Opinion
No. 2:15-CV-01063-KJM-CKD
09-15-2020
JIMMY GREER, Plaintiff, v. DICK'S SPORTING GOODS, INC., Defendant.
ORDER
On August 27, 2019, the court preliminarily approved settlement of this wage and hour class action. Now, in separate motions, plaintiff moves for (1) final approval of the class action settlement and (2) an award of attorney fees and costs. Mot. Approval, ECF No. 81; Mot. Fees, ECF No. 80. As explained below, the court GRANTS both the motions.
I. BACKGROUND
Plaintiff Jimmy Greer filed this class action on March 19, 2015, alleging defendant Dick's Sporting Goods, Inc. ("DSG") violated multiple provisions of the California Labor Code and California Business and Professions Code section 17200. Compl., ECF No. 1-1; Not. of Removal, ECF No. 1; First Am. Compl., ECF No. 14 (filed Oct. 1, 2015). On April 13, 2017, the court granted Greer's opposed motion for class certification, certifying the following two classes: (1) a "Security Check Class" arising from Greer's allegations that DSG employees were required to wait, while off the clock, for inspection of their personal belongings before exiting the store, and (2) a "Business Reimbursement Class," arising from Greer's claim that DSG employees were required to purchase apparel but were not reimbursed for their purchases. Class Cert. Order, ECF No. 45. On July 28, 2017, the Ninth Circuit denied DSG's petition for permission to appeal the court's class certification order. ECF No. 51. This court then denied DSG's motion to stay the case pending the California Supreme Court's resolution of two questions certified to that court by the Ninth Circuit. ECF No. 54 (motion to stay); Stay Order, ECF No. 64. On March 15, 2018, after resolving the parties' disagreements and requiring several modifications, the court approved the class notice form and issued a class notice plan. Not. Order, ECF No. 70. On March 26, 2019, Greer moved for preliminary approval of his settlement with DSG. Mot. Prelim. Approval. ECF No. 73. On August 27, 2019, the court granted Greer's unopposed motion for preliminary approval. Prelim. Approval Order; ECF No. 77.
The California Supreme Court has by now resolved the two questions certified by the Ninth Circuit. See Troester v. Starbucks Corp., 5 Cal. 5th 829 (2018) (holding Fair Labor Standards Act's de minimis doctrine does not apply to California unpaid wages claims); Frlekin v. Apple, 8 Cal. 5th 1038 (2020) (holding time employees spent waiting for and undergoing exit searches was "employer-controlled activity" and compensable as "hours worked"). The holding in Troester does not affect the result here, because as the court previously found, even if the de minimis doctrine applied, there would be common questions regarding whether the class satisfied the doctrine's requirements. Class Cert. Order at 12-13. In addition, the holding in Frlekin does not affect the result here, because the parties had previously agreed they would "conduct discovery on the amounts of times [class members] spent on security checks," Stay Order at 4 (citing Stay Opp'n ECF No. 58, at 6; Stay Reply, ECF No. 61, at 10), and the proposed settlement takes account of plaintiffs' security inspection claims.
A. Preliminary Settlement Approval
As a functional matter, a review of a proposed class action settlement generally involves two hearings: (1) an initial hearing to determine whether certification and preliminary approval of the settlement is justified and, (2) after notice has been provided to the class, a final fairness hearing to determine whether final approval is appropriate. Manual for Complex Litig., Fourth § 21.632 (2004). The court held the preliminary approval hearing on June 28, 2019, and, as noted, issued the approval order thereafter. See generally Prelim. Approval Order. The court preliminarily approved the following proposed settlement terms: (1) defendant will pay a gross settlement amount of $2,900,000; (2) from that total, $10,000 for plaintiff's class representative enhancement award; (3) $65,000 in settlement administration costs; (4) a proposed attorneys' fee award of 33 percent of the gross settlement ($966,667) and $200,000 in expenses. Id. at 2. The court also preliminarily approved distributing a net settlement of $1,658,333 to the settlement class, which includes "All persons who worked at Defendant's California retail stores in non-exempt positions at any time during the period from: (1) March 18, 2011 to January 31, 2015 (the 'Security Check Class'); and (2) March 18, 2011 to April 13, 2017 (the 'Business Reimbursement Class')." Id. at 2 (citing Prelim. Approval Mot. at 8). The settlement is a non-reversionary settlement, with each settlement class member receiving on average $155.00. Id. at 2.
B. Reservations in the Preliminary Approval Order
Although the court preliminarily approved the settlement, the court expressed concerns about the following terms. First, the court noted "it cannot provide assurance the full $10,000 award sought is likely to be awarded" because plaintiff had not provided enough evidence to explain why the incentive award should be significantly larger than the average class award and represent a significant portion of the overall gross settlement amount. Id. at 10. Second, the court observed plaintiff's request for 33 percent of the gross settlement toward attorneys' fees was largely unsupported; thus, the court said it would expect the final motion to provide full support for this request. Id. at 11. The court also ordered the parties to revise the notice to ensure the definitions tracked those in the prior notice, to clarify class members need only state the basis for their objection, and to allow class members to express objections in person at a final approval hearing. Id. at 14. Lastly, the court ordered plaintiff to provide an opt-out form for class members, inform class members where they can obtain a copy of the settlement and advise them when plaintiff and counsel file their motions for approval of attorneys' fees and costs and the proposed incentive award. Id. at 14-15. Plaintiff revised the class notice and on September 18, 2019, the court approved the revised notice and set the notice schedule. Class Notice Order, ECF No. 79.
Accounting for these concerns, the court proceeds to determine whether to grant final approval of the settlement.
II. LEGAL STANDARD
There is a "strong judicial policy" favoring settlement of class actions. Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992). Nonetheless, to protect absent class members' due process rights, Rule 23(e) of the Federal Rules of Civil Procedure permits the claims of a certified class to be "settled . . . only with the court's approval" and "only after a hearing and only on a finding [that the agreement is] fair, reasonable, and adequate . . . ." Fed. R. Civ. P. 23(e). To determine whether a proposed class action settlement is fair, reasonable and adequate, courts consider several factors as relevant, including: (1) [T]he strength of the plaintiff's 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 view of counsel; (7) the presence of a governmental participant; and (8) the reaction of the class members of the proposed settlement. In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 944 (9th Cir. 2015) (quoting Churchill Vill., LLC v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004)); In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 1080 (N.D. Cal. 2007) (noting, at preliminary approval stage, courts consider whether "the proposed settlement appears to be the product of serious, informed, non-collusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments of the class, and falls within the range of possible approval . . . .") (citations omitted). These factors substantively track those provided in 2018 amendments to Rule 23(e)(2), under which the court may approve a settlement only after considering whether:
(A) the class representatives and class counsel have adequately represented the class;
(B) the proposal was negotiated at arm's length;
(C) the relief provided for the class is adequate, taking into account:
(i) the costs, risks, and delay of trial and appeal;
(ii) the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims;
(iii) the terms of any proposed award of attorney's fees, including timing of payment; and
(iv) any agreement required to be identified under Rule 23(e)(3); and
Fed. R. Civ. P. 23(e)(2)(A)-(D). The Rule 23(e)(2) factors took effect on December 1, 2018 and, as an advisory note to the Rule 23(e) amendment recognizes, "each circuit has developed its own vocabulary for expressing [] concerns" regarding whether a proposed settlement is fair, reasonable and adequate. Fed. R. Civ. P. 23(e) advisory committee's note. Accordingly, the newly codified factors are not intended "to displace any factor, but rather to focus the court and the lawyers on the core concerns of procedure and substance that should guide the decision whether to approve the proposal." Id.; see also 4 Newberg on Class Actions § 13:14 (5th ed.) (2019) (noting Rule 23(e) amendments in 2018 "essentially codified [federal courts'] prior practice"). Moreover, the Advisory Committee warned against allowing "[t]he sheer number of factors [to] distract both the court and the parties from the central concerns that bear on review under Rule 23(e)(2)." Fed. R. Civ. P. 23(e) advisory committee's note. Here, the court draws on the Ninth Circuit's longstanding guidance as still relevant and the Rule 23(e)(2) factors as applicable to resolve this motion.
(D) the proposal treats class members equitably relative to each other.
III. DISCUSSION
A. Final Approval
For the reasons articulated below, the court finds class counsel and class representatives have adequately represented the class. Whether "the class representatives and class counsel have adequately represented the class" and whether "the proposal treats class members equitably relative to each other" factor into the court's assessment of whether the proposed settlement is fair, reasonable and adequate. Fed. R. Civ. P. 23(e)(2)(A)-(D).
1. Adequacy of Class Counsel's Representation of Class
As discussed in the court's previous order above, class counsel undertook significant discovery in this case and successfully moved for class certification. Prelim. Approval Order at 9. Then and now, there is nothing before the court indicating class counsel has not adequately represented the class.
2. Adequacy of Class Representatives' Representation of Class
As part of the court's analysis of whether class representatives have adequately represented the class, the court closely analyzes any potential enhancement payments to the class representative. To that end, a proposed agreement should "not improperly grant preferential treatment to class representatives or segments of the class . . . ." In re Tableware Antitrust Litig., 484 F. Supp. 2d at 1080. In determining whether to approve an enhancement payment, courts may consider the following factors: (1) the risk to the class representative in commencing suit, both financial and otherwise; (2) the notoriety and personal difficulties encountered by the class representative; (3) the amount of time and effort spent by the class representative; (4) the duration of the litigation; and (5) the personal benefit, or lack thereof, enjoyed by the class representative as a result of the litigation. Van Vranken v. Atl. Richfield Co., 901 F. Supp. 294, 299 (N.D. Cal. 1995). Various courts in this circuit, including this court, have adopted the Van Vranken factors. See Zakskorn v. Am. Honda Motor Co., Inc., 2:11-CV-02610-KJM, 2015 WL 3622990, at *17 (E.D. Cal. June 9, 2015).
a) Risk of Commencing Suit
On the first factor, plaintiff argues the $10,000 enhancement payment is justified because he undertook reputational risk by litigating claims against a former employer, which could impact his ability to find employment in the future if a potential employer conducts a screening to determine whether he has filed suit. Mot. Fees at 30-31. This factor favors providing plaintiff with an enhancement payment.
b) Notoriety or Personal Difficulties
With respect to the second factor, neither the record nor plaintiff himself indicate the case led to plaintiff's notoriety or personal difficulties. Accordingly, this factor does not favor the court granting plaintiff an enhancement payment. ///// /////
c) Time and Effort Spent
To determine the third factor, the amount of time and effort spent by the class representative, the court will examine "'evidence demonstrating the quality of plaintiff's representative service,' such as 'substantial efforts taken as class representative to justify the discrepancy between [his] award and those of the unnamed plaintiffs.'" Flores, 2018 WL 6981043, at *1 (quoting Reyes v. CVS Pharmacy, Inc., No. 1:14-CV-00964-MJS, 2016 WL 3549260, *15 (E.D. Cal. June 29, 2016)). Courts in this circuit have concluded a plaintiff is allowed an enhancement payment due to "substantial efforts taken as class representative" when the plaintiff has undertaken at least 30 to 40 hours of work. Emmons v. Quest Diagnostics Clinical Laboratories, Inc., 2017 WL 749018, at *8 (E.D. Cal. Feb. 27, 2017) (awarding enhancement payment of $8,000 to each plaintiff when each conducted 30 to 40 hours of work); Rodriguez v. Kraft Foods Group, Inc., 2016 WL 5844378, at *16 (E.D. Cal. Oct. 5, 2016) (awarding enhancement payment of $10,000 to plaintiff who conducted 40 hours of work on case).
Courts will also consider the "proportion of the [representative] payment[s] relative to the settlement amount, and the size of each payment." In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 947 (9th Cir. 2015) (awarding $5,000 enhancement payment, which was 417 times greater than average award but only .17 percent of gross settlement); see also Patel v. TransUnion, LLC, 2018 WL 1258194, *3, 7-8 (N.D. Cal. Mar. 11, 2018) (awarding enhancement payment of $10,000, 25 times the average award and 0.125 percent of gross settlement); Emmons, 2017 WL 749018 at *8 (E.D. Cal. Feb. 27, 2017) (awarding enhancement payment of $8,000, 14.5 times average award and 0.3 percent of gross settlement); Rodriguez, 2016 WL 5844378 at *16 (awarding enhancement payment of $10,000, approximately 11 times average award and less than 0.5 percent of gross settlement); Spann v. J.C. Penney Corp., 211 F. Supp. 3d 1244, 1265 (C.D. Cal. 2016) (awarding enhancement payment of $10,000, approximately 100 times average award and less than 0.25 percent of gross settlement).
The court noted its doubts about awarding plaintiff the $10,000 requested incentive award in its preliminary approval of the parties' settlement agreement. Prelim. Approval Order at 9. The award is significantly larger than the average $155 award each class member is expected to receive, nearly 65 times higher, but it represents only 0.003 percent of the overall $2,900,000 gross settlement amount. The court evaluates plaintiff's request for a $10,000 enhancement payment based on the new information from plaintiff and on the enumerated Van Vranken factors; ultimately, the court finds these factors show the enhancement payment is reasonable.
Plaintiff argues the enhancement payment is commensurate with his overall efforts on behalf of the class. Plaintiff estimates, under oath, he spent between 75 and 85 hours in the prosecution of this lawsuit. Jimmy Greer Decl. ¶ 10, ECF No. 80-2. In the beginning stages of this case, plaintiff conducted multiple conferences with his attorneys regarding the factual bases for his claims, during which plaintiff learned more about this kind of litigation and his role as the representative plaintiff. Id. ¶ 3. Then, plaintiff states he reviewed the draft of the complaint for accuracy and contacted his attorneys regularly to discuss the progress of the case. Id. ¶ 4. During the discovery phase, plaintiff prepared answers to defendant's discovery requests, providing counsel copies of relevant documents and reviewing attorney questions stemming from defendant's discovery requests. Id. ¶ 5. Plaintiff also participated in a day-long deposition on February 3, 2016 and reviewed the transcript for accuracy afterwards. Id. ¶ 6. While his attorneys prepared the motion for class certification, plaintiff produced a declaration in support of the motion and spoke with fellow employees of defendant. Id. ¶ 7. Prior to and during mediation, plaintiff assisted his attorneys by providing information related to unreimbursed uniform expenses and assisted with the mediation brief; plaintiff also consulted his attorney throughout the mediation. Id. ¶ 8. Plaintiff reviewed the terms of the settlement, evaluating it to determine whether the outcome was fair, reasonable, and adequately compensates the class. Id. ¶ 9. Finally, plaintiff argues the general release, which requires him to waive all claims arising out of his employment, is broader than the release of other class members and accounts for the greater value of his enhancement payment. Id. ¶ 11. These documented extensive efforts and plaintiff's broad waiver of claims support a significant enhancement payment.
d) Duration of Litigation
As for the fourth factor, litigation duration, this case was protracted. Plaintiff first filed the case on March 19, 2015 in Sacramento County Superior Court and defendants removed the case to this court May 15, 2015. See Not. of Removal. Nearly four years of motion practice before this court and mediation followed, including cross-motions for class certification, cross-motions to strike, a motion to stay, and a motion for approval of class notice. See ECF Nos. 23, 24, 29, 35, 54, 55. The parties did not move for preliminary approval of the class action settlement until March 26, 2019. See Prelim. Approval Order. For this reason, the fourth factor favors the court granting an enhancement payment to plaintiff.
e) Personal Benefit
On the fifth factor, personal benefit to the class representative, plaintiff argues the enhancement payment is appropriate because he "will not gain any benefit that he [or she] would receive as an ordinary class member." Mot. Fees at 31 (quoting In re Toys "R" Us FACTA Litig., 295 F.R.D. 438, 472 (C.D. Cal. 2014) (alteration in original)). As noted, plaintiff also agrees to release all claims against defendant, a considerably broader release than that of other class members. Mot. Fees at 31. Therefore, the fifth factor favors granting an enhancement payment.
f) Conclusion
Overall, the Van Wranken factors support granting the requested enhancement payment here. Plaintiff has adequately addressed the court's concerns outlined in the preliminary approval order by providing sufficient information on his own efforts, as well as relevant authority supporting approval of the enhancement payment. The payment is in line with decisions in this district where similar circumstances existed. See Emmons, 2017 WL 749018 at *8; Rodriguez, 2016 WL 5844378, at *16. Additionally, the enhancement payment represents a small percentage of the gross settlement amount, 0.03 percent. This small percentage, along with all of plaintiff's efforts, offsets the fact the enhancement payment is 64 times the average settlement in this case. As a result, the court finds it is reasonable to award plaintiff the enhancement payment of $10,000.
3. Settlement Negotiations Conducted at Arm's Length
After analyzing both the briefing and arguments made at the final approval hearing, the court finds the settlement negotiations were conducted at arm's length. "The court may approve [settlement] only after a hearing and only on finding that it is fair, reasonable, and adequate after considering whether [. . .] the proposal was negotiated at arm's length." Fed. R. Civ. P. 23(e)(2)(B); see also In re Tableware Antitrust Litig., 484 F. Supp. 2d at 1080 (considering whether "proposed settlement appears to be the product of serious, informed, non-collusive negotiations").
As noted in the court's order granting preliminary approval, the parties' participation in mediation "tends to support the conclusion that the settlement process was not collusive." Villegas v. J.P. Morgan Chase & Co., No. CV 09-00261 SBA (EMC), 2012 WL 5878390, at *6 (N.D. Cal. Nov. 21, 2012). Mr. Mark Rudy, an experienced wage and hour mediator, mediated this action and although mediation did not result in settlement, Mr. Rudy helped the parties analyze the issues and risks here. Mot. Approval at 22. Experienced counsel represented the parties throughout the negotiations, which further demonstrates the negotiations were arms'-length and fair. Id (citing Perez Decl. ¶¶ 12-14, Ex. 1). During the final fairness hearing, the parties emphasized Mr. Rudy's active involvement throughout this action, even at the conclusion of the mediation, and noted that his proposal drove the final settlement terms. See Hr'g Minutes, ECF No. 82. Moreover, the negotiations were lengthy as a result of defendants' efforts to seek approval from senior officials in their corporation. Id. This factor weighs in favor of final approval.
4. The Proposed Relief Is Adequate
For the reasons set forth below, the court finds the proposed relief here is adequate. Under Rule 23, the court determines whether the proposed relief is adequate, considering in part "the costs, risks, and delay of trial and appeal." Fed. R. Civ. P. 23(e)(2)(C)(i); see also Churchill Vill., LLC, 361 F.3d at 575 (courts should address strength of plaintiff's case; risk, expense, complexity, and likely duration of further litigation; risk of maintaining class action status throughout trial; extent of discovery completed and stage of proceedings).
Plaintiff estimates defendant's maximum potential exposure was approximately $17.2 million, comprising a maximum potential amount for the security inspection claim of $1,427,717.00, a maximum potential amount for the business expense claim of $2,140,000.00, a maximum potential amount for the wage-statement claim of $1,380,850.00, and a waiting-time penalty claim of $12,244,072.50. Mot. Approval at 21. Plaintiff analyzed the potential of factors affecting his case to discount these amounts, including, but not limited to the following: the strength of defendant's defenses, the risk of losing dispositive motions, the risk of losing at trial. Id. at 17. Upon conducting this analysis, plaintiff concludes that a settlement amount of $2.8 million, which represents 17 percent of defendant's maximum potential exposure, is a fair and reasonable settlement. Id. at 21.
In the court's preliminary approval order, the court considered whether the proposed relief was adequate by considering "the costs, risks, and delay of trial and appeal." Prelim. Approval Order at 5-8. The court did not at that point express concerns about the proposed settlement and found the recovery appeared reasonable. Id. at 8. The final settlement numbers and terms remain the same as they were when the court preliminarily approved the class action settlement and there is no basis to doubt the reasonableness of the settlement at the time.
Courts also account for the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims, when deciding whether the proposed relief is adequate. Fed. R. Civ. P. 23(e)(2)(C)(ii). In its preliminary approval order, the court outlined the proposed agreement's method of allocating relief to the class. Prelim. Approval Order at 12. The court also approved issuing $65,000 in settlement administration costs to the settlement administrator as part of the settlement. Id. at 2. With its motion here, plaintiff includes a declaration from the case manager with the court appointed settlement administrator, ILYM Group, Inc. See Nathalie Hernandez Decl., ECF No. 81-2. Ms. Hernandez outlines the notice process and includes an official invoice for ILYM Group, Inc.'s settlement administration costs of $65,000. Id., Ex. B. The court can identify no deficiencies in the administrator's bill.
Finally, class members' collective response to the settlement further demonstrates the proposed relief is adequate. No class members objected to the settlement and only 15 people, representing a mere 0.15 percent of the settlement class, opted out of the class. Mot. for Approval at 13, 23; Hernandez Decl. ¶¶ 6-7. This is a "strong indicator that a settlement is fair and reasonable," and thus adequate. Mot. for Approval at 23 (citing Churchill Village, LLC v. ///// ///// General Electric, 361 F.3d 566 (9th Cir. 2004) ("affirming settlement approval where 45 of approximately 90,000 notified class members objected and 500 opted out.")).
Overall, this factor weighs in favor of approval.
5. The Settlement Treats Class Members Equitably
The settlement treats class members fairly. The settlement class includes all people who worked at DSG during the period from: (1) March 18, 2011 to January 31, 2015 ("Security Check Class"); and (2) March 18, 2011 to April 13, 2017 ("Business Reimbursement Class"). Settlement Agreement ¶ 5, ECF No. 73-1. The members' respective shares of each class fund will be allocated on a pro-rata basis according to the number of weeks each class member worked. Calculating respective shares in this manner is fair and treats class members equitably. The class members' collective responses, which as reviewed above included no objections and minimal opting out of the settlement, suggests the settlement treats all class members equitably. Mot. for Approval at 13, 23; Hernandez Decl. ¶¶ 6-7.
As noted above, the class representative will receive a different, higher amount from the other class members. The court has analyzed this payment separately and finds the enhancement payment does not preclude final approval of the settlement.
6. Conclusion
For the foregoing reasons, the court finds the settlement is "fair, reasonable, and adequate" and grants final approval.
B. Attorneys' Fees, Costs and Expenses
"The district court has discretion in common-fund cases to award attorneys' fees in the amount of a percentage of the common-fund or using the lodestar method." Kakani v. Oracle Corp., No. C 06-06493 WHA, 2007 WL 4570190, at *2 (N.D. Cal. Dec. 21, 2007). Rule 23 permits a court to award "reasonable attorney's fees . . . that are authorized by law or by the parties' agreement." Fed. R. Civ. P. 23(h). Even when the parties have agreed on an amount, the court must award only reasonable attorney's fees. Bluetooth, 654 F.3d at 941. In diversity actions, the Ninth Circuit "has applied state law in determining not only the right to fees, but also in the method of calculating fees." Mangold v. Cal. Public Util. Comm'n, 67 F.3d 1470, 1478 (1995); Rodriguez v. Disner, 688 F.3d 645, 653 n.6 (9th Cir. 2012); Schiller, 2012 WL 2117001, at *15 ("In diversity actions such as this, the Ninth Circuit applies state law to determine the right to fees and the method for calculating fees.").
The California Supreme Court has held: "when a number of persons are entitled in common to a specific fund, and an action brought by a plaintiff or plaintiffs for the benefit of all results in the creation or preservation of that fund, such plaintiff or plaintiffs may be awarded attorney's fees out of the fund." Serrano v. Priest, 20 Cal. 3d 25, 34 (1977). California courts employ both the percentage-based method and the lodestar method for calculating attorney's fees in common fund actions. See Lealao v. Beneficial Cal., Inc., 82 Cal. App. 4th 19, 26 (2000). A California appellate court recently stated the goal "is the award of a 'reasonable' fee to compensate counsel for their efforts, irrespective of the method of calculation. It is not an abuse of discretion to choose one method over another as long as the method chosen is applied consistently using percentage figures that accurately reflect the marketplace." In re Consumer Privacy Cases, 175 Cal. App. 4th 545, 557-58 (2009) (internal quotation marks and citations omitted).
1. Ninth Circuit Benchmark
Based on an analysis framed by the Ninth Circuit benchmark, the court finds the attorneys' fees requested here are reasonable. The Ninth Circuit has generally set a 25 percent benchmark for the award of attorneys' fees, and "courts may adjust this figure upwards or downwards if the record shows special circumstances justifying a departure." Ontiveros, 303 F.R.D. at 372 (internal quotation marks omitted) (citing In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 942 (9th Cir. 2011)); see also In re Nat'l Collegiate Athletic Ass'n Athletic Grant-in-Aid Cap Antitrust Litig., 768 F. App'x 651, 653 (9th Cir. 2019) ("We have permitted awards of attorneys' fees ranging from 20 to 30 percent of settlement funds, with 25 percent as the benchmark award."). Federal courts apply state law in determining attorneys' fees. Mangold, 67 F.3d at 1478. California state courts more often deem awards of up to 33 percent reasonable and less often expressly refer to a 25 percent benchmark. See In re Consumer Privacy Cases, 175 Cal. App. 4th 545, 557 n.13 (2009) (noting fees of up to one-third are frequently awarded and "[a] fee award of 25 percent is the benchmark award that should be given in common fund cases") (internal quotation and alteration marks omitted); Seguin, 2018 WL 1919823, at *6 (citing Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1050 (9th Cir. 2002)).
Plaintiff requests attorneys' fees in the amount $966,667, which as noted represents approximately 33 percent of the non-reversionary settlement fund. Mot. Fees at 9. The court expressed concerns in the preliminary approval of the class action settlement, observing the request for attorneys' fees was "largely unsupported" and calling on plaintiff's counsel to "properly support the request" by providing the court with the information necessary to grant fees of this percentage. Prelim. Approval Order at 11.
In response, plaintiff provides the declaration of counsel Raul Perez. See Raul Perez Decl., ECF No. 80-1. The court reviews the contents of this declaration in the section below, where it conducts a lodestar cross-check of the proposed attorneys' fees amount. Plaintiff also provides California authority in support of its position a 33 percent award is fair and reasonable. See, e.g., Laffitte v. Robert Half Int'l Inc., 231 Cal. App. 4th 860, 871 (2014) ("33 1/3 percent of the common fund is consistent with, and in the range of, awards in other class action lawsuits"); Chavez v. Netflix, Inc., 162 Cal. App 4th 43, 66 n.11 (2008) ("Empirical studies show that, regardless whether the percentage method or the lodestar method is used, fee awards in class actions average around one-third of the recovery."). In addition, plaintiff argues attorneys' fees of 33 percent is reasonable given the persuasive decisions of other judges in this district. See, e.g., Emmons, 2017 WL 749018, at *7 (awarding attorneys' fees of approximately 33 percent in wage and hour case); Vasquez v. Coast Valley Roofing, Inc., 266 F.R.D. 482, 491 (E.D. Cal. 2010) ("[E]xact percentage [awarded] varies depending on the facts of the case, and in most common fund cases, the award exceeds that benchmark."). The request here is in line with other awards made within this circuit and within California, supporting its reasonableness.
2. Lodestar Cross-Check
Comparison with the lodestar method also supports approving the award of attorneys' fees. Courts are encouraged to use the lodestar method as a cross-check to evaluate the reasonableness of the percentage award. See Bluetooth, 654 F.3d at 944-45; Espinosa v. California Coll. of San Diego, Inc., No. 17CV744-MMA (BLM), 2018 WL 1705955, at *8 (S.D. Cal. Apr. 9, 2018) (noting Ninth Circuit has also approved use of lodestar cross-checks to determine reasonableness of particular percentage recovery of common fund). In calculating the attorneys' fees award under this method, a court must start by determining how many hours were reasonably expended on the litigation, and then multiply those hours by the prevailing local rate for an attorney of the skill required to perform the litigation. Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008). This amount may be increased or decreased by a multiplier that reflects any factors not subsumed within the calculation, such as "the quality of representation, the benefit obtained for the class, the complexity and novelty of the issues presented, and the risk of nonpayment." Bluetooth, 654 F.3d at 942 (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1029 (9th Cir. 1998)). "Foremost among these considerations, however, is the benefit obtained for the class." Id. at 942 (citing Hensley v. Eckerhart, 461 U.S. 424, 434-36 (1983)); McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009)).
a) Lodestar Amount
The declaration of lead attorney, Raul Perez, provides the following breakdown of the time Capstone Law APC attorneys spent on this case and their regular rates per hour. Perez Decl. ¶ 14. Mr. Perez uses those numbers to calculate the total fees per attorney, the lodestar amount and the total hours spent, which were 1332.3.
| Attorney | Title | CA Bar | Rate | Hours | Fees |
|---|---|---|---|---|---|
| Raul Perez | Partner | 1994 | $725 | 63.1 | $45,747.50 |
| Melissa Grant | Partner | 1999 | $695 | 90.4 | $62,828.00 |
| Robert Drexler | Senior Counsel | 1985 | $695 | 309.7 | $215,241.50 |
| Stephen H. Gamber | Fmr. Senior Counsel | 1994 | $695 | 23.6 | $16,402.00 |
| Stan Karas | Fmr. Senior Counsel | 2002 | $595 | 305.6 | $181,832.00 |
| Bevin Allen Pike | Senior Counsel | 2002 | $595 | 119.8 | $71,281.00 |
| Matthew Bainer | Fmr. Senior Counsel | 2002 | $595 | 49.2 | $29,274.00 |
| Jamie Greene | Senior Counsel | 2007 | $495 | 47.1 | $23,314.50 |
| Eduardo Santos | Senior Counsel | 2007 | $495 | 29.7 | $14,701.50 |
| Jonathan Lee | Associate | 2009 | $435 | 214.9 | $93,481.50 |
| Anthony Castillo | Associate | 2009 | $435 | 33.1 | $14,398.50 |
| Ishan Dave | Fmr. Associate | 2015 | $295 | 46.1 | $13,599.50 |
| Total | 1332.3 | $782,101.50 |
Plaintiff's counsel also provides itemized records in support of their hours worked. Perez Decl. ¶ 14; see Hensley, 461 U.S. at 437 ("The applicant should exercise 'billing judgment' with respect to hours worked [...] and should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims") (citations omitted). The Perez declaration identifies the following major tasks: pleadings, miscellaneous filings, case management; legal and factual analysis of claims and defenses; written discovery and depositions; motion practice; class certification; appellate practice; communications with client and class members; mediation and settlement negotiations; and trial preparation. Perez Decl. ¶ 14. Plaintiff's counsel specifies how many hours each attorney worked on each of these major tasks, using that number to calculate the total hours and total fees for each task. Id.; see also Bellinghausen v. Tractor Supply Co., 306 F.R.D. 245, 264 (N.D. Cal. 2015) ("[I]t is well established that '[t]he lodestar cross-check calculation need entail neither mathematical precision nor bean counting . . . [courts] may rely on summaries submitted by the attorneys and need not review actual billing records.'") (citation omitted).
Here, the case involved a number of motions, after removal from Sacramento County Superior Court, ECF No. 1, including a motion to certify the class, ECF No. 23, a subsequent motion to deny class certification by defendant, ECF No. 24, a petition to the Ninth Circuit for permission to appeal the order granting class certification, Case No. 17-80075 Dkt. No. 7, defendant's motion to stay the action pending a California Supreme Court decision, ECF Nos. 57, 58, mediation, a motion for approval of proposed class notice, ECF Nos. 55, 56, 66, a motion for preliminary approval of the class action settlement, ECF No. 73, and the instant motions for attorneys' fees and final approval of the class action settlement, ECF Nos. 80, 81. Due to the extent and significance of the motions in this heavily litigated case, the court finds 1332.30 hours is a reasonable number of hours to use for the lodestar cross-check.
The court next turns to the hourly rates plaintiff's counsel provides as part of its lodestar cross-check. In Mr. Perez's declaration, he outlines the qualifications and experience of Capstone Law APC to support its attorneys' hourly rates. Perez Decl. ¶¶ 11-13. The declaration provides a number of examples of federal and state courts approving Capstone's rates, but plaintiff has not provided and the court has not located any instances in which this court or a sister court in the Eastern District has approved the rates proposed here. Id. ¶ 15. The rates proposed by plaintiff, namely $695 to $725 for partners and $595 to $695 for senior counsel, are high for this district. Courts in the Eastern District of California have "previously accepted as reasonable for lodestar purposes hourly rates of between $370 and $495 for associates, and $545 and $695 for senior counsel and partners." Milburn v. PetSmart, Inc., No. 1:18-CV-00535-DAD-SKO, 2019 WL 5566313, at *8 (E.D. Cal. Oct. 29, 2019) (citing, inter alia, Gong-Chun v. Aetna Inc., No. 1:09-cv-01995-SKO, 2012 WL 2872788, at *23 (E.D. Cal. July 12, 2012) (awarding between $300 and $420 per hour for associates, and between $490 and $695 per hour for senior counsel and partners)); Turk v. Gale/Triangle, Inc. et al., No. 2:16-cv-00783-MCE-DB, ECF No. 33 (E.D. Cal. Sept. 21, 2017) (approving hourly rates in the $400/hour range, with rates of up to $675 for partners) (citations omitted); Garcia v. Gordon Trucking, Inc., No. 1:10-CV-0324-AWI-SKO, 2012 WL 5364575, at *9 (E.D. Cal. Oct. 31, 2012) (approving rates of $650 per hour, based on attorneys' skill, risks and percentage award); see also Z.F. v. Ripon Unified Sch. Dist., No. 2:10-cv-00523-TLN-CKD, 2017 WL 1064679, at *3 (E.D. Cal. Mar. 21, 2017) ("Prevailing hourly rates in the Eastern District of California are in the $350-$550/hour range for experienced attorneys with over 15 years of experience in civil rights and class action litigation.").
Associates Jonathan Lee and Anthony Castillo, each with rates of $435 per hour, have practiced law for approximately eleven years, and former associate Ishan Dave, whose rates were $295 per hour, has practiced law for approximately five years. Perez Decl. ¶ 14. As noted above, courts in the Eastern District have previously accepted hourly rates for associates between $370 and $495 for lodestar purposes, though lower rates are more commonly approved. Milburn, 2019 WL 5566313, at *8 (E.D. Cal. Oct. 29, 2019) (noting courts previously accepted hourly rates of between $370 and $495 but some courts in district approved only lower rates); In re Taco Bell Wage and Hour Actions, 222 F. Supp. 3d 813, 838-40 (E.D. Cal. 2016) (courts in Eastern District have found $350 to $400 per hour for attorneys with twenty or more years of experience, $250 to $350 per hour for attorneys with less than fifteen years' experience, and $125 to $200 per hour for attorneys with less than two years' experience reasonable); Reyes v. CVS Pharm., Inc., No. 1:14-cv-00964-MJS, 2016 WL 3549260, at *12-13 (E.D. Cal. June 29, 2016) (awarding between $250 and $380 for attorneys with more than twenty years of experience, and between $175 and $300 for attorneys with less than ten years' experience). Based on the prevailing rates, the court finds $435 is a reasonable hourly rate for Jonathan Lee and Anthony Castillo and $295 is a reasonable hourly rate for Ishan Dave. The court will not change the rate applied to the work of Melissa Grant, Robert Drexler, Stephen H. Gamber, Stan Karas, Bevin Allen Pike, Matthew Bainer, Jamie Greene, and Eduardo Santos. Perez Decl. ¶ 14. Each of these attorneys were either partner or senior counsel during this case, with rates between $495 and $695 per hour. Id.
Mr. Perez has approximately 25 years of experience as an attorney and his hourly rate is $725. Perez Decl. ¶ 14. Another court in this district declined to approve the rate of $700 an hour for an attorney with more than 30 years' experience in class action cases and instead held $695 per hour to be "reasonable." Milburn, 2019 WL 5566313, at *9. Recently, this court applied the reasoning of Milburn and also declined to use an hourly rate of $700 for an attorney with 30 years of experience, given the fee landscape in this district. See Smothers v. NorthStar Alarm Services LLC, No. 2:17-cv-00548-KJM-KJN, 2020 WL 1532058, at *9 (E.D. Cal. Mar. 31, 2020) (applying $695 per hour to lodestar calculation for attorney with 30 years' experience). The court will continue to follow this reasoning here. This reduces Mr. Perez's total fees for the lodestar calculation to $43,854.50.
After calculating the total fees of each attorney, including the reduction in Mr. Perez's fees, the total lodestar amount is $780,208.50, down from $782,101.50 plaintiff initially requested.
To reach plaintiff's counsel's total requested fee of $966,667 requires applying a multiplier of approximately 1.24 to the adjusted lodestar amount of $780,208.50. The Ninth Circuit has accepted multipliers within this range. See, e.g., Vizcaino, 290 F.3d at 1050-51, 1051 n.6 (reviewing approved fees from 24 cases and finding 20 of 24 fell within the 1.0-4.0 range, and 13 of 24 fell within the 1.5-3.0 range). This court evaluates the factors discussed in Bluetooth to determine whether a 1.23 lodestar multiplier is justified here. See In re Bluetooth, 654 F.3d at 946 (citing relevant factors as "the quality of representation, the benefit obtained for the class, the complexity and novelty of the issues presented, and the risk of nonpayment") (quoting Hanlon, 150 F.3d at 1029).
b) Bluetooth Factors
First, plaintiff's counsel represented the class through a multi-stage litigation and negotiation process, which included both mediation and multiple motions before this court. This factor demonstrates a modest positive multiplier to the lodestar amount is acceptable. See In re Bluetooth, 654 F.3d at 942.
Second, plaintiff's counsel negotiated a settlement considerable in size by comparison to other wage and hour cases. See id. ("Foremost among these considerations, however, is the benefit obtained for the class."). The settlement is approximately 17 percent of defendant's maximum total exposure, which is greater than other settlements in cases such as these. See Balderas v. Massage Envy Franchising, LLP, 2014 WL 3610945, at *5 (N.D. Cal. Jul. 24, 2014) (awarding settlement of eight percent of defendant's maximum recovery); In re Omnivision Techs., Inc., 559 F. Supp. 2d 1036, 1042 (N.D. Cal. 2008) (awarding settlement between six percent and eight percent of defendant's maximum recovery). Plaintiff also highlights the average settlement is approximately $155, with the highest payment approximately $1,235. Mot. Approval at 23 (citing Hernandez Decl. ¶ 8). This average settlement is higher than many wage and hour class action settlements in California. Mot. Approval at 23-24 (citing Badami v. Grassroots Campaigns, Inc., No. 3:07-cv-03465- JSW (N.D. Cal. Sept. 15, 2008) (average settlement approximately $195); Sandoval v. Nissho of Cal., Inc., No. 37-2009-00091861-CU-OE-CTL (San Diego County Super. Ct. 2009) (average settlement of approximately $145); Fukuchi v. Pizza Hut, No. BC302589 (L.A. County Super. Ct. 2006) (average settlement of approximately $120); Contreras v. United Food Group, LLC, No. BC389253 (L.A. County Super. Ct. 2008) (average settlement approximately $120); Ressler v. Federated Department Stores, Inc., No. BC335018 (L.A. County Super. Ct. 2008) (average settlement approximately $90). Additionally, plaintiff emphasizes that not a single class member has objected to the settlement and less than 0.15 percent of the settlement class opted out, which as noted above indicates the settlement is "fair and reasonable." See id. This factor supports adding a positive multiplier to the lodestar amount.
Third, neither plaintiff's motion nor the record suggests plaintiff's claims were novel or complicated for counsel. This third factor does not support a positive multiplier to the lodestar amount.
Fourth, plaintiff's counsel represented the class on a contingency basis. Plaintiff's counsel had no guarantee they would receive any payment for the hours litigating this case and for the costs they incurred as a result. Mot. Fees at 22. Plaintiff's counsel points out other courts have rewarded counsel who accept cases on a pure contingency basis, as has this court. Id. at 22-23 (citing In re Washington Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1299 (9th Cir. 1994) ("It is an established practice in the 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.") (citations omitted); Ketchum v. Moses, 24 Cal. 4th 1122 (2001) (instructing courts to upwardly adjust fee compensation to ensure fees account for contingency risk).
With one exception, all the Bluetooth factors support the application of a positive multiplier to the lodestar amount. In addition, a multiplier of 1.24 is within the acceptable range in the Ninth Circuit. With that multiplier applied here, the court finds the attorneys' fees requested are reasonable.
3. Request for Costs
The court also must determine an appropriate award of costs and expenses. Fed. R. Civ. P. 23(h). "[I]n evaluating the reasonableness of costs, the judge has to step in and play surrogate client." Ross v. Bar None Enters., Inc., No. 2:13-cv-00234, 2015 WL 1046117, at *11 (E.D. Cal. Mar. 10, 2015) (internal quotation marks, citation omitted). "In keeping with this role, the court must examine prevailing rates and practices in the legal marketplace to assess the reasonableness of the costs sought." Id. (internal quotation marks and citation omitted).
In this case, plaintiff's counsel represents that combined unreimbursed costs total $199,609.47, and include filing fees, court reporter and transcript fees, copy charges, investigation fees, mediation fees, postage fees, research fees, expert and consultant fees and travel costs to hearings and mediation. Mot. Fees at 28; Perez Decl. ¶ 17. Plaintiff's counsel requests a total of $200,000, taking account of modest additional costs and expenses for travel to the final approval hearing. Id. Defendant has agreed to pay for these costs as part of the negotiated fees. Id. Courts approve these sorts of costs for reimbursement. See Barbosa, 297 F.R.D. at 454 (costs associated with travel and photocopying as well as mediation fees are "routinely reimbursed"); Fontes v. Heritage Operating, L.P., No. 14-cv-1413-MMA (NLS), 2016 WL 1465158, at *6 (S.D. Cal. Apr. 14, 2016) (approving class counsel's costs, which included "court filing fees, research costs, mediation-related expenses, attorney services costs, and travel expenses"). The court finds the costs requested here are reasonable.
IV. CONCLUSION
For the reasons set forth above, plaintiff's motion for attorneys' fees, costs and expenses and a class representative enhancement payment, ECF No. 80, and motion for final approval of the class settlement, ECF No. 81, are GRANTED.
This order resolves ECF Nos. 80 and 81. The Clerk of Court is directed to CLOSE the case.
IT IS SO ORDERED. DATED: September 15, 2020.
/s/_________
CHIEF UNITED STATES DISTRICT JUDGE