AdTrader, Inc. v. Google LLC, No. 5:2017cv07082 - Document 407 (N.D. Cal. 2022)
Court Description: ORDER GRANTING 401 MOTION FOR FINAL APPROVAL OF SETTLEMENT AND GRANTING 399 MOTION FOR ATTORNEY FEES, EXPENSES, AND SERVICE AWARD. Signed by Judge Beth Labson Freeman on 11/1/2022. (blflc2, COURT STAFF) (Filed on 11/1/2022)
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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 ADTRADER, INC., et al., Plaintiffs, 8 v. 9 10 GOOGLE LLC, Defendant. United States District Court Northern District of California 11 13 15 ORDER GRANTING MOTION FOR FINAL APPROVAL OF SETTLEMENT AND GRANTING MOTION FOR ATTORNEY FEES, EXPENSES, AND SERVICE AWARD [Re: ECF Nos. 401, 399] 12 14 Case No. 17-cv-07082-BLF Before the Court are (1) Plaintiffs’ Motion for Final Approval of Settlement (“Final Approval Motion”) and (2) Plaintiffs’ Motion for Attorney Fees, Expenses, and Service Award (“Fee Motion”). See ECF Nos. 401, 399. Seventeen opt-outs have been filed in addition to those 16 who opted out during the first notice period, and there is one objector. The Court held a hearing 17 on the motions on October 27, 2022. For the reasons stated on the record and explained below, 18 the Court GRANTS both motions. 19 20 I. BACKGROUND Plaintiffs filed a proposed class action on December 13, 2017, alleging that Google 21 wrongfully failed to provide refunds or credits to advertisers who used what was then known as its 22 DoubleClick Bid Manager (“DBM”) platform (now “Display & Video 360”) for invalid activity 23 that Google detected. ECF No. 1. Plaintiffs subsequently extended their claims to include 24 25 advertisers who used Google’s AdWords platform as well, among others. ECF No. 1, 29, 72 (“SAC”). Google’s DoubleClick Ad Exchange (“AdX”) is a Google-owned and operated 26 advertising exchange serving both advertisers and website publishers. See SAC ¶¶ 23-28. 27 Website publishers using AdX can monetize their inventory and be matched via an auction format 28 United States District Court Northern District of California 1 with online advertisers looking to bid on that inventory. See id. Google pays publishers a portion 2 of the revenues Google receives for ads displayed on the publisher’s websites. ECF No. 154 3 (“Answer”) ¶ 23. AdWords is a service that allows advertisers to run both display and search 4 advertising campaigns. AdWords advertisers could buy inventory from AdX publishers under the 5 AdWords default settings. Answer ¶ 27. Plaintiff SCB was an AdWords advertiser. Id. ¶ 57. 6 Google states it attempts to detect invalid ad traffic (“IVT”) and issue credits or refunds to 7 advertisers for such traffic. Id. ¶¶ 41-45. On behalf of itself and the AdWords Class, Plaintiff 8 SCB alleged that Google breached the AdWords Agreement and violated California’s False 9 Advertising Law (“FAL”) and Unfair Competition Law (“UCL”) by failing to fully refund or 10 credit advertisers for invalid ad traffic even though it had contemporaneously withheld payment to 11 AdX publishers for that same traffic. SAC ¶¶ 157-248. 12 Plaintiffs filed the operative Second Amended Complaint on August 13, 2018, as modified 13 by the Court’s order granting in part Google’s motion to dismiss the same. SAC; ECF No. 131. 14 On March 13, 2020, the Court certified under Rule 23(b)(3) Plaintiff’s proposed AdWords Class. 15 ECF No. 278. The Court appointed SCB as class representative and Gaw | Poe LLP as class 16 counsel. Id. Following the Court’s ruling on class certification, Plaintiffs filed an unopposed 17 motion for approval of notice to the litigation class, which the Court granted. ECF Nos. 305, 308. 18 The Court approved Angeion Group as the Administrator. ECF No. 308. Pursuant to the plan, 19 Angeion sent notice to the class, consisting of 651,294 emails and 141,318 mailed postcard 20 notices, which resulted in 34 opt-outs. See ECF No. 346-1. On February 25, 2022, after intensive 21 written and oral discovery and with cross-motions for summary judgment pending, the Parties 22 attended a successful mediation session with the Honorable Jeremy Fogel, Ret. See ECF No. 378. 23 As detailed in the Settlement, the Settlement provides for a non-reversionary sum of $7 million to 24 satisfy these claims, payable on a claims-made basis, under which each claimant with a valid 25 claim will receive a proportional share of the Net Settlement Fund based on its AdWords 26 advertising spend on AdX publishers’ webpages during the relevant limitations period as a 27 percentage of the total such spend for all claimants with valid claims. ECF No. 386-1 28 (“Settlement”) §§ 1.42, 1.44, 2.4. 2 United States District Court Northern District of California 1 On April 28, 2022, SCB filed its Motion for Preliminary Approval, ECF No. 385, which 2 the Court granted on May 13, 2022, ECF No. 393 (“Preliminary Approval Order”). In its Order, 3 the Court acknowledged the benefits of the Settlement and found, on a preliminary basis, that the 4 Settlement “substantially fulfills the purposes and objectives of the class action, and provides 5 substantial relief to the AdWords Class without the risks, burdens, costs, or delay associated with 6 continued litigation, trial, and/or appeal.” Preliminary Approval Order ¶ 5. 7 The Settlement Administrator provided the Court-approved Notice to the AdWords Class 8 and provided notice to regulators. ECF No. 397. The Settlement Administrator likewise updated 9 the class website following preliminary approval, to include updated Settlement Notices, a claim 10 form, an opt-out form, answers to frequently asked questions, a list of important deadlines, and 11 important case documents. ECF No. 401-1 (“Weisbrot Decl.”) ¶¶ 17-20. On June 17, 2022, the 12 Settlement Administrator caused Email Notice to be sent to the 870,509 advertisers for whom e- 13 mail addresses were available, and caused Postcard Notice to be mailed to the 191,154 advertisers 14 for whom only physical addresses were available or for whom emails were returned as 15 undeliverable. Id. ¶¶ 12-13. In total, Direct Notice was achieved with respect to approximately 16 95.6% of the AdWords Class. Id. ¶ 16. The Settlement Administrator received 84,335 claims. Id. 17 ¶ 23. 4,838 of those (covering 8,503 separate Customer IDs) were determined to be Valid Claims. 18 Id. The great majority of the claims that were initially rejected were submitted by individuals who 19 were either not on the class list, or had not submitted a valid email address or Customer ID. Id. ¶¶ 20 24-25. For the rejected claims, the Administrator has followed up with an “initial claim deficiency 21 notice” that affords such individuals 30 days to seek to cure their claim. Id. ¶ 26. The 22 Administrator also received 17 exclusions and one objection. Id. ¶¶ 29, 31. 23 Plaintiffs moved for attorneys’ fees, expenses, and service award on July 15, 2022. See 24 Fee Motion. Plaintiffs moved for final approval on October 13, 2022. See Final Approval 25 Motion. Plaintiffs seeks (1) final approval of the proposed class action settlement; (2) approval of 26 Class Counsel’s application for $2,310,000 in attorneys’ fees and $831,186.02 in expenses; and 27 (3) approval of SCB’s request for a service award of $10,000. See Final Approval Motion at 1-2; 28 Fee Motion at 1. The Court heard Plaintiffs’ motions on October 27, 2022. 3 1 2 II. MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT A. Rule 23 Certification Requirements In order to grant final approval of the class action settlement, the Court must determine 3 that (a) the class meets the requirements for certification under Federal Rule of Civil Procedure 23, 4 and (b) the settlement reached on behalf of the class is fair, reasonable, and adequate. See Staton 5 v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). 6 1. The Class Meets the Requirements for Certification Under Rule 23 7 A class action is maintainable only if it meets the four requirements of Rule 23(a): 8 (1) the class is so numerous that joinder of all members is impracticable; 10 (2) there are questions of law or fact common to the class; 11 (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. United States District Court Northern District of California 9 12 13 14 Fed. R. Civ. P. 23(a). In a settlement-only certification context, the “specifications of the Rule— 15 those designed to protect absentees by blocking unwarranted or overbroad class definitions— 16 demand undiluted, even heightened, attention.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 17 620 (1997). 18 In addition to satisfying the Rule 23(a) requirements, “parties seeking class certification 19 must show that the action is maintainable under Rule 23(b)(1), (2), or (3).” Amchem, 521 U.S. at 20 614. Plaintiffs seek certification under Rule 23(b)(3), which requires that (1) “questions of law or 21 fact common to class members predominate over any questions affecting only individual 22 members” and (2) “a class action is superior to other available methods for fairly and efficiently 23 adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). 24 The Court previously granted class certification in this case for a class that is materially the 25 same as the settlement class. See ECF No. 278 at 32; see also Preliminary Approval Order ¶ 4. In 26 granting class certification, the Court certified the following class: 27 28 All persons and entities: (1) whose Google AdWords advertiser accounts were subject to the Google Inc. Advertising Program Terms for the United States; (2) who were charged by Google through their 4 1 2 3 4 AdWords accounts for clicks or impressions on advertisements appearing on any DoubleClick Ad Exchange publisher website at any time during the applicable limitations period; (3) who did not receive refunds or credits from Google even though it withheld payment to that publisher for those clicks or impressions in connection with any invalid activity or any breach of contract, including any policy violation; and (4) who opted out of the arbitration clause of the Terms. ECF No. 278 at 32. The AdWords Class is defined in the Settlement Agreement as follows: 5 6 7 8 9 10 United States District Court Northern District of California 11 12 [A]ll persons or entities Google’s records indicate had an AdWords account between December 13, 2013 and the date of the last signature to this Agreement below, and: (1) whose Google AdWords advertiser account was subject to the Google Inc. Advertising Program Terms for the United States (the “Terms”); (2) who are not subject to the arbitration clause in the Terms; (3) who were charged by Google through their AdWords account for clicks or impressions on advertisements appearing on any DoubleClick Ad Exchange (“AdX”) publisher website at any time between December 13, 2013 and the date of the last signature to this agreement below; and (4) who Plaintiffs alleged in this Action did not receive refunds or credits from Google even though it withheld payment to that publisher for those clicks or impressions in connection with any invalid activity or any breach of contract, including any policy violation. 13 Settlement § 1.4. This class is identical to the class previously certified by the Court except this 14 class definition expands the applicable “limitations period” to end on the date of the last signature 15 to the Settlement. See Final Approval Motion at 9. The amendment does not change the Court’s 16 analysis in the class certification order. Further, the Court is not aware of any facts that undermine 17 the Court’s conclusion in certifying the class, either in the class certification order or the 18 preliminary approval order. But the Court reviews briefly each of the Rule 23 requirements again. 19 Under Rule 23(a), the Court concludes that joinder of hundreds of thousands of class 20 members would be impracticable under the circumstances of this case. See Arroyo v. Int’l Paper 21 Co., No. 17-cv-06211-BLF, 2019 WL 1508457, at *2 (N.D. Cal. Apr. 4, 2019) (“Numerosity is 22 presumed where the plaintiff class contains forty or more members.”). The commonality 23 requirement is met because the key issue in the case is the same for all class members—whether 24 Google breached the AdWords Agreement and violated California’s FAL and UCL by failing to 25 fully refund or credit advertisers for invalid ad traffic. SCB’s claims are typical of those of the 26 settlement class, as they suffered the same injury from the same course of conduct. See Hanlon v. 27 Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998) (typicality requires that the claims of the 28 class representative are “reasonably co-extensive with those of absent class members”). Finally, 5 1 to determine Plaintiffs’ adequacy, the Court must answer two questions: “(1) do the named 2 plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the 3 named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” Ellis v. 4 Costco Wholesale Corp., 657 F.3d 970, 985 (9th Cir. 2011) (quoting Hanlon, 150 F.3d at 1020). 5 There is no evidence of any conflict of interest that would preclude SCB from acting as class 6 representatives or their counsel from acting as Class Counsel, and the Court is not concerned that 7 Class Counsel has not vigorously litigated this action on behalf of the class. 8 United States District Court Northern District of California 9 Now turning to Rule 23(b)(3), the “predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem, 521 U.S. at 623. 10 The common questions in this case—whether Google breached its obligation under the AdWords 11 Agreement, whether Google violated the UCL and FAL, whether the class was injured, and 12 whether class members are entitled to damages—predominate over individual questions among 13 the class members. See ECF No. 278 at 29. And a class action is the superior method of 14 adjudication given the small individual recovery and its manageability. See Leyva v. Medline 15 Indus. Inc., 716 F.3d 510, 515 (9th Cir. 2013) (“In light of the small size of the putative class 16 members’ potential individual monetary recovery, class certification may be the only feasible 17 means for them to adjudicate their claims.”). 18 19 20 21 Accordingly, the Court concludes that the requirements of Rule 23 are met and thus that certification of the class for settlement purposes is appropriate. 2. The Settlement is Fundamentally Fair, Adequate, and Reasonable Federal Rule of Civil Procedure 23(e) provides that “[t]he claims, issues, or defenses of a 22 certified class . . . may be settled, voluntarily dismissed, or compromised only with the court’s 23 approval.” Fed. R. Civ. P. 23(e). “Adequate notice is critical to court approval of a class 24 settlement under Rule 23(e).” Hanlon, 150 F.3d at 1025. Moreover, “[a] district court’s approval 25 of a class-action settlement must be accompanied by a finding that the settlement is ‘fair, 26 reasonable, and adequate.’” Lane v. Facebook, Inc., 696 F.3d 811, 818 (9th Cir. 2012) (quoting 27 Fed. R. Civ. P. 23(e)). “[A] district court’s only role in reviewing the substance of that settlement 28 is to ensure that it is fair, adequate, and free from collusion.” Id. at 819 (internal quotation marks 6 1 and citation omitted). In making that determination, the district court is guided by an eight-factor 2 test articulated by the Ninth Circuit in Hanlon. Those factors include: 3 4 5 6 the strength of the plaintiffs’ case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status throughout the trial; the amount offered in settlement; the extent of discovery completed and the stage of the proceedings; the experience and views of counsel; the presence of a governmental participant; and the reaction of the class members to the proposed settlement. Hanlon, 150 F.3d at 1026; see also Lane, 696 F.3d at 819 (discussing Hanlon factors). 7 8 a. Notice Was Adequate The Court previously approved SCB’s plan for providing notice to the class when it 9 granted preliminary approval of the class action settlement. Preliminary Approval Order ¶ 7. 10 Prior to granting preliminary approval, the Court carefully examined the proposed class notice and 11 United States District Court Northern District of California notice plan, and determined that they complied with Federal Rule of Civil Procedure 23 and the 12 constitutional requirements of Due Process. See id. SCB now provides a declaration from the 13 President and CEO of the Settlement Administrator explaining the implementation of the plan. 14 See Weisbrot Decl. Based on that declaration, including Direct Email Notice and Postcard 15 Notices, at least one form of Direct Notice was sent and not returned as undeliverable for 16 approximately 95.6% of the Settlement Class. See id. ¶ 16. Based on the implementation details 17 18 of the notice plan, the Court is satisfied that the Settlement Class has received the “best notice that is practicable under the circumstances.” Fed. R. Civ. P. 23(c)(2)(B). 19 20 b. Hanlon Factors The Court now turns to the Hanlon factors. Under the first and second factors, the court 21 considers (1) the strength of Plaintiffs’ case, weighing the likelihood of success on the merits and 22 the range of possible recovery; and (2) the risk, expense, complexity, and duration of further 23 litigation. See Hanlon, 150 F.3d at 1026. Plaintiffs recognize the risks in moving forward, 24 25 including the possibility that the Court would have granted Google’s summary judgment motion or that damages would have been limited based on Google’s argument that recovery was limited to 26 a 60-day period, instead of the four-year period advocated by Class Counsel. See Final Approval 27 Motion at 13-14. Further, the total value of the settlement fund is on the high end of the range 28 7 1 calculated by SCB’s expert at the class certification stage: $0.278-$7.48 million.1 See Fee Motion 2 at 5. And it is possible that a jury would have credited Defendant’s expert, who asserted that even 3 if the class was correct on the merits, the damages were $0. See id.; Final Approval Motion at 14. 4 Plaintiffs’ success was not assured; significant risk, expense, complexity, and time likely lay 5 ahead if the parties did not settle; and the class received a settlement fund the value of which was 6 likely at the highest end of what they would have received at trial. Therefore, the Court finds that 7 the first and second Hanlon factors favor settlement. Under the third factor—the risk of maintaining class action status throughout the trial— 8 9 United States District Court Northern District of California 10 since the Court granted class certification, there was little risk related to maintaining class action status throughout the trial. See Hanlon, 150 F.3d at 1026. 11 Fourth, the settlement recovery for the class members is substantial given the 12 circumstances of the case. The average award for each class member will be $430. See Final 13 Approval Motion at 6-7. The Court finds this to be a significant payout, particularly considering 14 the scale of the alleged harm. Under the fifth Hanlon factor, courts consider “the extent of discovery completed and the 15 16 stage of the proceedings.” Hanlon, 150 F.3d at 1026. In this case, settlement was reached after 17 years of litigation and substantial discovery, including over a dozen depositions of parties and 18 their experts, document production and review, interrogatories, and use of experts. See Final 19 Approval Motion at 12; ECF No. 386 (“Gaw Prelim. App. Decl.”) ¶¶ 3-4. The Court is satisfied 20 that the parties were sufficiently familiar with the issues in this case to have informed opinions 21 regarding its strengths and weaknesses under factor five. The sixth Hanlon factor—the experience and views of counsel—favors approving the 22 23 settlement. See Hanlon, 150 F.3d at 1026. Class Counsel’s conclusion is that the Settlement is 24 fair and reasonable and in the best interest of the settlement class. See Final Approval Motion at 25 26 27 28 SCB’s expert later revised the damages range upward to $2.7 million-$111 million based on subsequent interrogatory responses by Google. See Fee Motion at 5. But Defendant then claimed its interrogatory responses had been incorrect and amended them, with the result of reducing the damages range. See id. The Court denied SCB’s motion to exclude Defendant’s amended interrogatory responses. ECF No. 354. The uncertainty around the damages calculation created further risk for trial. See Final Approval Motion at 14. 8 1 1 10; see also Gaw Prelim. App. Decl. ¶ 8. Further, Class Counsel has demonstrated their thorough 2 understanding of the strengths and weaknesses of this case and their extensive experience 3 litigating prior employment class actions cases. See In re Omnivision Techs., Inc., 559 F. Supp. 4 2d 1036, 1043 (N.D. Cal. 2008) (finding class counsel’s recommendation in favor of settlement 5 presumptively reasonable because counsel demonstrated knowledge about the case and the type of 6 litigation in general). 7 United States District Court Northern District of California 8 The seventh Hanlon factor is neutral, since there was no government participant in the case. See Hanlon, 150 F.3d at 1026. 9 Under the eighth Hanlon factor, the Court considers the “reaction of the class members to 10 the proposed settlement.” See Hanlon, 150 F.3d at 1026. While notice was given to hundreds of 11 thousands of class members, only one objection has been filed and there have only been seventeen 12 opt-outs from the class. See Weisbrot Decl. ¶¶ 28-31. “A court may appropriately infer that a 13 class action settlement is fair, adequate, and reasonable when few class members object to it.” 14 Knapp v. Art.com, Inc., 283 F. Supp. 3d 823, 834 (N.D. Cal. 2017) (quoting Larsen v. Trader 15 Joe’s Co., No. 11-cv-05188-WHO, 2014 WL 3404531, at *5 (N.D. Cal. July 11, 2014)). 16 17 18 Based on the foregoing reasons, and after considering the record as a whole guided by the Hanlon factors, the Court finds that the settlement is fair, adequate, and reasonable. 3. Objection 19 As mentioned above, one objection was submitted, by Robert J.A. Gilbert. Weisbrot Decl. 20 ¶ 31, Ex. F. He objects to the Settlement on the following bases: (1) he cannot tell precisely what 21 benefit he will get from the Settlement; (2) he claims not to have gotten “conversions” based on 22 the advertisements he posted; and (3) he thinks Google prevented his website from appearing in 23 search results or otherwise disadvantaged his brand. See id.; Final Approval Motion at 21. The 24 objections raised by Mr. Gilbert largely stem from problems with Google’s services that were not 25 at issue in this lawsuit, such as deficiencies in Google’s conversion practices. He asserts the 26 settlement amount is inadequate because it doesn’t cover his concerns with Google, but these 27 concerns were not a part of this case. As discussed above, the Court finds that the value of the 28 settlement is at the high end of what the class likely would have received at trial. Mr. Gilbert is 9 1 seeking recovery for other harms. For these reasons, Mr. Gilbert’s objections are OVERRULED. 2 3 4. Conclusion Based on those factors, and after considering the record as a whole (including the 4 5 objection) guided by the Hanlon factors, the Court finds that notice of the proposed settlement was 6 adequate, the settlement is not the result of collusion, and that the settlement is fair, adequate, and 7 reasonable. * 8 MOTION FOR ATTORNEYS’ FEES AND COSTS AND SERVICE AWARDS III. Class Counsel seeks an award of $2,310,000 in attorneys’ fees and $831,186.02 in United States District Court Northern District of California 11 12 13 14 15 * Plaintiffs’ Motion for Final Approval of Settlement is GRANTED. 9 10 * expenses. See Fee Motion at 1. Further, SCB seeks a service award of $10,000. See id. at 1-2. A. Attorney’s Fees and Expenses 1. Legal Standard “While attorneys’ fees and costs may be awarded in a certified class action where so 16 authorized by law or the parties’ agreement, Fed. R. Civ. P. 23(h), courts have an independent 17 obligation to ensure that the award, like the settlement itself, is reasonable, even if the parties have 18 already agreed to an amount.” In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 941 19 (9th Cir. 2011). “Where a settlement produces a common fund for the benefit of the entire class,” 20 as here, “courts have discretion to employ either the lodestar method or the percentage-of-recovery 21 method” to determine the reasonableness of attorneys’ fees. Id. at 942. 22 Under the percentage-of-recovery method, the attorneys are awarded fees in the amount of 23 a percentage of the common fund recovered for the class. Bluetooth, 654 F.3d at 942. Courts 24 applying this method “typically calculate 25% of the fund as the benchmark for a reasonable fee 25 award, providing adequate explanation in the record of any special circumstances justifying a 26 departure.” Id. (internal quotation marks omitted). However, “[t]he benchmark percentage should 27 be adjusted, or replaced by a lodestar calculation, when special circumstances indicate that the 28 percentage recovery would be either too small or too large in light of the hours devoted to the case 10 1 or other relevant factors.” Six (6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1311 2 (9th Cir. 1990). Relevant factors to a determination of the percentage ultimately awarded include: 3 “(1) the results achieved; (2) the risk of litigation; (3) the skill required and quality of work; (4) the 4 contingent nature of the fee and the financial burden carried by the plaintiffs; and (5) awards made 5 in similar cases.” Tarlecki v. bebe Stores, Inc., No. C 05–1777 MHP, 2009 WL 3720872, at *4 6 (N.D. Cal. Nov. 3, 2009). United States District Court Northern District of California 7 Under the lodestar method, attorneys’ fees are “calculated by multiplying the number of 8 hours the prevailing party reasonably expended on the litigation (as supported by adequate 9 documentation) by a reasonable hourly rate for the region and for the experience of the lawyer.” 10 Bluetooth, 654 F.3d at 941. This amount may be increased or decreased by a multiplier that 11 reflects factors such as “the quality of representation, the benefit obtained for the class, the 12 complexity and novelty of the issues presented, and the risk of nonpayment.” Id. at 941-42 13 (quoting Hanlon, 150 F.3d at 1029). 14 In common fund cases, a lodestar calculation may provide a cross-check on the 15 reasonableness of a percentage award. Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1050 16 (9th Cir. 2002). Where the attorneys’ investment in the case “is minimal, as in the case of an early 17 settlement, the lodestar calculation may convince a court that a lower percentage is reasonable.” 18 Id. “Similarly, the lodestar calculation can be helpful in suggesting a higher percentage when 19 litigation has been protracted.” Id. Thus, even when the primary basis of the fee award is the 20 percentage method, “the lodestar may provide a useful perspective on the reasonableness of a 21 given percentage award.” Id. “The lodestar cross-check calculation need entail neither 22 mathematical precision nor bean counting . . . [courts] may rely on summaries submitted by the 23 attorneys and need not review actual billing records.” Covillo v. Specialtys Cafe, No. C–11– 24 00594–DMR, 2014 WL 954516, at *6 (N.D. Cal. Mar. 6, 2014) (quoting In re Rite Aid Corp. Sec. 25 Litig., 396 F.3d 294, 306-07 (3d Cir. 2005)). 26 An attorney is also entitled to “recover as part of the award of attorney’s fees those out-of- 27 pocket expenses that would normally be charged to a fee paying client.” Harris v. Marhoefer, 28 24 F.3d 16, 19 (9th Cir. 1994) (internal quotation marks and citation omitted). 11 1 2. Discussion Class Counsel seeks an award of attorneys’ fees totaling $2,310,000, which is 33% of the 2 $7 million gross settlement fund, in addition to $831,186.02 in expenses. See Fee Motion at 1. 3 The Court first approves the $831,186.02 in expenses. The Court has reviewed Class 4 5 6 Counsel’s itemized lists of costs and finds that all of the expenses were necessary to the prosecution of this litigation. See ECF No. 400 (“Gaw Decl.”) ¶¶ 3-7, Ex. A. The Court also finds the amount of attorneys’ fees to be reasonable. A lodestar cross- 7 check supports the reasonableness of the fees requested. Class Counsel states that the total 8 lodestar from inception of this case through settlement is $3,650,815. See Fee Motion at 11. The 9 hourly rates charged by Class Counsel were approved by the Court earlier in this case, and the 10 Court finds the number of hours expended to be reasonable. See Gaw Decl. ¶¶ 8-15, Ex. B. Using 11 United States District Court Northern District of California $3,650,815 as the lodestar results in a negative multiplier of approximately 0.63. See Gaw Decl. ¶ 12 13. “A negative multiplier ‘strongly suggests the reasonablenesss of [a] negotiated fee.’” Moreno 13 v. Cap. Bldg. Maint. & Cleaning Servs., Inc., No. 19-cv-07087-DMR, 2021 WL 4133860, at *6 14 (N.D. Cal. Sept. 10, 2021) (quoting Rosado v. Ebay Inc., No. 12-cv-04005-EJD, 2016 WL 15 3401987, at *8 (N.D. Cal. June 21, 2016)). The Court considers this to be a reasonable multiplier, 16 particularly in light of the significant effort Class Counsel expended litigating this case. 17 Under the percentage-of-recovery method, the attorneys’ fees Class Counsel is requesting 18 19 are 33% of the $7 million gross settlement fund, which is above the 25% “benchmark” in this circuit. Bluetooth, 654 F.3d at 942. However, the Court finds the requested attorneys’ fees 20 reasonable, especially in light of the significant amount of work Class Counsel performed in this 21 case, the substantial risk taken on a contingency basis, and the excellent results achieved. See In 22 re Pac. Enters. Sec. Litig., 47 F.3d 373, 378-79 (9th Cir. 1995); In re Activision Sec. Litig., 723 F. 23 Supp. 1373, 1378 (N.D. Cal. 1989) (collecting cases). Accordingly, the requested fee amount is 24 reasonable. 25 26 B. Service Award SCB seeks a service award of $10,000. See Fee Motion at 12-13. Incentive awards “are 27 discretionary . . . and are intended to compensate class representatives for work done on behalf of 28 12 1 the class, to make up for financial or reputational risk undertaken in bringing the action, and, 2 sometimes, to recognize their willingness to act as a private attorney general.” Rodriguez v. W. 3 Publ’g Corp., 563 F.3d 948, 958-59 (9th Cir. 2009) (internal citation omitted). United States District Court Northern District of California 4 “Incentive awards typically range from $2,000 to $10,000.” Bellinghausen v. Tractor 5 Supply Co., 306 F.R.D. 245, 267 (N.D. Cal. 2015). The declaration of Ramzy Rahib, the owner, 6 president, and CEO of SCB, describes the work he did for this case, including taking phone calls 7 with the attorneys, providing records, reviewing draft interrogatory responses, preparing for his 8 deposition, taking his deposition, which required overnight travel from San Diego to San 9 Francisco, and participating in mediation. See ECF No. 399-1 (“Rahib Decl.) ¶ 5. He estimates 10 that he spent approximately 60 hours in connection with this case. See id. ¶ 6. The $10,000 award 11 would represent a rate of $167 per hour that SCB spent on this case. Rahib also notes his concern 12 about having SCB as the Named Plaintiff due to potential retaliation by Google. See id. ¶ 4. 13 The Court typically awards an enhancement award around $5,000. However, given the 14 amount of time during which this case has been pending and that SCB has held itself out publicly 15 regarding this case, the Court will grant SCB an amount higher than its typical $5,000 award. 16 Accordingly, the Court approves the requested $10,000 service award for SCB. 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 13 1 IV. ORDER For the foregoing reasons, IT IS HEREBY ORDERED that: 2 (1) Plaintiffs’ Motion for Final Approval of Settlement is GRANTED; (2) $2,310,000 in attorneys’ fees for Class Counsel is APPROVED; (3) $831,186.02 in expenses for Class Counsel is APPROVED; (4) A service award for SCB in the amount of $10,000 is APPROVED; (5) The timely requests for exclusion by the individuals identified in Exhibit A to the 3 4 5 6 7 Judgment are APPROVED. 8 IT IS SO ORDERED. 9 10 Dated: November 1, 2022 United States District Court Northern District of California 11 12 13 ______________________________________ BETH LABSON FREEMAN United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14
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