Avila v. Cold Spring Granite Corporation

Filing 36


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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT FOR THE 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 JOSEPH AVILA, on behalf of himself and others similarly situated, ORDER GRANTING MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 11 12 13 14 15 16 1:16-cv-001533-AWI-SKO Plaintiff, v. COLD SPRING GRANITE COMPANY, a Minnesota Corporation, Defendants. __________________________________/ ORDER GRANTING IN PART MOTION FOR ATTORNEYS’ FEES, COSTS, AND REPRESENTATIVE SERVICE PAYMENT (Docs. 32, 33.) 17 18 19 I. Introduction Plaintiff Joseph Avila (“Plaintiff”), on behalf of himself and others similarly situated, filed 20 this class action complaint against Defendant Cold Spring Granite Company (“Defendant”), alleging 21 failures to pay overtime and afford compliant meal breaks, as well as derivative claims, in violation 22 of the California Labor Code, California Business and Professions Code and Industrial Welfare 23 Commission (“IWC”) Wage Orders. The parties have reached a settlement prior to class certification. 24 Plaintiff moved for and the Court granted conditional certification of the class under Rule 23 and 25 preliminary approval of the class action settlement. Docs. 28, 31. In the Court’s preliminary 26 approval order, it set out a schedule of dates for giving of class notice, filing of a final approval 27 motion, and holding of a final fairness hearing. All of those events have taken place. Plaintiff 28 filed unopposed motions for final approval of class settlement and for attorney fees and costs. No 1 1 class member was present at the final fairness hearing held on December 11, 2017, and no 2 objections to the settlement have been filed. For the following reasons, Plaintiff’s motion for 3 final approval will be granted in full and Plaintiff’s motion for fees and costs will be granted in 4 part. 5 II. Background 6 A. Factual Background 7 Defendant is a natural stone manufacturer that operates quarries in the United States and 8 Canada. Doc. 28 at 8; Amended Complaint, Doc. 13 (“FAC”) at ¶ 5. Plaintiff and the 891 absent 9 class members are or were Defendant’s employees working at quarries in Raymond, California 10 and Clovis, California. FAC at ¶ 11; Doc. 28 at 8. Plaintiff and the absent class members are or 11 were all employed as non-exempt hourly employees. FAC at ¶¶ 2, 11. Defendant instituted an 12 “Alternative Workweek Schedule” (“AWS”), whereby it scheduled class members to work “four 13 ten-hour shifts per week,” from 6:00 a.m. to 4:30 p.m. Id. at ¶¶ 2, 12; Doc. 28 at 8. Plaintiffs 14 were not paid at an overtime rate when they worked more than eight hours per day. FAC at ¶ 16. 15 “Defendant also failed to provide [class members] with off-duty meal periods prior to the end of 16 their fifth hour of work.” Id. at ¶¶ 2, 17. 17 B. Settlement Agreement and Anticipated Result The preliminary approved class definition is as follows: “all non-exempt positions at 18 19 Cold Spring facilities in Raymond, California and Clovis, California” from October 11, 2012 20 through August 16, 2017 (the date of conditional class certification and preliminary approval of 21 class action settlement). See Settlement Agreement, Doc. 28-1 (“Settlement Agreement”) at 22 §A.4-6; Doc. 31. The settlement class includes 89 employees. Doc. 35 at 3. No class member has 23 opted-out. Doc. 35 at 3. 24 The parties have agreed to a total maximum settlement amount of $500,000.00 to be paid 25 by Defendant. That settlement amount includes class counsel’s attorney fees, costs, and any 26 27 28 1 Originally Plaintiff indicated that there were 87 putative class members. Although counsel intermittently refers to 87 and 89 class members, Doc. 32 at 7, 9, 12, 17, the majority of the documents submitted reflect the existence of 89 class members. See Docs. 32, 32-1, 32-2, 35. The calculation of average class member recovery also tends to indicate the existence of 89 class members. See Doc. 35. 2 1 expenses related to the suit. Settlement Agreement at §C.12.a. The settlement provides that 2 attorney fees “shall not exceed $166,666.66 (i.e., 33.33% of” the gross fund). Of the remaining 3 $333,333.34, up to $15,000.00 is allocated to reimburse for costs, up to $5,000.00 is allocated to 4 pay a representative service award to the named plaintiff, $7,500.00 is allocated as a PAGA 5 payment to the LWDA, and $8,500.00 is allocated to pay the settlement administrator’s fees and 6 costs. 7 The remaining balance (“net settlement amount”), assuming the maximum of each 8 allocated amount is paid, will be $297,333.34. That net settlement amount will be distributed to 9 class members in proportion to the weeks each worked during the class period. Settlement 10 Agreement at §C.12.c.1. More precisely, each class member’s settlement payment will be 11 calculated by dividing the class member’s weeks worked during the class period by the total 12 weeks worked by all class members during the class period then multiplied by the net settlement 13 amount. Id. at §C.12.c.2. In that way, all of the net settlement amount will be paid to class 14 members. The average payment is $3,340.82 per class member. Doc. 45 at 3. 15 Class members are not required to take any action to receive their pro rata share of the 16 settlement fund. If the settlement is approved, a check will be mailed to the address on file for 17 each class member. In exchange, each of the class members will release all claims that were or 18 could have been asserted based on the allegations of the operative complaint—i.e., those claims 19 relating to an improper alternative workweek schedule or untimely meal or rest periods. No class 20 member has opted out of the settlement agreement. 21 Any settlement checks not cashed or deposited within 120 days of issuance will be 22 transmitted to the State of California’s Department of Industrial Relations Unclaimed Wages 23 Fund. 24 C. Final Fairness Hearing 25 The Court held a final fairness hearing on December 11, 2017 at 1:30 p.m. No class 26 member was present. No objections were raised to the settlement. 27 /// 28 /// 3 1 III. Final Approval of Settlement Agreement 2 A. Legal Standard 3 “There is a strong judicial policy that favors settlements, particularly where complex 4 class action litigation is concerned.” Allen v. Bedolla, 787 F.3d 1218, 1223 (9th Cir. 2015) 5 (citation and internal quotation marks omitted). However, “[t]he claims, issues, or defenses of a 6 certified class may be settled … only with the court’s approval” “after a hearing and on a finding 7 that it is fair, reasonable, and adequate.” Fed. Civ. P. 23(e). When a settlement is reached by the 8 parties prior to certification of a class, the court must confirm “the propriety of the [class] 9 certification and the fairness of the settlement” to protect the absent class members. Stanton v. 10 Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003); see In re Bluetooth Headset Prods. Liab. Litig. 11 (“In re Bluetooth”), 654 F.3d 935, 946 (9th Cir. 2011) (When settlements are reached prior to 12 certification “an even higher level of scrutiny” is required to determine the fairness of the 13 agreement.); In re Mego Fin. Corp. Sec. Litig. (“In re Mego”), 213 F.3d 454, 458 (9th Cir. 2000) 14 (same). 15 The Rule 23 class settlement generally proceeds in two phases. In the first phase, the 16 court conditionally certifies the class, conducts a preliminary determination of the fairness of the 17 settlement (subject to a more stringent final review), and approves the notice to be imparted upon 18 the class. Ontiveros v. Zamora, 303 F.R.D. 356, 363 (E.D. Cal. 2014). The purpose of the initial 19 review is to ensure that an appropriate class exists and that the agreement is non-collusive, 20 without obvious deficiencies, and within the range of possible approval as to that class. See True 21 v. Am. Honda Motor Co., 749 F.Supp.2d 1052, 1062 (C.D. Cal. 2010); Newberg on Class 22 Actions § 13:13 (5th ed. 2014). In the second phase, the court holds a full fairness hearing where 23 class members may present objections to class certification or to the fairness of the settlement 24 agreement. Ontiveros, 303 F.R.D. at 363 (citing Diaz v. Trust Territory of Pac. Islands, 876 F.2d 25 1401, 1408 (9th Cir. 1989). Following the fairness hearing, taking into account all of the 26 information before the court, the court must confirm that class certification is appropriate and the 27 settlement is fair, reasonable, and adequate such that the parties should be allowed to settle the 28 class action pursuant to the terms of the settlement agreement. See Valdez v. Neil Jones Food 4 1 Co., 2015 WL 6697926 (E.D. Cal. Nov. 2, 2015); Miller v. CEVA Logistics USA, Inc., 2015 WL 2 4730176, *3 (E.D. Cal. Aug. 10, 2015). 3 B. Discussion 4 This Court has conducted a final fairness hearing. No class member was present at the 5 hearing and no objections have been filed. Despite the absence of objections, the Court has 6 conducted an in-depth review of the settlement agreement in this action. Conditional class 7 certification is appropriate. The proposed settlement is fair, reasonable, and adequate. The 8 attorneys’ fees, costs, and representative service award are all reasonable and justified by the 9 evidence presented. For those reasons, as more fully set out herein, Plaintiff’s motions for final 10 approval and fees, costs and service award will be granted. 11 1. Rule 23 Class Certification 12 Class certification requires a showing of two sets of requirements. First, Rule 23(a) 13 requires a showing of numerosity, commonality of law or fact, typicality of the representative 14 plaintiff’s claims, and adequacy of representation. Fed. R. Civ. P. 23(a) Second, the action must 15 fit within one of the “types of actions” set forth by Rule 23(b). Fed. R. Civ. P. 23(b). In the Court’s August 16, 2017 order, it thoroughly considered each of the Rule 23(a) 16 17 requirements and found that this action appropriately fell within Rule 23(b)(3). Based on the 18 Court’s consideration of the Rule 23 requirements at the preliminary approval stage in 19 combination with the information provided in Plaintiff’s motion for final approval, the Court is 20 satisfied that the Rule 23(a) requirements are met, that common issues predominate and that a 21 class action is the superior vehicle to litigate the claims at issue in this action. 22 a. Numerosity 23 A class need only be so numerous that joinder of all members individually is 24 impracticable. Fed. R. Civ. P. 23(a)(1). In this litigation, this Court found that the class 25 comprising of 872 members is sufficiently numerous that joinder of all members would be 26 impracticable. Doc. 31 at 5. The class is sufficiently numerous. 27 28 2 Again, it appears that the class is comprised of 89 members. This difference is without significance for purposes of this section. 5 1 b. Commonality and Typicality 2 In its August 16, 2017 order, the Court explained that, in the wage and hour context, 3 commonality is satisfied when all class members are injured by the same class-wide policy or 4 practice. Doc. 31 at 5 (citations omitted). In this action, it was agreed that all class members were 5 subject to the same alternative workweek schedule that caused the alleged underpayment of 6 minimum wage and meal and rest break violations. Id. 7 The typicality requirement is satisfied if “the claims and defenses of the representative 8 parties are typical of the defenses of the class….” Fed. R. Civ. P. 23(a)(3). Effectively, the 9 typicality inquiry is whether the representative’s claims are “reasonably co-extensive with those 10 of the absent class members….” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). 11 In this instance, Plaintiff has shown that the class members all suffered under the same policy. 12 Although the extent of the injury varied from member to member, the injuries all arose from the 13 same course of conduct by Defendant. See Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th 14 Cir. 1992). Plaintiff’s claims are reasonably co-extensive with those of the class. The typicality 15 requirement is met. 16 c. Adequacy 17 The adequacy requirement is met if the class representative and class counsel “fairly and 18 adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). Two questions are 19 normally asked to determine adequacy: “(1) do the named plaintiff[] and [his] counsel have any 20 conflicts of interest with other class members and (2) will the named plaintiff[] and [his] counsel 21 prosecute the action vigorously on behalf of the class?” Hanlon, 150 F.3d at 1020. Because 22 Plaintiff and the class have been injured by the same policy and seek to recover the same 23 damages, there is no indication that any conflict exists between Plaintiff and the class. Similarly, 24 there is no indication that class counsel has any conflict of interest with the class. Next, the 25 named plaintiff and class counsel have diligently pursued relief in this action and have arrived at 26 a favorable settlement, as discussed in more depth below. The adequacy requirement is met. 27 All of the Rule 23(a) requirements are satisfied. 28 /// 6 1 d. Predominance and Superiority 2 The matter was conditional certified at the preliminary approval phase as a Rule 23(b)(3) 3 class. Doc. 31 at 7-9. In order to maintain a Rule 23(b)(3) class action the court must find that (1) 4 the common questions of law or fact predominate over issues affecting only individual members 5 and (2) that a class action is the superior vehicle for litigating the claims at issue. Fed. R. Civ. P. 6 23(b)(3). The Court made such a finding. Specifically, in its August 16, 2017 order, this Court 7 observed that common questions of law and fact predominated over the individual issues and 8 that—based on the relatively small maximum claim value—a class action is the superior method 9 of adjudicating the claims presented. Doc. 47 at 13-14. Those determinations remain; common 10 questions predominate and a class action is the superior vehicle for litigation of the claims at 11 issue. 12 Conditional certification of the Rule 23 class is confirmed for the following class: 13 All non-exempt positions at Cold Spring facilities in Raymond, California and Clovis, California from October 11, 2012 through [August 16, 2017]. 14 Doc. 31 at 8-9. 15 16 2. Sufficiency of the Notice Afforded 17 Before a proposed settlement is approved, Rule 23(c)(2)(b) and (e)(1) require the Court to 18 ensure that notice is directed “in a reasonable manner to all class members who would be bound 19 by the” proposed settlement and that such notice provides the information necessary to make an 20 informed decision regarding participation in the action. As described in the Court’s October 8, 21 2015 order, additional explanation of the claims is necessary when a settlement purports to 22 resolve FLSA and California Labor Code claims in a hybrid action. Doc. 47 at 17 (citing 23 Murillo, 266, F.R.D. at 472). The Court previously approved the substance of the notice packet, 24 noting that it informed class members of “(i) the nature of the action; (ii) the definition of the class 25 certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance 26 through an attorney if the member so desires; (v) that the court will exclude from the class any 27 member who requests exclusion; (vi) the time and manner for requesting exclusion; and (vii) the 28 7 1 binding effect of a class judgment on members under Rule 23(c)(3).” See Doc. 31 at 9 (citing Fed. 2 R. Civ. P. 23(c)(2)(B)). See Doc. 35 at 6-12 (notice packet). 3 In addition to the sufficiency of the content of the notice given, the process for giving 4 notice was also adequate. Prior to mailing the notices, the Claims Administrator ran the class list 5 through the United States Postal Service’s National Change of Address database (“NCOA”), and 6 performed address searches using electronic resources which collect data from various sources such 7 as utility records, property tax records, motor vehicle registration records and credit bureaus. None of 8 the notices distributed have been returned as undeliverable. See Doc. 35. The Claims Administrator 9 received 18 telephone calls from class members. Id. 10 The Court is satisfied that the notice given was substantively sufficient and sent in a 11 manner calculated to impart notice. 12 3. Settlement Agreement Fairness 13 In order for this settlement to be approved, Plaintiff must demonstrate that the proposed 14 settlement is fundamentally fair, adequate, and reasonable. Hanlon, 150 F.3d at 1026 (citation 15 omitted); see Fed. R. Civ. P. 23(e). In conducting a fairness determination pursuant to Rule 23(e) 16 the Court considers: “(1) the strength of the plaintiff’s case, (2) the risk, expense, complexity, 17 and likely duration of further litigation, (3) the risk of maintaining class action status throughout 18 the trial; (4) the amount offered in settlement; (5) the extent of discovery completed and the stage 19 of the proceedings; (6) the experience and views of counsel; (7) the presence of a governmental 20 participant; and (8) the reaction of the class members to the proposed settlement.” In re Online 21 DVD-Rental Antitrust Litig., 779 F.3d 934, 944 (9th Cir. 2015) (quoting, inter alia, Churchill 22 Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004)). When settlement occurs before 23 class certification the court must take extra care to ensure that “the settlement is not the product 24 of collusion among the negotiating parties.” In re Bluetooth, 654 F.3d at 946. 25 a. The Strength of Plaintiff’s Case 26 The first factor, the strength of Plaintiff’s case, favors settlement. When evaluating the 27 strength of a case, the Court should “evaluate objectively the strengths and weaknesses inherent 28 in the litigation and the impact of those considerations on the parties’ decisions to reach these 8 1 agreements.” Adoma v. Univ. of Phoenix, Inc., 913 F.Supp.2d 964, 975 (E.D. Cal. 2012) (citation 2 omitted). Class Counsel notes in his declaration that all claims rise and fall with the validity 3 alternative work schedule and meal period claim. Doc. 32-1 at 12-13. Although Plaintiff believes 4 that the alternative work schedule “was unlawful … as there was no record available of any 5 ballot approving [it,] Defendant produced declarations and other evidence … suggest[ing] that 6 defendant had” conducted a ballot. Doc. 31-1 at 13. Despite the evidence that a ballot may have 7 taken place, there was a technical failure by Defendant in implementing its alternative work 8 schedule because no documents related to that election were on file with the Department of 9 Industrial Relations (“DIR”) until October 21, 2016. 10 As to Plaintiff’s meal period claim, Plaintiff acknowledges that many class members 11 submitted declarations indicating that they were permitted to take meal periods “whenever they 12 wanted.” Doc. 32-1 at 14. However, Plaintiff also maintains that the noontime cessation of 13 operation at Defendant’s quarries, which was designed to allow for a meal period, took place 14 after the fifth hour of work and therefore resulted in regular delays in the class members’ ability 15 to take timely meal periods. Doc. 32-1 at 14. 16 The parties have probed the strengths and weaknesses of Plaintiff’s case. Settlement is a 17 reasonable decision in this instance. This factor favors settlement. 18 b. The Risk, Expense, Complexity, and Likely Duration of Further Litigation and the Risk of 19 Maintaining Class Status 20 “Approval of settlement is ‘preferable to lengthy and expensive litigation with uncertain 21 results.’” Munoz v. Giumarra Vineyards Corp., 2017 WL 26605075, *9 (E.D. Cal. June 21, 22 2017) (citation omitted); accord In re Syncor ERISA Litig., 516 F.3d 1095, 1101 (9th Cir. 2008) 23 (“[T]here is a strong policy that favors settlements, particularly where complex class action 24 litigation is concerned.”) Moreover, “[e]mployment law class actions are, by their nature, time25 consuming and expensive to litigate.” Aguilar v. Wawona Frozen Foods, 2017 WL 2214936, *3 26 (E.D. Cal. May 19, 2017). 27 As noted in prior section, Plaintiff’s case is not without weaknesses. Litigating those 28 claims would risk failures in class certification (depending on the regularity of the alleged 9 1 violations) and failures on the merits. See Doc. 32-1 at 17; Doc. 31 at 13. The Court also credits 2 Class counsel’s estimation that litigating the class action through a contested certification, further 3 discovery, dispositive motions, and a possible trial would exceed $1,000,000.00 in attorney fees 4 and costs. Doc. 32-1 at 17. Although not overly complicated, if this action were not to be settled 5 the class member would be highly unlikely to see any relief within two years, if ever. 6 The risk, costs, and delayed recovery inherent in further litigation weigh in favor of 7 settlement. 8 c. The Amount Offered in Settlement 9 The amount offered in settlement is generally considered to be the most important 10 considerations of any class settlement. See Bayat v. Bank of the West, 2015 WL 1744342, at *4 (N.D. 11 Cal. Apr. 15, 2015) (citing, inter alia, In re HP Inkjet Printer Litig., 716 F.3d 1173, 1178-79 (9th Cir. 12 2013). To determine whether that settlement amount is reasonable, the Court must consider the 13 amount obtained in recovery against the estimated value of the class claims if successfully 14 litigated. Litty v. Merrill Lynch & Co., Inc., 2015 WL 4698475, at *9 (C.D. Cal. Apr. 27, 2015) 15 (quoting In re Mego, 213 F.3d at 459). Courts regularly approve class settlements where class 16 members recover less than one quarter of the maximum potential recovery amount. See Bravo v. 17 Gale Triangle, Inc., 2017 WL 708766, *10 (C.D. Cal. Feb.16, 2017) (approving a settlement where 18 net recovery to class members was approximately 7.5% of the projected maximum recovery 19 amount); Officers for Justice v. Civil Service Com’n of City and Cty. of S.F., 688 F.2d 615, 628 20 (9th Cir. 1982) (“[A] cash settlement amounting to only a fraction of the potential recovery will 21 not per se render the settlement inadequate or unfair.”) 22 Class counsel has approximated (and explained the mechanism for that approximation) 23 that the total maximum recovery in this matter at roughly $4,441,633.60, inclusive of penalties 24 and interest. Doc. 32-1 at 6. Of that amount, $2,610,874.85 is potential PAGA penalties. Because 25 the PAGA penalties sought are at least partially duplicative of penalties granted by the 26 underlying Labor Code violations, see, e.g., Cal. Lab. Code §§ 203, 226, 558(a), 1194.2, and 27 because a Court has discretion in whether and in what amount to award PAGA penalties, see Cal. 28 Lab. Code § 2699(e)(2), Plaintiff recognizes that the potential PAGA penalties are highly 10 1 uncertain. See Guifu Li v. A Perfect Day Franchise, Inc., 2012 WL 2236752, *17 (N.D. Cal. June 2 15, 2012). 3 The gross settlement amount is $500,000.00, of which $297,332.98 will be distributed to 4 the class. There is no possible reversion. The claims administrator has calculated that the average 5 settlement payment will be $3,340.82. Doc. 35 at 3. The settlement amount that will actually be 6 disbursed to the class members is approximately seven percent of the predicted maximum 7 recovery amount. Excluding the highly uncertain PAGA penalties, the net settlement amount is 8 roughly 16% of the more realistic maximum recovery amount. That settlement amount is within 9 the acceptable range, albeit at the low end. See, e.g., Garnett v. ADT, LLC, 2016 WL 1572954, 10 *7 (E.D. Cal. Apr. 19, 2016) (approving a settlement agreement with a class payment of roughly 11 21 percent of the maximum potential recovery amount); Rosales v. El Rancho Farms, 2015 WL 12 4460918, at *14 (E.D. Cal. July 21, 2015) (twenty five percent); In re Celera Corporation 13 Securities Litigation, 2015 WL 1482303, at *6 (N.D. Cal. Mar. 31, 2015) (eight percent). 14 This factor supports approval of the settlement. 15 d. The Extent of Discovery Complete and Stage of the Proceedings 16 Courts require the parties to have conducted sufficient discovery to be able to make an 17 informed decision about the value and risks of the action and come to a fair settlement. See 18 Linney v. Cellular Alaska Partnership, 151 F.3d 1234, 1239 (9th Cir. 1998); Adoma, 913 19 F.Supp.2d at 977. Although no formal discovery was conducted, class counsel emphasizes that 20 Defendant “provided a dataset sufficient to prepare a full exposure analysis, [] documents related 21 to the” alternative work schedule, documents related to Defendant’s employment policies, and 22 information regarding the hours and wages of “nearly all” class members. Doc. 32-1 at 5. 23 In this matter, the parties conducted sufficient discovery to be able to make an informed 24 decision about settlement. This factor supports approval of the settlement agreement. 25 e. The Experience and Views of Counsel 26 The Court must consider the experience and views of counsel regarding the settlement. 27 See Churchill Vill., 361 F.3d 575; Nat’l Rural Telecomms., 221 F.R.D. 523, 528 (C.D. Cal. 28 2004). Class counsel is experienced, see Doc. 32-1 at 2-4, and is informed about the subject of 11 1 this litigation, see generally Doc. 32-1. Class counsel recommends settlement and “believes that 2 [it] will provide a substantial benefit to the” class. This factor weighs in favor of settlement.3 3 Doc. 32 at 21. 4 f. The Reaction of the Class Members 5 In determining the fairness of a settlement, the Court should consider class member 6 objections to the settlement and the claims rate. See Larsen v. Trader Joes Co., 2014 WL 7 3404531, *5 (N.D. Cal. July 11, 2014). The absence of a large number of objections to a 8 proposed settlement raises a strong presumption that the terms of the agreement are favorable to 9 the class. Richardson v. THD At-Home Services, Inc., 2016 WL 1366952, *6 (E.D. Cal. Apr. 6, 10 2016) (citation omitted). Here, all of the notice packets were delivered, all class members will 11 receive a settlement payment, and no objections or requests for exclusion have been filed. Doc. 12 35 at 3. There is no evidence to indicate that any class member is dissatisfied with the proposed 13 settlement. Plaintiff encourages the Court to consider the class representative’s reaction. Doc. 22 at 14 15 25. Although a class representative has no veto power, the Court should consider any support or 16 opposition to the settlement by a class representative. See Manual Complex Lit. § 21.642 (4th ed. 17 2016). Mr. Avila has spent approximately 112 hours assisting class counsel and supports the 18 settlement. Doc. 33-3 at 6. 19 The reaction of the class members and class representative to the settlement has been 20 positive. This factor weighs in favor of settlement. 21 g. Absence of Collusion Where, as here, a settlement is negotiated before class certification, courts “must be 22 23 particularly vigilant not only for explicit collusion, but also for more subtle signs that class 24 counsel have allowed pursuit of their own self-interests and that of certain class members to 25 26 27 28 3 “Although a court might give weight to the fact that counsel for the class or the defendant favors the settlement, the court should keep in mind that the lawyers who negotiated the settlement will rarely offer anything less than a strong, favorable endorsement.” Smith v. American Greetings Corp., 2016 WL 2909429, *5 n 5 (N.D. Cal. May 19, 2016) (quoting Principles of the Law of Aggregate Litigation § 3.05 comment (a) (2010)). 12 1 infect the negotiations.” In re Bluetooth, 654 F.3d at 946.4 The operative settlement agreement 2 has no reversion and no clear sailing provision. The fees sought by counsel, although higher than 3 the benchmark in this Circuit, do not indicate collusion between counsel. Although not 4 dispositive, the fact that this action was taken to mediation tends to indicate that the resolution is 5 not a product of collusion. See Vargas v. Central Freight Lines, Inc., 2017 WL 4271893, *7 6 (S.D. Cal. Sept. 25, 2017). 7 The Court is satisfied that this settlement agreement is not a product of collusion. This 8 factor weighs in favor of approval of the settlement agreement. 9 h. Conclusion 10 The Court finds that the factors set forth by the Ninth Circuit weigh in favor of final 11 approval of the settlement. The settlement is fair, reasonable and adequate as required by Rule 12 23. Final approval of the settlement agreement will be granted. 13 IV. Fees, Costs, and Representative Service Payment 14 Plaintiff moves for an award of attorneys’ fees and costs, and a class representative 15 service payment for the class representative. Class counsel seeks attorneys’ fees in the amount of 16 $166,666.66, amounting to thirty-three percent of the gross fund value. Plaintiff also requests 17 reimbursement for litigation costs in the amount of $6,125.05. Finally, Plaintiff requests a 18 representative service award in the amount of $5,000.00. Plaintiff’s motion will be granted in 19 part. 20 A. Attorneys’ Fees Rule 23(h) permits the court to “award reasonable attorney’s fees and nontaxable costs” 21 22 in a class action when they “are authorized by law or by the parties’ agreement.” Fed. R. Civ. P. 23 23(h). Even if the parties agree on the amount of a fees award, a district court has an obligation 24 to consider the fees award in the context of the settlement agreement to ensure that it is 25 reasonable. See In Re Bluetooth, 654 F.3d at 941. Where the settlement agreement creates a 26 common fund, a “district court ‘has the discretion to apply either the lodestar method or the 27 28 4 The In re Bluetooth court instructs district courts to look for disproportionate settlement amounts, clear sailing provisions, and reversionary funds, among other things. In re Bluetooth, 654 F.3d at 947. 13 1 percentage-of-the-fund method in calculating the fee award.’” Stetson v. Grissom, --- F.3d ----, 2 2016 WL 2731587, *4 (9th Cir. May 11, 2016) (quoting Fischel v. Equitable Life Assurance 3 Soc’y, 307 F.3d 997, 1006 (9th Cir. 2002)). Despite the discretion afforded to the court, the Ninth 4 Circuit recommends that district courts cross-check the award by applying the second method. 5 In Re Bluetooth, 654 F.3d at 944-945. 6 1. Percentage of the Fund Method. 7 This Court will apply the percentage-of-the-fund method and cross-check by calculating 8 the lodestar. The “benchmark” award under the percentage-of-the-fund method is twenty-five 9 percent of the fund. Stetson, 2016 WL 2731587 at *4; In Re Bluetooth, 654 F.3d at 942.5 A 10 district court may “adjust upward or downward to account for any unusual circumstances 11 involved in the case.” Stetson, 2016 WL 2731587 at *4; Six (6) Mexican Workers v. Ariz. Citrus 12 Growers, 904 F.2d 1301, 1311 (9th Cir. 1990). Factors that would justify departure from the 13 benchmark include, “the benefit obtained for the class,” the risk due to the complexity and 14 novelty of the issues presented, “the risk of nonpayment,” and awards granted in similar cases. In 15 Re Bluetooth, 654 F.3d at 942 (citations omitted); Vizcaino v. Microsoft Corp., 290 F.3d 1043, 16 1048 (9th Cir. 2002). Chief among those considerations is the benefit to the class. In Re 17 Bluetooth, 654 F.3d at 942 (citing, inter alia, Hensley v. Eckerhart, 461 U.S. 424, 434-436 18 (1983)). 19 As noted, Plaintiff seeks thirty-three percent of the gross fund amount in fees. That 20 amount exceeds the benchmark; in order to award that percentage of the gross fund, the Court 21 must find that unusual circumstances justify the departure. Class counsel argues that the 22 departure is justified because “(1) [c]lass [c]ounsel have obtained a superb result for the [class 23 members]; (2) they faced considerable risks in prosecuting this litigation; (3) they displayed 24 skillful representation and high-quality work that resulted in this [settlement]…; and (4) [they] 25 carried the heavy financial burden of representing Plaintiff and the [class members] on a 26 27 28 5 Counsel cites Ontiveros v. Zamora, 303 F.R.D. 356, 372 (E.D. Cal. 2014) for the proposition that “Class Counsel’s request for one-third of the” gross fund value “is well within the range customarily approved by California courts in comparable class actions. In Ontiveros, the Court expressly declined grant fees in the amount of 33% of the gross fund. Nothing that such a fee would award a lodestar multiple of two, the court instead applied the benchmark percentage award of 25%. Ontiveros, 303 F.R.D. at 374-375. 14 1 contingency basis.” Doc. 33 at 8. Further, class counsel contends, its lodestar calculation 2 supports the fee award of $166,666.66. Doc. 33 at 8. 3 First, the Court looks to the benefit imparted upon the class. The average recovery per 4 class member of $3,340.82 is higher than the recovery in most similar actions. See, e.g., 5 Thompson v. Costco Wholesale Corp., 2017 WL 3840342, *6 (S.D. Cal. Sept. 1, 2017) 6 (approving a settlement with an average recovery of roughly $1700.00 per class member in a 7 similar action); Emmons v. Quest Diagnostics Clinical Laboratories, Inc., 2017 WL 749018, at 8 *9 (E.D. Cal. 2017). Chavez v. PVH Corp., 2015 WL 9258144, *2 (N.D. Cal. 2015) (approving a 9 settlement with a recovery of approximately $130.00 per class member in a similar action); 10 Taylor v. FedEx Freight, Inc., 2016 WL 6038949, *4 (E.D. Ca. Oct. 13, 2016) (approving a 11 settlement with a recovery of approximately $2,600.00 per class member in a similar action); 12 Barbosa v. Cargill Meat Solutions Corp, 297 F.R.D. 431, 440 (E.D. Cal. 2013) (granting a 33% 13 fees award where the approximate recovery was just over $600 per class member in a similar 14 action). However, the net payout to the class is, at best, 16% of the maximum class recovery 15 (excluding potentially duplicative PAGA penalties); see also Morales v. Steveco, Inc., 2013 WL 16 1222058, *2 (E.D. Cal. Mar. 25, 2013) (noting that an average recovery of roughly $4,300.00 per 17 class member in a wage and hour class action weighs in favor of an award above the 18 benchmark). Class counsel achieved a strong outcome for the class. The absence of any 19 objections to the settlement supports that conclusion. See National Rural Telecommunications 20 Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 529 (C.D. Cal. 2004). This consideration weighs in 21 favor of granting a fee award above the benchmark. 22 Next, the Court considers the risks involved with litigating this action. As the Court 23 noted, some risk for counsel existed in prevailing on the merits in light of the apparent vote taken 24 regarding implementation of an alternative work schedule, undercutting Plaintiff’s claim. 25 Similarly, the apparent lack of consistency regarding the regularity of missed or denied meal 26 periods caused some risk of failed class certification. Those risks are a result of the facts of the 27 action, not complexity or novelty of legal issues. Indeed, legally, this action was relatively 28 15 1 straight forward. This consideration does not weigh in favor of granting a fee award above the 2 benchmark. 3 The Court also looks to the contingent nature of the representation. Class counsel 4 accepted this action on a contingency basis in August of 2016. Doc. 33-1 at 12. In that way, it 5 encountered a risk of non-payment and forewent other employment to advance this action. This 6 factor weighs in favor of granting a fee award above the benchmark. See Vizcaino v. Microsoft 7 Corp., 290 F.3d 1043, 1051 (9th Cir. 2002). 8 Courts in this Circuit have awarded attorneys’ fees amounting to 33% of the gross fund 9 where such an award does not greatly exceed the lodestar and the recovery for the class is 10 substantial. See, e.g., Richardson, 2016 WL 1366952, *12 (awarding 30% of the gross fund 11 amount as attorneys’ fees where the per-class member award was substantial); Barbosa, 297 12 F.R.D. at 450 (collecting cases in this district that have granted approximately 33% of the gross 13 fund). However, the amount sought in attorney fees would yield a lodestar multiplier of roughly 14 three (when the rates are adjusted to match the relevant legal community). 15 The strong results achieved, the favorable reaction of the class, that class counsel litigated 16 this matter on contingency for nearly two years all support a fee award above the benchmark. 17 However, the adjusted lodestar is significantly lower the fee award sought. See Section IV(A)(2), 18 infra. 19 2. Lodestar Calculation 20 Although not required of a district court, often district courts conduct a lodestar cross- 21 check to ensure that the percentage based fee is reasonable. See Yamada v. Nobel Biocare 22 Holding AG, --- F.3d ----, 2016 WL 1579705 (9th Cir. Apr. 20, 2016); Crawford v. Astrue, 586 23 F.3d 1142, 1151 (9th Cir. 2009) (the district court may conduct a lodestar cross-check as an aid 24 in assessing the reasonableness of the fee). The lodestar amount is calculated by multiplying the 25 number of hours reasonably expended by a reasonable hourly rate. Gonzales v. City of Maywood, 26 729 F.3d 1196, 1202 (9th Cir. 2013). The district court must then determine whether to apply a 27 risk multiplier. See Yamada, 2016 WL 1579705, *6 (The court may apply a multiplier to adjust 28 the lodestar figure considering reasonableness factors such as: “the quality of representation, the 16 1 benefit obtained for the class, the complexity and novelty of the issues presented, and the risk of 2 nonpayment.”) (citation omitted); see also Stetson, 2016 WL 2731587, *5 (“The district court 3 must apply a risk multiplier to the lodestar ‘when (1) attorneys take a case with the expectation 4 they will receive a risk enhancement if they prevail, (2) their hourly rate does not reflect that 5 risk, and (3) there is evidence the case was risky.’ Failure to apply a risk multiplier in cases that 6 meet these criteria is an abuse of discretion.”) (citation omitted). 7 a. Reasonable Number of Hours 8 Class counsel spent approximately 178 hours litigating this matter and preparing the 9 settlement.6 Counsel’s time was expended conducting informal and formal discovery, drafting 10 pleadings, communicating with Plaintiff and class members, conducting case management tasks, 11 conducting research, engaging in mediation, and negotiating settlement. Doc. 33-1 at 14-15. The 12 bulk of the time was spent drafting pleadings. All of these items are reasonable uses of counsel’s 13 time. The information provided does not disclose any substantial redundancies in counsel’s use 14 of time. See also Stetson, 2016 WL 2731587, *5 (“[T]he district court should take into account 15 the reality that some amount of duplicative work is ‘inherent in the process of litigating over 16 time.’”) (citation omitted). 17 b. Reasonable Rate 18 A district court is required to determine a reasonable rate for the services provided by 19 examining the prevailing rates in the community, charged by “lawyers of reasonably comparable 20 skill, experience, and reputation.” Sanchez v. Frito Lay, 2015 WL 4662535, *17 (E.D. Cal. Aug. 21 5, 2016) (quoting Cotton v. City of Eureka, 889 F.Supp.2d 1154, 1167 (N.D. Cal 2012)). “The 22 ‘relevant community’ for the purposes of determining the reasonable hourly rate is the district in 23 which the lawsuit proceeds.” Sanchez, 2015 WL 4662535, *17 (quoting Barjon v. Dalton, 132 24 F.3d 496, 500 (9th Cir.1997)); accord Gonzalez v. City of Maywood, 729 F.3d 1196, 1205 (9th 25 Cir. 2013). When a case is filed in the Fresno Division of the Eastern District of California, the 26 hourly rate is compared against attorneys practicing in the Fresno Division of the Eastern District 27 28 6 Class Counsel provides a breakdown of the hours allocated to each task and a breakdown of hours billed by each assigned attorney. 17 1 of California. See, Munoz v. Giumarra Vineyards Corp., 2017 WL 2665075, * 17 (E.D. Cal. June 2 21, 2017); Nadarajah v. Holder, 569 F.3d 906, 917 (9th Cir. 2009). In the Fresno Division of the 3 Eastern District, the hourly rate for competent and experienced attorneys is between $250 and 4 $400, “with the highest rates generally reserved for those attorneys who are regarded as 5 competent and reputable and who possess in excess of 20 years of experience.” Silvester v. 6 Harris, 2014 WL 7239371, *4 (E.D. Cal. Dec. 17, 2014) (collecting cases); see Archer v. 7 Gibson, 2015 WL 9473409, *13-14 n. 6 (E.D. Cal. Dec. 28, 2015) (“A current reasonable range 8 of attorneys' fees, depending on the attorney's experience and expertise, is between $250 and 9 $400 per hour, and $300 is the upper range for competent attorneys with approximately 10 years 10 of experience.”) 11 Class counsel has requested hourly fees as follows: for Richard Hoyer, a partner with 12 Hoyer & Hicks, in practice since 1990, a rate of $700.00 per hour; Walter Haines, an attorney 13 with United Employees Law Group, in practice since 1976, a rate of $650.00 per hour; for Ryan 14 Hicks, a partner with Hoyer & Hicks, in practice since 2008, a rate of $500.00 per hour; for 15 Jennifer McGuire, a former associate at Hoyer & Hicks, in practice since 2012, a rate of $350.00 16 per hour; for Nicholas Lansdown, a former associate at Hoyer & Hicks, in practice since 2016, a 17 rate of $150 per hour. Doc. 33-1 at 8-9; Doc 33-2 at 2-3. 18 Mr. Hoyer declares that he has reviewed the rates of others in the San Francisco Bay 19 Area to conclude that the rates sought by those in his firm are reasonable. As noted, the Fresno 20 Division of the Eastern District of California is the relevant legal community. See Juarez v. 21 Villafan, 2017 WL 6629539, *18 (E.D. Cal. Dec. 29, 2017) (collecting cases); Munoz, 2017 WL 22 2665075 at * 16. The Court only looks outside of the relevant community if local counsel was 23 “‘unavailable, either because they are unwilling or unable to perform because they lack the 24 degree of experience, expertise, or specialization required to handle properly the case.’” Munoz, 25 2017 WL 2665075 at *17 (quoting Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992)). 26 Mr. Hoyer has made no such showing. He merely notes that his firm is “mostly contacted via the 27 internet by potential clients who presumably have been able to find local counsel who litigate 28 plaintiff-side wage and hour class actions….” Doc. 31-1 at 13. He does not establish—or attempt 18 1 to establish—that this action required unique expertise that could not be obtained locally. Mr. 2 Avila indicates in his declaration that he “contacted a number of local attorneys in the area in 3 hopes that one of them would take” his case, however, “all of them refused to take the case….” 4 Doc. 33-3 at 2-3. Such a showing is well short of the showing made in Gates where the plaintiffs 5 “offered numerous declarations of San Francisco and Sacramento attorneys which directly 6 support[ed] their contention that Sacramento attorneys and law firms with the requisite expertise 7 and expierence to handle” the type of complex litigation at issue were “unavailable” Gates, 987 8 F.2d at 1405-1406; accord California Sportfishing Protection Alliance v. Chico Scrap Metal, 9 Inc., 2016 WL 105252, *2 (E.D. Cal. Jan. 8, 2016) (explaining that the plaintiff’s conclusory 10 declaration regarding his attempt to retain local counsel—which was more detailed than Mr. 11 Avila’s declaration here—did not support a finding that local counsel was unavailable). 12 Mr. Haines directs the Court to a case within this Division where he was awarded 13 attorney fees at a rate of $625.00 per hour.7 However, from the Court’s own inquiry, it appears 14 that Mr. Haines was awarded fees at a rate not exceeding $400.00 per hour more often than not. 15 See, e.g., Mitchinson v. Love’s Travel Stops, 2017 WL 2289342, *7 (E.D. Cal. May 25, 2017) 16 (finding a rate of $400 per hour for Mr. Haines was appropriate); Morgret v. Applus Tech., Inc., 17 2015 WL 3466389, at *17 (E.D. Cal. June 1, 2015) (finding a rate of $380 per hour for Mr. 18 Haines was appropriate). That rate is appropriate. 19 The fee rates in excess of $400.00 are above the prevailing rates in the Fresno Division of 20 this District for attorneys with commensurate experience and expertise. See Sanchez v. Frito21 Lay, Inc., 2015 WL 4662636, *18 (E.D. Cal. Aug. 5, 2015), report and recommendation adopted, 22 2015 WL 5138101 (E.D. Cal. Aug. 26, 2015) (finding reasonable rate for attorney with twenty 23 years of experience was $350 per hour in a wage and hour class action); Verduzco v. Ford Motor 24 Co., 2015 WL 4131384, at *4 (E.D. Cal. July 9, 2015) report and recommendation adopted, 2015 25 WL 4557419 (E.D. Cal. July 28, 2015) (awarding attorney with over 40 years of experience 26 $380.00 per hour); Silvester v. Harris, 2014 WL 7239371, at *4 (E.D. Cal. Dec. 17, 2014) 27 28 7 See Novoa v. Charter Comm’ns, LLC, 1:13-cv-1302, Doc. 65 (E.D. Cal. June 6, 2016). The order awarding the fee award did not discuss whether the rate sought was reasonable. 19 1 (awarding attorneys with twenty years of experience $335.00 and $375.00 per hour); Willis v. 2 City of Fresno, 2014 WL 3563310, at *12 (E.D. Cal. July 17, 2014) adhered to on 3 reconsideration, 2014 WL 4211087 (E.D. Cal. Aug. 26, 2014) (awarding attorneys with over 4 twenty five years of experience $380.00 per hour); Jadwin v. County of Kern, 767 F.Supp.2d 5 1069, 1169 (E.D. Cal. 2011) (finding an hourly rate of $350.00 is near the top range of hourly 6 rates in the Fresno Division and awarding $380.00 per hour to an attorney with 40 years of 7 experience). The fee rate sought for the services of Ms. McGuire is also above the prevailing rate 8 for an attorney with her experience and expertise. See Silvester, 2014 WL 7239371 at *4, n.2 (An 9 acceptable rate “for an attorney with less than ten years of experience” ranges “between $175 to 10 $300” per hour.”) 11 A reasonable fee for Mr. Hoyer is $400.00 per hour; a reasonable fee for Mr. Haines is 12 $400.00 per hour; a reasonable rate for Mr. Hicks is $350.00 per hour; a reasonable rate for Ms. 13 McGuire is $250.00 per hour; a reasonable rate for Mr. Lansdown is $150.00 per hour. E.g., 14 Williams v. Ruan Transport Corp., 2013 WL 6623254, at *6 (E.D.Cal. Dec.16, 2013) (awarding 15 $375.00 per hour to attorney with over thirty years of experience and $325.00 per hour to 16 attorney with fifteen years of experience in employment action). 17 c. Adjusted Lodestar Calculation 18 Based on the 24 hours that Mr. Hoyer has reasonably spent on this litigation, billed at a 19 rate of $400.00 an hour; the 16.25 hours that Mr. Haines has reasonably spent on this litigation, 20 billed at a rate of $400.00 an hour; the 72.1 hours that Mr. Hicks has reasonably spent on this 21 litigation, billed at a rate of $350.00 per hour; the 58.6 hours that Ms. McGuire reasonably spent 22 on this litigation, billed at a rate of $250.00 per hour; and the 7.3 hours that Mr. Lansdown 23 reasonably spent on this litigation, billed at a rate of $150 per hour, the lodestar amount is $ 24 $57,080.00 ($9,600.00 + $6,500.00 + $25,235.00 + $14,650.00 + $1095.00). In order to award 25 the requested fee award of $166,666.66, the Court would have to apply a multiplier of 26 approximately three. 27 “A strong presumption exists that the lodestar” calculation, without application of a 28 multiplier, “is a reasonable fee.” Jordan v. Multnomah Cnty., 815 F.2d 1258, 1262 (9th Cir. 20 1 1987). “[U]pward adjustments of the lodestar are proper only in ‘rare’ and ‘exceptional’ cases, 2 supported by specific evidence on the record and detailed findings by the district court.” Jordan, 3 815 F.2d at 1262 (quoting Blum v. Stenson, 465 U.S. 886, 898-901 (1984) To determine if a 4 lodestar multiplier is reasonable, courts in this Circuit must consider the twelve Kerr factors: 5 6 7 8 9 (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. 10 Kerr v. Screen Guild Extras, Inc., 526 F.2d 67, 70 (9th Cir. 1975); 11 Although the relevant Kerr factors were discussed above in considering the percentage of the 12 fund method, the Court briefly considers each. Class counsel spent a relatively limited amount of 13 time of this action. The legal questions involved were not particularly complex. Counsel is 14 skilled and experienced. Counsel customarily charges a rate higher than this district routinely 15 permits. Counsel’s customary rate is high, in part because it takes matters on contingency. 16 Counsel has not indicated that Mr. Avila or the factual setting of this action imposed any time 17 limitations. The results obtained for the class are strong. Apparently, some attorneys in the local 18 legal community declined to take the action. The benchmark in this Circuit, and the ordinary 19 award when the percentage of the fund calculation exceeds the lodestar calculation, is to award 20 twenty five percent of the gross fund amount. 21 In light of the strong result for the class, the favorable class reaction, and counsel’s 22 willingness to take the matter on contingency, the Court will award attorney at twenty eight 23 percent (28%) of the gross fund: $140,000.00. That figure represents a relatively high lodestar 24 modifier of approximately two and a half and a percentage above the benchmark to recognize 25 class counsel’s considerable efforts but avoids awarding “windfall profits for class counsel in 26 light of the [limited number of] hours spent on the case.” In re Bluetooth, 654 F. 3d at 942. The 27 remaining five percent difference (between the amount sought and amount awarded) of the gross 28 21 1 fund will be distributed between the class members using the formula agreed upon in the 2 settlement agreement. 3 B. Litigation Costs 4 “[A]n attorney who has created a common fund for the benefit of the class is entitled to 5 reimbursement of reasonable litigation expenses from that fund.” Norris v. Mazzola, 2017 WL 6 6493091, * 14 (N.D. Cal. Dec. 19, 2017); Sanchez, 2015 WL 4662636, *20; accord Smith, 2016 7 WL 2909429, *9 (“An attorney is entitled to ‘recover as part of the award of attorney's fees those 8 out-of-pocket expenses that would normally be charged to a fee paying client.’”) (quoting Harris 9 v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994)). Such expenses regularly include postage, 10 investigation costs, copying costs, hotel bills, meal, messenger services, court costs, electronic 11 research, court reporter costs, delivery fees, and mediation expenses. See, e.g., Ruiz v. XPO Last 12 Mile, Inc., 2017 WL 6513962, *8 (S.D. Cal. Dec. 20, 2017); Leverage v. Traeger Pellet Grills, 13 LLC, 2017 WL 6405619, *7 (N.D. Cal. Dec. 15, 2017). 14 Class Counsel has submitted an itemized list of expenses. Doc. 33 at 24; Doc. 33-1 at 17. 15 The itemized costs include filing fees, service costs, electronic research, and mediation fees. 16 Those costs are reasonable litigation expenses. Counsel’s request for costs in the amount of 17 $6,124.05 will be granted. 18 C. Representative Service Award 19 Representative service awards are “fairly typical in class action cases.” Rodriguez v. West 20 Publ’g Corp., 563 F.3d 948, 958-959 (9th Cir. 2009); see Staton, 327 F.3d at 977. Granting a 21 service award is discretionary; in doing so the court should consider the time and effort expended 22 by the named plaintiff, and the risk undertaken in serving as named plaintiff. Staton, 327 F.3d at 23 977; In re Mego, 213 F.3d at 463. The court should also consider the amount of the service 24 award as compared to the average recovery of the class. In re Online DVD-Rental Antitrust 25 Litig., 779 F.3d at 947. Incentive awards are particularly appropriate in wage-and-hour actions 26 where plaintiffs undertake a significant “reputational risk” by bringing suit against their present 27 or former employers. Rodriguez, 563 F.3d at 958–59. 28 22 1 In this case, the class representative has participated extensively in the prosecution of this 2 action on behalf of the class. Doc. 33-3. Specifically, he assisted in gathering information, 3 discussed the action with counsel, interacted with other of Defendant’s employees regarding the 4 action, and provided the documentation that he had in his possession regarding Defendant’s 5 wage policies. Doc. 33-3 at 2-6. 6 A service award of $5,000.00 is requested for Mr. Avila. That figure is presumptively 7 reasonable in this Circuit. Richardson, 2016 WL 1366952, *13 (citing Harris v. Vector 8 Marketing Corp., 2012 WL 381202, *7 (N.D. Cal. Feb. 6, 2012)); see In re Online DVD-Rental 9 Antitrust Litig., 779 F.3d at 947. Moreover, the proposed incentive award is not dramatically 10 higher than the average class member award. 11 For those reasons, the representative service award of $5,000.00 will be granted to Mr. 12 Avila. 13 D. Administration Costs 14 Courts routinely award administrative costs associated with providing notice to the class. 15 E.g., Schuchardt v. Law Office of Rory W. Clark, 2016 WL 1701349, *17 (N.D. Cal. Apr. 28, 16 2016); Odrick v. Union Bancal Corp., 2012 WL 6019495, *7 (N.D. Cal. Dec. 3, 2012). The 17 settlement provides for up to $8,500.00 to be paid to CPT Group, Inc., as settlement 18 administrator. That amount is reasonable and will be awarded. 19 20 V. Order Based on the foregoing, IT IS HEREBY ORDERED THAT: 21 1. Plaintiff's Motion for Final Approval of the Settlement Agreement is GRANTED; 22 2. Plaintiff's request for certification of the Settlement Class is GRANTED and defined as 23 24 25 follows: All non-exempt positions at Cold Spring facilities in Raymond, California and Clovis, California from October 11, 2012 through August 16, 2017. 3. The above-defined settlement class has met all of the Rule 23(a) and (b)(3) requirements; 26 4. The terms of the proposed Settlement Agreement are found to be fair, adequate and 27 reasonable and comply with Rule 23(e) of the Federal Rules of Civil Procedure; 28 23 1 5. The notice provided to the settlement class members, as well as the means by which it 2 was provided, constitutes the best notice practicable under the circumstances and is in full 3 compliance with the United States Constitution and the requirements of Due Process and 4 Rule 23 of the Federal Rules of Civil Procedure. Further, that such notice fully and 5 accurately informed settlement class members of all material elements of the lawsuit and 6 proposed class action settlement, and each member's right and opportunity to object to 7 the proposed class action settlement; 8 9 10 11 6. Plaintiff’s motion for attorneys’ fees, costs, and representative service award is GRANTED in part and DENIED in part; 7. Plaintiff Joseph Avila is appointed as a suitable class representative for the settlement class and awarded $5,000.00 as a representative service payment; 12 8. Hoyer & Hicks and United Employees Law Group, PC are appointed as class counsel for 13 the settlement class, and are awarded $140,000.00 in attorneys’ fees and $6,124.05 in 14 costs; 15 16 17 9. The settlement administrator CPT Group, Inc., is awarded to up to $8,500.00 for settlement administration costs; 10. The Court directs the parties to effectuate the settlement terms as set forth in the 18 Settlement Agreement, integrating into the class member payment the additional five 19 percent of the gross fund amount sought but not awarded to class counsel, and the 20 settlement administrator to calculate and pay the claims of the class members in 21 accordance with the terms set forth in the Settlement Agreement and the following 22 schedule: Effective Date 23 February 15, 2018 25 26 27 Defendant to wire the Gross Settlement Fund to CPT No later than Group 24 March 1, 2018 Fees and costs, Class Representative awards, Call awards No later than to be paid by CPT Group March 15, 2018 CPT to stop payment on checks for Class Members who 120 days after 28 24 1 2 3 receive a payment but do not cash the settlement check. issuance of class CPT to transmit the funds designated for but not paid to awards. class members to the State of California’s Unclaimed Property Fund. 4 5 6 7 8 11. By means of this Final Approval Order, this Court hereby enters final judgment in this action, as defined in Rule 58(a)(1), Federal Rules of Civil Procedure; 12. The Court retains jurisdiction to consider all further applications arising out of or in connection with the Settlement. 9 IT IS SO ORDERED. 10 Dated: January 11, 2018 11 SENIOR DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25

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