Rodriguez v. Penske Logistics, LLC

Filing 47

ORDER signed by District Judge Kimberly J. Mueller on 1/17/2019 GRANTING 41 final approval of the settlement. The court AWARDS the class counsel attorney's fees of $265,000.00. The court AWARDS the class counsel reimbursement of costs in the amount of $900.69. The court AWARDS an incentive payment to Rodriguez of $3,000.00. The parties and the settlement administrator shall perform their respective obligations under the terms of the settlement agreement. In accordance with the parties' stipulation at hearing, the case is DISMISSED with prejudice.CASE CLOSED (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHARLES RODRIGUEZ, individually
and on behalf of all similarly situated
current and former employees,

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Plaintiff,

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No. 2:14-cv-02061-KJM-CKD

ORDER

v.
PENSKE LOGISTICS, LLC, a Delaware
Limited Liability company, and DOES 1
through 10, inclusive,

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Defendants.

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This matter is before the court on named plaintiff’s unopposed motion for final

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approval of class action settlement and for attorney’s fees and costs. ECF No. 41. The court held

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a hearing on the matter on January 26, 2018. As explained below, the court GRANTS plaintiff’s

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motion.

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I.

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BACKGROUND
A.

Factual and Procedural Background
Named plaintiff Charles Rodriguez worked for defendant Penske as a driver for

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nearly fifteen years, during which he worked as a non-exempt employee, paid on a “by-the-mile”

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or “piece rate” basis. Prelim. Order at 2, ECF No. 40.
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Rodriguez asserts eight claims on behalf of the putative class: (1) failure to pay

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minimum wages, Cal. Lab. Code §§ 510, 1194; (2) failure to provide paid ten-minute rest periods,

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id. § 226.7; (3) failure to provide duty-free rest periods or compensation in lieu thereof, id.

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§§ 226.7, 512; (4) failure to provide duty-free meal periods or compensation in lieu thereof, id.

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§§ 226.7, 512; (5) knowing and intentional failure to provide itemized wage statements, id.

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§ 226(a)–(b); (6) failure to pay wages at termination, id. §§ 201–203; (7) violations of the Unfair

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Competition Law, Cal. Bus. & Prof. Code §§ 17200–08; and (8) violations of the Private

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Attorneys General Act (“PAGA”), Cal. Lab. Code § 2698, et seq. See Compl. generally.

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In support of his claims, Rodriguez alleges Penske did not pay for pre- and post-

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trip inspections, and Penske’s piece rate payment did not account for ten-minute rest breaks that

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should have been and were not compensated. Compl. ¶¶ 42–47. Rodriguez further alleges he

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was subject to policies that did not permit him to be relieved of all duties during break periods;

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was subject to an improper accounting policy; was not paid premium wages, or at least minimum

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wage, for non-compliant break periods; was provided inaccurate itemized wage statements for

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which the basis for pay and calculation could not be performed by a reasonable person; and was

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not timely paid all wages owed and due upon separation. Compl. ¶¶ 42–64.

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Rodriguez filed his class action complaint in this court on September 5, 2014. In

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January 2015, the court issued an initial scheduling order, which created a cut-off for dispositive

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motions to be heard no later than June 16, 2016. ECF No. 20. After neither of the parties timely

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filed a dispositive motion, the court advanced the date of the final pretrial conference. ECF

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No. 21. The parties then asked for additional time in light of their pending negotiations, which

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the court granted. ECF Nos. 22–23. On October 3, 2016, the parties filed a joint notice of

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settlement. ECF No. 25.

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B.

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Preliminary Class Settlement Approval
Rodriguez filed an unopposed motion for preliminary approval of class settlement

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on November 16, 2016, ECF No. 27, and the court granted the motion preliminarily approving the

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settlement on September 19, 2017. ECF No. 40. The parties’ stipulation to conditional

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certification of the class, coupled with the court’s independent Rule 23 inquiry, led the court to

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conditionally certify the following class:

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All California-based non-exempt truck driver employees who
worked under a ‘piece rate’ or ‘pay-by-the-mile’ compensation
policy from September 5, 2010 through to the earlier of
(a) Preliminary Approval of the Court or (b) November 1, 2016.

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Prelim. Order at 2, 14.

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The court’s preliminary approval order identified concerns regarding attorney’s

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fees that the court noted would need to be addressed prior to final approval. Specifically, the

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court noted “[a]t the final approval stage, plaintiff will have to justify this amount under a

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percentage-of-recovery theory or a lodestar method.” Prelim. Order at 17. This concern is

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addressed below in the discussion of attorney’s fees.

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The court’s other main concern at the preliminary approval stage was the newly

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enacted safe harbor provision for trucking companies under California’s AB 1513. Prelim. Order

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at 16. This case is only properly understood in the context of the recent change in the law

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effected by AB 1513. The adoption of AB 1513 significantly reduced the value of the claims in

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this case because, as explained in the preliminary order, it reduces defendant’s liability at

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defendant’s unilateral option.1 Prelim. Order at 3, 13–14, 16. That said, defendant would have to

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pay $755,272 to take advantage of the safe harbor’s four-percent-of-reported-wages option for all

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class members. Desai Decl. ¶ 5, ECF No. 27-2. The incentives and disincentives resulting from

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the law’s passage are discussed below.

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C.

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Key Terms of Settlement Agreement
Under the parties’ settlement agreement, defendant agrees to pay a gross

settlement amount (“GSA”) of $850,000. Settlement Agreement, ECF No. 27-1. The GSA is

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As explained in the court’s preliminary order, AB 1513’s safe harbor provision creates
an affirmative defense for employers. To use this defense, an employer must: make payments to
current and former employees using either payment formula, Cal. Lab. Code § 226.2(b)(1),
provide notice of payment to employees through the Department of Industrial Relations, id.
§ 226.2(b)(3), begin making payments “as soon as reasonably feasible” after notice is given and
complete making payments by December 15, 2016, id. § 226.2(b)(4). Prelim. Order at 13–14.
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inclusive of all individual class settlement payments, enhancement awards, settlement class

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counsel’s fees and costs, PAGA penalty payments, taxes attendant to distributions, and all

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administration costs. Mot. for Final Approv. at 4, ECF No. 41. Upon approval, the GSA of

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$850,000 will be distributed as follows:

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The total enhancement amount paid to named plaintiff will be $3,000;

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The class administrator will receive $16,000;

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3.

The PAGA payment is $10,000, all of which is to be paid to the California

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Labor Workforce Development Agency as provided by California Labor Code

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§ 2699(i);

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Class Counsel will receive $265,000, or 31.2% of the GSA; and

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The amount paid to class counsel for litigation expenses will be $900.69.

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Id. at 1–2. After deducting these distributions from the GSA, the settlement amount available to

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putative class members will be $555,099.31 ($850,000 – $294,900.69). Id.

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D.

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Notice to and Response from Class Members
The putative class consists of 770 members. Schwartz Decl. ¶ 7, ECF No. 41-9.

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On October 17, 2017, the class administrator sent notice packets to all members listed. Id. ¶ 9. If

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a member’s notice was returned as undeliverable and without a forwarding address, the

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administrator performed an advanced address search using the class member’s name, previous

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address, and social security number to locate a current address. Id. ¶ 10. Through the advanced

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searches, the administrator located twenty-two updated addresses, to which it sent notice packets.

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Id. Ultimately, twenty-nine members’ notices were undeliverable because the class administrator

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was unable to locate current addresses for them. Id. The class administrator received five opt-

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outs from the settlement, but no objections to the settlement. Id. ¶¶ 12–13.

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II.

CLASS CERTIFICATION

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Although the parties have stipulated to final certification of the class, the court

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must nevertheless undertake the Rule 23 inquiry independently. West v. Circle K Stores, Inc.,

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No. CIV. S-04-0438 WBS GGH, 2006 WL 1652598, at *1–2 (E.D. Cal. June 13, 2006) (citing,

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inter alia, Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 622 (1997)). A party seeking to certify
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a class must demonstrate the class meets the requirements of Federal Rule of Civil Procedure

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23(a) and at least one of the requirements of Rule 23(b). Amchem, 521 U.S. at 614 (1997).

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Under Rule 23(a), before finally certifying a class, the court must be satisfied that:

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(1) the class is so numerous that joinder of all members is impracticable (the “numerosity”

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requirement); (2) there are questions of law or fact common to the class (the “commonality”

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requirement); (3) the claims or defenses of representative parties are typical of the claims or

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defenses of the class (the “typicality” requirement); and (4) the representative parties will fairly

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and adequately protect the interests of the class (the “adequacy of representation” requirement).

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Collins v. Cargill Meat Sols. Corp., 274 F.R.D. 294, 300 (E.D. Cal. 2011); Fed. R. Civ. P. 23(a).

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Where, as here, Rodriguez seeks certification under Rule 23(b)(3), ECF No. 40,

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the court must find also that “‘questions of law or fact common to class members predominate

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over any questions affecting only individual members, and that a class action is superior to other

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available methods for fairly and effectively adjudicating the controversy.’” Wal–Mart Stores,

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Inc. v. Dukes (“Dukes”), 564 U.S. 338, 362 (2011) (quoting Fed. R. Civ. P. 23(b)(3)). The

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matters pertinent to these findings include: (A) the class members’ interests in individually

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controlling the prosecution or defense of separate actions; (B) the extent and nature of any

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litigation concerning the controversy already begun by or against class members; (C) the

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desirability or undesirability of concentrating the litigation of the claims in the particular forum;

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and (D) the likely difficulties in managing the class action. Fed. R. Civ. P. 23(b)(3)(A)–(D); see

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also Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1189–92 (9th Cir. 2001) (describing

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predominance and superiority requirements).

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Here, Rodriguez seeks final certification of the same class identified preliminarily:

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All California-based non-exempt truck driver employees who
worked under a ‘piece rate’ or ‘pay-by-the-mile’ compensation
policy from September 5, 2010 through to the earlier of
(a) Preliminary Approval of the Court or (b) November 1, 2016.

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Mot. for Final Approv. at 5. For purposes of final approval, the court determines whether the

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class ultimately satisfies Rules 23(a) and 23(b).

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A.

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Numerosity
In its order granting preliminary approval, the court found the numerosity

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requirement satisfied because the parties agreed the putative class had 723 potential plaintiffs.

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Prelim. Order at 8. Although there is no absolute numerical threshold for numerosity, courts have

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approved classes as small as, for example, thirty-nine, sixty-four, and seventy-one plaintiffs.

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Murillo v. Pac. Gas & Elec. Co., 266 F.R.D. 468, 474 (E.D. Cal. 2010) (citing Jordan v. L.A.

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Cty., 669 F.2d 1311, 1319 (9th Cir. 1982), vacated on other grounds, 459 U.S. 810 (1982)). The

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class here is now 796, larger than initially estimated, and is large enough to satisfy the numerosity

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requirement. Settlement Agreement at 22.

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B.

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Commonality
In preliminarily approving the class, the court found the commonality requirement

satisfied because there were common class issues and questions. Prelim. Order at 10.

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To satisfy the commonality requirement, plaintiff must do more than show “that

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[the class members] have all suffered a violation of the same provision of law.” Dukes, 564 U.S.

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at 350. Class claims must depend upon a common contention and “must be of such a nature that

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it is capable of classwide resolution—which means that determination of its truth or falsity will

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resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. It is not

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so much that the class raises common questions; what is necessary is “the capacity of a classwide

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proceeding to generate common answers.” Id. (internal quotation marks and citation omitted).

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“[T]he merits of the class members’ substantive claims are often highly relevant when

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determining whether to certify a class.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th

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Cir. 2011).

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Here, the parties agree the class is subject to common compensation policies, and

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the court granted preliminary approval in this respect. Mot. for Prelim. Approv. at 14, ECF No.

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27; Prelim. Order at 10. The issues raised continue to be based on common facts, the assessment

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of which will resolve the class’s California Labor Code and unfair competition claims. The court

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finds these common issues satisfy the commonality requirement. See Ching v. Siemens Indus.,

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Inc., No. C. 11–4838 MEJ, 2013 WL 6200190, at *4 (N.D. Cal. Nov. 27, 2013) (finding
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commonality requirement satisfied where “the issues facing the class ar[o]se from common

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questions involving [the] [d]efendant’s calculation and payment of wages and overtime”); Dilts v.

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Penske Logistics, LLC, 267 F.R.D. 625, 633 (S.D. Cal. 2010) (finding commonality requirement

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satisfied where plaintiffs identified “common factual questions, such as whether [the]

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[d]efendants’ policies deprived the . . . class members of meal periods, rest periods, overtime pay,

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and reimbursement . . . and common legal questions, such as [the] [d]efendants’ obligations under

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[various sections of the] California Labor Code and California’s Unfair Competition law”).

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C.

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Typicality
In the preliminary order, the court found the typicality requirement satisfied

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because Rodriguez and each class member had suffered the same or similar injury. Prelim. Order

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at 11.

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“‘[T]he commonality and typicality requirements of Rule 23(a) tend to merge’”

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because both act “‘as guideposts for determining whether . . . maintenance of a class action is

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economical and whether the named plaintiff’s claim and the class claims are so interrelated that

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the interests of the class members will be fairly and adequately protected in their absence.’”

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Dukes, 564 U.S. at 349 n.5 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13

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(1982)). A court resolves the typicality inquiry by considering “whether other members have the

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same or similar injury, whether the action is based on conduct which is not unique to the named

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plaintiffs, and whether other class members have been injured by the same course of conduct.”

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Ellis, 657 F.3d at 984 (internal quotation marks and citation omitted); Morales v. Stevco, Inc.,

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No. 1:09-cv-00704 AWI JLT, 2011 WL 5511767, at *6.

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Here, Rodriguez and each class member allegedly were employed in roughly the

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same position at roughly the same time and were subject to the same policies regarding

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compensation, meal and rest periods, and reimbursement for expenses. Prelim. Order at 11. No

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facts have surfaced since the court granted preliminary approval of the proposed class that would

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cause the court to alter its prior determination. Therefore, the court concludes the typicality

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inquiry is satisfied. See Murillo, 266 F.R.D. at 475 (plaintiffs satisfied typicality inquiry where

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they suffered similar injuries attributed to defendant’s allegedly unlawful conduct).
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D.

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Adequacy of Representation
In the preliminary approval order, the court concluded Rodriguez adequately

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represents the class, while raising some questions to be addressed at this stage. Prelim. Order at

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9–10.

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To determine whether the named plaintiff does in fact protect the interests of the

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class, the court must explore two factors: (1) whether the named plaintiff and counsel have any

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conflicts of interest with the class as a whole, and (2) whether the named plaintiff and counsel

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vigorously pursued the action on behalf of the class. Hanlon v. Chrysler Corp., 150 F.3d 1011,

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1020 (9th Cir. 1998); see also Clesceri v. Beach City Investigation & Protective Servs., Inc.,

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No. CV-10–3873-JST (RZx), 2011 WL 320998, at *6 (C.D. Cal. Jan. 27, 2011) (quoting True v.

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Am. Honda Motor Co., No. EDCV 07-287-VAP (OPx), 2009 WL 838284, at *5 (C.D. Cal. Mar.

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25, 2009) (“(1) [T]he class representative must not have interests antagonistic to the unnamed

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class members, and (2) the representative must be able to prosecute the action ‘vigorously

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through qualified counsel.’”).

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With respect to the first factor, nothing in the record now before the court suggests

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the representative plaintiff or counsel have any conflicts of interest with the other class members.

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Because plaintiff’s class-wide claims appear to be “completely aligned with those of the class,”

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Collins, 274 F.R.D. at 301, the court concludes there is no basis for finding a conflict.

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With respect to the second factor, “[a]lthough there are no fixed standards by

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which ‘vigor’ can be assayed, considerations include competency of counsel and, in the context

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of a settlement-only class, an assessment of the rationale for not pursuing further litigation.”

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Hanlon, 150 F.3d at 1021. In addition, a named plaintiff will be deemed adequate “[a]s long as

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the plaintiff has some basic knowledge of the lawsuit and is capable of making intelligent

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decisions based upon [the plaintiff’s] lawyers’ advice.” Kaplan v. Pomerantz, 131 F.R.D. 118,

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121–22 (N.D. Ill. 1990).

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In the preliminary order, the court addressed the second factor and whether

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Rodriguez has vigorously pursued the action. Prelim. Order at 9. The court noted the docket of

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the case was sparse, and Rodriguez did not file any discovery-related or dispositive motions.
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Prelim. Order at 9. In its preliminary approval motion, class counsel explained that the sparsity of

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the record and relative inactivity of the case was due to the pendency and then passage of

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AB 1513. Mot. for Prelim Approv. at 6–7; Prelim. Order at 9. Ultimately, because of the

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“unique backdrop” created by the impact of AB 1513, the court found the second factor satisfied

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and was persuaded that Rodriguez and class counsel would likely adequately protect the interests

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of the class. Prelim. Order at 9–10.

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Nothing in the case causes the court to reconsider its preliminary determination.
Accordingly, the court finds the adequacy of representation requirement satisfied.
E.

Predominance
In the preliminary approval order, the court concluded plaintiff met the

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predominance requirement because common questions relating to the lawfulness of defendant’s

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policies were a significant aspect of the case. Prelim. Order at 12. Here as well, that preliminary

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conclusion holds.

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“The Rule 23(b)(3) predominance inquiry tests whether proposed classes are

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sufficiently cohesive to warrant adjudication by representation.” Amchem, 521 U.S. at 623.

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Although predominance is similar to Rule 23(a)’s commonality requirement, it is more

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demanding. Id. at 623–24. To determine whether common questions predominate, the court

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must consider “the relationship between the common and individual issues” by looking at the

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questions that pre-exist any settlement. Hanlon, 150 F.3d at 1022. Additionally, the

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predominance inquiry focuses on the “notion that the adjudication of common issues will help

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achieve judicial economy.” In re Wells Fargo Home Mortg. Overtime Pay Litig., 571 F.3d 953,

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958 (9th Cir. 2009) (internal quotation marks and citation omitted).

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In the preliminary order, the court identified several aspects of the impact of

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AB 1513 that could potentially destroy the predominance of common issues. Prelim. Order at 11.

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Its primary concern was the difference in the class period and the safe harbor period and whether

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those outside the safe harbor period should be compensated differently. Prelim. Order at 11–12.

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After hearing further explanation from plaintiff’s counsel on the effect of AB 1513 on the class,

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the court was persuaded for preliminary approval purposes that the differences did not undermine
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the predominance of common issues. Prelim. Order at 12. Thus, the calculation of individual

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damages was the only individualized inquiry that may arise, and “[t]he amount of damages is

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invariably an individual question and does not defeat class action treatment.” Yokoyama v.

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Midland Nat. Life Ins. Co., 594 F.3d 1087, 1089 (9th Cir. 2010) (quoting Blackie v. Barrack,

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524 F.2d 891, 905 (9th Cir. 1975)).

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Here, notwithstanding AB 1513, resolving the issues on a class basis promotes
judicial economy. The predominance requirement is satisfied.
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Superiority
As it did in the preliminary approval order, the court finds here that Rodriguez

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satisfied the superiority requirement because of the burden otherwise placed on the parties and the

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courts by the bringing of multiple individual suits touching on the same or similar issues. Prelim.

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Order at 13–14.

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In ultimately resolving Rule 23(b)(3)’s superiority inquiry, the court should

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consider class members’ interests in pursuing separate actions individually, any litigation already

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in progress involving the same controversy, the desirability of concentrating the litigation in one

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forum, and potential difficulties in managing the class action, although the last two considerations

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are not relevant in the settlement context. Schiller v. David’s Bridal, Inc., No. 1:10-cv–00616-

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AWI-SKO, 2012 WL 2117001, at *9–10 (E.D. Cal. June 11, 2012) (“In the context of settlement,

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however, the third and fourth factors are rendered moot and are not relevant . . . because the point

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is that there will be no trial . . . .” (citing Amchem, 521 U.S. at 620)).

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As in the preliminary approval order, the court concludes here that if all 796 class

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members each brought suit, they would bring essentially the same claims for relatively small

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sums and likely would have to expend substantial resources to cover litigation costs. If defendant

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took advantage of the AB 1513 safe harbor provision for all California drivers, it would pay

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$775,272, Desai Decl. ¶ 5, which means each putative class member would receive an average

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payment of just over $1,000, an amount too small to incentivize individual litigation. Prelim.

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Order at 13. Because, as explained below, the average claim value under the terms of the

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proposed settlement is $715.03, class members could have a chance at a greater recovery under
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AB 1513. Nevertheless, the court is persuaded that class treatment for this action is superior.

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Class members stand to receive more in this action than under the safe harbor, and the proposed

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settlement agreement offers an economic adjudication of the class members’ claims that avoids

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duplication of efforts and resources. See Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234

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(9th Cir. 1996) (“Where classwide litigation of common issues will reduce litigation costs and

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promote greater efficiency, a class action may be superior to other methods of litigation.”). The

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proposed settlement agreement also offers guaranteed recovery to class members without

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additional complication or the uncertainty of further litigation.

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The class action here is thus the superior means of litigating plaintiff’s claims.

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G.

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Conclusion
In sum, the court finds plaintiff satisfies Rules 23(a) and 23(b), and final approval

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of the class is appropriate.

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III.

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THE SETTLEMENT AND FAIRNESS
A.

Legal Framework
When parties settle a class action, a court cannot simply accept the proposed

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resolution; rather it must also satisfy itself that the proposed settlement is “fundamentally fair,

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adequate, and reasonable.” Hanlon, 150 F.3d at 1026. After preliminary certification and notice

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to the class, as here, a court conducts a fairness hearing before finally approving any proposed

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settlement. Narouz v. Charter Commc’ns, Inc., 591 F.3d 1261, 1267 (9th Cir. 2010); Fed. R. Civ.

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P. 23(e)(2) (“If the proposal would bind class members, the court may approve it only after a

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hearing and only on finding that it is fair, reasonable, and adequate . . . .”). A court must balance

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a number of factors in determining whether a proposed settlement is in fact fair, adequate, and

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reasonable: (1) the strength of the plaintiffs’ case; (2) the risk, expense, complexity, and likely

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duration of further litigation; (3) the risk of maintaining class action status throughout the trial;

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(4) the amount offered in settlement; (5) the extent of discovery completed and the stage of the

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proceedings; (6) the experience and views of counsel; (7) the presence of a governmental

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participant; and (8) the reaction of the class members to the proposed settlement.

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11

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Hanlon, 150 F.3d at 1026; Adoma v. Univ. of Phx., 913 F. Supp. 2d 964, 974–75 (E.D. Cal.

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2012). The list is not exhaustive, and the factors may be applied differently in different

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circumstances. Officers for Justice v. Civil Serv. Comm’n of City & Cty. of S.F., 688 F.2d 615,

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625 (9th Cir. 1982).

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The court must consider the settlement as a whole, rather than its component parts;

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the settlement “must stand or fall in its entirety.” Hanlon, 150 F.3d at 1026; but see In re HP

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Inkjet Printer Litig., 716 F.3d 1173, 1189 n.5 (9th Cir. 2013) (in concluding the proper amount of

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attorney’s fees, the agreement as a whole need not stand or fall on that amount). Ultimately, the

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court must reach “a reasoned judgment that the agreement is not the product of fraud or

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overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a

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whole, is fair, reasonable and adequate to all concerned.” Officers for Justice, 688 F.2d at 625.

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1.

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When assessing the strength of plaintiff’s case, the court does not reach “any

The Strength of Plaintiff’s Case

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ultimate conclusions regarding the contested issues of fact and law that underlie the merits of

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[the] litigation.” In re Wash. Pub. Power Supply Sys. Secs. Litig., 720 F. Supp. 1379, 1388

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(D. Ariz. 1989). This is so because evidence has not been fully presented and “settlements [are]

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induced in large part by the very uncertainty as to what the outcome would be, had litigation

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continued.” Id. Instead, the court is to “evaluate objectively the strengths and weaknesses

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inherent in the litigation and the impact of those considerations on the parties’ decisions to reach

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these agreements.” Id.

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While defendant denies committing any illegal or wrongful acts, all parties agree

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further litigation would be protracted and expensive. Mot. for Prelim. Approv. at 3–4. This

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agreement that the litigation is not capable of speedy disposition suggests the strength of

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plaintiff’s claims. That the parties reached the proposed settlement after exchanging information

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through discovery and several months of arm’s-length negotiation further supports the strength of

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plaintiff’s case on the issues of liability and class certification. Mot. for Prelim. Approv. at 2–3.

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Because the settlement achieves full and immediate compensation to class members who have a

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substantial likelihood of prevailing on the merits, this factor favors approving the settlement.
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2.

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“Approval of settlement is ‘preferable to lengthy and expensive litigation with

The Risk of Further Litigation and Maintaining Class Status

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uncertain results.’” Morales, 2011 WL 5511767 at *10 (quoting Nat’l Rural Telecomms. Coop. v.

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DIRECTV, Inc., 221 F.R.D. 523, 526 (C.D. Cal. 2004)). The Ninth Circuit has explained “there is

5

a strong judicial policy that favors settlements, particularly where complex class action litigation

6

is concerned.” In re Syncor ERISA Litig., 516 F.3d 1095, 1101 (9th Cir. 2008) (citing Class

7

Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992)). “‘[I]t must not be overlooked

8

that voluntary conciliation and settlement are the preferred means of dispute resolution. This is

9

especially true in complex class action litigation . . . .’” Id. (quoting Officers for Justice, 688 F.2d

10
11

at 625).
Here, the parties have reached a reasonable voluntary agreement that will provide

12

class members with immediate substantial relief while avoiding delays in continued litigation,

13

which could be prolonged and expensive. While this wage and hour class action is not

14

particularly complex, the certain amount offered in settlement likely renders an equally or more

15

favorable result than at trial, especially considering the newness and uncertainty surrounding

16

AB 1513. This factor favors approval.

17

3.

18

The proposed settlement is not to be judged against “a hypothetical or speculative

19

measure of what might have been achieved by the negotiators.” Officers for Justice, 688 F.2d at

20

625; see also Collins, 274 F.R.D. at 302 (a court must “‘consider plaintiffs’ expected recovery

21

balanced against the value of the settlement offer’” (quoting In re Tableware Antitrust Litig.,

22

484 F. Supp. 2d 1078, 1080 (N.D. Cal. 2007))).

The Amount Offered in Settlement

23

Based on the parties’ settlement agreement, the class administrator calculated the

24

average claim value to be $715.03. Schwartz Decl. ¶ 15. The range of payments is estimated to

25

be $1.11 to $2,556.25. Schwartz Decl. ¶ 15. The class members will be given their back wages,

26

which plaintiff describes as “the ‘gold standard’ for wage and hour class action settlements

27

because it imposes almost no burden on the employee while distributing virtually all of the

28
13

1

[s]ettlement [f]und.” Mot. for Final Approv. at 1. On balance, without blessing the “gold

2

standard” characterization, the court finds this factor favors approval.

3

4.

4

“In the context of class action settlements, ‘formal discovery is not a necessary

The Extent of Discovery and the Stage of Proceedings

5

ticket to the bargaining table’ where the parties have sufficient information to make an informed

6

decision about settlement.” Linney v. Cellular Alaska P’ship, 151 F.3d 1234, 1239 (9th Cir.

7

1998) (quoting In re Chicken Antitrust Litig., 669 F.2d 228, 241 (5th Cir. 1982)).

8
9

Plaintiff’s counsel represents that the parties engaged in extensive investigation
and made repeated efforts to resolve the case. Mot. for Final Approv. at 10; Ex. B to Desai Decl.

10

for Attorney’s Fees, ECF 41-3. As explained above, while the record on this case is sparse and

11

Rodriguez did not file any discovery-related motions, his counsel has explained that is due to the

12

pendency and then passage of AB 1513. Mot. for Prelim. Approv. at 6–7.

13

The court is satisfied the formal and informal discovery that was conducted was

14

sufficient to inform plaintiff’s assessment of the case, and that it enabled the parties to reach a

15

meaningful settlement agreement. This factor favors approval.

16

5.

17

In considering the adequacy of the terms of settlement, the court is entitled to, and

The Experience and Views of Counsel

18

should, rely upon the judgment of experienced counsel for the parties. See DIRECTV, Inc.,

19

221 F.R.D. at 528 (“Great weight is accorded to the recommendation of counsel, who are most

20

closely acquainted with the facts of the underlying litigation.”) (internal quotation marks and

21

citations omitted). This reliance is warranted because “[p]arties represented by competent

22

counsel are better positioned than courts to produce a settlement that fairly reflects each party’s

23

expected outcome in the litigation.” In re Pac. Enters. Sec. Litig., 47 F.3d 373, 378 (9th Cir.

24

1995).

25

Here, class counsel Aashish Desai is an experienced practitioner who has

26

successfully litigated many similar cases. Desai Decl. ¶ 5. In addition to the numerous class

27

actions counsel has litigated, he has also written extensively on California overtime class actions

28

and has been awarded multiple honors for his work in class action litigation. Desai Decl. ¶¶ 11–
14

1

13. Based on this experience, class counsel believe the settlement is fair and should be approved.

2

Desai Decl. ¶¶ 7–8.

3

This factor favors approval. See Barbosa v. Cargill Meat Sols. Corp., 297 F.R.D.

4

431, 447 (E.D. Cal. 2013) (because of experience, “[c]lass [c]ounsel understood the complex

5

risks and benefits of any settlement and concluded that the proposed Settlement was a reasonable

6

recovery”).

7

6.

8

“[T]he absence of a large number of objections to a proposed class action

9

The Reaction of the Class Members to Proposed Settlement

settlement raises a strong presumption that the terms of a proposed class settlement action are

10

favorable to the class members.” DIRECTV, 221 F.R.D. at 529. Where there are no objections,

11

as here, the presumption is particularly strong. Lo v. Oxnard European Motors, LLC, No. 11-cv-

12

1009 JLS (MDD), 2012 WL 1932283, at *2 (S.D. Cal. May 29, 2012) (noting “the fairness of the

13

terms of the settlement is bolstered by the fact that no objections were made”).

14

Here, while five class members out of 796, or just over 0.6%, opted out of the

15

settlement, there were no objections to the proposed settlement agreement. Schwartz Decl.

16

¶¶ 12–13. This factor weighs in favor of approving the settlement.

17

7.

18

All of the relevant factors reviewed above weigh in favor of approval of

19
20
21

Conclusion

settlement. The court proceeds to determine whether collusion has occurred.
B.

The Possibility of Collusion
Where the parties negotiate a settlement agreement before formal class

22

certification, as in the instant case, the court must evaluate the settlement for evidence of

23

collusion with a “higher level of scrutiny.” In re Bluetooth Headset Prod. Liab. Litig., 654 F.3d

24

935, 946 (9th Cir. 2011). “Collusion may not always be evident on the face of a settlement, and

25

courts therefore must be particularly vigilant not only for explicit collusion, but also for more

26

subtle signs that class counsel have allowed pursuit of their own self-interests and that of certain

27

class members to infect the negotiations.” Id. at 947.

28
15

1

A few such signs may include: (1) a disproportionate distribution of the settlement

2

to counsel; (2) a “clear-sailing” provision, under which the defendant agrees not to oppose an

3

attorney’s fee award up to a certain amount, id.; and (3) when the parties arrange for fees not paid

4

to revert to defendant rather than to be added to the class fund, id.

5

Here, class counsel seeks $265,000.00, or 31.2% of the GSA. Mot. for Final

6

Approv. at 1. In the preliminary order, the court noted because the proposed fee award is above

7

the percentage-of-recovery “benchmark” rate of 25%, plaintiff would need to show why this

8

upward adjustment is appropriate at this final approval stage. Prelim. Order at 18. As explained

9

below, the record now before the court bolsters counsel’s claim for a 31.2% share. Class counsel

10

took the case on a contingency-fee basis without compensation and risked losing on the merits if

11

the case proceeded to trial. Mot. for Final Approv. at 18–19. Despite this, and as explained in

12

more detail below, class counsel obtained a favorable settlement relatively early, all things

13

considered, in the face of the uncertainty raised by AB 1513 and the safe harbor it provides for

14

trucking companies. Mot. for Final Approv. at 18. Additionally, the 31.2% rate is not

15

disproportionate and is within the Ninth Circuit’s range of acceptable percentages. In re Pac.

16

Enters. Sec. Litig., 47 F.3d 373, 379 (9th Cir. 1995) (affirming attorney’s fees comprising 33% of

17

the common fund when justified by the complexity of the issues and the risks undertaken by

18

counsel). This factor favors finding no collusion.

19

As to the second sign, because attorney’s fees will be paid from the settlement

20

fund, this concern is ameliorated. See Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 961 n.5 (9th

21

Cir. 2009) (collusion generally inferred from a “clear-sailing” provision where attorney’s fees are

22

paid on top of the settlement fund). This factor favors finding no collusion.

23

As to the third sign, the settlement does not incorporate an agreement for unpaid

24

funds to revert back to defendant, but rather provides that any such funds will revert to the

25

LWDA. Settlement Agreement at 21. This factor favors finding no collusion.

26

No evidence of collusion stands in the way of approving the settlement.

27
28
16

1

C.

Attorney’s Fees, Costs, and Incentive Award

2

1.

3

Rule 23 permits a court to award “reasonable attorney’s fees . . . that are

Request for Attorney’s Fees

4

authorized by law or by the parties’ agreement.” Fed. R. Civ. P. 23(h). Even when the parties

5

have agreed on an amount, the court must award only reasonable attorney’s fees. Bluetooth,

6

654 F.3d at 941. In diversity actions such as this one, the Ninth Circuit “has applied state law in

7

determining not only the right to fees, but also in the method of calculating fees.” Mangold v.

8

Cal. Public Util. Comm’n, 67 F.3d 1470, 1478 (1995); Rodriguez v. Disner, 688 F.3d 645, 653

9

n.6 (9th Cir. 2012); Schiller, 2012 WL 2117001, at *15 (“In diversity actions such as this, the

10

Ninth Circuit applies state law to determine the right to fees and the method for calculating

11

fees.”). The California Supreme Court has held that, “when a number of persons are entitled in

12

common to a specific fund, and an action brought by a plaintiff or plaintiffs for the benefit of all

13

results in the creation or preservation of that fund, such plaintiff or plaintiffs may be awarded

14

attorney’s fees out of the fund.” Serrano v. Priest, 20 Cal. 3d 25, 34 (1977). California courts

15

employ both the percentage-based method and the lodestar method for calculating attorney’s fees

16

in common fund actions. See Lealao v. Beneficial Cal., Inc., 82 Cal. App. 4th 19, 26 (2000). A

17

California appellate court recently stated the goal “is the award of a ‘reasonable’ fee to

18

compensate counsel for their efforts, irrespective of the method of calculation. It is not an abuse

19

of discretion to choose one method over another as long as the method chosen is applied

20

consistently using percentage figures that accurately reflect the marketplace.” In re Consumer

21

Privacy Cases, 175 Cal. App. 4th 545, 557–58 (2009) (internal quotation marks and citations

22

omitted).

23

California courts have not prescribed one set of factors to evaluate the

24

reasonableness of the percentage-based fees requested in common fund settlements, but the courts

25

have noted the goal is to assess the requested fees’ reasonableness. Id. at 557. The California

26

courts have used certain factors in calculating a lodestar multiplier that are similar to those

27

considered by federal courts in weighing the reasonableness of a percentage-based attorney’s fees

28

award. Schiller, 2012 WL 2117001, at *16.
17

1

In the Ninth Circuit, as noted above, the benchmark for percentage-of-recovery

2

awards is 25 percent of the total settlement award, which may be adjusted up or down. Hanlon,

3

150 F.3d at 1029; Ross v. U.S. Nat’l Bank Ass’n, No. C 07–02951, 2010 WL 3833922, at *2

4

(N.D. Cal. Sept. 29, 2010). Factors that may justify departure from the benchmark include:

5

(1) the result obtained; (2) the risk involved in the litigation; (3) the contingent nature of the fee;

6

(4) counsel’s efforts, experience, and skill; and (5) awards made in similar cases. Vizcaino v.

7

Microsoft Corp. (Vizcaino II), 290 F.3d 1043, 1048–49 (9th Cir. 2002). The court considers the

8

reasonableness of the percentage requested in light of the Ninth Circuit factors, with the 25

9

percent benchmark as a starting point. Schiller, 2012 WL 2117001, at *17.

10

a. The Results Achieved

11

As recounted above, class counsel obtained a favorable result in the form of early

12

settlement and adequately proportionate awards. In a common fund case, “the size of the

13

recovery constitutes a suitable measure of the attorneys’ performance.” Vizcaino v. Microsoft

14

Corp. (Vizcaino I), 142 F. Supp. 2d 1299, 1303 (W.D. Wash. 2001) (internal quotation marks

15

omitted). The settlement agreement here establishes a gross amount of $850,000 to compensate

16

members for missed rest and meal breaks as well as inadequate wage statements and failure to

17

pay minimum wage. Prelim. Order at 2. The common fund constitutes substantial relief in this

18

case, because, as class counsel explained, “the safe harbor provision under AB 1513 gutt[ed] this

19

case, considerably,” Desai Decl. ¶ 8, and as noted preliminarily, defendant’s vigorous advocacy

20

may have compromised class certification and plaintiff’s success on the merits. Prelim. Order at

21

16. The absence of objections from class members also signals the favorable nature of the result.

22

b. The Risks Involved

23

The case became particularly risky for plaintiffs once the safe harbor provision of

24

AB 1513 was enacted. Courts have recognized that a high risk factor is one reason for increasing

25

class counsel’s attorney’s fee award above the “benchmark” 25% fee. In re Pac. Enters. Sec.

26

Litig., 47 F.3d at 379 (33% of the common fund as attorney’s fees justified based on complexity

27

of issues and attendant risks).

28

///
18

1

c. The Contingent Nature of the Representation

2

As noted above, class counsel took this case on a contingency-fee basis without

3

compensation, bearing the entire cost of litigation for approximately three years. See Torrisi v.

4

Tucson Elec. Power Co., 8 F.3d 1370, 1377 (9th Cir. 1993) (percentage above 25% benchmark

5

justified where counsel took case on contingency basis for approximately two years).

6
7

d. Skill Required and Quality of Work Performed
Class counsel brought significant experience with wage and hour class actions to

8

the bargaining table to achieve a favorable outcome. Desai Decl. ¶¶ 9–13. Counsel has extensive

9

experience acting as class counsel in complex class action cases, including wage and hour class

10

actions, and has written several articles on California overtime and collective actions. Id. ¶¶ 9–

11

13. Class counsel’s ability to provide class members with real and immediate monetary relief,

12

given the complexity and potential duration of the case and combined with the presence of the

13

affirmative defense provided by AB 1513, supports the reasonableness of a 31.2% award. See

14

Williams v. Centerplate, Inc., Nos. 11-cv-2159 H-KSC, 12-cv-0008-H-KSC, 2013 WL 4525428,

15

at *7 (percentage above 25% benchmark justified where experienced counsel obtained substantial

16

award for class members through arm’s-length settlement negotiations despite complexity of case

17

and risk of outcome of future litigation).

18
19
20
21
22
23
24
25
26
27

e. Awards Made in Similar Cases
The requested percentage is similar to percentage-based awards obtained through
settlement in other wage-and-hour actions in this district:
(1)
Bond v. Ferguson Enterprises, Inc., No. 1:09–cv–01662–
OWW–MJS, Docket No. 59 (E.D. Cal. June 30, 2011) (court
approved attorney’s fees in the amount of 30% of the common fund);
(2)
Vasquez v. Coast Valley Roofing, Inc., 266 F.R.D. 482 (E.D.
Cal. 2010) (wage-and-hour action putative class-action settlement
where court approved award of attorney’s fees in the amount of
33.3% of the common fund);
(3)
Benitez v. Wilbur, No. 1:08–cv–01122 LJO GSA, Doc.
No. 52 (E.D. Cal., Dec. 15, 2009) (awarding 33.3% of the benefit to
the class in attorney’s fees);

28
19

1
2
3
4

(4)
Chavez v. Petrissans, (Case No. 1:08–cv–00122 LJO GSA,
Doc. No. 89 (E.D. Cal. Dec. 15, 2009) (court approved awards of
attorney’s fees of 33.3% of the common fund);
(5)
Romero v. Producers Dairy Foods, Inc., No. 1:05–cv–0484–
DLB, 2007 WL 3492841, at * 4 (E.D. Cal. Nov.14, 2007) (class
action settlement where court approved attorney’s fees in the amount
of 33% of common fund);

5
6
7
8
9

(6)
Vasquez v. Jim Aartman, Inc., No. 1:02–cv–05624–AWI–
LJO, Doc. No. 130 (E.D. Cal. Sept. 16, 2005 (class action settlement
where court approved attorney’s fees in the amount of 30% of the
settlement amount);
(7)
Baganha v. Cal. Milk Transp., No. 1:01–cv–05729–AWI–
LJO, Doc. No. 147 (E.D. Cal. July 22, 2004) (class action settlement
where court approved attorney’s fees in the amount of 31.25% of
settlement amount);

10
11
12

(8)
Randall Willis et al. v. Cal. Western Transp. and Earl Baron,
et al. v. Cal Western Transp. (consolidated cases), No. 1:00–cv–
05695–AWI–LJO, Doc. No. 225 (E.D. Cal. Aug. 20, 2003) (court
approved attorney’s fees in the amount of 33.3% of the settlement
amount); and

13
14

(9)
Schiller, 2012 WL 2117001, at *19 (court approved
attorney’s fees in the amount of approximately 32% of total
settlement amount).

15
16

The requested percentage award is reasonable and warranted in this case, and the

17

court grants the request for attorney’s fees in the amount of $265,000.00, which represents

18

approximately 31.2 percent of the common fund.

19

f. Lodestar Cross-Check

20

Comparison with the lodestar method also supports approving the settlement. In

21

cases where courts apply the percentage method to calculate attorney’s fees, courts are

22

encouraged to use the lodestar method as a cross-check to evaluate the reasonableness of the

23

percentage award. See Bluetooth, 654 F.3d at 944–45. In calculating an attorney’s fees award

24

under this method, a court must start by determining how many hours were reasonably expended

25

on the litigation, and then multiply those hours by the prevailing local rate for an attorney of the

26

skill required to perform the litigation. Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th

27

Cir. 2008). This amount may be increased or decreased by a multiplier that reflects any factors

28

not subsumed within the calculation, such as “the quality of representation, the benefit obtained
20

1

for the class, the complexity and novelty of the issues presented, and the risk of nonpayment.”

2

Bluetooth, 654 F.3d at 942 (quoting Hanlon, 150 F.3d at 1029). “Foremost among these

3

considerations, however, is the benefit obtained for the class.” Id. at 942 (citing Hensley v.

4

Eckerhart, 461 U.S. 424, 434–36 (1983); McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th

5

Cir. 2009)). When a court uses the lodestar as a cross-check to a percentage award, it need only

6

make a “rough calculation.” Schiller, 2012 WL 2117001, at *22.

7

Class counsel represent that the lodestar amount, based on 400 hours worked at

8

hourly rates of $750.00 for Aashish Desai (348.40 hours), who has over twenty years’ experience,

9

$450.00 for Adrianne De Castro (16.50 hours), who has thirteen years’ experience, and $250.00

10

for paralegal Sonia Nava (34.95 hours), is $277,462.50. Desai Decl. for Attorney’s Fees ¶¶ 5–6,

11

ECF No. 41-1; Ex. B to Desai Decl. for Attorney’s Fees. Class counsel’s rates of $750 per hour

12

for Aashish Desai and $250 per hour for paralegals appear to be outside the range of acceptable

13

fees in the Eastern District of California, as this court has reviewed in relatively recent decisions.

14

See, e.g., Ogbuehi v. Comcast of Cal./Colo./Fla./ Or., Inc., No. 2:13-cv-00672-KJM-KJN,

15

2015 WL 3622999, at *12 (E.D. Cal. June 9, 2015) (calculating lodestar amount using hourly

16

rates of $650 for an attorney with nineteen years’ experience, $175 for a paralegal with six years’

17

experience, and $150 for a paralegal with two years’ experience); Zakskorn v. Am. Honda Motor

18

Co., No. 2:11-cv-02610-KJM-KJN, 2015 WL 3622990, at *15 n.4 (E.D. Cal. June 9, 2015)

19

(calculating lodestar amount using hourly rates of $540–$695 for partners, $300–$490 for

20

associates, and $180 for paralegals and multiplying by individual attorney’s hours as represented

21

in their respective declarations)).

22

Accordingly, the court adjusts the hourly rates downward for the purposes of

23

conducting the lodestar cross-check. The lodestar amount, calculated using a range of $540 to

24

$695 per hour for Aashish Desai, $450 per hour for Adrianne De Castro, and $150 to $180 per

25

hour for paralegals as the prevailing local rate, produces a range of $200,803.50 to $255,854.00.

26

Taking the lower end of this lodestar range, to reach class counsel’s total requested fee of

27

$265,000 requires applying a multiplier of 1.32 to the lodestar amount of $200,803.50. A

28

multiplier of 1.32 is well within the range of multipliers accepted by the Ninth Circuit. See, e.g.,
21

1

Vizcaino II, 290 F.3d at 1050–51, 1051 n.6 (reviewing approved fees from twenty-four cases and

2

finding twenty of twenty-four fell within the 1.0–4.0 range, and thirteen of twenty-four fell within

3

the 1.5–3.0 range). The court evaluates the factors discussed in Bluetooth to determine whether a

4

1.32 lodestar multiplier is justified in this case.

5

First, class counsel avoided protracted litigation by investigating the class claims

6

and effectively communicating and exchanging information with defense counsel so that the

7

parties could successfully negotiate a settlement. Additionally, class counsel navigated the

8

potential complications posed by AB 1513. This factor supports a modest, positive multiplier.

9

Second, class counsel achieved a favorable result and generated a significant

10

benefit for the class amounting to a gross settlement amount of $850,000. Participating class

11

members stand to receive an average award of $715.03, a substantial benefit given the safe harbor

12

provision under AB 1513. Class counsel can also point to the fact that they have received few opt

13

outs as further support. This factor favors a positive multiplier.

14

Third, class counsel are experienced litigators in the employment context, and the

15

issues presented by plaintiff’s claims are not novel to them. The presence of AB 1513’s

16

affirmative defense, however, required additional investigation and negotiation. This factor

17

favors a small, positive multiplier.

18

Finally, class counsel have represented the class on a contingency basis.

19

Consequently, class counsel faced a substantial risk of nonpayment, especially given the

20

uncertainty of litigation following the enactment of AB 1513. Although it is difficult to evaluate

21

plaintiff’s likelihood of success, the risk of nonpayment appears substantial. This factor favors a

22

positive multiplier.

23

Each of these factors favors a positive multiplier, and the multiplier of 1.32 is

24

within the range accepted by the Ninth Circuit. Accordingly, based on the percentage-based

25

method and the lodestar cross-check method, the requested award of fees is reasonable.

26

2.

27

The court also must determine an appropriate award of costs and expenses.

28

Request for Costs

Fed. R. Civ. P. 23(h). “[I]n evaluating the reasonableness of costs, the judge has to step in and
22

1

play surrogate client.” Ross v. Bar None Enters., Inc., No. 2:13-cv-00234, 2015 WL 1046117, at

2

*11 (E.D. Cal. Mar. 10, 2015) (internal quotation marks and citation omitted). “In keeping with

3

this role, the court must examine prevailing rates and practices in the legal marketplace to assess

4

the reasonableness of the costs sought.” Id. (internal quotation marks and citation omitted).

5

Here, class counsel aver the combined unreimbursed costs total $900.69, which

6

include court filing fees, mediator’s fees, and travel. Mot. for Final Approv. at 21. Upon the

7

court’s inquiry, class counsel clarified no formal mediation occurred and their claimed costs do

8

not include any mediator’s fees. Therefore, the court finds the costs requested to be reasonable.

9

See Barbosa, 297 F.R.D. at 454 (costs associated with travel and photocopying as well as

10

mediation fees are “routinely reimbursed”); Fontes v. Heritage Operating, L.P., No. 14-cv-1413-

11

MMA (NLS), 2016 WL 1465158, at *6 (S.D. Cal. Apr. 14, 2016) (approving class counsel’s

12

costs, which included “court filing fees, research costs, mediation-related expenses, attorney

13

services costs, and travel expenses”).

14

3.

15

Rodriguez requests an individual incentive award of $3,000. Mot. for Final

Incentive Award

16

Approv. at 6. Generally speaking, incentive awards are meant to “compensate class

17

representatives for work done on behalf of the class, to make up for financial or reputational risk

18

undertaken in bringing the action, and, sometimes, [as here,] to recognize their willingness to act

19

as a private attorney general.” W. Publ’g Corp., 563 F.3d at 958–59. While such awards are

20

fairly typical in class action cases, id. at 958, the decision to approve such an award is within the

21

court’s discretion. In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 463 (9th Cir. 2000).

22

In determining whether to approve an incentive award, courts may consider the

23

following factors: (1) the risk to the class representative in commencing suit, both financial and

24

otherwise; (2) the notoriety and personal difficulties encountered by the class representative;

25

(3) the amount of time and effort spent by the class representative; (4) the duration of the

26

litigation; and (5) the personal benefit (or lack thereof) enjoyed by the class representative as a

27

result of the litigation. Van Vranken v. Atl. Richfield Co., 901 F. Supp. 294, 299 (N.D. Cal.

28

1995).
23

1

With respect to the first factor, plaintiff contends by initiating this case he

2

shouldered a degree of personal risk, including compromising a career in plaintiff’s field of work,

3

reduced earning potential, and financial liability if defendant prevailed. Rodriguez Decl. ¶ 2,

4

ECF No. 27-3. The first factor weighs in favor of granting an incentive award.

5
6

With respect to the second factor, nothing in the record suggests the litigation
gained any particular notoriety. This factor thus does not cut either way.

7

With respect to the third factor, Rodriguez states he spent several hours searching

8

for documents related to his Penske employment. Rodriguez Decl. ¶ 7. Additionally, he spent a

9

significant amount of time on the phone with his attorneys discussing the case. Rodriguez Decl.

10

¶ 8. Because plaintiff expended significant efforts and was involved in the litigation, this factor

11

weighs in favor of granting him an incentive award.

12

With respect to the fourth factor, this case was not particularly protracted

13

considering the non-litigation delays occasioned by AB 1513. Rodriguez initiated the case on

14

September 5, 2014, settled on October 27, 2016, and requested preliminary approval on

15

November 16, 2016. Compl., ECF No. 1; Settlement Agreement, ECF No. 27-3. The fourth

16

factor is neutral. Cf. Van Vranken, 901 F. Supp. at 299 (where the class representative’s

17

“participation lasted through [over thirteen] years of litigation,” an incentive award was

18

appropriate); see also Ogbuehi, 2015 WL 3622999, at *14 (citing Van Vranken for proposition

19

that when duration of litigation is not protracted, the fourth factor is neutral).

20

Finally, with respect to the fifth factor, the personal benefit enjoyed by plaintiff,

21

under the class settlement agreement, Rodriguez will not gain any benefit beyond what he will

22

gain as a class member. See generally Rodriguez Decl.; see also In re Toys R Us-Del., Inc.—Fair

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& Accurate Credit Transactions Act (FACTA) Litig., 295 F.R.D. 438, 472 (C.D. Cal. 2014) (“An

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incentive award may be appropriate when a class representative will not gain any benefit beyond

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that he would receive as an ordinary class member.”). This factor weighs in favor of granting an

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incentive award.

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On balance, the relevant factors favor granting an incentive award. The court
reviews the requested incentive award of $3,000, which is below the amount typically deemed
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reasonable. See, e.g., In re Mego Fin. Corp., 213 F.3d at 463 (approving $5,000 incentive

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award); Ching v. Siemens Indus., Inc., No. 11-cv-04838, 2014 WL 2926210, at *9 (N.D. Cal.

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June 27, 2014) (approving $5,000 incentive award and noting that in the Northern District, “a

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$5,000 incentive award is presumptively reasonable”); see also FACTA, 295 F.R.D. at 470

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(approving $5,000 incentive award). Additionally, no party contends the requested incentive

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award would create a disparity between named plaintiff and the rest of the class. This weighs in

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favor of rewarding the amount requested.

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4.

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Plaintiff also requests the court approve administrative costs in the amount of

Claims and Administrator Fee

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$16,000, to be paid to the third-party class administrator. Mot. for Final Approv. at 2. The

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administrator’s responsibilities included handling 770 claims. Schwartz Decl. ¶ 9. The parties

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have shown the administrative cost is warranted here, as the class administrator prepared and

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mailed notice to class members, tracked opt-out requests and objections, and mailed individual

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settlement amounts to class members. Schwartz Decl. ¶¶ 3–15. It also is in line with the costs

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approved in other similar cases. See Ching, 2014 WL 2926210, at *2 (approving an estimated

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$15,000 claims administrator fee for sixty-eight claims); Chu v. Wells Fargo Invs., LLC, No. C-

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05–4526-MHP, 2011 WL 672645, at *6 (N.D. Cal. Feb. 16, 2011) (granting $40,528.08 in costs

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associated with administration of case with 1,320 class members and $6,900,000 settlement

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amount). The fee is approved.

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IV.

CONCLUSION

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For the foregoing reasons, the court orders as follows:

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1.

The court GRANTS final approval of the settlement.

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2.

The court AWARDS the class counsel attorney’s fees of $265,000.00.

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3.

The court AWARDS the class counsel reimbursement of costs in the

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amount of $900.69.

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4.

The court AWARDS an incentive payment to Rodriguez of $3,000.00.

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5.

The parties and the settlement administrator shall perform their respective

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obligations under the terms of the settlement agreement.
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1

6.

In accordance with the parties’ stipulation at hearing, the case is dismissed

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with prejudice.

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IT IS SO ORDERED.

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DATED: January 17, 2019.

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UNITED STATES DISTRICT JUDGE

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