.12 16.2 70.9 49.49 236.33 7.7 152.6 96.3 40 1929.94 $550 $325 $725 $325 $225 $225 $225 $175 $150 $150 $67,925 $115,414 $17,617.50 $23,043.50 $11,135.25 $53,174.25 $1,732.50 $26,705 $14,445 $6,000 $587,316.00 20 See Memorandum in Support of Plaintiff s Motion for 21 Attorney s Fees and Costs, Doc. 49 at 11. 22 23 24 25 26 27 28 The number of hours billed in this case will not be approved. Although considerable discovery took place and preparation for mediation was required, similar cases have reached settlement with fewer than 500 billed hours of attorney time. See Alvarado v. Nederend, 1:08-cv- 01099 OWW DLB (wage and hour class action involving 28 1 unsettled issues related to meal and rest breaks with 2 approximately 150 class members reached settlement after 3 Class Counsel expended fewer than 350 hours). No two 4 5 6 7 cases have the exact same litigation requirements, but nothing in the record justifies more than five times the effort expended in Alvarado. Likewise, the hourly rates presented by counsel are 8 9 higher than normally permitted under federal law. 1 10 Prevailing hourly rates in the Eastern District of 11 California are in the $400/hour range. One more general 12 13 14 15 way to examine the reasonableness of hourly rates is to compare them to the Laffey Matrix, a widely recognized compilation of attorney and paralegal rate data used in 16 the District of Columbia, frequently used in fee awards 17 cases. The Laffey Matrix reflects a paralegal rate of 18 $161, a 1-3 year lawyer rate of $294, a 4-7 year lawyer 19 rate of $361, an 8-10 year lawyer rate of $522, an 11-19 20 year lawyer rate of $589, and a 20+ year lawyer rate of 21 22 23 24 $709. The district court in Fernandex v. Victoria Secret Stores, LLC 2008 WL 8150856, *15 increased the Laffey Matrix amounts by the difference between the cost of 25 1 26 27 28 These hourly rates were apparently approved without a written decision in Padilla et al v. Young s Market Company, LLC, 2:09-cv08730 DMG RC (C.D. Cal. 2010) and separately in state court in Williams v. BioTab Nutraceuticals, Inc., et al., LASC Case No. BC 414808 (2011). These cases have no precedential value, especially in a different District, where prevailing rates are lower.   29 1 living increase provided to Judicial branch employees in 2 the Washington D.C. area and that provided to employees 3 in the Los Angeles area. That difference is 2.94 percent 4 5 6 7 as of the 2011 pay tables. Taking the top bracket as an example, the adjusted Laffey Rate for a 20+ year lawyer is $729 ($709 * 1.0294). Mr. Wasserman s rate of $750 is 8 slightly higher than the adjudged Laffey Matrix for an 9 attorney with 20+ years in practice. The $670 billed by 10 Ms. Harnett is approximately 10 percent higher than the 11 11-19 year attorney rate of $606. The other employees of 12 13 14 15 Wasserman, Comden, Casselman & Esensten, L.L.P. appear to be billing at similarly inflated rates. The hourly rates billed by Ackermann & Tilajef, P.C. seem more reasonable, 16 although the $175/hour rate for a legal assistant is 17 unjustified. 18 Because the lodestar is being used here as a cross- 19 check, the court may use a rough calculation of the 20 lodestar, Fernandez, 2008 WL 8150856, it is appropriate 21 22 23 24 to roughly haircut the lodestar. The hourly rates of the Wasserman, Comden, Casselman & Esensten, L.L.P. are least 10% over the appropriate Laffey Matrix levels, and are 25 reasonably subject to a 10% haircut on that basis. 26 Ackermann & Tilajef, P.C. s rate billed for their legal 27 assistant will be lowered to $100. This results in the 28 30 1 following recalculation of the lodestar. 2 NAME 3 Wasserman, Comden, Casselman & Esensten, L.L.P. Steven Wasserman, partner Melissa Harnett, partner Cathy Garcia, associate Jesse Levin, associate Scarlett, associate Jordan Esensten, associate Alan Juavan, paralegal Andreas Nielsen, paralegal Dale Gordon, paralegal Susan House, Ackermann & Tilajef, P.C. Craig Ackermann, partner Tatiana Hernandez, associate Barry Goldstein, consultant Rachelle Tsarovsky, associate Charlie Stein, associate Pablo Orozco, associate Devin Coyle, associate Akiva Feinstein, legal assistant Rosie Salinas, paralegal Jonathan Melmed Total 4 5 6 7 8 9 10 11 12 13 14 15 16 HOURS RATE ADJUSTED RATE TOTAL 1.6 109.2 52.4 229.2 21.5 8 181.4 90.9 78.6 9 $750 $670 $600 $290 $500 $290 $180 $180 $180 $180 $675 $603 $540 $261 $450 $261 $162 $162 $162 $162 $1,080 $65,848 $28,296 $59,821 $9,675 $2,088 $29,387 $14,726 $12,733 $1,458 123.5 355.12 16.2 70.9 $550 $325 $725 $325 $550 $325 $725 $325 $67,925 $115,414 $17,617.50 $23,043.50 49.49 236.33 7.7 152.6 $225 $225 $225 $175 $225 $225 $225 $100 $11,135.25 $53,174.25 $1,732.50 $15,260.00 96.3 40 1929.9 4 $150 $150 $150 $150 $14,445.00 $6,000.00 $550,859.00 17 18 The lodestar with adjusted hourly rates is 19 $550,859.00. In addition, the hours billed are excessive 20 and are reasonably subject to a 30% haircut, resulting in 21 22 23 24 a total lodestar of $385,601.00 The amount requested by Class Counsel of $675,000.00 is greater than its lodestar amount of $385,601.00. 25 However, adjustments to increase or decrease the lodestar 26 amount are sometimes appropriate to justify use of a 27 lodestar multiplier. Clark v. City of Los Angeles, 803 28 31 1 F.2d 987, 991 (9th Cir. 1986); see also Fischel v. 2 Equitable Life Assur. Society of U.S., 307 F.3d 997, 1008 3 (9th Cir. 2002). It is an established practice in the 4 5 6 7 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. 8 Fischel, 307 F.3d at 1008 (citing In re Washington Public 9 Power Supply System Securities Litig. v. Continental Ins. 10 Co., 19 F.3d 1291, 1299 (9th Cir. 2002)). Generally, a 11 district court has discretion to apply a multiplier to 12 13 14 15 the attorney s fees calculation to compensate for the risk of nonpayment. Fischel, 307 F.3d at 1008; see also In re Coordinated Pretrial Proceedings in Petroleum 16 Products Antitrust Litig. v. Exxon Corp., 109 F.3d 602 17 (9th Cir. 1997). 18 The lodestar multiplier is calculated by dividing 19 the percentage fee award by the lodestar calculation. 20 Fischel, 307 F.3d at 1008. Here, the multiplier of 1.75 21 22 23 24 is calculated by dividing $675,000.00 by $385,601.00. To determine whether the lodestar multiplier is reasonable the following factors may be considered: (1) the amount 25 involved and the results obtained, (2) the novelty and 26 difficulty of the questions involved, (3) the skill 27 requisite to perform the legal service properly, (4) the 28 32 1 preclusion of other employment by the attorney due to 2 acceptance of the case, (5) the customary fee, (6) 3 whether the fee is fixed or contingent, (7) time 4 5 6 7 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, 8 (10) the undesirability of the case, (11) the nature 9 and length of the professional relationship with the 10 client, and (12) awards in similar cases. Id. (citing 11 Kerr v. Screen Extras Guild, Inc., 526 F.2d 6 (9th Cir. 12 13 14 15 1975)). First, Class Counsel achieved a good result and generated a significant benefit for the class amounting 16 to the Maximum Settlement Amount of $2,250,000 for the 17 benefit of a class of approximately 553 members. Based on 18 the claims rate, the 342 Class Members who submitted 19 claims will receive $952,018.56 in the aggregate, an 20 average of $2,783.68. See Bui Decl., Doc. 40. 21 22 23 24 25 26 27 28 Second, Plaintiff s meal break claims presented arguable questions for Class Counsel because California s meal break law is currently in flux with Brinker currently pending before the California Supreme Court. Third, Class Counsel competently performed. Class Counsel avoided protracted litigation by conducting 33 1 significant investigation of the class claims, and 2 efficiently communicating and exchanging information with 3 Defense counsel so that the parties could successfully 4 5 6 7 mediate the case. In preparation for this case, Class Counsel investigated the potential claims and class members; comprehensively reviewed thousands of pages of 8 documents; interviewed a number of current and former 9 drivers of the Defendant; and deposed Defendant s 10 corporate representative about a number of important 11 topics. See Ackermann Decl., Doc. 44 at ¶ 36; Harnett 12 13 14 15 Decl., Doc. 43 at ¶ 55. Lastly, Class Counsel undertook considerable financial risks in this litigation by accepting this case 16 on a contingency basis. Harnett Decl., Doc. 43 at ¶ 92. 17 There was no guarantee they would recoup their fees or 18 costs. Id. Class Counsel has not received any payment for 19 their time or their expenses, which they began incurring 20 over two years ago. Id. Additionally, Class Counsel had 21 22 23 24 to forego other work in order to maintain this case. Id. Based on the overall success, the skill with which the case was prosecuted, the substantial legal risks 25 associated with Plaintiffs claims, and the financial 26 risks borne by Plaintiffs Counsel, Plaintiff s request 27 for a multiplier of 1.75 of its lodestar is reasonable. 28 34 1 See, e.g. Steiner v. Am. Broadcasting Co., Inc., 248 Fed. 2 Appx. 780, 783 (9th Cir. 2007)(approving multiplier of 3 6.85 and citing cases with comparable or higher 4 5 6 7 multipliers); Vizcaino, 290 F.3d at 1051 (finding no abuse of discretion in awarding a multiplier of 3.65). E. 8 9 10 11 12 Class Counsel s Request for Costs. Class Counsel incurred out-of-pocket costs totaling approximately $11,364.46. The bulk of the incurred costs included Settlement Administrator fees for notice costs, payment to court reporters for depositions, mediation 13 costs, legal research, and in-house copies of documents. 14 See Acerkmen Decl., Doc. 44 at Exhibit 13. Such costs are 15 routinely reimbursed in these types of cases. See, In re 16 United Energy Corp. Sec. Litig., 1989 WL 73211, at *6 17 (C.D. Cal. 1989) (quoting Newberg, Attorney Fee Awards, § 18 19 20 21 2.19 (1987)); see e.g. Vasquez, 266 F.R.D. at 493 (Class Counsel litigation expenses payment of approximately $9,000 was fair and reasonable in similar case). Here, the actual costs incurred are greater than the 22 23 estimated $10,000, which was included in the Class Notice 24 and to which no Class Member objected. Plaintiff s 25 request, which is capped at $10,000 is reasonable. 26 27 28 F. Class Representative Enhancement. Pursuant to the Settlement, Plaintiff seeks an 35 1 enhancement in the amount of $7,500 to the named 2 Plaintiffs Lee Bond and Richard James Burkhart. Ackermann 3 Decl., Doc. 44 at ¶ 47. This payment is intended to 4 5 6 7 8 9 recognize the time and efforts that the named Plaintiffs spent on behalf of the Class Members. Id.; see also Declarations of Lee Bond and Richard James Burkhart, Docs. 45-46. Courts routinely approve incentive awards to 10 compensate named plaintiffs for the services they provide 11 and the risks they incurred during the course of the 12 13 14 15 class action litigation. Ingram v. The Coca-Cola Company, 200 F.R.D. 685, 694 (N.D. Ga. 2001) (internal quotations and citations omitted). In Coca-Cola, the 16 Court approved service awards of $300,000 to each named 17 plaintiff in recognition of the services they provided to 18 the class by responding to discovery, participating in 19 the mediation process, and taking the risk of stepping 20 forward on behalf of the class. Coca-Cola, 200 F.R.D. at 21 22 23 24 694; see, e.g., Van Vranken v. Atl. Richfield Co., 901 F. Supp. 294, 299 (N.D. Cal. 1995) (approving $50,000 participation award to plaintiffs); Glass v. UBS 25 Financial Services, Inc., 2007 WL 221862, at *17 (N.D. 26 Cal. Jan. 26, 2007) (approving $25,000 enhancement to 27 each named plaintiff). 28 36 1 In this case, among other things, the named 2 Plaintiffs: (1) provided significant assistance to Class 3 Counsel; (2) endured lengthy interviews; (3) provided 4 5 6 7 written declarations; (4) searched for and produced relevant documents; (5) and prepared and evaluated the case for mediation, which was a full day session 8 requiring very careful consideration, evaluation and 9 approval of the terms of the Settlement Agreement on 10 behalf of the Class. See Declarations of Lee Bond and 11 Richard James Burkhart, Docs. 45-46. Moreover, as with 12 13 14 15 any plaintiff who files a civil action, Plaintiffs undertook the financial risk that, in the event of a judgment in favor of Defendant in this action, they could 16 have been personally responsible for the costs awarded in 17 favor of the Defendant. See, e.g., Whiteway v. Fed Ex 18 Kinkos Office & Print Services, Inc., No. C 08-2320 SBA, 19 2007 WL 4531783, at **2-4 (N.D. Cal. Dec. 17, 2007). 20 21 G. Claims Administrator Fee. 22 The Class Notice provided that the Claims 23 Administrator would receive a few of up to $18,000 24 Plaintiffs request that the full amount of $18,000 be 25 approved as Simpluris fee. Doc. 41. The Declaration of 26 27 28 Michael Bui, a Case Manager at Simpluris, explains the tasks undertaken by Simpluris to accomplish notify the 37 1 Class of the settlement and administer its terms. Mr. Bui 2 estimates administration costs of $18,000, taking into 3 consideration both costs incurred to date and those 4 5 6 7 anticipated to be incurred in the future. This request is substantially lower than previous administrator fees awarded in this District. See Vasquez, 266 F.R.D.at 483- 8 84 ($25,000 administrator fee awarded in wage and hour 9 case involving 177 potential class members). 10 IV. CONCLUSION 11 12 For all the reasons set forth above: 13 (1) The Settlement Class is CERTIFIED; 14 (2) The Class Settlement is APPROVED; 15 (3) The payment of $675,000 in attorney s fees (30% 16 of the Maximum Settlement Value and $10,000 in costs is 17 APPROVED; 18 19 20 21 22 23 24 25 26 (4) The payment of $11,250 enhancement to each of the named Plaintiffs Lee Bond and Richard James Burkhart is APPROVED; (5) The payment of $18,000 to the Settlement Administrator is APPROVED; Plaintiffs shall submit a form of order consistent with this decision within five (5) days following electronic service. 27 28 38

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