Loeza et al v. JP Morgan Chase Bank NA et al, No. 3:2013cv00095 - Document 86 (S.D. Cal. 2018)
Court Description: ORDER granting in part and denying in part 71 Plaintiff's Motion for Attorney Fees and Costs And Plaintiff's Service Enhancements. Signed by Judge M. James Lorenz on 6/27/2018. (sjt)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARY LOEZA et al., Case No.: 3:13-cv-00095-L-BGS Plaintiffs, 12 13 v. 14 JP MORGAN CHASE BANK NA, et al., Defendants. 15 16 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR APPROVAL OF ATTORNEYS' FEES AND COSTS AND PLAINITFFS' SERVICE ENHANCEMENTS 17 18 19 In this wages and hours action, the Court has approved a class action settlement 20 21 22 23 (doc. no. 84). Pending before the Court is Plaintiffs' Motion for Approval of Attorneys' Fees and Costs and Plaintiffs' Service Enhancements.1 Defendants did not file an opposition. Although class members received notice of the terms of the settlement, 24 25 1 26 27 28 It appears that Plaintiffs also seek approval of a $12,000 disbursement to Simpluris, Inc. for administering the class notice and settlement. (See Mem. of P&A (doc. no. 71-1) at 2.) Because this disbursement has already been approved in the Order Granting Plaintiffs' Unopposed Motion for Final Approval of Class Action Settlement (doc. no. 84 at 6), it is not addressed herein. 1 3:13-cv-00095-L-BGS 1 including attorneys' fees, litigation expenses, costs, and Plaintiffs' service enhancements, 2 none have objected. (See Supp. Decl. of Michael Bui Regarding Notice and Settlement 3 Administration (doc. no. 80-5, "Bui Decl.") ¶ 10; Bui Decl. Ex. A (doc. no. 80-6, "Class 4 Notice") at 2.) For the reasons which follow, the motion is granted in part and denied in 5 part. 6 7 Attorneys' Fees Class counsel seek 285,000 in attorneys' fees. The settlement agreement allows for 8 this amount without objection from Defendant, and the request was noticed to the class. 9 (See Decl. of David R. Markham in Supp. of Pls' Unopposed Mot. for Prelim. Approval 10 of Class Action Settlement, Ex. A (doc. no. 67-2, "Settlement Agreement") ¶62.A; Class 11 Notice at 2.) 12 "[A]ttorneys' fees and costs may be awarded in a certified class action where so 13 authorized by law or the parties' agreement." In re Bluetooth Headset Prods Liability 14 Litig., 654 F.3d 935, 941 (9th Cir. 2011) (citing Fed. R. Civ. Proc. 23(h)). “The award of 15 attorneys’ fees in a class action settlement is often justified by the common fund or 16 statutory fee-shifting exceptions to the American Rule, and sometimes[, as here], by 17 both.” Id. California Labor Code §226(e) makes an award of reasonable attorney's fees 18 mandatory to an employee suffering an injury cognizable under §226(a). See Harrington 19 v. Payroll Entm't Servs., Inc., 160 Cal.App.4th 589 (2008). In addition, California Labor 20 Code §2699(g)(1) provides for attorney's fees for actions brought pursuant to the Private 21 Attorneys General Act, Cal. Lab. Code §2698 et seq.; see also Villacres v. ABM Indus., 22 Inc., 189 Cal.App.4th 562, 578 (2010). 23 Courts have an independent obligation to ensure that the award, like the settlement 24 itself, is reasonable, even if the parties have already agreed to an amount." Bluetooth, 654 25 F.3d at 941. Two different methods for calculating reasonable attorneys' fees have been 26 approved depending on the circumstances -- the lodestar method and percentage-of- 27 recovery method. Id. at 941-42. 28 2 3:13-cv-00095-L-BGS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Where a settlement produces a common fund for the benefit of the entire class, courts have discretion to employ either the lodestar method or the percentage-of-recovery method. Because the benefit to the class is easily quantified in common-fund settlements, we have allowed courts to award attorneys a percentage of the common fund in lieu of the often more timeconsuming task of calculating the lodestar. Applying this calculation method, courts typically calculate 25% of the fund as the "benchmark" for a reasonable fee award, providing adequate explanation in the record of any "special circumstances" justifying a departure. [] Though courts have discretion to choose which calculation method they use, their discretion must be exercised so as to achieve a reasonable result. Id. at 942 (internal quotation marks and citations omitted); see also Staton v. Boeing Co., 327 F.3d 938, 965- 71 (9th Cir. 2003). Class Counsel seek attorneys' fees of $285,000, based on 30% of the common fund of $950,000, and a lodestar of approximately $741,000. In setting the amount of common fund fees, the district court has a special duty to protect the interests of the class. On this issue, the class's lawyers occupy a position adversarial to the interests of their clients. [T]he district court must assume the role of fiduciary for the class plaintiffs. Accordingly, fee applications must be closely scrutinized. Rubber-stamp approval, even in the absence of objections, is improper. 17 18 19 Staton, 327 F.3d at 970 (internal quotation marks and citation omitted). Here, awarding 30% of the common fund is reasonable in light of the lodestar. 20 The Court uses the lodestar method to cross-check whether awarding more than the 25% 21 benchmark is reasonable. 22 23 24 25 The lodestar figure is calculated by multiplying the number of hours the prevailing party reasonably expended on the litigation (as supported by adequate documentation) by a reasonable hourly rate for the region and for the experience of the lawyer. Though the lodestar figure is “presumptively reasonable,” the court may adjust it upward or downward by an appropriate positive or negative multiplier reflecting a host of “reasonableness” factors. 26 27 Bluetooth, 654 F.3d at 941-42 (citations omitted). 28 3 3:13-cv-00095-L-BGS 1 Class Counsel provided declarations and billing statements in support of their fee 2 request. (Decl. of David R. Markham (doc. no. 71-2) Ex. 1; Decl. of Richard E. 3 Quintilone II (doc. no. 71-6) Ex. B). Two firms represented the class. The Markham 4 Law Firm employed four attorneys: David R. Markham, name partner, who billed 382 5 hours to this case at a rate of $695 per hour; Peggy J. Reali, with over twenty years in 6 legal practice, who billed 434.5 hours at a rate of $575; associate Janine Menhennet with 7 over sixteen years of civil litigation experience, who billed 68 hours at a rate of $450; and 8 associate Maggie Realin with approximately six years of legal experience, who billed 214 9 hours at a rate of $375. Quintilone and Associates employed two attorneys and legal 10 support staff: Richard Quintilone with over sixteen years of experience, who billed 503 11 hours at a rate of $600 per hour; Alvin Lindsay with over fourteen years of experience, 12 who billed 152.5 hours at a rate of $250; and paralegal and law clerk staff who billed 165 13 hours at a rate of $90. Based on surveys of California civil litigation billing rates (see 14 Markham Decl. Ex. 3; Quintilone Decl. Ex. C), the hourly rates are on the high end of the 15 reasonable range for attorneys practicing in San Diego. 16 A total of 1,575 hours were billed to this case for a total of amount of $741,435.50. 17 Upon review of the time records and the court's docket sheet for this case, the number of 18 hours billed is reasonable, given that the case settled after discovery and a highly 19 contested summary judgment motion. The average hourly rate for the entire action is 20 approximately $471, which is reasonable in the context of this case. 21 Based on the foregoing, the lodestar for this action is $741,435.50. However, class 22 counsel seek to recover only $285,000, or approximately 38.5% of the lodestar. 23 Although this is more than 25% of the settlement value, the requested amount is 24 reasonable. The class counsel represented the class on a purely contingent basis. 25 26 27 2 28 The hours are rounded to the nearest one-half hour, and dollar amounts are rounded to the nearest dollar. 4 3:13-cv-00095-L-BGS 1 Furthermore, the result obtained for the class is substantial, considering the class 2 would have to overcome several potentially viable defenses. For example, the class 3 comprised of many class members who would have faced significant challenges to 4 recovery, because they had signed either a release, arbitration agreement, or both upon 5 employment termination. See, e.g., AT&T Mobility v. Concepcion, 563 U.S. 333 (2011) 6 (arbitration clauses with class action waivers not unconscionable); Iskanian v. CLS 7 Transp. Los Angeles, LLC, 59 Cal.4th 348 (2014) (arbitration clauses with class action 8 waivers enforceable in the employment context). 9 In addition, it would be difficult to certify a class action or prevail on the merits of 10 the overtime claim, because Defendant's only formal policy on the issue is to disallow 11 unreported overtime work. See, e.g., Wang v. Chinese Daily News., Inc., 737 F.3d 538, 12 543-44 (9th Cir. 2013) (discussing the commonality requirement of Federal Rule of Civil 13 Procedure 23(a)(2) under Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011)); Brinker 14 Restaurant Corp. v. Super. Ct. (Hohnbaum), 53 Cal.4th 1051-52 (2012) (discussing the 15 burden and difficulty of proving employer's formal written policy contrary to alleged de 16 facto policy); In re Autozone, Inc. Wage and Hour Empl. Practice Litig., 289 F.R.D. 526, 17 546-47 (N.D. Cal. 2012) (no commonality when employer's formal written policy 18 contrary to alleged de facto policy). 19 Despite these obstacles, for the total of 827 class members, the recovery averages 20 approximately $708 per member, with the highest award amounting to approximately 21 $4,855. In light of the foregoing, the Court finds that the requested fees are fair and 22 reasonable. 23 Litigation Expenses 24 The class counsel requests $22,018.21 in costs, including filing fees, depositions, 25 expert and mediation fees, and travel expenses. This less than the $35,000 provided for 26 in the Settlement Agreement (¶62.A) and noticed to the class members (Class Notice at 27 2). Upon review of the costs and expenses documented in itemized billing sheets (see 28 Markham Decl. Ex. 1 at 69-70; Quintilone Decl. Ex. A), and in light of the stage of the 5 3:13-cv-00095-L-BGS 1 litigation when the case settled, all requested costs and litigation expenses are approved 2 as reasonable. 3 Class Representatives' Enhancement Payments 4 The named Plaintiffs request service enhancement awards in addition to their 5 individual settlement payments. Plaintiff Angie Reveles initially sought $5,000, but 6 subsequently increased her request to $10,000.3 (Supp. Submission of Class Counsel Re: 7 Decl. of Angela Reveles Re: Service Award (doc. no. 73; "Supp. Submission"); Decl. of 8 Angie Reveles in Supp. of Class Action Settlement and Approval of Plaintiffs' Service 9 Enhancements (doc. no. 72, "Reveles Decl.") at 3.) Plaintiff Mary Loeza seeks $15,000. 10 The Settlement Agreement provides for a payment of $15,000 to Loeza and $5,000 to 11 Reveles (¶62.B), and the same was noticed to the class (Class Notice at 2). 12 Incentive awards such as this "are discretionary and are intended to compensate 13 class representatives for work done on behalf of the class, [and] to make up for financial 14 or reputational risk undertaken in bringing the action . . .." Rodriguez v. West Publ'g 15 Corp., 563 F.3d 948, 958-59 (9th Cir. 2009). The amount of the award must be related to 16 the actual service or value the class representative provides to the class. See id. at 960. 17 Although incentive awards are "fairly typical in class actions," Rodriguez, 563 F.3d 18 at 958, they "should not become routine practice," lest the representatives be "tempted to 19 accept suboptimal settlements at the expense of the class members whose interests they 20 are appointed to guard." Radcliffe v. Experian Information Solutions Inc., 715 F.3d 1157, 21 1163 (9th Cir. 2013) (internal quotation marks and citations omitted). The potential 22 conflict between the representative and the class is exacerbated when, as here, there is a 23 large difference between the enhancement award and average individual class member 24 recovery. See id. at 1165. 25 26 27 28 3 Defendant objects to this part of the motion. (Supp. Submission at 1.) 6 3:13-cv-00095-L-BGS 1 By bringing this action against their former employer, Plaintiffs benefitted the 2 class and exposed themselves to financial and reputational risk in securing new jobs in 3 the same industry. Both Plaintiffs spent a significant amount of time prosecuting this 4 action, including educating counsel, assisting in discovery, including their own 5 depositions, preparation of case materials, including the complaint, briefs and settlement 6 documents, and making themselves available for purposes of mediation. In addition, 7 Reveles located Quintilone and Associates, which led to the fling of this action as a class 8 action. (Reveles Decl. at 5.) Loeza had been employed with Defendant for longer than 9 most class members and had been employed in Defendant's various departments. She 10 was able to provide information and insight into how Defendant's employment policies in 11 the Loss Mitigation Department differed from other departments. (Decl. of Mary Loeza 12 in Supp. of Class Action Settlement and Approval of Attorneys' Fees and Costs and 13 Plaintiffs' Service Enhancements (doc. no. 71-10) at 2.) At all times, the requested 14 enhancement award for Loeza has been higher because her involvement in the 15 prosecution of this action was greater than Reveles'. 16 Based on the foregoing, the Court agrees that Plaintiffs should receive 17 enhancement awards. However, because the average class member settlement amount is 18 approximately $708, the requested amounts of $15,000 and $10,000, respectively, in 19 addition to each Plaintiff's settlement amount, is excessive. The Court finds that $5,000 20 and $3,000, respectively, adequately compensate Loeza and Reveles for their time, effort 21 and risk. 22 23 24 Accordingly, Plaintiffs' Motion for Approval of Attorneys' Fees and Costs and Plaintiffs' Service Enhancements in granted in part and denied in part as follows: 1. The request for class counsel's fees, costs and litigation expenses is granted. 25 Class counsel shall recover from the settlement the sum of $285,000 for their fees and 26 $22,018.21 for their costs and litigation expenses. 27 28 2. Plaintiffs' request for enhancement awards is granted to the extent that Mary Loeza is awarded $5,000 and Angie Reveles is awarded $3,000 from the settlement. 7 3:13-cv-00095-L-BGS 1 3. In all other respects, the motion is denied. 2 3 IT IS SO ORDERED. 4 5 Dated: June 27, 2018 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 3:13-cv-00095-L-BGS
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