Syed v. M-I, LLC et al

Filing 138

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 8/6/19 GRANTING plaintiffs' Motion for Final Approval of the Class and Class Action Settlement (Docket No. 136 ); and GRANTING plaintiff's Motion for Award of Attorneys' Fees and Costs (Docket No. 135 ). This action is dismissed with prejudice; however, without affecting the finality of this order, the court shall retain continuing jurisdiction over the interpretation, implementation, and enforcement of the Settlement Agreement with respect to all parties to this action and their counsel of record. The Clerk is instructed to enter judgment accordingly.(Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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SARMAD SYED, an individual on
behalf of himself and all others
similarly situated,
Plaintiffs

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No. 1:14-cv-00742 WBS BAM

MEMORANDUM AND ORDER RE:
FINAL APPROVAL OF CLASS
SETTLEMENT AND PLAINTIFF’S
PETITION FOR ATTORNEYS’ FEES
AND COSTS

v.
M-I LLC, a Delaware Limited
Liability Company, et al.,
Defendants.

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----oo0oo---Plaintiff Sarmad Syed brought this putative class

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action lawsuit against M-I, LLC (“M-I”) and other parties

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alleging M-I violated federal credit reporting laws while

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conducting pre-employment background checks.

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The parties have reached a settlement which would

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resolve plaintiff’s claims against defendant M-I.

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Kindem Decl. in Supp. of Mot. for Preliminary Approval Ex. 1,

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Joint Stipulation of Class Action Settlement and Release
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(See Dion-

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(“Settlement Agreement”) (Docket No. 127-2).)

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moves for final approval of the settlement pursuant to Federal

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Rule of Civil Procedure 23(e).

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also move for attorneys’ fees and costs.

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I.

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Plaintiff now

(Docket No. 136.)

Plaintiff’s

(Docket No. 135.)

Factual and Procedural Background
Plaintiff applied for a job with M-I on July 20, 2011.

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(First Amended Complaint (“FAC”) ¶ 14.) During the application

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process, plaintiff filled out and signed a one-page form entitled

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“Pre-Employment Disclosure and Release.” (Id.) That form included

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the following language:

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I understand that the information obtained will
be used as one basis for employment or denial of
employment. I hereby discharge, release, and
indemnify prospective employer [defendant M-I
LLC], PreCheck, Inc., their agents, servants, and
employees, and all parties that rely on this
release and/or the information obtained with this
release from any and all liability and claims
arising by reason of the use of this release and
dissemination of information that is false and
untrue if obtained by a third party without
verification.

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It is expressly understood that the information
obtained through the use of this release will not
be verified by PreCheck, Inc.

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(Id.)
Plaintiff alleges that M-I violated Section 1681(b)(2)

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of the Fair Credit Reporting Act by procuring or causing to be

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procured a consumer report for employment purposes via a

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disclosure form that contained not only language authorizing the

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procurement of a consumer report, but also an indemnity clause

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and release.

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class members could recover statutory damages between $100 and

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$1,000 as well as punitive damages under 15 U.S.C. § 1681n(a).

(Id. ¶ 17.)

Plaintiff alleges that as a result,

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(Id. ¶ 31.)

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In October 2018, the parties reached a settlement.

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(See Docket No. 122.)

Their Settlement Agreement provides for a

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gross settlement amount of $556,000.

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34.)

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agree not to oppose a motion by class counsel for attorney’s fees

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(up to $300,000) and attorney’s costs (up to $10,000) from this

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gross settlement amount.

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Settlement Agreement provides that any portion of the requested

(Settlement Agreement ¶

The Settlement Agreement specifies that the defendants

(Id. ¶¶ 37-38.)

Notably, the

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attorneys’ fees or costs not awarded will revert to the

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defendant.

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deduction of settlement administration costs from the gross

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settlement amount (id. ¶ 36) and for a class representative

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service award of up to $5,000 (id. ¶ 35).

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(Id.)

The Settlement Agreement also provides for the

In its order granting preliminary approval of a class

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and class settlement, the court provisionally certified the

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following class:

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All persons residing in the United States
(including all territories and other political
subdivisions of the United States) as to whom M-I
L.L.C. may have procured or caused to be procured
a consumer report for employment purposes during
the period from May 19, 2009 through November 1,
2018, who M-I L.L.C. hired, and who have not
signed a severance agreement and release or
equivalent agreement releasing the claims
asserted in the Action[.]

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(Order re: Preliminary Approval of Class Settlement at 22 (Docket

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No. 132).)

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representative, the Peter R. Dion-Kindem and the Blanchard Law

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Group as class counsel, and Simpluris, Inc. (“Simpluris”) as

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settlement administrator. (Id. at 22-23.)

The court appointed Sarmad Syed as class

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The court also

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approved the notice of settlement and final approval hearing and

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opt-out form.

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hearing for August 5, 2019. (Id. at 23-24.)

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counsel to file with the court, within twenty-eight days of the

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fairness hearing, a petition for an award of attorney’s fees and

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costs; all papers in support of the settlement, incentive award,

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fees, and costs; and a declaration from the settlement

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administrator setting forth the services rendered, proof of

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mailing, and a list of all class members who have commented upon

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(Id. at 23.)

The court set the final fairness
It directed class

or objected to the settlement. (Id. at 24.)

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After conducting the final fairness hearing and

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carefully considering the terms of the settlement, the court now

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addresses whether this class should receive final certification;

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whether the proposed settlement is fair, reasonable, and

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adequate; and whether class counsel’s request for attorneys’ fees

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and costs, as well as an enhancement award for the representative

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plaintiff, should be granted.

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II.

Discussion

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Judicial policy strongly favors settlement of class

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actions.

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1276 (9th Cir. 1992).

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serious claims, however, judges have the responsibility of

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ensuring fairness to all members of the class presented for

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certification.”

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Cir. 2003).

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Class Plaintiffs v. City of Seattle, 955 F.2d 1268,
“To vindicate the settlement of such

Staton v. Boeing Co., 327 F.3d 938, 952 (9th

There are two stages to a court’s approval of a

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proposed class action settlement.

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temporarily certifies a class, authorizes notice to that class,
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In the first phase, the court

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and preliminarily approves the settlement, with final approval

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contingent on the outcome of a fairness hearing.

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Zamora, No. 2:08-567 WBS DAD, 2014 WL 3057506, at *2 (E.D. Cal.

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July 7, 2014.)

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action settlement does deserve preliminary approval, then notice

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of the action is given to the class members and a fairness

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hearing is held.

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Ontiveros v.

If a court determines that a proposed class

In the second phase, the court holds a fairness hearing
and entertains class members’ objections to both the suitability

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of the class action as a vehicle for this litigation and the

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terms of the settlement. See Murillo v. Pac. Gas & Elec. Co., 266

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F.R.D. 468, 473 (E.D. Cal. 2010) (Shubb, J.).

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fairness hearing, the court makes a final determination regarding

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whether the parties should be allowed to settle the class action

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pursuant to the agreed upon terms.

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Following the

Having previously preliminarily certified the proposed

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class and approved the proposed settlement, the court now makes a

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final determination as to whether the class should be certified

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and as to whether the parties should be allowed to settle the

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class action pursuant to the terms agreed upon.

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A.

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Class Certification
To be certified, the putative class must satisfy both

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the requirements of Federal Rule of Civil Procedure 23(a) (“Rule

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23(a)”) and Federal Rule of Civil Procedure 23(b)(“Rule 23(b)”).

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See Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th Cir.

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2013).

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of the extent to which the putative class complies with the

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requirements of Rules 23(a) and 23(b) is especially important

In the settlement context, the court’s careful scrutiny

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since the court will “lack the opportunity, present when a case

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is litigated, to adjust the class, informed by the proceedings as

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they unfold.”

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(1997).

Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 620

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Rule 23(a) restricts class actions to cases where:

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(1) the class is so numerous that joinder of all
members is impracticable; (2) there are questions
of law or fact common to the class; (3) the
claims or defenses of the representative parties
are typical of the claims or defenses of the
class; and (4) the representative parties will
fairly and adequately protect the interests of
the class.

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Fed. R. Civ. P. 23(a).

These requirements are more commonly

known as numerosity, commonality, typicality, and adequacy of
representation, respectively.

See Leyva, 716 F.3d at 512.

While

the court must evaluate Rule 23(a)’s requirements independently,
they serve a common purpose of “ensur[ing] that the named
plaintiffs are appropriate representatives of the class whose
claims they wish to litigate.”

Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338, 349 (2011).
In the court’s order granting preliminary approval of
the proposed class action settlement, the court found that the
putative class satisfied the numerosity, commonality, and
typicality requirements of Rule 23(a). However, the court
expressed some concerns about the adequacy of representation. The
court is unaware of any changes that would alter its analysis as
to numerosity, typicality, or commonality, and because the
parties did not indicate at the fairness hearing that they were
aware of any such developments, the court finds these
requirements satisfied. The court will thus focus its Rule 23(a)
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analysis on evaluating adequacy of representation for purposes of

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final certification.

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“Resolution of two questions determines legal adequacy:

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(1) do the named plaintiffs and their counsel have any conflicts

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of interest with other class members and (2) will the named

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plaintiffs and their counsel prosecute the action vigorously on

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behalf of the class?”

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1020 (9th Cir. 1998).

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Hanlon v. Chrysler Corp., 150 F.3d 1011,

Although the Ninth Circuit has specifically approved

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the award of “reasonable incentive payments” to named plaintiffs,

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the use of an incentive award nonetheless raises the possibility

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that a plaintiff’s interest in receiving that award will cause

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his interests to diverge from the class’s interest in a fair

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settlement.

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preliminarily approving the proposed class action settlement, the

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court expressed concern that the requested $5,000 incentive award

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for the class representative is disproportionately large relative

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to the average class member’s recovery of approximately $50.1

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(Order Re: Preliminary Approval at 10.)

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See Staton, 327 F.3d at 977-78.

In the order

Plaintiff Syed submitted a declaration in support of

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his Motion for Award of Attorneys’ Fees and Costs and

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Representative Incentive Award.

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This declaration outlines each of the Syed’s contributions to the

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case.

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in case.

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the prosecution of this case by:

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(Syed Decl. (Docket No. 135-3).)

Plaintiff declares that he invested over 50 hours of time
(Id. ¶ 9.)

Plaintiff declares that he contributed to

The average class member received $46.84. (See
Alcantara Decl. ¶ 12.)
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obtaining legal counsel, speaking with my legal
counsel on numerous occasions, both in person and
over the phone, assisting them in gathering
information, reviewing pleading and other
documents in the case, reviewing the Settlement,
and other case related documents on my own and
with my counsel to make sure that the Settlement
and other work my attorneys performed are in the
best interest of the Settlement Class.

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(Id.)

Plaintiff’s declaration also highlights the potential

professional risk and stigma he took on as a result of bringing
this action.

(Id.

¶¶ 11-12.)

The court is satisfied with the evidence of plaintiff’s
substantial efforts taken as class representative. In light of
plaintiff’s contributions to the prosecution of this action, the
court finds that the requested $5,000 incentive award is
reasonable and will not impair the alignment of plaintiff’s
interests and those of the class.
Because the order granting preliminary approval also
found the second step of the adequacy analysis satisfied (Order
Re: Preliminary Approval at 11-12), and nothing has come to the
court’s attention that would change its analysis, the court
determines that plaintiff is an adequate class representative.
An action that meets all the prerequisites of Rule
23(a) may only be certified as a class action if it also
satisfies the requirements of one of the three subdivisions of
Rule 23(b).

Leyva, 716 F.3d at 512.

Plaintiff seeks

certification under Rule 23(b)(3), which provides that a class
action may be maintained only if (1) “the court finds that
questions of law or fact common to class members predominate over
questions affecting only individual members” and (2) “that a

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class action is superior to other available methods for fairly

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and efficiently adjudicating the controversy.”

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23(b)(3).

Fed. R. Civ. P.

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In its order granting preliminary approval of the

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settlement, the court found that both prerequisites of Rule

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23(b)(3) were satisfied. (Order Re: Preliminary Approval at 12-

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14.)

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conclusion.

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The court is unaware of any changes that would affect this

Having determined that the proposed class satisfies the

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requirements of both Federal Rule of Civil Procedure 23(a) and

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those of Federal Rule of Civil Procedure 23(b), the court will

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grant final certification to the proposed class.

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3.

Rule 23(c)(2) Notice Requirements

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If the court certifies a class under Rule 23(b)(3), it

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“must direct to class members the best notice that is practicable

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under the circumstances, including individual notice to all

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members who can be identified through reasonable effort.”

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R. Civ. P. 23(c)(2)(B).

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Silber v. Mabon, 18 F.3d 1449 (9th Cir. 1994).

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provided to absent class members, however, must be “reasonably

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certain to inform the absent members of the plaintiff class”.

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Id. at 1454 (quoting In re Victor Techs. Sec. Litig., 792 F.2d

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862, 865 (9th Cir. 1986).)

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Actual notice is not required.

Fed.
See

The notice

As provided by the Settlement Agreement, the settlement

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administrator, Simpluris, mailed the notice packed to the last

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known address of 4,295 class members. (Alcantara Decl. ¶ 8

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(Docket No. 136-2).) Rust used the National Change of Address

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Database to update the class list. (See id. ¶ 7.) If a class
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member’s notice packet was returned as undeliverable without a

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forwarding address, Rust performed an advanced address search, or

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a “skip trace.” (Id. ¶ 9.) Ultimately, only 76 notices were

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undeliverable because Rust was unable to find a correct address.

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(Id.)

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notice was reasonably calculated to provide notice to class

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members and was the best form of notice available under the

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circumstances.

The court is satisfied that this system of providing

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Likewise, the notice itself contained an easy-to-read

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table that clearly identified the options available to putative

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class members -- do nothing, ask to be excluded or object by June

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10, 2019, and go to hearing on August 5, 2019 -- and

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comprehensively explained the nature and mechanics of the

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settlement.

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notice is therefore sufficient to satisfy Rule 23(c)(2)(B).

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Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th

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Cir. 2004) (“Notice is satisfactory if it ‘generally describes

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the terms of the settlement in sufficient detail to alert those

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with adverse viewpoints to investigate and to come forward and be

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heard.’” (quoting Mendoza v. Tucson Sch. Dist. No. 1., 623 F.2d

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1338, 1352 (9th Cir. 1980))).

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B.

(See Alcantara Decl., Ex. A.)

The content of the
See

Rule 23(e): Fairness, Adequacy, and Reasonableness of
Proposed Settlement

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Having determined that the proposed class preliminarily

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satisfies the requirements of Rule 23, the court will now examine

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whether the terms of the parties’ settlement appear fair,

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adequate, and reasonable.

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process requires the court to “balance a number of factors,”

See Fed. R. Civ. P. 23(e)(2).

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This

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including:
the strength of the plaintiff’s case; the risk, expense,
complexity, and likely duration of further litigation; the
risk of maintaining class action status throughout the
trial; the amount offered in settlement; the extent of
discovery completed and the stage of the proceedings; the
experience and views of counsel; the presence of a
governmental participant; and the reaction of the class
members to the proposed settlement.
Hanlon, 150 F.3d at 1026.

The court will address each in turn.

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1.

Strength of Plaintiff’s Case

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An important consideration is the strength of

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plaintiff’s case on the merits compared to the settlement amount

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offered.

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Inc., 221 F.R.D. 523, 526 (C.D. Cal. 2004).

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is not required to reach an ultimate conclusion of the merits,

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“for it is the very uncertainty of outcome in litigation and

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avoidance of wastefulness and expensive litigation that induce

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consensual settlements.”

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Comm’n of City & Cty of S.F., 688 F.2d 615, 625 (9th Cir. 1982).

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See Nat’l Rural Telecommunications Coop. v. DIRECTV,
The court, however,

Officers for Justice v. Civ. Serv.

Plaintiff alleges claims under the Fair Credit

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Reporting Act.

Specifically, plaintiff claims that defendant

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procured or caused to be procured a consumer report for

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employment purposes via a disclosure form that contained not only

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language authorizing the procurement of a consumer report, but

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also an indemnity clause and release.

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were to proceed, defendant could argue that the plaintiffs lack

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standing to bring their claims.

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S. Ct. 1540 (2016).

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violations of the FCRA must show a concrete injury to establish

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Article III standing and that an alleged “bare procedural

(FAC ¶ 17.)

If this case

See Spokeo, Inc. v. Robins, 136

See id. (holding that plaintiffs alleging

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violation” of the FCRA does not constitute a concrete injury for

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Article III purposes).

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plaintiff’s case with the proposed settlement, the court finds

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that the proposed settlement is a fair resolution of the issues

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in this case.
2.

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Thus, in comparing the strength of

Risk, Expense, Complexity, and Likely Duration of
Further Litigation

Further litigation could delay resolution of this case

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and increase expenses.

Thus, the court finds that this factor

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weighs in favor of final approval of the settlement.

See

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DIRECTV, Inc., 221 F.R.D. at 526 (“In most situations, unless the

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settlement is clearly inadequate, its acceptance and approval are

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preferable to lengthy and expensive litigation with uncertain

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results.”

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3.

Risk of Maintaining Class Action Status

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Plaintiff has not yet filed a motion for class

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certification.

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succeed with class certification is diminished by the Supreme

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Court’s ruling in Spokeo, 136 S. Ct. 1540.

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is unaware of any potential future development that could upset

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certification if the plaintiffs were in fact able to obtain class

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certification.

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factor in its analysis.

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Litig., No. 03-0283, 2005 WL 3096079, at *5 (N.D. Cal. Nov.15,

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2005) (favoring neither approval nor disapproval of settlement

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where the court was “unaware of any risk involved in maintaining

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class action status”), vacated in part on other grounds, 496 F.3d

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962 (9th Cir. 2007).

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4.

The likelihood, however, that plaintiffs would

Regardless, the court

Accordingly, the court will not consider this
See In re Veritas Software Corp. Sec.

Amount Recovered and Distribution
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In determining whether a settlement agreement is

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substantively fair to class members, the court must balance the

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value of expected recovery against the value of the settlement

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offer.

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1078, 1080 (N.D. Cal. 2007).

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$201,000.000 and each class member’s estimated recovery is $46.84

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under the proposed settlement.

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Though this is less than could potentially be secured if the case

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went to trial, it is not plainly deficient.

See In re Tableware Antitrust Litig., 484 F. Supp. 2d
The Net Settlement Fund is

(See Alcantara Decl. ¶ 12.)

Numerous district

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courts have approved similar recoveries in other FRCA class

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action settlements.

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3446596, at *3 (E.D. Mich. 2017) (granting final approval for

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FRCA class action settlement with $19 per-capita net recovery);

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Moore v. Aerotek, Inc., No. 2:15-CV-2701, 2017 WL 2838148, at *4

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(S.D. Ohio June 30, 2017), report and recommendation adopted,

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2017 WL 3142403 (S.D. Ohio July 25, 2017)(recommending final

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approval of a FRCA class action settlement providing between $13

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and $80 payouts to each class member).

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See Hillson v. Kelly Servs. Inc., 2017 WL

Though the settlement represents far less than the

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plaintiffs could have potentially secured had the case gone to

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trial, it is not plainly deficient.

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Civil Serv. Comm’n of City & Cty. of San Francisco, 688 F.2d 615,

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628 (9th Cir. 1982) (“It is well-settled law that a cash

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settlement amounting to only a fraction of the potential recovery

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will not per se render the settlement inadequate or unfair.”)

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Thus, in light of the risks and expense of further litigation in

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this matter, the court finds the settlement amount to be “fair,

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reasonable, and adequate.”

See Officers for Justice v.

See Fed. R. Civ. P. 23(e)(2).
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Accordingly, the court will grant final approval to the

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settlement.

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5.

Extent of Discovery and the State of Proceedings

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This matter has been vigorously litigated.

Plaintiff’s

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counsel has argued motions to dismiss before this court.

(See

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Docket No. 45.)

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court’s dismissal of his claims as to Defendant M-I LLC to the

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Ninth Circuit.

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Cir.), cert. denied, 138 S. Ct. 447 (2017).

Plaintiff also successfully appealed this

See Syed v. M-I, LLC, 853 F.3d 492, 495 (9th
Thus, although this

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factor is not essential to the settlement of a class action, see

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Lachance v. Harrington, 965 F. Supp. 630, 644–45 (E.D. Pa. 1997),

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the court finds that, on balance, it weighs slightly in favor of

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settlement in this case.

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6.

Experience and Views of Counsel

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Plaintiff’s counsel Peter R. Dion-Kindem has more than

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twenty years of experience and has practiced in civil litigation,

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including the prosecution of employment claims, throughout his

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career.

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and Attorneys’ Fees and Costs (Dion-Kindem Decl. ¶ 2 (Docket No.

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136-1).) Based on this experience, plaintiff’s counsel believes

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the proposed settlement is fair, reasonable, and adequate to the

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class members.

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gives considerable weight to class counsel’s opinions regarding

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the settlement due to counsel’s experience and familiarity with

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the litigation.

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2008 WL 4891201, at *10 (E.D. Cal. Nov. 12, 2008).

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thus supports approval of the settlement agreement.

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(Dion-Kindem Decl. in Supp. of Mot. for Final Approval

7.

(See Mot. for Final Approval at 3.)

The court

Alberto v. GMRI, Inc., No. CIV 07-1895 WBS DAD,

Presence of Government Participant
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This factor

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No governmental entity participated in this matter;
this factor, therefore, is irrelevant to the court’s analysis.

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8.

Reaction of Class Members to Proposed Settlement

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Notice of the settlement was sent to 4,295 class

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members and as of June 27, 2019, only four class members had

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submitted requests for exclusion. (Alcantara Decl. ¶¶ 8, 13.) No

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class members have objected. (Id. ¶ 14.)

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the absence of a large number of objections to a proposed class

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action settlement raises a strong presumption that the terms of a

“It is established that

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proposed class settlement action are favorable to the class

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members.”

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weighs in favor of the court’s approval of the settlement.

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DIRECTV, 221 F.R.D. at 529.

Accordingly, this factor

Having considered the foregoing factors, the court

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finds the settlement is fair, adequate, and reasonable pursuant

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to Rule 23(e).

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C.

Attorney’s Fees

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If a negotiated class action settlement includes an

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award of attorney’s fees, then the court “ha[s] an independent

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obligation to ensure that the award, like the settlement itself,

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is reasonable, even if the parties have already agreed to an

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amount.”

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935, 941 (9th Cir. 2011).

23

In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d

Defendant has agreed not to oppose any motion for

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attorneys’ fees of equal to or less than $300,000.

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Decl. ¶ 10.)

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(Mot. for Attorney Fees at 1 (Docket No. 135).)

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justified with a supposed $379,000 lodestar.

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¶ 29.)

(Dion-Kindem

Plaintiff now asks for $300,000 in attorney’s fees.
This request is

(Dion-Kindem Decl.

That figure represents a combined 433.25 hours of work by
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Lonnie C. Blanchard and Peter R. Dion-Kindem, billed at an $875

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hourly rate.

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(See id. ¶ 23.)

Lodestar calculation is a two-step process.

Fischer v.

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SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000).

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court “tak[es] the number of hours reasonably expended on the

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litigation and multipl[ies] it by a reasonable hourly rate.”

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Second, the court may adjust the resulting figure upwards or

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downwards based on a variety of factors.

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address each step in turn.

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Id.

First, the

Id.

The court will

The definition of a “reasonable hourly rate” for

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purposes of lodestar calculation is tethered to the “prevailing

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market rate in the relevant community.”

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CHD Transp. Inc., No. 1:17-CV-00625 DAD BAM, 2018 WL 4242355, at

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*7 (E.D. Cal. Sept. 6, 2018).

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“relevant community” is the forum in which the adjudicating

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district court sits.

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for purposes of lodestar calculation is the Fresno division of

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the Eastern District of California.

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support of his petition for attorneys’ fees provides evidence

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that an hourly rate of $875 is within the range of rates for

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partners in “Northern California and the Los Angeles area.”

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(Pl.’s Petition for Award of Attorney’s Fees and Costs at 3-4.)

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This evidence, however, is not dispositive of the reasonableness

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of an $875 hourly rate in the forum in which this court sits,

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i.e. Fresno.

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attorney with approximately 40 years of experience is

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approximately $400 per hour. See Willis v. City of Fresno, No.

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1:09-CV-01766 BAM, 2018 WL 1071184, at *7 (E.D. Cal.

Id.

BMO Harris Bank N.A. v.

When calculating the lodestar, the

In this case, the “relevant community”

Plaintiff’s memorandum in

Here, a more appropriate hourly rate for an

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2018)(awarding rate of $400 to attorney with more than forty

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years of experience); Verduzco v. Ford Motor Co., No. 1:13-CV-

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01437 LJO, 2015 WL 4131384, at *4 (E.D. Cal. 2015), report and

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recommendation adopted, No. 1:13-CV-01437 LJO, 2015 WL 4557419

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(E.D. Cal. 2015)(awarding an hourly rate of $380 to an attorney

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with more than forty years of experience).

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rates in Fresno, the requested hourly rates are unreasonably

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high.

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Given the market

In light of the findings of other courts, this court

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finds that an hourly rate of $400 is reasonable for attorneys in

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Fresno with experience similar to that of Mr. Blanchard and Mr.

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Dion-Kindem.

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the first step of the lodestar calculation process yields the

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figure $173,300.

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Given the 433.25 hours expended on the litigation,

After calculating the lodestar, the court must decide

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whether to enhance or reduce the award in the light of particular

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factors, including the novelty and difficulty of the case, the

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skill displayed in presenting them, the extent the litigation

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precluded other employment by the attorneys, and the contingent

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nature of the fee award.

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1132 (2001).

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the factors that may justify an exercise of judicial discretion

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to increase or decrease a lodestar calculation.”

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Fargo Bank, N.A., 92 Cal. App. 4th 819, 834 (1st Dist. 2001).

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Ketchum v. Moses, 24 Cal. 4th 1122,

However, “[t]here is no hard-and-fast rule limiting

Thayer v. Wells

The instant case presented relatively complex issues

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involving defendant’s liability for its inclusion of release

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language in the FCRA disclosure and authorization forms it

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utilized.

Plaintiff litigated this issue before this court as
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well as on appeal to the Ninth Circuit.

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16.)

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(Dion-Kindem Decl. ¶

In the approximately five years since this case began,

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plaintiff’s counsel invested 433.25 hours in this litigation, and

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since class counsel took this matter on a purely contingent basis

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the risk of nonpayment was ever-present.

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(Id. ¶ 20.)

Collectively, these factors weigh in favor of enhancing

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the lodestar; the court will apply a 1.73 multiplier.

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This

yields a total award of $299,809 in attorneys’ fees.

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Accordingly, the court will allow the award of attorneys’ fees in

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the amount of $299,809, which is just shy of the $300,000

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attorneys’ fee award agreed to by the parties.

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Decl. ¶ 10.)

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(See Dion-Kindem

Plaintiff also petitions the court for an award of

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attorneys’ costs.

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costs.

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at 2 (Docket No. 135).)

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request for reimbursement.

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for which class counsel is seeking reimbursement.

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Kindem Decl. ¶ 9; Pl.’s Petition for Award of Attorneys’ Fees and

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Costs Ex. 2, Blanchard Decl. ¶ 6 (Docket No. 135-2).)

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finds the requested $4307.79 costs’ award to be reasonable.

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of the requested expenses are for services that are routinely and

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properly reimbursed, i.e. transcription, PACER access fees, and

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court filing fees.

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of costs in the amount of $4307.79.

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Specifically, plaintiff asks for $4,307.79 in

(See Pl.’s Motion for Award of Attorneys’ Fees and Costs
No objections have been filed to this
The court has reviewed the expenses
(See Dion-

The court
All

Accordingly, the court will allow the award

IT IS THEREFORE ORDERED that plaintiffs’ Motion for
Final Approval of the Class and Class Action Settlement (Docket
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No. 136) and plaintiff’s Motion for Award of Attorneys’ Fees and

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Costs (Docket No. 135) be, and the same hereby are, GRANTED.

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IT IS FURTHER ORDERED THAT:

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(1) solely for the purpose of this settlement, and

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pursuant to Federal Rule of Civil Procedure 23, the court hereby

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certifies the following class:
All persons residing in the United States
(including all territories and other political
subdivisions of the United States) as to whom M-I
L.L.C. may have procured or caused to be procured
a consumer report for employment purposes during
the period from May 19, 2009 through November 1,
2018, who M-I L.L.C. hired, and who have not
signed a severance agreement and release or
equivalent agreement releasing the claims
asserted in the Action;

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(2) the court appoints the named plaintiff Sarmad Syed
as representative of the class and finds that he meets the
requirements of Rule 23;
(3) the court appoints Peter R. Dion-Kindem and
Blanchard Law Group as counsel to the settlement class, and finds
that they meet the requirements of Rule 23;
(4) the Settlement Agreement’s plan for class notice is
the best notice practicable under the circumstances and satisfies
the requirements of due process and Rule 23. The plan is approved
and adopted.

The notice to the class complies with Rule 23 and

is approved and adopted.
(5) having found that the parties and their counsel
took appropriate efforts to locate and inform all putative class
members of the settlement, and given that no class members filed
an objection to the settlement, the court finds and orders that
no additional notice to the class is necessary;
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(6) as of the date of the entry of this order,

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plaintiff and all class members who have not timely opted out of

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this settlement herby do and shall be deemed to have fully,

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finally, and forever released, settled, compromised,

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relinquished, and discharged defendants of and from any and all

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settled claims, pursuant to the release provisions stated in the

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parties’ Settlement Agreement;

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(7) plaintiff’s counsel is entitled to fees in the
amount of $299,809 and costs in the amount of $4307.79.

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(8) the named plaintiff is entitled to an incentive
payment of $5,000; and

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(9) this action is dismissed with prejudice; however,

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without affecting the finality of this order, the court shall

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retain continuing jurisdiction over the interpretation,

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implementation, and enforcement of the Settlement Agreement with

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respect to all parties to this action and their counsel of

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record.

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The Clerk is instructed to enter judgment accordingly.

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Dated:

August 6, 2019

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