Charles W. Cooley v. Indian River Transport Co.

Filing 79

ORDER and MEMORANDUM by Senior Judge William B. Shubb on 05/10/19 GRANTING 77 Motion for Final Approval of Class Action Settlement. CASE CLOSED (Benson, A.)

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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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CHARLES W. COOLEY, GRADY
ANDERSON, and NICHOLAS MARONE on
behalf of themselves and all
others similarly situated,

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No. 1:18-cv-00491

ORDER AND MEMORANDUM RE:
FINAL APPROVAL OF CLASS
SETTLEMENT

Plaintiffs
v.
INDIAN RIVER TRANSPORT CO., a
Florida Corporation, and DOES 110, inclusive,
Defendant.

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----oo0oo---Plaintiffs Charles W. Cooley, Grady Anderson, and
Nicholas Marone were formerly employed by Indian River Transport
Co. (“Indian River”) as truck drivers.
¶¶ 1-3 (Docket No. 55).)

(First Am. Compl. (“FAC”)

They brought this putative class action

on behalf of themselves and similarly aggrieved employees.
allege that Indian River committed various violations of

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They

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California law1 by failing to inform its drivers they were

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entitled to paid meal or rest breaks, not compensating them for

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rest breaks and other time they were working but not driving, and

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by providing them with wage statements that did not include all

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the information required by the Labor Code.

(Id. ¶¶ 7-9.)

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The parties reached a settlement which would resolve

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plaintiffs’ claims against defendant, and the court previously

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granted preliminary approval of that settlement.

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71.)

(Docket No.

Plaintiffs now move for final approval of the settlement

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pursuant to Federal Rule of Civil Procedure 23(e).

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I.

Factual and Procedural Background

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Defendant Indian River is a food-grade tank carrier

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providing transportation throughout the United States; though

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defendant’s headquarters are in Florida, it has a facility,

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clients, and employee drivers in California.

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varying points between September 2011 and October 2017,

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plaintiffs were employed by defendants to drive routes in and

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through California.

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complaint arise out of plaintiffs’ work for defendant and concern

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defendants’ alleged pay and wage statement practices.2

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Specifically, plaintiffs allege violations of
California Labor Code §§ 226 & 512; 226.7; 1194; and 200-03.
Plaintiffs also allege violations of California Business and
Professions Code Section 17200, et seq.

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At

The claims asserted in the

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These claims are substantively very similar to those
brought by former Indian River truck drivers Todd Shook and
Herschel Berringer. See Shook v. Indian River Transp. Co., 236
F. Supp. 3d 1165 (E.D. Cal. 2017), aff’d, 716 F. App’x 589 (9th
Cir. 2018). Following a bench trial, the district court entered
a judgment for defendants in that case. The court ruled that
plaintiffs’ claims were barred because Indian River had made Safe
Harbor payments under California Labor Code § 226.2, and
therefore had an affirmative defense to allegations regarding its
failure to properly compensate its employees for rest periods and
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(Id. ¶¶ 1-3.)

(FAC ¶ 4.)

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Plaintiffs filed this case in May 2017 in Orange County

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Superior Court.

Defendant removed the case to the United States

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District Court for the Central District of California (Docket No.

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3) and then, in March 2018, the case was transferred to this

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district (Docket No. 2).

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complaint in June 2018 (Docket No. 55) and, in September 2018,

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the parties engaged in a full-day mediation in Irvine, CA.

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the end of the day, the parties had reached an agreement and

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executed a memorandum of understanding codifying their intention

Plaintiffs filed a first amended

By

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to settle all claims of plaintiffs and the putative class against

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defendant for $1.4 million.

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Preliminary Approval of Class Action Settlement at 3-4 (Docket

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No. 67).)

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(Mem. in Supp. of Mot. for

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: “all persons who were employed by Indian River

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Transport Co. as a truck driver at any time during the period

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from April 7, 2013 through January 23, 2019, and performed work

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for Indian River for at least one full day in the State of

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California at any time.”

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Class Settlement at 24 (Docket No. 71).)

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Charles W. Cooley, Grady Anderson, and Nicholas Marone as class

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representatives, the Desai Law Firm as class counsel, and Rust

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Consulting, Inc. (“Rust”) as settlement administrator. (Id.)

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court also approved the notice of settlement and final approval

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other breaks in the period between July 1, 2012 and December 31,
2015. Id. at 1175. Since neither plaintiff had worked for
Indian River during the post-Safe Harbor period, i.e. after
January 1, 2016, their claims against Indian River were barred.
Id.
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(Order re: Preliminary Approval of
The court appointed

The

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hearing and opt-out form.

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hearing for May 6, 2019.

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

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

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all papers in support of the settlement, incentive award, fees,

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and costs; and a declaration from the settlement administrator

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setting forth the services rendered, proof of mailing, and a list

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of all class members who have commented upon or objected to the

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settlement.

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The court set the final fairness
(Id. at 25.)

It directed class counsel

(Id. at 24-25.)

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 enhancement awards for the representative

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plaintiffs, 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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and preliminarily approves the settlement, with final approval
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In the first phase, the court

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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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that a proposed class action settlement deserves preliminary

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approval, then notice of the action is given to the class

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members.

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Ontiveros v.

If a court, as it did in this case, determines

In the second phase, the court holds a fairness hearing

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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.

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266 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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Servs., Inc., No. 1:15-CV-1490 LJO EPG, 2018 WL 3201764, at *3

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(E.D. Cal. June 28, 2018), report and recommendation adopted, No.

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1:15-CV-1490 LJO EPG, 2018 WL 4027017 (E.D. Cal. Aug. 22,

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2018)(“Following the fairness hearing, taking into account all of

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the information before the court, the court must confirm that

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class certification is appropriate, and that the settlement is

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fair, reasonable, and adequate.”).

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See Murillo v. Pac. Gas & Elec. Co.,

See

Following the

Mora v. Cal W. Ag

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.

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

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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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In the settlement context, the court’s careful scrutiny

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

(1997).

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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).

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known as numerosity, commonality, typicality, and adequacy of

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representation, respectively.

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the court must evaluate Rule 23(a)’s requirements independently,

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they serve a common purpose of “ensur[ing] that the named

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plaintiffs are appropriate representatives of the class whose

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claims they wish to litigate.”

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564 U.S. 338, 349 (2011).

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These requirements are more commonly

See Leyva, 716 F.3d at 512.

While

Wal-Mart Stores, Inc. v. Dukes,

In the court’s order granting preliminary approval of

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the settlement, the court found that the putative class satisfied

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the numerosity, commonality, and typicality requirements of

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23(a).

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adequacy of representation.

However, the court expressed some concerns about the
The court is unaware of any changes
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that would alter its analysis as to numerosity, typicality, or

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commonality, and because the parties did not indicate at the

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fairness hearing that they were aware of any such developments,

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the court finds these requirements satisfied. The court will thus

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focus its Rule 23(a) analysis on evaluating adequacy of

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representation for purposes of 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 settlement, the court

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expressed concern that the requested $10,000 incentive awards for

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class representatives were disproportionately large relative to

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the average class member’s recovery of $374.

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Preliminary Approval at 9-11.)

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individual payment of $450.14 is somewhat larger than the

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projected average recovery, it is still approximately just one-

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twentieth of the requested incentive rewards.

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

In the order

(Order Re:

Though the final average

Plaintiffs Cooley, Anderson, and Marone each submitted
a declaration in support of Plaintiffs’ Motion for Final
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approval.

(Docket No. 77-8.)

These declarations lay out, in

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moderate detail, each named plaintiff’s contributions to the

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class.

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200 hours assisting his attorneys in the prosecution of this

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matter.

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attended in person and telephonic meetings with plaintiffs’

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counsel, and participated in mediation.

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Plaintiffs Anderson and Marone both estimate that they spent

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between 55 and 75 hours assisting class counsel with the

Plaintiff Cooley declares that he spent between 175 and

(Cooley Decl. ¶ 11)

He participated in discovery,

(Id. ¶¶ 5, 7, 10.)

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prosecution of this case (Anderson Decl. ¶ 9; Marone Decl. ¶ 9).

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Like Plaintiff Cooley, their contributions encompassed submitting

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declarations when requested, participating in discovery, and

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regularly conferring with class counsel. (Anderson Decl. ¶¶ 5, 7;

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Marone Decl. ¶¶ 5, 7).

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The court is satisfied with the evidence of plaintiffs’

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substantial efforts taken as class representatives.

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plaintiffs’ contributions to the prosecution of this action, the

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court finds that the requested $10,000 incentive awards are

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reasonable and will not impair the alignment of plaintiffs’

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interests and those of the class.

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In light of

Because the order granting preliminary approval also

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found the second step of the adequacy analysis satisfied (Order

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Re: Preliminary Approval at 11), and nothing has come to the

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court’s attention that would change its analysis, the court

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determines that plaintiffs are adequate class representatives.

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An action that meets all the prerequisites of Rule

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23(a) may only be certified as a class action if it also

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satisfies the requirements of one of the three subdivisions of
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Rule 23(b).

Leyva, 716 F.3d at 512.

Plaintiffs seek

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certification under Rule 23(b)(3), which provides that a class

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action may be maintained only if (1) “the court finds that

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questions of law or fact common to class members predominate over

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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.

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14.)

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conclusion.

(Order Re: Preliminary Approval at 12-

The court is unaware of any changes that would affect this

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

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certification to the proposed class.

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B.

Rule 23(c)(2) Notice Requirements
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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v. Mabon, 18 F.3d 1449 (9th Cir. 1994).

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

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inform the absent members of the plaintiff class”.

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(quoting In re Victor Techs. Sec. Litig., 792 F.2d 862, 865 (9th

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Cir. 1986).)

Actual notice is not required.

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Fed.
Silber

The notice provided to

Id. at 1454

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As provided by the Settlement Agreement, the settlement

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administrator, Rust, mailed notice of the settlement to the last

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known address of all class members.

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No. 77-9).)

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update the class list.

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notice packet was returned as undeliverable without a forwarding

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address, Rust performed an address trace.

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Ultimately, only 37 notices of 1,920 were undeliverable because

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Rust was unable to find a correct address. (Id.)

(Schwartz Decl. ¶ 9 (Docket

Rust used the National Change of Address Database to
(See id. ¶ 8.)

If a class member’s

(Id. ¶ 10.)

The court is

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satisfied that this system of providing notice was reasonably

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calculated to provide notice to class members and was the best

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form of notice available under the circumstances.

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Likewise, the notice itself clearly identified the

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options available to putative class members -- do nothing,

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dispute, or opt out -- and comprehensively explained the nature

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and mechanics of the settlement.

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The content of the notice is therefore sufficient to satisfy Rule

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23(c)(2)(B).

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566, 575 (9th Cir. 2004) (“Notice is satisfactory if it

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‘generally describes the terms of the settlement in sufficient

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detail to alert those with adverse viewpoints to investigate and

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to come forward and be heard.’” (quoting Mendoza v. Tucson Sch.

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Dist. No. 1., 623 F.2d 1338, 1352 (9th Cir. 1980))).
C.
Rule 23(e): Fairness, Adequacy, and Reasonableness of
Proposed Settlement

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(See Schwartz Decl. Ex. A.)

See Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d

Having determined that the proposed class satisfies the

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

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terms of the parties’ settlement appear fair, adequate, and

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reasonable.

See Fed. R. Civ. P. 23(e)(2).
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This process requires

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the court to “balance a number of factors,” 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.
1.

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The court will address each in turn

Strength of Plaintiff’s Case

An important consideration is the strength of
plaintiff’s case on the merits compared to the settlement amount
offered.

DIRECTV, 221 F.R.D. at 526.

The court, however, is not

required to reach an ultimate conclusion of the merits, “for it
is the very uncertainty of outcome in litigation and avoidance of
wastefulness and expensive litigation that induce consensual
settlements.”

Officers for Justice v. Civ. Serv. Comm’n of City

& Cty of S.F., 688 F.2d 615, 625 (9th Cir. 1982).
Plaintiffs allege claims under the California Labor
Code and California’s Unfair Competition Law arising out of their
employment as truck drivers who work, or worked, for defendant
Indian River in the State of California.

Specifically,

plaintiffs claim that they were not separately compensated for
breaks and non-driving work and that they were not issued
accurate wage statements.

If this case were to proceed to trial,

defendant would likely argue that plaintiffs’ claims are barred
by res judicata.

(Mot. for Preliminary Approval at 11 (Docket

No. 7).)
In comparing the strength of plaintiff’s case with the
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proposed settlement, the court finds that the proposed settlement

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is a fair resolution of the issues in this case.
2.
Risk, Expense, Complexity, and Likely Duration of
Further Litigation

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Further litigation could greatly delay resolution of

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this case and increase expenses.

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parties would have had to litigate class certification, which

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would have required additional discovery, time, and expense.

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Appeals are also likely in this case and create additional

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uncertainty and delay.

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Prior to any judgment, the

(Id. at 12.)

These factors weigh in

favor of settlement of the action.
3.
Risk of Maintaining Class Action Status Throughout
Trial

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The court is unaware of any specific difficulty in

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maintaining class-action status in this case were the matter to

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continue to trial.

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“very real risk that the case would not be certified” (Desai

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Decl. P 25 (Docket No. 67-1), he does not reference any specific

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future development that could upset certification.

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the court will not consider this factor in its analysis. See In

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re Veritas Software Corp. Sec. Litig., No. 03-0283, 2005 WL

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3096079, at *5 (N.D. Cal. Nov.15, 2005) (favoring neither

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approval nor disapproval of settlement where the court was

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“unaware of any risk involved in maintaining class action

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status”), aff’d in relevant part, 496 F.3d 962 (9th Cir. 2007).

Although plaintiff’s counsel describes a

Accordingly,

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4.

Amount Offered in Settlement

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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.

See In re Tableware Antitrust Litig., 484 F. Supp. 2d
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1078, 1080 (N.D. Cal. 2007).

This inquiry may involve

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consideration of the uncertainty class members would face if the

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case were litigated to trial.

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*14.

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over $12,000,000.

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upon the defendant’s Notice of Removal (Docket No. 3), which

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stated the amounts in controversy for plaintiff’s causes of

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action as follows: (1) $2,663,250 for failure to advise employees

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of right to take meal breaks; (2) $2,663,250 for failure to

See Ontiveros, 2014 WL 3057506, at

Plaintiffs’ counsel estimates defendant’s total exposure at
(Desai Decl. ¶ 25.)

This estimate is based

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advise employees of right to take rest breaks; (3) $3,309,026 for

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failure to pay all wages for sleeper berth time (for the

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California resident class only); and (4) $3,960,504 for waiting

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time penalties.

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(Notice of Removal ¶ 40.)

The proposed gross settlement amount of $1.4 million is

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just over 11% of the estimated potential recovery in this case.

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Class counsel represents that the $12 million pretrial recovery

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does not account for the delay of litigation; the risk that the

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class may not be certified; or the possibility that some claims

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may fail.

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far less than the plaintiffs could have potentially secured had

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the case gone to trial, it is not plainly deficient.

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Officers for Justice, 688 F.2d at 628 (“It is well-settled law

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that a cash settlement amounting to only a fraction of the

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potential recovery will not per se render the settlement

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inadequate or unfair.”)

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of further litigation in this matter, the court finds the

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settlement amount to be fair and adequate.

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(Desai Decl. ¶ 25.)

5.

Though this settlement represents

See

Thus, in light of the risks and expense

Extent of Discovery and the State of Proceedings
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This matter was initially filed in state court and then

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removed to the United States District Court for the Central

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District.

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issued a scheduling order setting out discovery deadlines.

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(Docket No. 22.)

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Certification.

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stayed pending the resolution of a Motion to Change Venue filed

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by defendant Indian River Transport.

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plaintiffs opposed defendant’s Motion to Transfer Venue,

(Mot for Prelim. Approval at 3.)

There, Judge Carter

Plaintiffs then filed a Motion for Class

(Docket No. 33.)

Adjudication of that motion was

(Docket No. 39.)

Though

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defendant prevailed, and the case was transferred to the Eastern

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District of California.

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(Docket No. 41.)

The parties engaged in a full day of mediation before

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Judge Gail Andler (Ret.) in Irvine, CA

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settlement before discovery or motion deadlines were set by this

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court.

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settlement was facilitated by the parties previous participation

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in Shook v. Indian River Transport Co., No. 1:14-CV-1415 WBS BAM,

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a related case which culminated in a two-day bench trial and an

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appeal to the Ninth Circuit.

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although this factor is not essential to the settlement of a

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class action, see Lachance v. Harrington, 965 F. Supp. 630, 644–

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45 (E.D. Pa. 1997), the court finds that, on balance, it weighs

23

slightly in favor of settlement in this case.

(See Docket Nos. 59 & 62.)

and ultimately reached a

This relatively early

(See Desai Decl. ¶ 9.)

Thus,

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6.

Experience and Views of Counsel

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Plaintiff’s counsel has extensive experience litigating

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class actions, including those involving employment law and wage

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and hour enforcement. (Desai Decl. ¶¶ 11-12 (Docket No. 67-1).)

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Based on his experience, plaintiff’s counsel believes the
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proposed settlement is fair, reasonable, and adequate to the

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class members. (Mot. for Final Approval at 12.)

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considerable weight to class counsel’s opinions regarding the

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settlement due to counsel’s experience and familiarity with the

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litigation.

6

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

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supports approval of the settlement agreement.

The court gives

Alberto v. GMRI, Inc., No. CIV 07-1895 WBS DAD, 2008
This factor thus

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7.

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No governmental entity participated in this matter;

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Presence of Government Participant

this factor, therefore, is irrelevant to the court’s analysis.
8.
Reaction of the Class Members to the Proposed
Settlement

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Notice of the settlement was sent to 1,920 class

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members and only eight class members submitted requests for

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exclusion prior to the March 25, 2019 deadline. (Schwartz Decl. ¶

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13.)

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established that the absence of a large number of objections to a

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proposed class action settlement raises a strong presumption that

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the terms of a proposed class settlement action are favorable to

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the class members.”

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this factor weighs in favor of the court’s approval of the

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settlement.

No class members have objected. (Id. ¶ 14.) “It is

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

Accordingly,

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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D.

Attorney’s Fees and Costs
If a negotiated class action settlement includes an

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award of attorney’s fees, 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

2

amount.”

3

935, 941 (9th Cir. 2011).

4

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

When, as in the instant case, a federal court sits in

5

diversity, state law governs the right to fees as well as the

6

calculation of fees.

7

Comm’n, 67 F.3d 1470 (9th Cir. 1995).

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number of persons are entitled in common to a specific fund, and

9

an action brought by a plaintiff or plaintiffs for the benefit of

See Mangold v. California Pub. Utils.
In California, “when a

10

all results in the creation or preservation of that fund, such

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plaintiff or plaintiffs may be awarded attorneys’ fees out of the

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fund.”

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Serrano v. Priest, 20 Cal. 3d 25, 34 (1977).
California courts calculating a reasonable award of

14

attorneys’ fees may do so either by taking a percentage of the

15

benefit secured for the class, or by using a lodestar.

16

Richardson v. THD At-Home Servs., Inc., No. 1:14-CV-0273-BAM,

17

2016 WL 1366952, at *7 (E.D. Cal. Apr. 6, 2016).

18

is no “definitive set of factors that California courts mandate

19

or endorse for determining the reasonableness of attorneys’ fees

20

in the context of a common-fund percentage-of-the-benefit

21

approach.”

22

Circuit case law on the reasonableness of attorneys’ fee awards

23

in evaluating plaintiffs’ counsel’s request.

24

Id.

However, there

Accordingly, this court will turn to Ninth

See id.

Given that the percentage method is particularly

25

appropriate in common fund cases where “the benefit to the class

26

is easily quantified,” Bluetooth, 654 F.3d at 942, this court

27

will use the percentage method in evaluating plaintiffs’

28

counsel’s requested fees.

The Ninth Circuit has approved a
16

1

“benchmark” percentage of 25%, and courts may adjust this figure

2

upwards or downwards if the record shows “‘special circumstances’

3

justifying a departure.”

4

Ariz. Citrus Growers, 904 F.2d 1301, 1311 (9th Cir. 1990).

5

evaluating whether a percentage fee award is reasonable, the

6

court may consider factors such as, inter alia, the results

7

secured for the class, awards in similar cases, and the degree of

8

risk assumed by counsel.

9

No. 1:05-CV00484 DLB, 2007 WL 3492841, at *3 (E.D. Cal. Nov. 14,

Id. (quoting Six (6) Mexican Workers v.
In

Romero v. Producers Dairy Foods, Inc.,

10

2007).

11

award have also considered the presence, or absence, of

12

objections to the award from class members.

13

Bond Litig., No. 02-ML-1475 DT, 2005 WL 1594403, at *21 (C.D.

14

Cal. June 10, 2005) (“The absence of objections or disapproval by

15

class members to Class Counsel’s fee request further supports

16

finding the fee request reasonable.”)

17

Courts evaluating the reasonableness of an attorney fee

See In re Heritage

The total settlement in this case is $1,400,000.

18

Applying the 25% benchmark, the percentage of recovery method

19

would justify a fee award of $350,000.

20

however, that an award of $462,000, or 33% of the common fund, is

21

more appropriate in this case.

22

Approval of Class Action Settlement at 25.)

23

Plaintiffs argue,

(Mem. in Supp. of Mot. for Final

There are several factors that collectively indicate

24

the reasonableness of the requested fee award.

25

counsel secured a favorable settlement for the class: each class

26

member who did not opt out will receive an average of $450.14

27

without having to make a claim or submit documentation.

28

21.)

Second, class counsel litigated
17

First, class

this matter on a

(Id. at

1

contingency basis (Desai Decl. ¶ 6) and, in doing so, assumed a

2

significant risk that they would not be compensated for this

3

work.

4

plaintiff’s counsel has invested a total of 553 attorney and

5

paralegal hours in this case and have not yet received any

6

payment for them.

7

class actions that result in a common fund of less than $10

8

million, “California district courts usually award attorneys'

9

fees in the range of 30–40%.”

In the nearly two years since this case began in May 2017,

(Desai Decl. ¶ 8.)

Third, in wage and hour

Miller v. CEVA Logistics USA,

10

Inc., No. 2:13-CV-01321 TLN, 2015 WL 4730176, at *8 (E.D. Cal.

11

Aug. 10, 2015).

12

Inc., 266 F.R.D. 482, 492 (E.D. Cal. 2010) (holding that an

13

attorney’s fee award of approximately 33.3% of the total recovery

14

was “fair and reasonable” in a wage and hour class action with a

15

gross settlement payment of $300,000).

16

supporting the reasonableness of the requested fee award is the

17

lack of objections from class members to the proposed award.

18

(See Schwartz Decl. ¶ 14.)

19

See, e.g., Vasquez v. Coast Valley Roofing,

A fourth and final factor

Thus, in light of the result plaintiffs’ counsel

20

obtained for class members, the risks counsel incurred by taking

21

this case on a contingency basis, the fees usually awarded in

22

these types of cases, and the absence of objections to the

23

requested fee award, the court finds that one third of the common

24

fund is a reasonable award.

25

the award of attorneys’ fees in the amount of $462,000.

26

Accordingly, the court will allow

In its order granting preliminary approval of the

27

proposed class settlement, the court expressed skepticism about

28

class counsel’s request for an award of $27,326.55 in costs.
18

1

(Order Re: Preliminary Approval of Class Settlement at 23.)

That

2

figure included not only expenses associated with this matter,

3

but also those associated with Shook v. Indian River Transport

4

Co., No. 1:14-CV-1415 WBS BAM, and the court stated that

5

“plaintiff has not convincingly shown that the class members in

6

this case ought to pay for the loss in Shook.”

7

Preliminary Approval of Class Settlement at 23.)

8

Final Approval and for Attorney’s Fees and Costs addresses this

9

concern by requesting reimbursement for only those costs

(Order Re:
The Motion for

10

associated with this matter.

11

The court has reviewed the class counsel’s costs workbook (Docket

12

No. 67-7) and finds that the requested $10,000 costs’ award to be

13

reasonable.3

14

are routinely and properly reimbursed, i.e. transcription,

15

mediation, and court filing costs.

16

allow the award of costs in the amount of $10,000.

17

(Mot. for Final Approval at 24-25.)

All of the requested expenses are for services that

Accordingly, the court will

IT IS THEREFORE ORDERED that plaintiffs' motion for

18

final approval of the class and class action settlement be, and

19

the same hereby is, GRANTED.

20

IT IS FURTHER ORDERED THAT:

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

21

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

22

certifies the following class:

23

All persons who were employed by Indian River

24

Transport Co. as a truck driver at any time during the

25

period from April 7, 2013 through January 21, 2019,

26

and performed work for Indian River for at least one

27
28

The requested $10,000 is also slightly less than the
$10,218.45 in costs class counsel expended on this matter.
19
3

1
2

full day in the State of California at any time.
(2) the court appoints the named plaintiffs Charles W.

3

Cooley, Grady Anderson, and Nicholas Marone as representatives of

4

the class and finds that they meet the requirements of Rule 23;

5

(3) the court appoints Desai Law Firm, P.C., as counsel

6

to the settlement class, and finds that counsel meets the

7

requirements of Rule 23;

8
9

(4) the Settlement Agreement’s plan for class notice
is the best notice practicable under the circumstances and

10

satisfies the requirements of due process and Rule 23. The plan

11

is approved and adopted.

12

Rule 23(c)(2) and Rule 23(e) and is approved and adopted.

13

The notice to the class complies with

(5) having found that the parties and their counsel

14

took appropriate efforts to locate and inform all putative class

15

members of the settlement, and given that no class members filed

16

an objection to the settlement, the court finds and orders that

17

no additional notice to the class is necessary;

18

(6) as of the date of the entry of this order,

19

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

20

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

21

finally, and forever released, settled, compromised,

22

relinquished, and discharged defendants of and from any and all

23

settled claims, pursuant to the release provisions stated in the

24

parties’ Settlement Agreement;

25
26
27
28

(7) plaintiff’s counsel is entitled to fees in the
amount of $462,000 and costs in the amount of $10,000.
(8) the named plaintiffs are each entitled to an
incentive payment of $10,000; and
20

1

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

2

without affecting the finality of this order, the court shall

3

retain continuing jurisdiction over the interpretation,

4

implementation, and enforcement of the settlement agreement with

5

respect to all parties to this action and their counsel of

6

record.

7
8

The Clerk is instructed to enter judgment accordingly.
Dated:

May 10, 2019

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