Bond v. Ferguson Enterprises, Inc., No. 1:2009cv01662 - Document 59 (E.D. Cal. 2011)
Court Description: MEMORANDUM DECISION re: Unopposed 41 Motion for Final Approval of Class Action Settlement and 48 Motion for Attorneys' Fees and Cost signed by Judge Oliver W. Wanger on 6/29/2011. (Proposed Order Consistent with Decision Deadline: 7/7/2011) (Figueroa, O)
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1 2 UNITED STATES DISTRICT COURT 3 FOR THE EASTERN DISTRICT OF CALIFORNIA 4 5 6 7 8 9 10 LEE BOND, and RICHARD JAMES, 1:09-cv-1662 OWW MJS Plaintiff, MEMORANDUM DECISION RE UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT (DOC. 41) AND FOR ATTORNEYS FEES AND COSTS (DOC. 48) v. FERGUSON ENTERPRISES, INC., Defendants. 11 12 I. INTRODUCTION 13 This is a wage-and-hour class action brought on 14 behalf of truck drivers employed by Ferguson Enterprises 15 16 17 18 Inc., in Kern County, California. Declaration of Craig Ackermann, Doc. 44 ¶ 12; see also First Amended Complaint filed July 30, 2010. The action is brought on behalf of 19 Plaintiffs and approximately 553 current and former 20 employees of Defendants from July 17, 2005 for alleged 21 violations of state wage-and-hour laws. Id. 22 23 24 25 26 27 28 The parties have entered into a Joint Stipulation of Settlement Agreement. See Ackermann Decl., Doc. 30 at Ex. 1. A January 25, 2011 memorandum decision: (1) conditionally certified a Settlement Class; (2) preliminarily approved the Class Settlement; (3) Class Counsel; (4) appointed Class Representatives; (5) 1 1 appointed a settlement administrator, (6) approved the 2 class Notice and related materials for distribution; and 3 (7) required plaintiffs to submit a form of order 4 5 6 7 consistent with the decision within five (5) days following electronic service. Doc. 35. Plaintiffs have filed a motion for final approval of the settlement, 8 Docs. 41-42, along with numerous supporting declarations, 9 Docs. 43-46. Plaintiffs have also moved for approval of 10 their request for attorneys fees and costs, Docs. 48-49, 11 and filed the supporting declaration of Melissa M. 12 13 14 15 Harnett, Doc. 50. No objections to approval have been received. II. BACKGROUND 16 Plaintiffs allege that Defendants failed to provide 17 timely off-duty meal periods; failed to pay for missed, 18 19 20 21 on-duty and untimely meal periods; failed to provide accurate itemized wage statements; and failed to pay all wages due upon termination or separation of employment. 22 Plaintiffs sought to certify a class composed of 23 themselves and similarly situated individuals, and sought 24 declaratory relief and recovery of back wages, interest, 25 penalties, attorneys fees, and costs. See First Amended 26 27 28 Complaint ( FAC ), Doc. 21-1. From November 2009 through the day of the settlement, 2 1 the Plaintiffs conducted substantial formal and informal 2 discovery concerning the Defendant s policy and 3 practices. Harnett Decl., Doc. 43 at ¶ 42. Among other 4 5 6 7 discovery, Plaintiffs served document requests seeking information on the size of the Class and identity of each of the Class members, and on Defendant s meal break 8 policies, including the persons responsible for 9 developing, implementing and monitoring Defendant s meal 10 break policies. Id. at ¶ 45. Defendants produced a 11 variety of responsive documents including all of its meal 12 13 14 15 and rest period policies and several other categories of responsive documents, but objected to most of the class discovery on the grounds that it violated the Class 16 Members rights to privacy, and was premature and 17 irrelevant to a ruling on a class certification. Harnett 18 Decl., Doc. 31 at ¶ 46. Plaintiff s counsel reviewed the 19 information amassed during discovery including: analysis 20 of thousands of documents produced by Defendant, 21 22 23 24 including time records and payroll data for 34 class members and Defendant s employment records; (2) analysis of Defendant s legal arguments; (3) obtaining more than 25 thirty sworn declarations from former and current truck 26 drivers of Defendant; (4) taking the Rule 30(b)(6) 27 deposition of Defendant s corporate representative; (5) 28 3 1 analysis of class-wide violation rates on the automatic 2 deduction and meal break claims on the basis of a sample 3 of thirty-four (34) class members; (6) analysis of class- 4 5 6 7 wide violations and damages on derivative claims; and (7) research of the applicable law with respect to Plaintiffs claims. Id. at ¶ 4. 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 553 current and former truck drivers employed by Defendant in 13 California from July 17, 2005 to the date the court 14 enters an Order of Preliminary Approval ( Class Period ), 15 excluding new truck drivers hired after November 3, 2010 16 and 46 truck drivers who previously signed severance 17 release agreements prior to the filing of the lawsuit 18 19 20 21 22 23 24 25 26 27 28 ( Class Members ). See Settlement, Doc. 30-1, Exhibit 1, § 6. There will be no reversion of the Gross Settlement Amount to Defendant; see also Declaration of Craig J. Ackermannn, Doc. 30 at ¶ 48. A. Gross Settlement Amount. Under $2,250,000 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 9 1 2 3 III. DISCUSSION A. Certification of a Class for Settlement As the Class has only been conditionally certified, 4 final certification is required and is governed by 5 Federal Rule of Civil Procedure Rule 23. 6 7 1. Rule 23(a) Requirements. 8 Federal Rule of Civil Procedure 23(a) states in 9 pertinent part that [o]ne or more members of a class may 10 sue or be sued as representative parties on behalf of 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 all. As a threshold matter, in order to certify a class, a court must be satisfied that (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). In re Intel Secs. Litig., 89 F.R.D. 104, 112 (N.D. Cal. 1981)(citing Fed. R. Civ. P. 23(a)). a. Numerosity. Here, the proposed class is comprised of all individuals who have been employed by Defendant in California as truck drivers from July 17, 2005 to January 25, 2011, excluding new truck drivers from November 3, 10 1 2010 and 46 drivers who previously signed severance 2 release agreements prior to the filing of this lawsuit. 3 There are approximately 553 Class Members. Courts have 4 5 6 7 routinely found the numerosity requirement satisfied when the class comprises 40 or more members. Ansari v. New York Univ., 179 F.R.D. 112, 114 (S.D.N.Y. 1998). 8 Numerosity is also satisfied where joining all Class 9 members would serve only to impose financial burdens and 10 clog the court s docket. In re Intel Secs. Litig., 89 11 F.R.D. at 112. Here, the joinder of approximately 553 12 13 14 15 individual former employees would only further clog this court s already overburdened docket. b. Common Questions of Fact and Law. 16 Commonality exists when there is either a common 17 legal issue stemming from divergent factual predicates or 18 19 20 21 a common nucleus of facts resulting in divergent legal theories. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). It does not require that all questions 22 of law or fact be common to every single member of the 23 class. To satisfy the commonality requirement, plaintiffs 24 need only point to a single issue common to the class. 25 Dukes v. Wal-Mart, Inc., 509 F.3d 1168, 1177 (9th Cir. 26 27 28 2007); Slaven v. BP Am., Inc., 190 F.R.D. 649, 655 (C.D. Cal. 2000). 11 1 2 3 Here, Class Members share the following legal and factual questions: ¢ 4 Whether Defendant automatically deducted thirty minutes worth of working time on the basis of 5 the unverified assumption that truck drivers 6 7 always took a half-hour, off-duty meal break and 8 in lieu of keeping contemporaneous or accurate 9 meal break records; 10 ¢ 11 drivers for missed or untimely meal breaks with 12 an extra hour of premium pay; 13 14 Whether Defendant failed to compensate truck ¢ Whether Defendant failed to implement a 15 systematic daily method of relieving Class 16 Members of their duties for meal breaks; 17 ¢ 18 all wages due at termination; and 19 20 21 Whether Defendant failed to pay former employees ¢ Whether the above practices violate the Labor Code and Wage Orders. 22 Every Class Member was paid under the same pay 23 practices as every other class members. The commonality 24 requirement is satisfied. 25 26 27 28 c. Typicality. Typicality is satisfied if the representatives claims arise from the same course of conduct as the class 12 1 claims and are based on the same legal theory. See, e.g., 2 Kayes v. Pac. Lumber Co., 51 F.3d 1449, 1463 (9th Cir. 3 1995)(claims are typical where named plaintiffs have the 4 5 6 7 same claims as other members of the class and are not subject to unique defenses). Because every class member was paid under the same pay practices as every other 8 class member, the Class Representatives claims are 9 typical of those of the other Class Members. The 10 typicality requirement is satisfied. 11 12 13 d. Fair and Adequate Representation. The final Rule 23(a) requirement is that the class 14 representative fairly and adequately protect the 15 interests of the class. Fed. R. Civ. P. 23(a)(4). The 16 proper resolution of this issue requires that two 17 questions be addressed: (a) do the named plaintiffs and 18 19 20 21 their counsel have any conflicts of interest with other class members and (b) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the 22 class? In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 23 462 (9th Cir. 2000). 24 25 26 27 28 Both requirements are satisfied here. Class counsel, Craig J. Ackermann, Esq., of Ackermann & Tilajef, P.C., and Melissa M. Harnett, Esq., of Wassermand, Comden, Casselmand & Esensten, L.L.P, have significant experience 13 1 litigating class actions, serving as class counsel, 2 representing plaintiffs in wage and hour litigation. See 3 Harnett Decl., Doc. 31, ¶¶13-32. Ackermann Decl., Doc. 4 5 6 7 8 9 30, ¶¶70-71. Class counsel have no conflicts with the class, Harnett Decl., Doc. 31, ¶¶ 5, 7, and have devoted a significant amount of time to the lawsuit, Ackermann Decl., Doc. 30, ¶ 72; Harnett Decl., Doc. 31, ¶ 11. In addition, the Class Representatives interests are 10 completely aligned with those of the class. The Class 11 Representatives interest is in maximizing their 12 13 14 15 16 17 18 19 20 21 recovery. Although they will each receive an additional $11,250, this amount is reasonable compensation for their time and expense they devoted to pursuing this case. See Harnett Decl., Doc. 31, ¶ 9. 2. Certification of a Class under Rule 23(b)(3). Once the threshold requirements of Rule 23(a) are satisfied, a class may be certified only if the class action satisfies the requirements of Rule 23(b)(1), 22 (b)(2), and/or (b)(3). Here, the parties agree for 23 purposes of the Settlement only that certification of the 24 Class is appropriate under Rule 23(b)(3) because 25 questions of law or fact common to the members of the 26 27 28 class predominate over any questions affecting only individual members, and ... a class action is superior to 14 1 other available methods for the fair adjudication of the 2 controversy. Fed. R. Civ. P. 23(b)(3). 3 4 5 6 7 8 9 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 ordered that the Class be sent notice of the Settlement, approved the form of notice proposed by the parties, 10 approved the forms of claims for settlement share and 11 election not to participate, and set the hearing for 12 final approval. Doc. 35. The Settlement Administrator, 13 Simpluris, has carried out the preliminary approval order 14 15 16 17 to the extent possible. See generally Bui Declaration, Doc. 40. On February 14, 2011, Class Notice Packets were mailed to class members to all five hundred and fifty-two 18 (552) Class Members. Id. at ¶ 7. On March 11, 2011, the 19 Settlement Administrator mailed a reminder to class 20 members who had not yet submitted a Claim form or an Opt 21 Out and to do so by the March 21, 2011 deadline. Bui 22 Decl., Doc. 40, at ¶ 8. By April 21, 2011, one hundred 23 24 25 26 and sixteen (116) Class Notice Packets were returned by U.S. Postal Service as undeliverable. Id. at ¶ 12. The Settlement Administrator remailed two-hundred and ninety- 27 two (292) Class Notice Packets to either a newfound 28 address, a forwarding address provided by the U.S. Postal 15 1 Service, or to an address at the request of the Class 2 Member. Id. Despite the Settlement Administrator s best 3 efforts, fifty-nine (59) Class Notice Packets remain 4 5 6 undeliverable because the administrator was unable to find a deliverable address. Id. Despite these difficulties, three-hundred and forty- 7 8 two (342)(61.96%) claim forms were received and accepted 9 by the Settlement Administrator. Id. at ¶ 14. As of the 10 filing of this Order, the Settlement Administrator 11 received a total of four late claims. The parties agreed 12 13 14 15 that the four untimely claims and one deficient claim would be treated as valid. Therefore, there were a total of 347 valid claims ultimately made amounting to 16 approximately 63% of Settlement Class. As of April 22, 17 2011, the Settlement Administrator has received one (1) 18 deficient Claim Form because they did not sign their 19 form; two (2) untimely Claim Forms; and fifteen (15) opt- 20 outs. Id. at ¶¶ 17-19. Additionally, no class member has 21 submitted to an objection to the Settlement. Id. at ¶ 21. 22 23 24 25 26 27 28 C. Approval of the Settlement. The court must approve any settlement ... of the claims ... of a certified class. Fed. R. Civ. P. 23(e)(1)(A). A settlement may be approved only after a hearing and on finding that it is fair, reasonable, and 16 1 adequate. Fed. R. Civ. P. 23(e)(1)(C). Such approval is 2 required to make sure that any settlement reached is 3 consistent with plaintiffs fiduciary obligations to the 4 5 6 7 class. See Ficalora v. Lockheed Cal. Co., 751 F.2d 995, 996 (9th Cir. 1985). The court also serves as guardian for the absent class members who will be bound by the 8 settlement, and therefore must independently determine 9 the fairness of any settlement. Id. However, the district 10 court s role in intruding upon what is otherwise a 11 private consensual agreement is limited to the extent 12 13 14 15 necessary to reach a reasoned judgment that the agreement is not the product of fraud or collusion between the negotiating parties, and that the settlement, taken as a 16 whole, is fair, reasonable, and adequate to all 17 concerned. FDIC v. Alshuler, 92 F.3d 1503, 1506 (9th Cir. 18 1996). Therefore, the settlement hearing is not to be 19 turned into a trial or rehearsal for trial on the merits. 20 Officers for Justice v. Civil Service Com., 688 F.2d 615, 21 22 23 24 25 625 (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 26 fair, adequate, and reasonable to all concerned, a 27 district court may consider some or all of the following 28 17 1 factors: (1) the strength of the Plaintiff's case (2) the 2 risk, expense, complexity, and likely duration of further 3 litigation; (3) the risk of maintaining class action 4 5 6 7 status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed; (6) the stage of the proceedings; (7) the views and 8 experience of counsel; (8) any opposition by class 9 members; (9) the presence of a governmental participant. 10 Linney v. Cellular Alaska Pshp., 151 F.3d 1234,1242 (9th 11 Cir. 1998). This list of factors is not exclusive and the 12 13 14 15 16 17 18 court may balance and weigh different factors depending 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 19 significant risks. Ackermann Decl. at ¶¶ 66-9. For 20 example, the primary issue in this case revolves around 21 the provision of meal periods. However, the meaning of an 22 employer s obligation to provide meal periods under 23 24 25 26 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) 27 and Brinker Restaurant Corp. v. Superior Court, 196 P.3d 28 216, 85 Cal.Rptr 388 (Oct. 22, 2008)(review granted). A 18 1 defense ruling in Brinker could impair Plaintiff s 2 ability to proceed on these causes of action. 3 4 5 6 7 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 8 Court adopts the Brinker standard, then class 9 certification of Plaintiffs missed meal break claims 10 would be more difficult. See Brown v. Federal Express, 11 249 FRD 580, 585 (C.D. Cal. 2008) (denying class 12 13 14 15 16 certification of employees alleging employers denied them 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 17 fair, reasonable, and adequate, and is in the best 18 interest of the Settlement Class in light of all known 19 facts and circumstances. 20 21 2. The Settlement Amount is Fair and Reasonable. 22 The Settlement provides for a payment of up to 23 $2,250,000 by Defendants. The average settlement share is 24 $2,776.34 25 71. All Settlement shares will be distributed to each 26 27 28 per employee. Ackermann Decl., Doc. 44 at ¶ Claimant on the basis of the number of weeks actively worked by each Claimant during the Class Period. Harnett 19 1 Decl., Doc. 43 at ¶ 60. 2 The Class Representative Payments and the Class 3 Counsel Attorneys Fees Payment are appropriate, and are 4 5 6 7 8 9 10 11 12 separately approved below. Finally, the expected Settlement Administrator s fees and costs of approximately $18,000 are reasonable in light of the amount of work achieved. Id. at ¶ 64. 3. The Release is Appropriate. As part of the Settlement, Class Members release the following claims: all wage and hour related claims, 13 demands, rights, liabilities and causes of action, 14 whether brought directly, representatively, derivatively, 15 or in any capacity that were or could have been asserted 16 in the Lawsuit based upon the facts alleged therein 17 18 19 20 21 arising out of any act, omission, transaction, or event affecting wage and hour related rights that occurred or is alleged to have occurred up to the date of this Agreement. See Ackermann Decl., Doc. 44 at Exhibit A. 22 These released claims appropriately track the breadth of 23 Plaintiffs allegations in the action and the settlement 24 does not release unrelated claims that class members may 25 have against defendants. 26 27 28 20 1 2 3 4 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 5 Decl., Doc. 44 at ¶¶ 63-4. Plaintiffs counsel had access 6 to documents including all of the Defendant s meal and 7 rest period policies, their database of timekeeping 8 entries, and names and addresses of members of the class. 9 10 11 12 Id. at ¶¶ 27, 31. Plaintiffs counsel reviewed and analyzed thousands of pages of material. Id. at ¶ 31. Counsel was also informed by numerous interviews with 13 witnesses to the allegations. Id. at ¶ 32, 34. In 14 addition, there is no evidence of collusion. 15 16 17 18 5. Reaction of the Class Members. The reactions of the members of a class to a proposed settlement is a proper consideration for the 19 trial court. Vasquez v. Coast Valley Roofing, 266 F.R.D. 20 482 (E.D. Cal. 2010) (citing 5 Moore s Fed. Practice § 21 23.85[2][d]). Class Representative s opinion of the 22 settlement are especially important as [t]he 23 representatives' views may be important in shaping the 24 25 26 27 28 agreement and will usually be presented at the fairness hearing; they may be entitled to special weight because the representatives may have a better understanding of the case than most members of the class. Manual for 21 1 Complex Litigation, Third, § 30.44 (1995). 2 3 4 5 6 7 Here, the Class Representatives strongly support the settlement. See Declaration of Lee Bond, Doc. 45, at ¶ 89; Declaration of James Burkhart, Doc. 46, at ¶ 8-9. Each of these Class Representatives and their attorneys have extensive understanding of the merits of this settlement 8 having participated extensively in the strategy, 9 formulation, filing, litigation and negotiation process. 10 See Bond Decl. at ¶ 3-8; Burkhart Decl. at ¶ 3-8. There 11 have been no objections to the Settlement by Class 12 Members or any other members of the public. 13 The settlement is fair and reasonable. 14 15 D. Class Counsel s Requested Fees and Costs. 16 By separate motion, Plaintiffs counsel also requests 17 approval of payments for attorneys fees and costs in the 18 19 20 21 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 22 common fund or benefit for a group of persons may be 23 awarded their fees and costs to be paid out of the fund. 24 Hanlon v. Chrysler Corp., 150 F.3d 1011, 1029 (9th Cir. 25 1998). [A] lawyer who recovers a common fund for the 26 27 28 benefit of persons other than himself or his client is entitled to a reasonable attorney's fee from the fund as 22 1 a whole. Staton v. Boeing Co., 327 F.3d 938, 972 (9th 2 Cir. 2003) (quoting Boeing Co. v. Van Gemert, 444 U.S. 3 472, 478 (1980)). Awarding a percentage of the common 4 5 6 7 fund is particularly appropriate when each member of a certified class has an undisputed and mathematically ascertainable claim to part of a lump-sum judgment 8 recovered on his behalf. Id. (quoting Boeing Co., 444 9 U.S. at 478-79). 10 Here, where the Settlement requires lump sum 11 allocations to each Settlement Class and applies 12 13 14 15 16 17 distribution formulas pursuant to which each Class Member 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 18 the Ninth Circuit is 20% to 33 1/3% of the total 19 settlement value, with 25% considered the benchmark. 20 Powers v. Eichen, 229 F.3d 1249, 1256 (9th Cir. 2000); 21 22 23 24 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 25 award exceeds that benchmark. Knight v. Red Door Salons, 26 Inc., 2009 WL 248367 (N.D. Cal. 2009); see also In re 27 Activision Sec. Litig., 723 F. Supp. 1373, 1377-78 (N.D. 28 23 1 Cal. 1989) ( nearly all common fund awards range around 2 30% ). 3 4 5 6 7 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 requested is reasonable, courts look to factors such as: 8 (a) the results achieved; (b) the risk of litigation; (c) 9 the skill required, (d) the quality of work; (e) the 10 contingent nature of the fee and the financial burden; 11 and (f) the awards made in similar cases. Vizcaino v. 12 13 14 15 Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir.2002); Six Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301 (9th Cir.1990). 16 1. 17 The individual claims in this case concerned 18 19 20 21 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 22 wages due upon termination or separation of employment; 23 and failure to provide proper rest and meal periods. Such 24 claims would not ordinarily produce large recoveries per 25 claimant. Here, the recovery of up to $2,250,000 will 26 27 28 provide the 347 claimants with an average recover of approximately $2,776.34 per claimant. Ackermann Decl., 24 1 Doc. 44 at ¶ 71. 2 3 4 2. The Risks Involved. There was some risk in pursuing this case. One of the 5 primary issues involved in this case has to do with the 6 timely provision of rest and meal periods an issue that 7 is currently before the California Supreme Court in the 8 Brinker and Brinkley cases. It is unknown what the 9 10 11 12 13 outcome of the Supreme Court s decision will be an adverse decision that could be prejudicial to the recovery in this case. The Defendants also posed serious defenses to the 14 claims. And defense counsel demonstrated that they were 15 competent in defense of their client. 16 17 18 Plaintiffs Counsel invested $587,315, in lodestar time and $10,000 in costs in litigating this case with no guarantee of recovery. 19 20 3. The Skill Required. 21 This is a garden-variety wage and hour class action, 22 focused primarily on meal breaks, which required more 23 accounting analysis than actual legal resources. 24 25 26 27 28 The case required locating and contacting over 500 members of the class, communicating with over 250 class members to ensure they received appropriate forms, obtaining new contact information for some members of the class, 25 1 directing the work of the settlement administrator and 2 litigating cutting-edge legal theories surrounding rest 3 and meal periods. Harnett Decl., Doc. 43 at ¶ 87. This is 4 5 6 7 8 entirely administrative work that could be accomplished by paralegals. Class Counsel has extensive experience in class action wage and hour litigation of this nature. See id. at ¶¶ 5-28; Ackermann Decl., Doc. 44 at ¶¶ 4-11. 9 10 4. The Contingent Nature of the Fee and the Financial Burden. 11 This case was conducted on a contingent fee basis 12 against a well-represented Defendant. Counsel has 13 received no money from plaintiffs or any other source to 14 15 16 17 litigate this case. See Ackermann Decl. Doc., 43 at ¶¶ 78-89. The plaintiffs are all low-wage workers who could not meaningfully contribute to any such expenses. 18 Plaintiffs counsel accepted this risk. Class Counsel was 19 effective in effectuating a $2,250,000 settlement. 20 5. 21 The requested fee is comparable to similar wage and 22 23 24 25 hour cases litigated in the Central Valley. For example, this court has awarded the following fees: ¢ 26 27 28 Awards in Similar Cases. 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; ¢ 30% in Vasquez v. Aartman, E.D. Cal. Case No. 1:0226 1 2 CV05624 AWI LJO; ¢ 3 31.25% in Baganha v. California Milk Transport, Case No. 1:01-cv-05729 AWI LJO; 4 5 ¢ 33.3% in Randall Willis et al. v. Cal Western 6 Transport, and Earl Baron et al. v. Cal Western 7 Transport, Coordinated Case No. 1:00-cv-05695 AWI 8 LJO; 9 ¢ 10 Wilbur, Case No. 1:08-cv-01122 LJO GSA; 11 12 13 33.3% in Benitez, et al. v. Jeff Wilbur and Lisa ¢ 33.3% in Chavez, at al. v. Petrissans, Case No. 1:08cv-00122 LJO GSA. 14 Based on the overall success, skill employed, legal 15 risks associated with Plaintiffs claims, the financial 16 risks borne by Plaintiffs Counsel, and similar awards 17 made in similar cases, under a percentage-of-fund 18 19 20 21 approach the requested attorney s fee award of 30% of the total recovery (or $675,000) is reasonable under the circumstances. 22 6. 23 Calculation of the lodestar amount may be used as a 24 25 26 27 28 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 27 1 court must calculate the lodestar amount by multiplying 2 the number of hours reasonably expended on the litigation 3 by a reasonable hourly rate. Cunningham v. County of Los 4 5 6 7 Angeles, 879 F.2d 481 (9th Cir. 1988). Next, the court may increase or reduce the presumptively reasonable lodestar fee. Quesada v. Thomason, 850 F.2d 537, 539 (9th 8 Cir. 1998) (citing City of Riverside v. Rivera, 477 U.S. 9 561 (1986)). 10 The billing records of Class Counsel Wasserman, 11 Comden, Casselman & Esensten, L.L.P and Ackermann & 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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, partner Jesse Levin, associate Gregory Scarlett, senior associate Jordan Esensten, associate Alan Juvan, paralegal Andreas Nielsen, paralegal Dale Gordon, paralegal Susan House, paralegal 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 28 HOURS RATE TOTAL 1.6 109.2 52.4 229.2 21.5 $750 $670 $600 $290 $500 $1,200.00 $73,164.00 $31,440.00 $66,468.00 $10,750.00 8 181.4 90.9 78.6 9 $290 $180 $180 $180 $180 $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 1 See Memorandum in Support of Plaintiff s Motion for 2 Attorney s Fees and Costs, Doc. 49 at 11. 3 4 5 6 7 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 8 of attorney time. 9 01099 OWW DLB (wage and hour class action involving 10 unsettled issues related to meal and rest breaks with 11 approximately 150 class members reached settlement after 12 13 14 15 16 See Alvarado v. Nederend, 1:08-cv- Class Counsel expended fewer than 350 hours). No two 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 17 18 higher than normally permitted under federal law. 1 19 Prevailing hourly rates in the Eastern District of 20 California are in the $400/hour range. One more general 21 22 23 24 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 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 the District of Columbia, frequently used in fee awards 2 cases. The Laffey Matrix reflects a paralegal rate of 3 $161, a 1-3 year lawyer rate of $294, a 4-7 year lawyer 4 5 6 7 rate of $361, an 8-10 year lawyer rate of $522, an 11-19 year lawyer rate of $589, and a 20+ year lawyer rate of $709. The district court in Fernandez v. Victoria Secret 8 Stores, LLC, 2008 WL 8150856, *15, increased the Laffey 9 Matrix amounts by the difference between the cost of 10 living increase provided to Judicial branch employees in 11 the Washington D.C. area and that provided to employees 12 13 14 15 in the Los Angeles area. That difference is 2.94 percent as of the 2011 pay tables. Taking the top bracket as an example, the adjusted Laffey Rate for a 20+ year lawyer 16 is $729 ($709 * 1.0294). Mr. Wasserman s rate of $750 is 17 slightly higher than the adjudged Laffey Matrix for an 18 attorney with 20+ years in practice. The $670 billed by 19 Ms. Harnett is approximately 10 percent higher than the 20 11-19 year attorney rate of $606. Severalpo other 21 22 23 24 employees of 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 25 more reasonable, although the $175/hour rate for a legal 26 assistant is unjustified. 27 28 Because the lodestar is being used here as a cross30 1 check, the court may use a rough calculation of the 2 lodestar, Fernandez, 2008 WL 8150856, it is appropriate 3 to roughly haircut the lodestar. The hourly rates of the 4 5 6 7 Wasserman, Comden, Casselman & Esensten, L.L.P. are least 10% over the appropriate Laffey Matrix levels, and are reasonably subject to a 10% haircut on that basis. 8 Ackermann & Tilajef, P.C. s rate billed for their legal 9 assistant will be lowered to $100. This results in the 10 following recalculation of the lodestar. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NAME Wasserman, Comden, Casselman & Esensten, L.L.P. Steven Wasserman, partner Melissa Harnett, partner Cathy Garcia, partner Jesse Levin, associate Gregory Scarlett, senior associate Jordan Esensten, associate Alan Juvan, paralegal Andreas Nielsen, paralegal Dale Gordon, paralegal Susan House, paralegal 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 ADJUSTED RATE TOTAL 1.6 109.2 52.4 229.2 21.5 $750 $670 $600 $290 $500 $675 $603 $540 $261 $1,080 $65,848 $28,296 $59,821 8 181.4 90.9 78.6 9 $290 $180 $180 $180 $180 $450 $261 $162 $162 $162 $162 $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 1929.94 $150 $150 $150 $150 $14,445.00 $6,000.00 $550,859.00 The lodestar with adjusted hourly rates is $550,859.00. In addition, the hours billed are excessive 31 1 and are reasonably subject to a 30% haircut, resulting in 2 a total lodestar of $385,601.00 3 4 5 6 7 The amount requested by Class Counsel of $675,000.00 is greater than its lodestar amount of $385,601.00. However, adjustments to increase or decrease the lodestar amount are sometimes appropriate to justify use of a 8 lodestar multiplier. Clark v. City of Los Angeles, 803 9 F.2d 987, 991 (9th Cir. 1986); see also Fischel v. 10 Equitable Life Assur. Society of U.S., 307 F.3d 997, 1008 11 (9th Cir. 2002). It is an established practice in the 12 13 14 15 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. 16 Fischel, 307 F.3d at 1008 (citing In re Washington Public 17 Power Supply System Securities Litig. v. Continental Ins. 18 Co., 19 F.3d 1291, 1299 (9th Cir. 2002)). Generally, a 19 district court has discretion to apply a multiplier to 20 the attorney s fees calculation to compensate for the 21 22 23 24 25 26 27 28 risk of nonpayment. Fischel, 307 F.3d at 1008; see also In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litig. v. Exxon Corp., 109 F.3d 602 (9th Cir. 1997). The lodestar multiplier is calculated by dividing the percentage fee award by the lodestar calculation. 32 1 Fischel, 307 F.3d at 1008. Here, the multiplier of 1.75 2 is calculated by dividing $675,000.00 by $385,601.00. To 3 determine whether the lodestar multiplier is reasonable 4 5 6 7 the following factors may be considered: (1) the amount involved and the results obtained, (2) the novelty and difficulty of the questions involved, (3) the skill 8 requisite to perform the legal service properly, (4) the 9 preclusion of other employment by the attorney due to 10 acceptance of the case, (5) the customary fee, (6) 11 whether the fee is fixed or contingent, (7) time 12 13 14 15 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, 16 (10) the undesirability of the case, (11) the nature 17 and length of the professional relationship with the 18 client, and (12) awards in similar cases. Id. (citing 19 Kerr v. Screen Extras Guild, Inc., 526 F.2d 6 (9th Cir. 20 1975)). 21 22 23 24 First, Class Counsel achieved a good result and generated a significant benefit for the class amounting to the Maximum Settlement Amount of $2,250,000 for the 25 benefit of a class of approximately 553 members. Based on 26 the claims rate, the 342 Class Members who submitted 27 claims will receive $963,391.58 in the aggregate, an 28 33 1 2 3 4 5 6 7 average of $2,776.34. See Bui Decl., Doc. 40. 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 8 Counsel avoided protracted litigation by conducting 9 significant investigation of the class claims, and 10 efficiently communicating and exchanging information with 11 Defense counsel so that the parties could successfully 12 13 14 15 mediate the case. In preparation for this case, Class Counsel investigated the potential claims and class members; comprehensively reviewed thousands of pages of 16 documents; interviewed a number of current and former 17 drivers of the Defendant; and deposed Defendant s 18 corporate representative about a number of important 19 topics. See Ackermann Decl., Doc. 44 at ¶ 36; Harnett 20 Decl., Doc. 43 at ¶ 55. 21 22 23 24 Lastly, Class Counsel undertook considerable financial risks in this litigation by accepting this case on a contingency basis. Harnett Decl., Doc. 43 at ¶ 92. 25 There was no guarantee they would recoup their fees or 26 costs. Id. Class Counsel has not received any payment for 27 their time or their expenses, which they began incurring 28 34 1 over two years ago. Id. Additionally, Class Counsel had 2 to forego other work in order to maintain this case. Id. 3 4 5 6 7 Based on the overall success, the skill with which the case was prosecuted, the substantial legal risks associated with Plaintiffs claims, and the financial risks borne by Plaintiffs Counsel, Plaintiff s request 8 for a multiplier of 1.75 of its lodestar is reasonable. 9 See, e.g. Steiner v. Am. Broadcasting Co., Inc., 248 Fed. 10 Appx. 780, 783 (9th Cir. 2007)(approving multiplier of 11 6.85 and citing cases with comparable or higher 12 13 14 15 16 17 18 19 20 21 multipliers); Vizcaino, 290 F.3d at 1051 (finding no abuse of discretion in awarding a multiplier of 3.65). E. 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 payment to court reporters for depositions, mediation costs, legal research, and in-house copies of documents. See Acerkmen Decl., Doc. 44 at Exhibit 13. 22 Such costs are routinely reimbursed in these types of 23 cases. See, In re United Energy Corp. Sec. Litig., 1989 24 WL 73211, at *6 (C.D. Cal. 1989) (quoting Newberg, 25 Attorney Fee Awards, § 2.19 (1987)); see e.g. Vasquez, 26 27 28 266 F.R.D. at 493 (Class Counsel litigation expenses payment of approximately $9,000 was fair and reasonable 35 1 in similar case). 2 3 4 5 6 7 8 9 10 11 12 Here, the actual costs incurred are greater than the estimated $10,000, which was included in the Class Notice and to which no Class Member objected. Plaintiff s request, which is capped at $10,000 is reasonable. F. Class Representative Enhancement. Pursuant to the Settlement, Plaintiff seeks an enhancement in the amount of $11,250 to the named Plaintiffs Lee Bond and Richard James Burkhart. Ackermann Decl., Doc. 44 at ¶ 47. This payment is intended to 13 recognize the time and efforts that the named Plaintiffs 14 spent on behalf of the Class Members. Id.; see also 15 Declarations of Lee Bond and Richard James Burkhart, 16 Docs. 45-46. 17 18 19 20 21 Courts routinely approve incentive awards to compensate named plaintiffs for the services they provide and the risks they incurred during the course of the class action litigation. Ingram v. The Coca-Cola 22 Company, 200 F.R.D. 685, 694 (N.D. Ga. 2001) (internal 23 quotations and citations omitted). In Coca-Cola, the 24 Court approved service awards of $300,000 to each named 25 plaintiff in recognition of the services they provided to 26 27 28 the class by responding to discovery, participating in the mediation process, and taking the risk of stepping 36 1 forward on behalf of the class. Coca-Cola, 200 F.R.D. at 2 694; see, e.g., Van Vranken v. Atl. Richfield Co., 901 F. 3 Supp. 294, 299 (N.D. Cal. 1995) (approving $50,000 4 5 6 7 8 9 participation award to plaintiffs); Glass v. UBS Financial Services, Inc., 2007 WL 221862, at *17 (N.D. Cal. Jan. 26, 2007) (approving $25,000 enhancement to each named plaintiff). In this case, among other things, the named 10 Plaintiffs: (1) provided significant assistance to Class 11 Counsel; (2) endured lengthy interviews; (3) provided 12 13 14 15 written declarations; (4) searched for and produced relevant documents; (5) and prepared and evaluated the case for mediation, which was a full day session 16 requiring very careful consideration, evaluation and 17 approval of the terms of the Settlement Agreement on 18 behalf of the Class. See Declarations of Lee Bond and 19 Richard James Burkhart, Docs. 45-46. Moreover, as with 20 any plaintiff who files a civil action, Plaintiffs 21 22 23 24 undertook the financial risk that, in the event of a judgment in favor of Defendant in this action, they could have been personally responsible for the costs awarded in 25 favor of the Defendant. See, e.g., Whiteway v. Fed Ex 26 Kinkos Office & Print Services, Inc., No. C 08-2320 SBA, 27 2007 WL 4531783, at **2-4 (N.D. Cal. Dec. 17, 2007). 28 37 1 2 3 4 G. Claims Administrator Fee. The Class Notice provided that the Claims 5 Administrator would receive a few of up to $18,000 6 Plaintiffs request that the full amount of $18,000 be 7 approved as Simpluris fee. Doc. 41. The Declaration of 8 Michael Bui, a Case Manager at Simpluris, explains the 9 10 11 12 tasks undertaken by Simpluris to accomplish notify the Class of the settlement and administer its terms. Mr. Bui estimates administration costs of $18,000, taking into 13 consideration both costs incurred to date and those 14 anticipated to be incurred in the future. This request is 15 substantially lower than previous administrator fees 16 awarded in this District. See Vasquez, 266 F.R.D.at 483- 17 84 ($25,000 administrator fee awarded in wage and hour 18 case involving 177 potential class members). 19 IV. CONCLUSION 20 21 For all the reasons set forth above: 22 (1) The Settlement Class is CERTIFIED; 23 (2) The Class Settlement is APPROVED; 24 25 26 27 28 (3) The payment of $675,000 in attorney s fees (30% of the Maximum Settlement Value) and $10,000 in costs is APPROVED; (4) The enhancement payment of $11,250 to each of the 38 1 named Plaintiffs, Lee Bond and Richard James Burkhart, is 2 APPROVED; 3 4 5 6 7 8 9 10 11 (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. SO ORDERED Dated: June 29, 2011 /s/ Oliver W. Wanger United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 39
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