Palacios v. DBI Beverage Inc., et al.

Filing 20

FINDINGS of FACT and CONCLUSIONS of LAW signed by District Judge John A. Mendez on 12/13/2017 GRANTING 16 Motion for Attorney Fees. Attorneys' fees and costs are AWARDED in the amount of $60,000 to Plaintiff and the requested class representative service award of $5,000 to Efrain Palacios. (York, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EFRAIN PALACIOS, an individual, on
behalf of himself and all others similarly
situated,
Plaintiff,
v.
DBI BEVERAGE INC., et al.,

Case No.: 2:17-CV-00204-JAM-EFB
FINDINGS OF FACT AND
CONCLUSIONS OF LAW GRANTING
PLAINTIFF’S MOTION FOR APPROVAL
OF ATTORNEYS’ FEES AND COSTS AND
CLASS REPRESENTATIVE SERVICE
AWARD

Defendants.

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Plaintiff has moved for awards of attorneys’ fees and costs to Class Counsel and a class

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representative service award to the Named Plaintiff, notice of which was given to all Class

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members. The Court heard argument regarding the request for fees and costs and class

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representative service award at the Fairness Hearing held on December 5, 2017. Based upon all

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papers filed with the Court and oral argument at the hearing, the Court makes the following

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findings of fact and conclusions of law pursuant to Fed. R. Civ. Proc. 52 as follows:

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[PROPOSED] FOF & COL GRANTING MOTION FOR APPROVAL OF ATTORNEYS’ FEES AND COSTS
AND CLASS REPRESENTATIVE SERVICE AWARD; CASE NO. 2:17-CV-00204-JAM-EFB

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FINDINGS OF FACT
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On November 15, 2017, Plaintiff filed his Motion for Approval of Attorneys’

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Fees and Costs and Class Representative Service Award (“Motion”). The Motion was directed

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to Class members by posting the complete contents of the Motion and all supporting documents

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on Class Counsel’s website, www.schneiderwallace.com. The Class Notice informed Class

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members that the Motion would be so posted on this website.

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2.

The Motion is based upon a Settlement preliminarily approved by the Court by

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Order dated July 28, 2017, ECF No. 15. The Settlement Agreement provides that Plaintiff

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would seek an award of attorneys’ fees and costs of $60,000 and a service award to Plaintiff of

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$5,000. Settlement Agreement, ¶¶ 5.2.1 & 5.2.2.
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The Settlement Agreement provides for monetary relief to the Class in the form

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of a $100 to each member of the Class, with an estimated 1700 such members. Settlement

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Agreement, ¶¶ 5.1 & 3.4.2.

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4.

Plaintiff seeks an award of attorneys’ fees based on the common fund theory, as

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set forth below. In addition, the total amount of litigation costs incurred by Plaintiff’s counsel is

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$7,440. Exhibit “3” to Declaration of Jason H. Kim.

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CONCLUSIONS OF LAW

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1.

The Motion complies with the notice requirements of Fed. R. Civ. Proc. 23(h).

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2.

The Settlement provides for classwide resolution of claims for alleged violations

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of Section 1681(b)(2) of the Fair Credit Reporting Act (“FCRA”). Plaintiff is entitled to an

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award of reasonable attorneys’ fees and costs under 15 U.S.C. § 1681n(a)(3) as the prevailing

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party on this claim.

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3.

Class Counsel’s request for attorneys’ fees in the amount of $52,560 is granted

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based on the percentage of common fund method. See Hanlon v. Chrysler Corp., 150 F.3d 1011,

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1029 (9th Cir. 1998) (district courts can utilize lodestar or percentage of fund method in

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granting fee requests in class actions).

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4.

The requested attorneys’ fee award as compared to the gross value of the

Settlement represents less than the Ninth Circuit’s benchmark of 25% of the common fund. See
-2[PROPOSED] FOF & COL GRANTING MOTION FOR APPROVAL OF ATTORNEYS’ FEES AND COSTS
AND CLASS REPRESENTATIVE SERVICE AWARD; CASE NO. 2:17-CV-00204-JAM-EFB

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Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 2002) (noting that 25% is

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benchmark for fees). Here, Class Counsel’s fee request of $52,560 represents less than 21% of

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the gross value of the Settlement.

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5.

In addition to attorneys’ fees, Class Counsel requests reimbursement of litigation

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costs in the amount of $7,440. The Court is satisfied that the costs are reasonable, and therefore,

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the Court grants Plaintiffs’ request for taxable and non-taxable costs in the amount of $7,440

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pursuant to Fed. R. Civ. Proc. 23(h).

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6.

The total amount of attorneys’ fees and costs approved by the Court is $60,000,

which is the amount agreed upon by the parties aided by an experienced mediator, as

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memorialized in the Settlement Agreement. The fact that these attorneys’ fees and costs were

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the result of arms-length negotiation further supports the reasonableness of this award.

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7.

Accordingly, the Court approves the award of attorneys’ fees and costs in the

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amount of $60,000 to Plaintiff pursuant to Fed. R. Civ. Proc. Rule 23(h) based on the findings

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of fact and conclusions of law set forth above.

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8.

Plaintiff has additionally moved for a class representative service award of

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$5,000. Plaintiff seeks this payment as compensation for the time, effort, and risk that he spent

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on behalf of the Class. The service award is also less than or equivalent to amounts frequently

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awarded to class representatives in class actions. See, e.g., Hopson v. Hanesbrands Inc., No.

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CV-08-0844 EDL, 2009 WL 928133, at *27-28 (N.D. Cal. Apr. 3, 2009) (awarding $5,000

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incentive payment and finding that, “in general, courts have found that $5,000 incentive

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payments are reasonable”) (citations omitted). Accordingly, the Court approves the requested

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class representative service award of $5,000 to Efrain Palacios.

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IT IS SO ORDERED.

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DATED: December 13, 2017

/s/ John A. Mendez_______________________
HONORABLE JOHN A. MENDEZ
UNITED STATES DISTRICT COURT JUDGE

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-3[PROPOSED] FOF & COL GRANTING MOTION FOR APPROVAL OF ATTORNEYS’ FEES AND COSTS
AND CLASS REPRESENTATIVE SERVICE AWARD; CASE NO. 2:17-CV-00204-JAM-EFB