Larry Ambriz et al v. Matheson Tri-Gas

Filing 98

FINAL ORDER APPROVING CLASS ACTION SETTLEMENT; JUDGMENT THEREON by Judge John A. Kronstadt, Related to: Order on Motion for Settlement 93 . The Settlement and Release Agreement filed with the Court on March 30, 2015 (Dkt. 57 ) and all definitions set forth therein are hereby incorporated with and made part of this Final Order Approving Class Action Settlement and Judgment. (MD JS-6, Case Terminated). (ah)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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LARRY AMBRIZ, SALVADOR
CARRILLO, MARCO A. CHAVEZ,
RANDALL COURTNEY, DANIEL
MALDONADO, MARK A.
RODRIGUEZ, SR., ALEJANDRO
VEGA, DOUGLAS VIVERO, DAVID
CINTAT, MANUEL SALAZAR,
HERSCHEL SURVINE III, EDWIN
PUQUIRRE, on behalf of themselves
and all others similarly situated and on
behalf of all other “aggrieved”
employees,

) Case No.: CV14-04546 JAK (JCx)
)
)
) FINAL ORDER APPROVING
) CLASS ACTION SETTLEMENT;
) JUDGMENT THEREON
)
) JS-6
)
) Date: February 19, 2016
) Time: 8:30 a.m.
) Court: 750 – 7th Floor
) Judge: Hon. John A. Kronstadt
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Plaintiffs,
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vs.
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MATHESON TRI-GAS, a New Jersey ) Complaint Filed: March 5, 2014
Corporation, and DOES 1-10, inclusive, )
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Defendants.
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)

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FINAL ORDER APPROVING CLASS ACTION SETTLEMENT AND JUDGMENT

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On November 2, 2015, the Motion for Final Approval of the Parties’

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Settlement together with Plaintiff’s Application (“Application”) for approval of

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attorneys’ fees and costs, Class Representative’s service payment, and settlement

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administration expenses, came before the Court for hearing. The Parties appeared

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by and through their respective counsel of record.

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Due and adequate notice having been given to the Class, after the Court has

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considered the papers and the arguments of counsel, as well as all papers filed by

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the sole objector, and good cause appearing, the Court GRANTS Plaintiff’s Motion

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for Final Approval and Judgment subject to the terms of the Court’s (In Chambers)

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Order re Plaintiff’s Motion for Final Approval of Class Action Settlement (Dkt. 93)

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on February 4, 2016, and Plaintiff’s Application for Approval of Attorneys’ Fees

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and Costs, Class Representative’s Service Payments, and Class Administrator

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expenses and rules as follows.

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IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:

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1.

The Settlement and Release Agreement filed with the Court on March

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30, 2015 (Dkt. 57) (hereafter, the “Settlement Agreement”) and all definitions set

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forth therein are hereby incorporated with and made part of this Final Order

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Approving Class Action Settlement and Judgment (“Final Order and Judgment”).

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2.

This Court has jurisdiction over the subject matter of this Action and

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all parties to this Action, including the Class Members, as defined in the Settlement

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Agreement. Specifically, the members of the Class that are subject to this Final

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Order and Judgment are all current and former drivers who were employed by

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Defendant from March 5, 2010 through June 25, 2015, the date this Court granted

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Preliminary Approval of the Settlement.

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3.

The Settlement Agreement and the terms set forth therein, are hereby

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found and determined to be fair, reasonable, and adequate, and are hereby approved

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and ordered to be performed by all Parties according to its terms and provisions.

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4.

The Court finds that the form, manner and content of the Class Notice
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FINAL ORDER APPROVING CLASS ACTION SETTLEMENT AND JUDGMENT

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as detailed in the Settlement Agreement and Exhibits thereto provided a means of

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notice reasonably calculated to apprise the Class Members of the pendency of the

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action and the proposed settlement, and thereby met the requirements of Rule

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23(c)(2) of the Federal Rules of Civil Procedure, as well as due process under the

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United States Constitution and any other applicable law, and constituted due and

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sufficient notice to all Class Members entitled thereto. Specifically, individual

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notice was provided to all Class Members by regular mail to all such persons at

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their last known mailing address on file with Defendant, or an updated address

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obtained by the Class Administrator.

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5.

The Court certifies the Class for settlement purposes only.

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6.

This Final Order and Judgment applies to all claims or causes of action

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settled under the terms of the Settlement Agreement, and shall be fully binding

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with respect to the Class Representatives, Larry Ambriz, Marco A. Chavez, Randall

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Courtney, Daniel Maldonado, Mark A. Rodriguez, Sr., Alejandro Vega, Douglas

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Vivero, Herschel Survine III, Edwin Puquierre, Manuel Arias and David T.

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Newfield and all Class Members who did not filed exclusion forms pursuant to the

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Order Granting Preliminary Approval of Class Action Settlement entered by this

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Court on June 25, 2015 (“Participating Class Members”). Upon entry of this

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Order, Participating Class Members shall be deemed to have and by operation of

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the Judgment, will have fully, finally and forever released, relinquished and

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discharged all Claims Released by the Class Representatives and all Claims

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Released by Class Members against Defendant, as defined in the Settlement

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Agreement.

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7.

Participating Class Members are barred and permanently enjoined

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from asserting, instituting, or prosecuting, either directly or indirectly, any claims

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or causes of action released under the Settlement Agreement which they had, or

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have, to the extent provided in the Settlement Agreement.

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8.

As of the date of this Final Approval Order, except as to such rights or
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FINAL ORDER APPROVING CLASS ACTION SETTLEMENT AND JUDGMENT

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claims that may be expressly created by the Settlement Agreement, all Claims

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Released by the Class Representatives and all Claims Released by each Class

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Member shall be deemed to be conclusively released and forever barred and

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enjoined from prosecution as against the Defendant (as those terms are defined in

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the Settlement Agreement).

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The Class Administrator shall conduct all administration of the Gross

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Settlement Amount. The Class Administrator shall disburse attorneys’fees and

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costs to the Class Counsel from the Gross Settlement Amount as ordered by the

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Court. The Class Administrator shall prepare and issue all disbursements of the

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Net Settlement Amount to Participating Class Members.
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All claims and causes of action asserted by Class Representatives and

the Class Members in this Action are hereby dismissed with prejudice.
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The Court finds that Aashish Y. Desai, Esq., Desai Law Firm, P.C.

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and Lee R. Feldman and Leonard H. Sansanowicz, Feldman Browne Olivares,

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A.P.C., are qualified to represent the Settlement Class and confirms their

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appointment as Class Counsel. The Court hereby grants Class Counsel’s request

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for an award of attorneys’ fees in the amount of $384,681.25 and reimbursement of

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costs in the amount of $6,169.92 to be paid from the Maximum Settlement

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Amount. The Court finds that the amount of this award is fair and reasonable in

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light of the efforts expended by Class Counsel in prosecuting this Action and the

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results obtained.

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The Court finds and determines that the payment of $10,000 to the

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California Labor and Workforce Development Agency (“LWDA”) in settlement of

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the LWDA’s share of the penalties alleged by Plaintiff and compromised under the

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settlement is fair and reasonable. The Court hereby gives final approval to and

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orders that the payment of that amount be made to the LWDA out of the Maximum

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Settlement Amount in accordance with the terms of the Settlement.

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13.

The Court finds that it is appropriate for the Class Representatives to
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FINAL ORDER APPROVING CLASS ACTION SETTLEMENT AND JUDGMENT

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be paid a total amount of $7,700.00 as a Service Enhancement in recognition of

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their contribution to this litigation and service to the Class, and as consideration of

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their general release of all claims against Defendant.

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awarded $600, Chavez is awarded $700, Courtney is awarded $700, Maldonado is

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awarded $1,000, Rodriguez is awarded $700, Vega is awarded $700, Vivero is

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awarded $600, Survine is awarded $700, Puquirre is awarded $700, Vega is

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awarded $700 and Newfield is awarded $700. Enhancement payments shall be

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paid from the Gross Settlement Amount, as detailed in the Settlement Agreement.

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As a result, Ambriz is

The Court approves the payment of settlement administration expenses

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to CPT Group, Inc. in an amount not to exceed $20,000. This payment shall be

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made from the Gross Settlement Amount and any uncharged portion of this amount

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shall be added to the Net Settlement Amount.

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The Class Administrator shall apply an Individual Settlement Credit

against the Gross Settlement Amount, as detailed in the Settlement Agreement.
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One Class Member, Roy Van Kempen, Objected to the Settlement.

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All objections to the Settlement are overruled.

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McDonald, requested to opt-out of the class, which request was granted and he is

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therefore not part of the Settlement Class.

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Objection or Request to Opt-Out with the Court.

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17.

One Class Member, Marc

No other Class Member filed an

Without affecting the finality of this Final Order and Judgment in any

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way, the Court hereby retains continuing jurisdiction over the parties for the

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purpose of construing, enforcing and administering this Final Order and Judgment,

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and enforcing the Settlement Agreement, addressing settlement administration

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matters, and addressing such post-Judgment matters as may be appropriate under

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court rules or applicable law.

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commence upon entry of this Final Order and Judgment.

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The time to appeal from this Judgment shall

Any portion of the Net Settlement Amount remaining after distribution

shall be redistributed by the Class Administrator to the Participating Class
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FINAL ORDER APPROVING CLASS ACTION SETTLEMENT AND JUDGMENT

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Members.

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Any settlement checks uncashed 180 days after issuance will be

rendered to the State of California.
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Neither this Order, the Settlement Agreement, nor any document

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referred to or contained therein: (a) is or may be deemed to be or may be used as an

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admission of or evidence of the validity of any Released Claims or of any

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wrongdoing or liability of the Defendant; or (b) is or may deemed to be or may be

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used as an admission of or evidence of any fault or omission of any of the

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Defendant in any civil, criminal, or administrative proceeding in any court,

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administrative agency, or other tribunal. Defendant may file the Judgment from

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this action in any other action that may be brought against it in order to support any

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applicable defense or counterclaim, including (without limitation) those based on

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principles of res judicata, collateral estoppel, release, good-faith settlement,

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judgment bar or reduction or any theory of claim preclusion or issue preclusion or

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similar defense or counterclaim.

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21. The Court finds that during the course of the Action, Defendant, the

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Class Representatives and their counsel of record at all times complied with the

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requirements of Fed. R. Civ. P. 11.

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22.

The Court’s (In Chambers) Order re Plaintiff’s Motion for Final

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Approval of Class Action Settlement (Dkt. 93) on February 4, 2016, is hereby

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incorporated into this Final Judgment, as if fully stated herein, as is attached as

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Exhibit 1.

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IT IS SO ORDERED.

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Dated: March 3, 2016

JOHN A. KRONSTADT
UNITED STATES DISTRICT JUDGE

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FINAL ORDER APPROVING CLASS ACTION SETTLEMENT AND JUDGMENT

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EXHIBIT 1

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FINAL ORDER APPROVING CLASS ACTION SETTLEMENT AND JUDGMENT

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

LA CV14-04546 JAK (JCx)

Title

Larry Ambriz, et al. v. Matheson Tri-Gas

Present: The Honorable

Date

February 4, 2016

JOHN A. KRONSTADT, UNITED STATES DISTRICT JUDGE

Andrea Keifer

Not Reported

Deputy Clerk

Court Reporter / Recorder

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings:

I.

(IN CHAMBERS) ORDER GRANTING FINAL APPROVAL OF CLASS
ACTION SETTLEMENT (DKT. 75)

Introduction

Larry Ambriz and 11 other named plaintiffs (“Plaintiffs”) brought this action against Matheson Tri-Gas,
Inc. (“Defendant”). They did so on behalf of a proposed class of all current and former California-based
truck drivers who were employed by Defendant during a specified four-year period (the “Class” or “Class
Members”). FAC, Dkt. 9 ¶ 28. Plaintiffs advanced the following claims that arise under California law: (i)
failure to provide meal periods; (ii) failure to provide rest breaks; (iii) violation of Cal. Lab. Code § 2699;
(iv) unfair competition in violation of Cal. Bus. & Prof. Code § 17200; and (v) waiting time penalties under
Cal. Lab. Code §§ 201-203. Id. at ¶¶ 34-63.
The parties participated in a settlement process with Steven J. Rottman. Dkt. 55-1 ¶ 21. As a result, they
reached a proposed settlement between Defendant and the Class (“Settlement Agreement”). On March
9, 2015, Plaintiffs brought a motion seeking preliminary approval of the Settlement Agreement. Dkt. 55.
On April 10, 2015, that motion was denied, without prejudice to its renewal. Dkt. 60. On April 16, 2010,
Plaintiffs filed a motion renewing their request for preliminary approval based on newly-submitted
information intended to address the issues raised by the Court in response to the earlier motion. Dkt. 61.
That motion was granted in part. Dkt. 71.1 The Preliminary Settlement Agreement required notice to all
Class members of the terms, including the right to opt out and maintain individual claims. It also called for
a final review by the Court of all terms, including the amount of attorney’s fees and costs that would be
awarded.
On October 5, 2015, Plaintiffs filed a motion for final approval of the settlement (“Motion”). Dkt. 75. There
was no opposition. A hearing on the Motion was held on November 2, 2015, and the matter was taken
under submission. For the reasons stated in this Order, the Motion is GRANTED, subject to the terms of
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The June 25, 2015 order is incorporated here by this reference. Dkt. 71.
Page 1 of 9

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

LA CV14-04546 JAK (JCx)

Title

Date

February 4, 2016

Larry Ambriz, et al. v. Matheson Tri-Gas

this Order.
II.

Factual Background

The June 25, 2015 Order, which has been incorporated into this Order, describes the factual background
of this matter as well as the terms of the Settlement Agreement. Dkt. 71. To provide the context for the
discussion that follows, certain of those matters are summarized here.
Preliminary approval was granted because the Settlement Agreement had the potential to be fair,
reasonable and adequate. Defendant agreed to provide a maximum settlement fund of $1,300,000 for
the Class, with a range of $5500 to $7700 approved as the total amount of service payments to all class
representatives. Id. at 4, 22. Attorney’s fees in the range of $314,066.25 to $433,333 were also approved
on a preliminary basis. Id. at 18. Up to $15,000 was approved for the payment of litigation costs. Id.; see
also Dkt. 73 at 1. Approximately $20,000 of the settlement fund was to be used to pay for the costs of
administration of classwide matters by Garden City Group. Id. at 5. Finally, the Court preliminarily
approved a payment of $10,000 to the Labor and Workforce Development Agency (“LWDA”) for the
claims made under the Private Attorney General Act (“PAGA”), Cal. Lab. Code § 2699.
III.

Analysis
A.

Motion for Final Approval
1.

Whether the Class Should Be Certified

The “threshold task” in considering a motion for final approval of a class action settlement is to “ascertain
whether the proposed settlement satisfies the requirements of Rule 23(a) of the Federal Rules of Civil
Procedure applicable to all class actions, namely: (1) numerosity, (2) commonality, (3) typicality, and (4)
adequacy of representation.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). A court must
also determine whether “the action is maintainable under Fed. R. Civ. P. 23(b)(1), (2) or (3).” Id. at 1022.
Rule 23(b)(3) requires that “questions of law or fact common to the class members predominate over any
questions affecting only individual members,” and that “a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.”
The June 25, 2015 Order determined that the Class, as defined, met the requirements of Fed. R. Civ. P.
23. Dkt. 71 at 11. There have been no developments since that time that would warrant a different
outcome. For the reasons stated in that Order, the requirements of Rule 23(a) and Rule 23 (b)(3) have
been satisfied. Therefore, certification of the Class is approved.
2.

Whether the Agreement Should Receive Final Approval
a)

Legal Standard

Fed. R. Civ. P. 23(e) requires that a court engage in a two-step process when considering whether to
Page 2 of 9

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

LA CV14-04546 JAK (JCx)

Title

Date

February 4, 2016

Larry Ambriz, et al. v. Matheson Tri-Gas

approve the settlement of a class action. First, in the preliminary approval process, a court must
determine whether the proposed settlement provides benefits to the class members that are within the
range of what might have been recovered through litigation. The purpose of this analysis is to ensure that
the approval of these terms would be a fair, reasonable and adequate outcome for all class members.
See Acosta v. Trans Union, LLC, 243 F.R.D. 377, 386 (C.D. Cal. 2007). Second, in light of the notification
of all class members about the terms and conditions of the settlement that occurred following the
preliminary approval, a court must consider the merits of any objections by class members and their
potential application to the terms of the settlement agreement. See Linney v. Cellular Alaska P’ship, 151
F.3d 1234, 1242 (9th Cir. 1998).
b)

Application

The June 25, 2015 Order concluded that the Settlement Agreement had the potential to be deemed fair,
reasonable and adequate. Dkt. 71. After the Order was issued, the Claims Administrator sent notices to
all members of the Class. The notices included information about the right to opt out and how to do so.
These notices were sent to all 151 persons who were thought to be Class members. Shirinian Decl., Dkt.
75-3 ¶ 5. There were two mailings: one on August 18, 2015, which was sent to all 151 members, and
another on September 28, 2015, which was sent to the 57 members who had not responded to the initial
notice. Id. ¶ 8. As of December 1, 2015, 106 members had approved of the settlement by submitting claim
forms. This was a response rate of 69.74%. Dkt. 85-1 ¶ 20. Those 106 members have claimed
$559,240.32, or 76.09% of the net settlement amount. Id. ¶ 22.
On October 19, 2015, putative Class member Roy Van Kempen (“Kempen”) filed the only objection to the
settlement. He asserts that the release of claims is overbroad. Dkt. 76, 77. However, before Kempen filed
his objection, he had opted out of the Class.2 Because Kempen is no longer a Class Member, he lacks
standing to object to the terms of the settlement.3 See Fed. R. Civ. P. 23(e)(5) (“any class member may
object to a proposed settlement”) (emphasis added); see also Zamora v. Ryder Integrated Logistics, Inc.,
2014 WL 9872803, at *2 (S.D. Cal. Dec. 23, 2014) (“Here, by opting out of the class, [the objector] fully
preserved his right to litigate any claims he may have independently, and therefore has no significant
protectable interest in the settlement. The settlement also will not impact [the objector’s] ability to protect
his interests in the [separate] action he filed . . . . [The objector] lacks standing to intervene for these
reasons alone.” (internal citations omitted)); Glass v. UBS Fin. Servs., Inc., 2007 WL 221862, at *8 (N.D.
2

In January 2015, Kempen brought a separate class action against Defendant that advanced the following claims
under California and federal law: (i) failure to pay minimum wage; (ii) failure to pay overtime under the Fair Labor
Standards Act (“FLSA”); (iii) failure to pay overtime under California law; (iv) failure to issue accurate wage
statements; (v) failure to pay earned vacation time wages; (vi) waiting time penalties; (vii) unfair competition under
Cal. Bus. & Prof. Code §17200; (viii) related PAGA claims, Cal. Lab, Code § 2699 et seq. Dkt. 77 at 2-3. Some of
these claims are not raised in the present action, i.e., minimum wage claims, overtime claims, failure to issue
accurate wage statements, failure to provide earned vacation time, and FLSA claims. Dkt. 77 at 6-9.
3
Plaintiffs include as an exhibit Kempen’s October 16, 2015 letter through which he opted out of the Class. Dkt.
79-2. It states: “My name is Roy Van Kempen I recently send [sic] and signed the Release of Claims form that I
request to be excluded from the settlement class . . . . I understand that if I ask to be excluded from the settlement
class, I will not receive any money from the settlement.” Id.
Page 3 of 9

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

LA CV14-04546 JAK (JCx)

Date

Title

February 4, 2016

Larry Ambriz, et al. v. Matheson Tri-Gas

Cal. Jan. 26, 2007) (“Consequently, as [the objector] is no longer a class member, he has no standing to
object.”).
On December 18, 2015, putative Class Member Marc McDonald filed an ex parte application for leave to
opt out of the Settlement Agreement. Dkt. 89. As discussed in the Order granting the application (Dkt.
92), McDonald’s opt out notice was mailed to Defendant approximately one month after the deadline to
do so. After reviewing the application, the Court determined that the relevant facts demonstrated
excusable neglect and an absence of bad faith on the part of McDonald. Id.
For the reasons stated in the June 25, 2015 Order, the Settlement Agreement is fair, reasonable and
adequate. Given the number of claims that have been filed by members of the Class and the absence of
objections, final approval is granted, subject to the modifications made in this Order.
B.

Class Representative Enhancement

In their Motion, Plaintiffs state that the Court previously granted preliminary approval of enhancement
payments between $5500 and $7700, to the following named Plaintiffs: Ambritz, Chavez, Courtney,
Maldonado, Rodriguez, Vega, Vivero, Survine and Puquirre. Plaintiffs also state that the Court
preliminarily approved enhancement payments to Arias and Newfield between $500 to $700. Dkt. 75 at
13. These statements are not accurate. The June 25, 2015 Order granting preliminary approval,
approved the following enhancement payments whose total is between $5500 and $7700:
Class Representative
Ambriz
Chavez
Courtney
Maldonado
Rodriguez
Vega
Vivero
Survine
Puquirre
Arias
Newfield
TOTAL

Preliminarily Approved Enhancement
Award
$400-600
$500-700
$500-700
$800-$1000
$500-700
$500-700
$400-600
$500-700
$400-600
$500-700
$500-700
$5500-7700

Dkt. 71 at 20-22.
The June 25, 2015 Order also stated that the Court may “revisit the amount at the final approval hearing
based on any new evidence that has been provided.” Id. at 22. Plaintiffs have not provided any new
evidence, nor have they made any argument regarding the amount of appropriate awards that would
result in a total that is within the range that received preliminary approval.
Page 4 of 9

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

LA CV14-04546 JAK (JCx)

Title

Date

February 4, 2016

Larry Ambriz, et al. v. Matheson Tri-Gas

However, based on a review of the relevant materials, and the absence of objections, it is ordered that
each Class Representative is awarded an enhancement fee that is at the high end of the range that was
preliminarily approved as to such person. As a result, Ambritz is awarded $600, Chavez is awarded $700,
Courtney is awarded $700, Maldonado is awarded $1000, Rodriguez is awarded $700, Vega is awarded
$700, Vivero is awarded $600, Survine is awarded $700, Puquirre is awarded $600, Arias is awarded
$700 and Newfield is awarded $700. These amounts total $7700.
C.

Attorney’s Fees
1.

Legal Standard

Attorney’s fees and costs “may be awarded in a certified class action where so authorized by law or the
parties’ agreement”; however, “courts have an independent obligation to ensure that the award, like the
settlement itself, is reasonable, even if the parties have already agreed to an amount.” In re Bluetooth
Headset Prods. Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011); see also Fed. R. Civ. P. 23(h). “If fees are
unreasonably high, the likelihood is that the defendant obtained an economically beneficial concession
with regard to the merits provisions, in the form of lower monetary payments to class members or less
injunctive relief for the class than could otherwise have [been] obtained.” Staton v. Boeing Co., 327 F.3d
938, 964 (9th Cir. 2003). Thus, a district court must “assure itself that the fees awarded in the agreement
were not unreasonably high, so as to ensure that the class members’ interests were not compromised in
favor of those of class counsel.” Id. at 965. Factors considered in examining the reasonableness of the
fee include: (1) whether the results achieved were exceptional; (2) risks of litigation; (3) non-monetary
benefits conferred by the litigation; (4) customary fees for similar cases; (5) the contingent nature of the
fee and financial burden carried by counsel; and (6) the lawyers’ “reasonable expectations, which are
based on the circumstances of the case and the range of fee awards out of common funds of comparable
size.” Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1048-50 (9th Cir. 2002).
In common fund cases, a district court has discretion to choose either “the percentage-of-fund or the
lodestar method” to calculate attorney’s fees. Vizcaino, 290 F.3d at 1047. When the percentage-of-fund
method is chosen, 25% is the “benchmark.” Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272
(9th Cir. 1989). Any amount between 20-30% is the “usual range.” Vizcaino, 290 F.3d at 1047. That
amount may be “adjusted upward or downward to account for any unusual circumstances involved in
[the] case.” Paul, 886 F.2d at 272. Although 25% is the “starting point,” selection of the benchmark or any
other rate “must be supported by findings that take into account all of the circumstances of the case.”
Vizcaino, 290 F.3d at 1048. Even if a court elects to employ a percentage-of-fund method, a district court
may “cross-check” this amount by calculating the lodestar. Id. at 1050. “Thus, while the primary basis of
the fee award remains the percentage method, the lodestar may provide a useful perspective on the
reasonableness of a given percentage award.” Id.
2.

Application

Class Counsel request a fee award of $433,333. The Court preliminarily approved attorney’s fees in the
Page 5 of 9

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

LA CV14-04546 JAK (JCx)

Date

Title

February 4, 2016

Larry Ambriz, et al. v. Matheson Tri-Gas

range of $314,066.25 to $433,333 based on work performed through May 6, 2015. This was premised on
a reduction in both the proposed hourly rates and the hours worked. The amount that was previously
approved on a preliminary basis is summarized in the following table:
Attorney or Paralegal
Desai
De Castro
Nava
Feldman
Sansanowicz
Drannikova

Rate
$700 / hr.
$375 / hr.
$175 / hr.
$675 / hr. (2014)
$675 / hr. (2015)
$375 / hr. (2014)
$375 / hr. (2015)
$150 / hr.

Reduction
50 hours
15 hours
25 hours
0 hours
15 hours
0 hours
Total

Hours
352.90
43.77
119.30
20.60
3.30
36.30
30.70
8.50
615.37

Lodestar
$247,030
$16,413.75
$20,877.50
$13,905
$2,227.50
$13,612.50
$11,512.50
$1,275
$326,853.754

The Court previously determined that the adjusted lodestar value of $326,853.75 was “presumptively
reasonable.” In re HP Inkjet Printer Litig., 716 F.3d 1173, 1190 (9th Cir. 2013). The adjusted lodestar
amounts to 25% of the gross settlement payment, which is within range of the benchmark used by the
Ninth Circuit in common fund cases. Id. at 1190 (courts have an independent obligation to “cross-check[]
the lodestar calculations against a percentage fee, thereby guard[ing] against an unreasonable result and
assur[ing] that counsel’s fee does not dwarf class recovery”).
The Court nevertheless approved an attorney’s fee award in a range of $314,066-$433,333 because it
was expected that class counsel would perform additional work through the time of final approval. Class
counsel has submitted evidence as to the additional work that it performed between May 7, 2015 and
October 2, 2015. They state that, when valued based on hours worked and what they consider
appropriate hourly rates, the value of this work totals $69,585.50. Dkt. 75-2. The basis of this calculation
is set forth in the following chart, which shows a modest arithmetic error in the aforementioned calculation
by Class counsel as well as the use of hourly rates that the Court rejected in the preliminary approval
process:
Attorney or
Paralegal
Desai
De Castro
Nava

Rate

Hours

Lodestar

$750 / hr.
$450 / hr.
$250 / hr.
Total

68.9
21.9
32.2
123

$51,675.00
$9,855.005
$8,050.006
$69,580.00

4

At the preliminary approval stage, this amount was previously miscalculated to be $314,066.25. The accurate
amount is provided in this Order.
5
Class counsel submits that this amount is $9873. However, $450/hr x 21.90 hours = $9,855.00.
6
Class counsel submits that this amount is $8037.50. However, $250/hr x 32.20 hours = $8050.
Page 6 of 9

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

LA CV14-04546 JAK (JCx)

Date

Title

February 4, 2016

Larry Ambriz, et al. v. Matheson Tri-Gas

This represents a combined lodestar of $396,433.75 ($326,853.75 + $69,580.00), or 30% of the gross
settlement payment. Class counsel has requested a fee award of $433,333, which would equal 33% of
the settlement fund. In support of this position it argues that this was a contingency case. Thus, class
counsel took the risk that there would not be a successful outcome or any fee award, while undertaking a
considerable amount of work. Class counsel also argues that this amount is warranted in light of its skill
and experience as well as the results achieved. Dkt. 75 at 19-23.
Defendant argues that the percentage of the fund and the lodestar are both unreasonably high. Dkt. 78.
With regard to the percentage of the fund, it argues that the amount should be set at 25%. Id. at 5. With
respect to the lodestar, Defendant argues that the proposed hourly rates are unjustified. Id. at 7-8.
Further, Defendant asserts that counsel billed for unnecessary work, including the time spent at team
meetings and in making assignments to attorneys. Id. at 8-9. Finally, Defendant argues that any work
performed in connection with the request for attorney’s fees should be disallowed. Id. at 9. Class counsel
seeks $19,500 in fees in connection with such work. Id. at 10.
The Court has examined the evidence submitted and considered it in light of the work performed that
resulted in written filings or other presentations to the Court. The Court has also compared it to that
performed in many similar cases by other counsel. For reasons stated in the prior Order (Dkt 71 at 16-17),
the Court concludes that the hourly rates are inappropriate and unjustified. Therefore, they are reduced to
the hourly rates for which preliminary approval was granted.
A modest reduction in the number of hours recorded is also warranted. Aashish Desai has billed 11 hours
for “analysis of preliminary documents.” The Court is not persuaded that reviewing prior documents
warrants that amount of time; it is expected that counsel was familiar with the preliminary approval
process prior to the preparation of the documents prepared in support of the request for final approval. A
reduction of five hours is appropriate. The remaining six hours are sufficient to permit an experienced
attorney to prepare to pleadings in support of the final approval. Adrianne De Castro has billed 19.4 hours
for the “motion for final approval.” Once again, the Court is not persuaded that this amount of time is
necessary or appropriate given the scope of the work performed in connection with the preliminary
approval and the absence of objections to the proposed settlement. Therefore, this time is reduced by
two hours. In light of these adjustments, the following amounts are approved with respect to the work
associated with the final approval process during the period from May 7, 2015 through October 2, 2015:
Attorney or Paralegal
Desai
De Castro

Rate
$700 / hr.
$375 / hr.

Reduction
5 hours
2 hours

Hours
63.9
19.9

Lodestar
$44,730
$7,462.50

Nava

$175 / hr.

0 hours
Total

32.2
116

$5,635.00
$57,827.50

///
///
Page 7 of 9

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

LA CV14-04546 JAK (JCx)

Title

Date

February 4, 2016

Larry Ambriz, et al. v. Matheson Tri-Gas

In light of this calculation and the one presented in the June 25, 2015 Order, attorney’s fees totaling
$384,681.25 are approved. This is the sum of the amount approved preliminarily ($326,853.75), and the
additional amount approved in this Order for more recent work ($57,827.50). The adjusted lodestar
amounts to 29.6% of the gross settlement payment. This is within range of the benchmark deemed
appropriate by the Ninth Circuit in common fund cases. In re HP, 716 F.3d at 1190.
D.

Costs
1.

Legal Standard

Like attorney’s fees, costs “may be awarded in a certified class action where so authorized by law or the
parties’ agreement.” In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011). “Under
the common fund doctrine, Class counsel is entitled to reimbursement for reasonable out-of-pocket
expenses and costs in obtaining a settlement.” In re Quantum Health Res., Inc., 962 F. Supp. 1254, 1259
(C.D. Cal. 1997) (citing Vincent v. Hughes Air West Inc., 557 F.2d 759, 769 (9th Cir.1977)). Such
expenses “include reasonable out-of-pocket litigation expenses that would normally be charged to a fee
paying client, even if the court cannot tax these expenses as ‘costs’ under 28 U.S.C. § 1920.” Trustees of
Const. Indus. & Laborers Health & Welfare Trust v. Redland Ins. Co., 460 F.3d 1253, 1257 (9th Cir.
2006). “To support an expense award, Plaintiffs should file an itemized list of their expenses by category
and the total amount advanced for each category in order for the Court to assess whether the expenses
are reasonable.” Lilly v. Jamba Juice Co., 2015 WL 2062858, at *6 (N.D. Cal. May 4, 2015) (citing Wren v.
RGIS Inventory Specialists, 2011 WL 1230826, at *30 (N.D. Cal. Apr. 1, 2011), supplemented, 2011 WL
1838562 (N.D. Cal. May 13, 2011)).
2.

Application

The prior Order preliminarily approved an award of costs up to $15,000. Dkt. 73. This was based on the
submission of itemized expenses showing $6169.92 in costs. Dkt. 72. The Order explained that a final
determination as to the approval of the settlement would address the specific amount of costs that would
be approved and awarded. Dkt. 73.
The Motion does not state whether any expenses have been incurred following the preliminary approval
proceedings. Nor does the Motion discuss the reasonable amount for a final award of costs, other than to
note that the court preliminary awarded costs of up to $15,000. Because only $6169.92 in costs have
been documented, that amount is awarded.
IV.

Conclusion

For the reasons stated in this Order, the Motion is GRANTED IN PART. The following amounts are
approved: class representation enhancements of $7700; attorney’s fees of $384,681.25; and costs of
///
Page 8 of 9

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

LA CV14-04546 JAK (JCx)

Title

Date

February 4, 2016

Larry Ambriz, et al. v. Matheson Tri-Gas

$6,169.92. Plaintiff shall lodge a proposed judgment in accordance with the terms of this Order by
February 19, 2016. Any objections to the proposed judgment shall be filed no later than 7 days from the
date the proposed judgment is lodged.

IT IS SO ORDERED.

:
Initials of Preparer

ak

Page 9 of 9