Opinion
Case No. EDCV 06-707-VAP(OPx)
02-13-2012
RUTHEE GOLDKORN, an individual, Plaintiff, v. COUNTY OF SAN BERNARDINO, et al. Defendants.
ORDER GRANTING MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
[Motion filed on January 30, 2012]
The parties' joint motion for final approval of class action settlement ("Motion for Final Approval" or "Motion") is before the Court for hearing on February 13, 2012. After reviewing and considering all papers filed in support of the Motion, the Court GRANTS the Motion.
I. BACKGROUND
A. Procedural Background
Plaintiffs and the proposed class members encompass all litigants, attorneys, witnesses, jurors, and other users of the courthouse facilities of San Bernardino County with physical, mobility, or manual dexterity disabilities. (First Am. Compl. ("Am. Compl.") (Doc. No. 6) ¶ 13.) On July 5, 2006, Plaintiffs brought this action against Defendants. (Doc. No. 1.) Plaintiffs alleged that all courthouses of the San Bernardino Superior Court were inaccessible to individuals with mobility disabilities in violation of:
The Named Plaintiffs in the action are Ruthie Goldkorn, Alfred Chichester, Jon Lonberg, Kim Wilder, and the Estate of Michael Flippin (collectively "Named Plaintiffs"). (Am. Compl. at 1.)
1. Title II of the American Disabilities Act ("ADA");
2. Section 504 of the Rehabilitation Act of 1973 ("Section 504");
3. The Unruh Civil Rights Act ("Unruh Act");
4. California Government Code Section 11135 ("Section 11135");
5. The First, Fifth, and Fourteenth Amendments to the United States Constitution and Article I Section 3 of the California Constitution. (Am. Compl. ¶ 1.)
On July 6, 2006, Plaintiffs filed their first amended complaint ("the Amended Complaint") to assert claims for declaratory and injunctive relief on behalf of the class. (Am. Compl. ¶ 146.) On the same day, Plaintiff Goldkorn also filed a separate action ("the State Action") in the Superior Court, County of San Bernardino alleging the same state claims included in the Complaint. (Decl. of Shawna L. Parks "Parks Decl." (Doc. No. 106) Ex. A. ("Settlement") ¶ 2.) The parties stipulated on December 5, 2006, to stay the State Action pending resolution of this case. (Id.)
On December 11, 2006, Defendants filed their answer to the Amended Complaint denying liability. (Doc. No. 15.) The parties participated in discovery and settlement negotiations throughout 2007. (See Doc Nos. 18-20.) On June 4, 2007, in a joint scheduling conference report, the Parties agreed to a settlement protocol by which a third party expert retained by the County would assess the public areas of the Rancho Cucamonga, Victorville, Needles, Barstow, Big Bear, Fontana, Chino, Joshua Tree, Juvenile Delinquency, Juvenile Dependency, San Bernardino Civil, San Bernardino Central, and San Bernardino Annex courthouses (the "Subject Courthouses"), based on ADA Guidelines, as well as Chapter llB of the California Building Code. (Doc No. 20.)
The parties agreed on June 4, 2007, to stay litigation of the action in order to develop a "settlement protocol." (Doc. No. 22.) Over the next three years, the third party expert completed surveys of each courthouse site, and the parties agreed to remediation and renovation plans based on these findings. (See Doc. Nos. 23, 24, 27, 29, 37, 38, 45, 51, 52, 68-76.)
The parties jointly submitted a Motion for Preliminary Approval of Class Action Settlement Agreement ("Motion for Preliminary Approval") on October 11, 2011. (Doc. No. 106.) The parties filed the "Motion for: (1) Conditional Class Certification for Purposes of Settlement; (2) Preliminary Approval of Class Action Settlement Agreement; (3) Approval of Class Notice and Method for Distribution of Notice Settlement;" 4) the Declaration of Shawna L. Parks ("Parks Declaration"); (5) Declarations from Named Plaintiffs in Support of the Motion; (6) the Declaration of Defendants' counsel in Support of the Motion; and (7) a Proposed Order. (Id.)
In a November 10, 2011, order granting the Motion for Preliminary Approval ("Preliminary Approval Order"), the Court:
(1) conditionally certified a class ("Class") consisting of "all litigants, attorneys, witnesses, jurors, and other public users of the courthouse facilities of San Bernardino County,
with mobility, and/or manual dexterity disabilities who have used or will use courthouse facilities of the Superior Court of California, County of San Bernardino during the Class Period";
(2) granted preliminary approval of the parties' Settlement set forth in the jointly submitted Motion for Preliminary Approval;
(3) directed dissemination of the class notice; and
(4) set the hearing date for final approval, as well as dates for the notice and objection period. (See Doc. No. 119.)
The Court established January 23, 2012, as the deadline for class members ("Class Members") to file claims or objections, and ordered the parties to file a motion for final approval of the settlement no later than January 30, 2012. (Prelim. Approval Order at 23.)
On January 30, 2012, the parties jointly filed the Motion for Final Approval, and the declarations of Rebecca Craemer, Shawna L. Parks, Robert A. Naeve, and Stephen E. Horan in support of the Motion. (Doc. No. 120.) Plaintiff also filed a Motion for Approval of Attorneys' Fees for Class Counsel ("Motion for Attorneys' Fees"). (Doc. No. 121.)
B. Settlement Terms
The parties agreed to a Settlement granting injunctive and declaratory relief to the Class without providing for a monetary award to the Class. (See Settlement §§ C, D (laying out remediation plans and requirements to verify compliance).) The Settlement creates remediation plans for the public spaces of all currently operational courthouses in San Bernardino County, to include all of the Subject Courthouses. (Mot. at 3.)
The remediation plans will be implemented over a five year period, according to the Settlement, and the Superior Court will be obligated to maintain all accessible features, provide staff training, and make the most important accessible features known to the public.
Under the Settlement Agreement, Class counsel will receive $690,000.00 as compensation for their work on the lawsuit and for costs incurred during litigation. (Settlement § N.1; see also Mot. for Att'ys' Fees at 2.) The agreement specifies that the County shall be responsible for paying $365,000.00 of the attorneys' fees, while the Superior Court shall be responsible for paying $325,000.00 of the fees. (Id. § N.1.) The County will also pay a collective $80,000.00 damages award to Named Plaintiffs. (Settlement § H.) The County will issue a check for this amount to the Disability Rights Legal Center ("DRLC") and Class counsel will then apportion the damages payment to Named Plaintiffs. (Id. § H.) The parties agree to allocate the damages using a pro rata approach that takes into account the number of visits on which each Named Plaintiff alleged to have encountered barriers. (Mot. at 9.)
Under this approach, Plaintiff Chichester will receive $24,800.00, Plaintiff Lonberg $21,600.00, Plaintiff Wilder $14,400.00, Plaintiff Goldkorn $12,800.00, and the Estate of Michael Flippin $6,400.00. (Mot. at 8-11.)
The Settlement Agreement also includes a provision allowing Class counsel to recover reasonably incurred attorneys' fees and costs for monitoring compliance with the Settlement Agreement. (Settlement § N.2.) This amount is not to exceed $61,000.00. (Id.; Mot. for Att'ys' Fees at 2.)
C. Settlement Procedure
1. Notice to Class Members and Claims Received
The parties followed the process for providing notice approved in the Preliminary Approval Order. (See Preliminary Order at 21-22.) Class counsel placed the Notice of Settlement ("Notice") and the Settlement Agreement at the top of the DRLC's website home page. (Mot. at 12.) Counsel included information on the settlement in the DRLC's weekly electronic newsletter. (Id.) Counsel also sent the Notice to San Bernardino organizations with a request they post or distribute the Notice to any interested parties. (Id.)
These organizations included Rolling Start, Inland Counties Legal Services, Inland Empire Disability Consortium, Inland Empire Health Plan, San Bernardino Community College Disabled Students Program, Crafton Hills College Disabled Student Program, CSUSB Disabled Students Program, and the San Bernardino County Bar Association. (Mot. at 12.)
Notice was posted on the San Bernardino Superior Court's website, San Bernardino County's website, and with the clerk's office of each of the Subject Courthouses. (Mot. at 12.)
Class counsel received no written objections to the proposed Settlement Agreement, and only two telephone messages referencing the Notice. (Mot. at 13.) One message involved a general critique of the government and the judiciary. (Id.) Class counsel contacted the other caller, who was inquiring about the case, explained the terms of the Settlement, and then sent the complete Settlement Agreement to the caller. (Id.)
2. Notice of Settlement
The Notice provided a summary of the litigation and settlement negotiations, describing the claims Plaintiffs alleged in both the state and federal actions and the third party assessment process. (Settlement Ex. "B" ("Not.") at 1-2.) The Notice explained that the settlement negotiations occurred at "arms-length" through multiple meetings and through settlement conferences with the Honorable George H. King, another district judge on this Court. (Id. at 2.) The Class Members were advised as to the date of the Order provisionally approving the Settlement Agreement. (Id.) The Notice then provided a detailed description of the Settlement terms, including a definition of the class, details of the remediation plans, the monitoring requirements, the new training requirements for Superior Court personnel, and amounts of the attorneys' fees, costs and damages for Named Plaintiffs. (Id. at 2-5.)
The Notice informed the Class Members of the effect of the Settlement Agreement, alerting them that they will be enjoined from asserting any claims related to the allegations in the state and federal actions against Defendants. (Id. at 5-6.) The Class Members are informed of the date, time, and location of the final settlement approval hearing, and are given the opportunity to submit objections or comments to Class counsel at DRLC no later than ten days after the close of the Notice Period. (Not. at 6.) The Notice alerted Class Members that they can obtain a complete copy of the Settlement Agreement by contacting the DRLC and provided the Center's contact information. (Id. at 7.)
II. LEGAL STANDARD
Parties seeking class certification for settlement purposes must satisfy the requirements of Federal Rule of Civil Procedure 23 ("Rule 23"). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997). A court considering such a request should give the Rule 23 certification factors "undiluted, even heightened, attention in the settlement context." Id.
Under Rule 23(a), in order to bring a class action, a plaintiff must demonstrate:
(1) the class is so numerous that joinder of all members is impracticable ["numerosity"], (2) there are questions of law or fact common to the class ["commonality"], (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class ["typicality"], and (4) the representative parties will fairly and adequately protect the interests of the class ["adequacy of representation"].
In addition to these prerequisites, a plaintiff must satisfy one of the prongs of Rule 23(b) in order to maintain a class action. Where, as here, a plaintiff moves for class certification under Rule 23(b)(2), the plaintiff must prove:
the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole
Where "the parties reach a settlement agreement prior to class certification, courts must peruse the proposed compromise to ratify both the propriety of the certification and the fairness of the settlement." Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003).
III. DISCUSSION
A. Class Certification
Based on the showing made by the parties in support of the Motion for Preliminary Approval and the Motion for Final Approval and as discussed more fully in the Preliminary Approval Order, the Court finds the parties have met their burden as to the prerequisites for class certification set forth in Rule 23(a) and (b)(2).
Specifically, the Class potentially includes an estimated 70,259 residents of San Bernardino County, and is therefore so numerous that joinder is impracticable. (Prelim. Approval Order at 5.) As to commonality, the Class is defined as people with the same qualifying mobility or manual dexterity impairments. Thus, the common question of whether the particular building feature is considered "accessible" is measured by the same guidelines under the ADA and related statutes in every Class Member's case. (Id. at 6.) As to the typicality, the facts common to the proposed Class create liability for claims that are typical to the Class - violations of the ADA and related statutes. (Id. at 7.)
As to adequacy of representation, Class counsel is experienced and capable of fairly and competently representing the interests of the Class. (See Parks Decl. ¶¶ 4-20 (discussing the extensive number of cases the DRLC has litigated, as well as the individual expertise and experience of the purported Class counsel, DRLC's Legal Director, Executive Director, and Staff Attorney).)
As to the requirements of Rule 23(b)(2), the widespread injunctive relief sought is appropriate for the Class as a whole, since all Class Members face the same physical barriers to access. (Prelim. Approval Order at 11.)
B. Fairness, Reasonableness, and Adequacy of the Settlement
In determining whether or not the settlement is fair, reasonable, and adequate, courts balance several factors, including: (1) the strength of plaintiffs' case; (2) the risk, expense, complexity, and likely duration of further litigation; (3) the risk of maintaining class action status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed, and the stage of the proceedings; (6) the experience and views of counsel; (7) the presence of a governmental participant; (8) and the reaction of the class members to the proposed settlement. Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1291 (9th Cir. 1992).
This is "by no means an exhaustive list of relevant considerations," though, and "[t]he relative degree of importance to be attached to any particular factor will depend on the unique circumstances of each case." Officers for Justice v. Civil Serv. Com., 688 F.2d 615, 625 (9th Cir. 1982).
In evaluating a proposed settlement, "[i]t is the settlement taken as a whole, rather than the individual component parts, that must be examined for overall fairness." Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998). The Court "does not have the ability to delete, modify, or substitute certain provisions," and "[t]he settlement must stand or fall in its entirety." Id. The question is not whether the settlement "could be prettier, smarter, or snazzier," but solely "whether it is fair, adequate, and free from collusion." Id., 150 F.3d at 1027.
1. Strength of Plaintiffs' Case
The courts evaluate the strength of the Plaintiffs' case in order to "judge the fairness of a proposed compromise." Carson v. American Brands, Inc., 450 U.S. 79, 88 n.14 (1981). The court determines whether the likelihood of success warrants the amount and form of relief offered in the settlement. Id. Here, Plaintiffs contend that there is a likelihood they will prevail at trial because the evidence shows that the San Bernardino Superior Courts were inaccessible under the standards in the ADA and related statutes, which mandate public access to courts. (Parks Decl. ¶ 33.) Plaintiffs submit that the third party expert's assessments confirm Plaintiffs' allegations and that the remediation plans show the courthouses fell short of the legal standards. (Mot. for Prelim. Approval (Doc. No. 106) at 23-24.)
Although there is no finding and no admission of liability, the Court has considered the extensive modifications of the courthouses' physical features, which the third party expert recommended, and to which both parties have agreed, and finds that Plaintiffs have met their burden of showing a likelihood of success on the merits. (See Settlement Ex. A (detailing the remediation plans).) Thus, the Settlement Agreement's remediation plans seem adequate and fair in light of the Plaintiffs' showing that the physical features may have failed to meet ADA standards. This factor therefore weighs in favor of final approval.
2. Risk, Expense, Complexity, and Likely Duration of Further Litigation
Plaintiffs argue that taking this case to trial would be risky given that the injunctive relief agreed to in the settlement might exceed that which the Court would order following a trial on the merits. (Mot. for Prelim. Approval at 24.) Plaintiffs also contend that the scope and detail of the relief, as well as Plaintiffs' ability to participate in fashioning the relief, would be put at risk by going to trial. (Id.) The Court agrees that the extent of the remedial plan, as well as Plaintiffs' heavy involvement with its contents, would not be a certain outcome of a trial. Thus, the Court finds this weighs in favor of final approval.
The "expense" and "duration" of further litigation also weigh in favor of final approval of the settlement. The parties both agree that it would be expensive and time-consuming to litigate the case through trial. (Id.) The parties have already litigated this case since 2006 and have not yet filed any motions in the case save for the Motion for Preliminary Approval and this Motion. The Court finds that absent a settlement, the parties likely would engage in further lengthy litigation, with a concomitant increase in both expense and delay.
The parties also contend that a trial would require substantial documentary evidence and expert testimony. (Id.) The testimony would have to include detailed descriptions of the complex and technical assessments of each of the 13 courthouses. Thus, the relative complexity of the case should it continue to trial also weighs in favor of final approval of the settlement.
3. Risk of Maintaining Class Action Status throughout the Trial
Although the parties agree that the outcome of a trial is not necessarily certain, they do not address whether maintaining the class action status through trial would be risky. (Id.) Here, the Court does not find that there is a specific risk of maintaining the class action status. Plaintiffs assert a class of "all litigants, attorneys, witnesses, jurors, and other public users of the courthouse facilities of San Bernardino County, with mobility, and/or manual dexterity disabilities who have used or will use courthouse facilities of the Superior Court of California, County of San Bernardino during the Class Period." (Settlement § B.1(a).) The numerosity of the class, as well as the typicality, and commonality of their claims will likely remain constant throughout trial. Thus, the Court finds this factor weighs against final approval.
4. Amount Offered in Settlement
The Settlement Agreement provides solely injunctive and declaratory relief for the Class Members, and thus, the only monetary amounts offered in the settlement are for attorneys' fees and the individual damages award to Named Plaintiffs. Under the settlement, Class counsel receives $690,000.00 in attorneys' fees and the Named Plaintiffs collectively receive $80,000.00. (Settlement §§ N.1, H.) The agreement specifies that the County shall be responsible for paying $365,000.00 of the attorneys' fees, while the Superior Court shall be responsible for paying $325,000.00 of the fees. (Id. § N.1.) The County would also pay the $80,000.00 damages award to Named Plaintiffs. The County would issue a check for this amount to the DRLC and Class counsel would then apportion the damages payment to Named Plaintiffs. (Id. § H.)
Plaintiffs' counsel submits that the requested attorneys' fees fall below the lodestar fees and costs incurred in litigating the case. (Parks Decl. ¶ 36; see also Mot. for Att'ys' Fees at 3.) Class counsel's declarations in support of the Motion for Attorneys' Fees provide sufficient details to justify the requested $690,000.00. (See Doc Nos. 121.1-121.10.) The Court finds the requested amount of $690,000.00 to be within a reasonable and fair range for approximately five years of work on this case.
The Court does not find the individual damages award to Named Plaintiffs creates a conflict of interest here. The amount of $80,000.00 to compensate Plaintiffs' claims under the ADA and related statutes appears reasonable given the alleged individual harms each Plaintiff experienced. (See Am. Compl. ¶¶ 48-92.) Thus, the Court finds this amount fair and reasonable for purposes of final approval.
5. Extent of Discovery Completed, and Stage of Proceedings
This factor requires that the Court evaluate whether "the parties have sufficient information to make an informed decision about settlement." Linney v. Cellular Alaska P'ship, 151 F.3d 1234, 1239 (9th Cir. 1998). Here, the parties have engaged in extensive discovery and negotiation leading up to this agreement. Over three years, the third party expert conducted detailed assessments of all 13 courthouses. (Parks Decl. ¶ 23.) Since then, the parties continued negotiations, exchanging four rounds of proposals for each courthouse based on the assessments. (Id. ¶ 25.) The draft proposals included research on the details of each access feature. (Id.) The parties also conducted a number of site visits to follow up on changes in site conditions and to develop proposed solutions to particular access barriers. (Id.) The parties met for five full-day settlement negotiation meetings, as well as participated in three settlement conferences. (Id.)
Although the parties have already engaged in extensive litigation, the parties have not filed numerous motions nor conducted expensive and time-consuming pre-trial preparation. The parties have not litigated the issue of class certification, and instead jointly stipulated to the Motion for Preliminary Approval and to this Motion. (Doc. Nos. 106, 120.)
This factor weighs in favor of the Court finding the Settlement Agreement reasonable. It shows the attorneys have spent sufficient time to allow the parties to make an informed decision about settlement. Settlement here, however, would still save significant amounts of time and money, which the parties would expend should the case proceed to trial. Accordingly, the Court finds that this factor supports final approval of the settlement.
6. Experience and Views of Counsel
Class counsel work for the DRLC and include the Center's Legal Director, Executive Director, and Staff Attorney. (See Parks Decl. Exs. B-D (resumes of Plaintiffs' attorneys).) Plaintiffs' attorney Shawna L. Parks has been practicing law since 1999, and has been the Legal Director of DRLC since 2009. (Id. Ex. B.) Ms. Parks has been involved in disability rights advocacy since 1994, working as a legal assistant, law clerk, fellow, and staff attorney at Disability Rights Advocates in Oakland, California from 1994 to 2003. (Id. at 2.) During her time at DRLC, she has served as counsel in at least six class actions, including cases involving similar claims for wide-sweeping injunctive relief to solve systemic accommodation and accessibility issues. (Id. at 1.) She also serves as an Adjunct Professor of Law at Loyola Law school and has published widely in the field of disability law. (Id. at 3-4.)
Paula D. Pearlman also represents Plaintiffs. Ms. Pearlman has been practicing law since 1982 and serves as the Executive Director of DRLC. (Parks Decl. Ex. C.) She has also published widely in the field of disability law, and has served as an adjunct and visiting professor of law at Loyola Law School since 2001. (Id.) She has represented clients in over 16 cases during her tenure at the DRLC, including at least nine class actions. (Id.) Plaintiffs' counsel Rebecca A. Craemer has practiced law since 2006 and has worked as a staff attorney at the DRLC since 2010. The Court finds the extensive experience and expertise of Plaintiffs' counsel weigh in favor of final approval of the settlement.
Defendants' counsel have achieved similar levels of experience and expertise in the area of disability litigation. Robert A. Naeve of Jones Day serves as primary litigation counsel in this action for the Superior Court and its Executive Officer, Stephen Nash. (Decl. Of Robert A. Naeve ("Naeve Decl.") (Doc. No. 110) ¶ 3.) He has extensive experience advising and representing public and private clients in matters arising under the ADA and has acted as lead counsel for public and private entities in at least 50 lawsuits challenging accessibility under the ADA. (Id. ¶ 2.) He has also published a treatise detailing the requirements of ADA and its implementing regulations. (Id.) Defense counsel Stephen E. Horan, a managing partner of Porter Scott, represents the County in this action. (Decl. of Stephern E. Horan ("Horan Decl.") (Doc. No. 106-8) ¶ 1.) He has also represented multiple state and local entities in ADA-related access matters, including class action lawsuits. (Id. ¶ 2.)
Counsel for both Plaintiffs and Defendants support the Settlement Agreement as a fair and reasonable resolution of the action. (See Horan Decl. ¶ 3; Naeve Decl. ¶ 3; Parks Decl. ¶ 35.) The Court therefore finds the experience and views of counsel weigh in favor of final approval.
7. Class Members' Reaction to the Proposed Settlement
Class counsel received only two voice messages in response to the Notice. (Mot. at 13.) As discussed above, only one of those callers expressed interest in the lawsuit, and he did not have any objections to the proposed Settlement Agreement. (Id.) The Court therefore finds this factor weighs in favor of final approval.
8. Attorneys' Fees
Plaintiffs seek $690,000.00 in attorneys' fees in their Motion for Attorneys' Fees. (Mot. for Att'ys' Fees at 1.) For a settlement to be fair and adequate, "a district court must carefully assess the reasonableness of a fee amount spelled out in a class action settlement agreement." Staton, 327 F.3d at 963.
The $690,000.00 represents compensation for counsel's work on the lawsuit and for costs incurred during litigation. (Mot. for Att'ys' Fees at 1.) Plaintiffs assert this amount "represents only 83% of Plaintiffs' actual lodestar amount." (Mot. for Att'ys' Fees at 1.) At the final approval stage, the Court evaluates whether this amount is fair, reasonable, and adequate for purposes of settlement.
Under both California and Ninth Circuit precedent, a court may exercise discretion to award attorneys' fees in a class action settlement by applying either the lodestar method or the percentage-of-the-fund method. Wershba v. Apple Computer, Inc., 91 Cal. App. 4th 224, 254 (2001); Fischel v. Equitable Life Assurance Soc'y of U.S., 307 F.3d 997, 1006 (9th Cir. 2002) (citing Vizcaino, 290 F.3d at 1047 ("Irrespective of the chosen method, 'the district court should be guided by the fundamental principle that fee awards out of common funds be 'reasonable under the circumstances.'")); Alberto v. GMRI. Inc., 252 F.R.D. 652, 667 (E.D. Cal. 2008). Where a class action settlement results in injunctive relief, the court must ensure that the amount of the requested attorneys' fees does not result in "'less injunctive relief for the class than could otherwise have been obtained.'" In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 947 (9th Cir. 2011) (quoting Staton, 327 F.3d at 964)).
Here, the parties agreed to a Settlement granting injunctive and declaratory relief to the class without providing for a monetary award to the class. (See Settlement §§ C, D (laying out remediation plans and requirements to verify compliance).) Thus, since there is no common fund, the Court will apply the lodestar method to determine whether the amount of attorneys' fees and costs agreed to under the settlement is fair and reasonable.
The Court determines the lodestar amount by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. McGrath v. Cnty. of Nevada, 67 F.3d 248, 252 (9th Cir. 1995) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). Next, the Court must decide whether to adjust the 'presumptively reasonable' lodestar figure based upon the factors listed in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir. 1975), cert. denied, 425 U.S. 951 (1976), that have not been subsumed in the lodestar calculation. Caudle v. Bristow Optical Co., Inc., 224 F.3d 1014, 1028-29 (9th Cir. 2000).
Kerr was decided before the lodestar approach was adopted by the Supreme Court in Hensley, 461 U.S. at 433, as the starting point for determining reasonable fees. In Kerr, the Ninth Circuit adopted the 12-factor test articulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974); this analysis identified the following factors for determining reasonable fees: (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the "undesirability" of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases.
In determining a reasonable number of hours, the Court must examine detailed time records to determine whether the hours claimed are adequately documented and whether any of them are unnecessary, duplicative, or excessive. Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986), reh'g denied, amended on other grounds, 808 F.2d 1373 (9th Cir. 1987) (citing Hensley, 461 U.S. at 433-34). To determine a reasonable rate for each attorney, the Court must look to the rate prevailing in the community for similar work performed by attorneys of comparable skill, experience, and reputation. Id. at 1210-11 (citing Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)). The Court can rely on its own familiarity with the legal market in determining the prevailing rate for similar work. Ingram v. Oroudjian, 647 F.3d 926, 928 (2011).
To the extent that the Kerr factors are not addressed in the calculation of the lodestar, they may be considered in determining whether the fee award should be adjusted upward or downward, once the lodestar has been calculated. Id. at 1212 (citing Hensley, 461 U.S. at 434). There is a strong presumption that the lodestar figure represents a reasonable fee. Jordan v. Multnomah Cnty., 815 F.2d 1258, 1262 (9th Cir. 1987) (citing Pa. v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986)). An upward adjustment of the lodestar is appropriate only in extraordinary cases, such as when the attorneys faced exceptional risks of not prevailing or not recovering any fees. Chalmers, 796 F.2d at 1212; see also Blum, 465 U.S. at 903 (Brennan, J., concurring); Hensley, 461 U.S. at 448 (Brennan, J., concurring in part, dissenting in part).
The party seeking the attorneys' fees bears the burden of "submitting evidence supporting the hours worked and the rates claimed." Hensley, 461 U.S. at 433. A fee applicant can meet this basic requirement by listing the hours worked by each individual at the firm and identifying the general subject matter of those individuals' time expenditures. See Fische v. SJB-P.D. Inc., 214 F.3d 1115, 1121 (9th Cir. 2000).
Here, Class counsel assert that the lodestar for their fees and costs amounts to $826,117.20. (Mot. for Att'ys' Fees at 3.) For purposes of final approval, the amount of $690,000.00 in attorneys' fees and costs agreed to in the Settlement appears reasonable in comparison to Plaintiffs' lodestar calculation. The Court addresses the Plaintiffs' lodestar calculation, specifically, the reasonableness of the hours Plaintiff billed, and the attorneys' hourly rates, more fully in its separate order on Plaintiffs' Motion for Attorneys' Fees.
The Settlement Agreement and Motion for Attorneys' Fees also allow Class counsel to recover reasonably incurred attorneys' fees and costs for monitoring compliance with the Settlement Agreement. (Settlement § N.2; Mot. for Att'ys' Fees at 2.) This amount is not to exceed $61,000.00 for "all documented time and costs spent in monitoring the Agreement." (Mot. for Att'ys' Fees at 2.) As discussed more thoroughly in the accompanying order, the Court finds this amount to be reasonable. Additionally, the parties negotiated and agreed to this amount, and Plaintiffs will provide documentation for their monitoring work.
Thus, the attorneys' fees provided under the Settlement Agreement weigh in favor of final approval.
9. Conclusion
The majority of the above factors weigh in favor of final approval. Only the risk of maintaining the class action through trial weighs against settlement. The Court, therefore, finds the Settlement Agreement fair, reasonable, and adequate.
C. Adequacy of Notice Procedure
Rule 23 requires the court to direct to Class Members "the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." Fed. R. Civ. P. 23(c)(2)(B). In addition, Rule 23(e)(1) requires the court to "direct notice in a reasonable manner to all class members who would be bound by the proposal." The notice must explain in easily understood language the nature of the action, definition of the class, class claims, issues and defenses, ability to appear through individual counsel, procedure to request exclusion, and binding nature of a class judgment. Fed. R. Civ. P. 23(c)(2)(B). Plaintiff must provide notice to potential opt-in class members that is "timely, accurate, and informative." See Hoffmann-La Rouche Inc. v. Sperling, 493 U.S. 165, 172 (1989). Likewise, claim forms must be informative and accurate. Id. at 172; Churchhill Village, L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004) (notice is satisfactory if it "generally describes the terms of the settlement in sufficient detail to alert those with adverse viewpoints to investigate and to come forward and be heard").
On November 10, 2011, the Court approved the proposed Notice for the Class. (See Order at 20-22.) In its Preliminary Approval Order, the Court determined that the proposed form and manner of class notice were adequate, and the Court now evaluates whether the parties executed class notice in accordance with the Court's Preliminary Approval Order.
Class counsel provided notice to the Class using the form and process the Court preliminarily approved. (Mot. at 12; see Preliminary Order at 21-22.) Class counsel placed the Notice and the Settlement Agreement at the top of the DRLC's website home page. (Mot. at 12.) Counsel included information on the settlement in the DRLC's weekly electronic newsletter. (Id.) Counsel also sent the Notice to San Bernardino organizations with a request they post or distribute the Notice to any interested parties. (Id.)
These organizations included Rolling Start, Inland Counties Legal Services, Inland Empire Disability Consortium, Inland Empire Health Plan, San Bernardino Community College Disabled Students Program, Crafton Hills College Disabled Student Program, CSUSB Disabled Students Program, and the San Bernardino County Bar Association. (Mot. at 12.)
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Additionally, Notice was posted on the San Bernardino Superior Court's website, San Bernardino County's website, and with the clerk's office of each of the Subject Courthouses. (Mot. at 12.)
Class counsel received no written objections to the proposed Settlement Agreement, and only two telephone messages referencing the Notice. (Mot. at 13.) One message involved a general critique of the government and the judiciary. (Id.) Plaintiffs' counsel contacted the other caller, who was inquiring about the case, explained the terms of the Settlement, and then sent the complete Settlement Agreement to the caller. (Id.)
Class counsel complied with the notice requirements of the Preliminary Approval Order. The ultimate Notice sent to Class Members pursuant to the Preliminary Approval Order was the best notice practicable under the circumstances and provided sufficient notice to Class Members through Class counsel's reasonable effort.
IV. CONCLUSION
After considering the foregoing factors, Court finds the Settlement is fundamentally fair, reasonable, and adequate. Accordingly, the Court:
(1) GRANTS the Motion for Final Approval;
(2) APPROVES the damages award of $80,000.00 to be paid by the County to the Named Plaintiffs according to the negotiated pro rata approach;
(2) DISMISSES the action WITH PREJUDICE. All Class Members shall be bound by this Order.
IT IS SO ORDERED.
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VIRGINIA A. PHILLIPS
United States District Judge