Harris v. Vector Marketing Corporation

Filing 516

ORDER by Judge Edward M. Chen Granting #505 Plaintiff's Renewed Motion for Final Approval. (emcsec, COURT STAFF) (Filed on 2/6/2012)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 ALICIA HARRIS, 9 Plaintiff, 10 ORDER GRANTING PLAINTIFF’S RENEWED MOTION FOR FINAL APPROVAL v. 11 For the Northern District of California United States District Court No. C-08-5198 EMC VECTOR MARKETING CORPORATION, 12 Defendant. ___________________________________/ (Docket No. 505) 13 14 15 Previously, the Court denied Ms. Harris’s motion for final approval of the class action 16 settlement. The parties thereafter participated in a settlement conference with Judge Spero and 17 reached a new settlement agreement, one which modified the terms of the prior settlement 18 agreement. Ms. Harris now asks the Court to give final approval to the new, or modified, settlement 19 agreement. 20 21 22 I. A. FACTUAL & PROCEDURAL BACKGROUND Prior Settlement Agreement Under the old settlement agreement, the parties agreed to settle the case for a maximum 23 payment by Vector of $13 million. See Docket No. 450 (Saltzman Decl., Ex. A) (Joint Stip. ¶¶ 2.H, 24 4.A). Anything not claimed would revert back to Vector. See Docket No. 450 (Saltzman Decl., Ex. 25 A) (Joint Stip. ¶ 4.A). 26 Out of the $13 million, the net settlement amount available for the class would be 27 approximately $7.76 million. See Docket No. 450 (Saltzman Decl., Ex. A) (Joint Stip. ¶¶ 2.I, 4.F- 28 1 G). Other monies would go to attorney’s fees and costs ($4.19 million and $1 million respectively),1 2 the PAGA payment ($25,000),2 and an incentive award to Ms. Harris ($25,000). ($25,000 PAGA 3 payment).3 4 Out of the $7.76 million available to the class, half would be set aside for the training 5 subclass and half set aside for the sample kit subclass. See Docket No. 450 (Saltzman Decl., Ex. A) 6 (Joint Stip. ¶ 4.F-G). Each member of the training subclass would get a net payment of 7 approximately $57 (a gross payment of approximately $94). See Docket No. 450 (Saltzman Decl., 8 Ex. A) (Joint Stip. ¶ 4.G.1). Each member of the sample kit subclass would get a net payment of 9 approximately $75 (a gross payment of approximately $125). See Docket No. 450 (Saltzman Decl., Ex. A) (Joint Stip. ¶ 4.G.2). The class notice that was ultimately issued reflected these same 11 For the Northern District of California United States District Court 10 amounts. See Docket No. 450 (Saltzman Decl., Ex. 1A) (Class Notice at 1, 3) (specifying net and 12 gross amounts). 13 B. 14 Response to Class Notice On May 9, 2011, the claims administrator sent out 68,345 notices. See Docket No. 476 15 (Braun-Wronowski Decl. ¶ 6). Out of these notices, 7,092 were undeliverable. See Docket No. 476 16 (Braun-Wronowski Decl. ¶ 9). In other words, 61,253 notices were deliverable. An additional 142 17 notices were sent out on July 8, 2011. See Docket No. 476 (Braun-Wronowski Decl. ¶ 7). It is not 18 clear from the record how many of the additional notices were not deliverable. See Docket No. 488 19 (Ex. A) (updated claims report). 20 As of July 8, 2011, there were four requests for exclusion from the settlement. See Docket 21 No. 476 (Braun-Wronowski Decl. ¶ 16); Docket No. 488 (Ex. A) (updated claims report). Also, 22 there were approximately two to four objections. Compare Docket No. 476 (Braun-Wronowski 23 Decl. ¶ 15) (stating that there were four objections), with Docket No. 488 (Ex. A) (updated claims 24 report) (indicating that there were two timely objections). 25 26 1 See Docket No. 450 (Saltzman Decl., Ex. A) (Joint Stip. ¶ 4.C.1-2). 27 2 See Docket No. 450 (Saltzman Decl., Ex. A) (Joint Stip. ¶¶ 2.K, 4.B). 28 3 See Docket No. 450 (Saltzman Decl., Ex. A) (Joint Stip. ¶ 4.D). 2 1 Excluding the late claims, the final number of claims made for the training time subclass was 2 16,834. See Docket No. 488 (Ex. A) (updated claims report). If the nondeliverables are not 3 counted, then the claims rate is 27.4 percent (i.e., 16,834 ÷ (61,253 + 142)).4 4 Out of the total class, there are 52,232 class members who are also eligible for benefits by 5 returning their sample knife kit. See Docket No. 487 (Ex. A) (updated claims report). The final 6 number of claims made for the sample kit subclass was 528. See Docket No. 488 (Ex. A) (updated 7 claims report). This is a claims rate of 1 percent (i.e., 528 ÷ 52,232).5 8 C. 9 The new, or modified, settlement agreement basically has the same terms as the old settlement agreement with the following exceptions. 11 For the Northern District of California United States District Court 10 New, or Modified, Settlement Agreement 1. Attorney’s fees. Instead of asking for $4.19 million in attorney’s fees, Ms. Harris is 12 now limiting her request to $2.8 million. See Docket No. 505 (Am. to Joint Stip. ¶ 1). This 13 essentially frees up $1.39 million, which Vector has essentially agreed will not revert back to it but 14 rather will be distributed to the original claimants and a cy pres account.6 If the Court awards less 15 than $2.8 million, then half of the remaining amount reverts to Vector and half is distributed to the 16 cy pres. See Docket No. 505 (Am. to Joint Stip. ¶ 1). 17 2. Original claimants. The class members who submitted claims under the old 18 settlement agreement will get their claims enhanced by 20% – i.e., $69 (instead of $57) for the 19 training subclass and $90 (instead of $75) for the sample kit subclass. See Docket No. 505 (Am. to 20 Joint Stip. ¶ 2) (differences of $12 and $15 respectively). 21 22 With 16,834 claimants for the training time claim, this means that Vector will pay an additional $202,008 (i.e., 16,834 x $12). With 528 claimants for the sample kit claim, this means 23 4 24 25 26 27 This assumes that the 142 additional notices that were sent out on July 8, 2011, were all deliverable. Although it is likely that some were not deliverable, in all likelihood the number was small given that only 7,092 notices were not deliverable out the 68,345 original notices (i.e., approximately 10 percent). 5 The record does not reflect how many notices out of the sample kit subclass were not deliverable. For purposes of this order, the Court assumes that all notices issued were deliverable. 6 28 Vector will actually end up paying a little more than $1.39 million – approximately $20,000 more. 3 1 that Vector will pay an additional $7,920 (528 x $15). In short, out of the $1.39 million that was 2 freed up, the class receives approximately $210,000. Given that the class was going to get about $1 3 million under the old settlement, this means that the class will now get about $1.2 million (net). 4 3. Cy pres. Out of the $1.39 million enhancement under the new settlement, $1.2 5 million will go to a cy pres account. The cy pres account will be distributed to eight different public 6 interest organizations, each of which is related to employment. See Docket No. 505 (Am. to Joint 7 Stip. ¶ 3.). 8 9 Incentive award. Ms. Harris continues to seek an incentive award of $25,000. The parties now expressly agree that anything not awarded will revert to Vector. See Docket No. 505 (Am. to Joint Stip. ¶ 4). 11 For the Northern District of California United States District Court 10 4. Under the new terms of the settlement agreement, the net payment to the class ($1.2 million) 12 and the cy pres ($1.2 million) taken together are about 15.7% of the total maximum verdict value. 13 (The training claim has a maximum verdict value of $7,648,650,7 and the sample kit claim a 14 maximum verdict value of approximately $7,573,640 (i.e., 52,232 x $145).8) 15 16 17 II. A. DISCUSSION Motion for Final Approval As a preliminary matter, the Court notes that it previously certified both an FLSA class and a 18 Rule 23(b)(3) class. See Docket No. 375 (order, filed on 11/5/2010). Thus, the Court need not 19 analyze whether the requirements for certification have been met9 and may focus instead on whether 20 the proposed settlement is fair, adequate, and reasonable. 21 7 22 23 See Docket No. 466 (Order at 15 & n.6) (noting that the parties calculated the maximum verdict value by “multipl[ying] the number of Training Time class members (69,000) by the unpaid average wage for the training time ($110.85)”). 8 24 25 26 27 28 See Docket No. 466 (Order at 21) (noting that, according to Ms. Harris, members of the sample kit subclass “each paid approximately $145.00 ($135 plus sales tax) for the sample kits). 9 See, e.g., Denny v. Deutsche Bank, A.G., 443 F.3d 253, 270 (2d Cir. 2006) (stating that, “[b]efore certification is proper for any purpose – settlement, litigation, or otherwise – a court must ensure that the requirements of Rule 23(a) and (b) have been met” and that “[t]hese requirements should not be watered down by virtue of the fact that the settlement is fair or equitable”); Okudan v. Volkswagen Credit, Inc., No. 09-CV-2293-H (JMA), 2011 U.S. Dist. LEXIS 84567, at *6 (S.D. Cal. Aug. 1, 2011) (noting that a proposed settlement class still must meet the criteria of Rule 23(a) and (b)). 4 1 2 3 4 5 6 7 8 In determining whether a settlement agreement is fair, adequate, and reasonable to all concerned, a district court may consider some or all of the following factors: the strength of plaintiffs’ 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. Molski v. Gleich, 318 F.3d 937, 953 (9th Cir. 2003). In its order granting preliminary approval, the Court provided an assessment of these factors, factors that are deserving of additional analysis are (1) the reaction of the class members to the 11 For the Northern District of California see Docket No. 466 (Order at 22-24), and that assessment largely remains the same. The only 10 United States District Court 9 proposed settlement; (2) the strength of the plaintiffs’ case; and (3) the amount offered in settlement. 12 With respect to the reaction of the class members, as indicated above, very few persons have 13 opted out or objected. The limited number of opt-outs and objections indicates that, as a whole, the 14 class does not find the proposed settlement problematic. As for the objections that have been made, 15 the Court has evaluated them and concludes that they do not establish that the settlement is unfair. 16 For example, one class member objected to the amount of attorney’s fees requested, but the 17 settlement agreement does not guarantee that class counsel will in fact be awarded that sum. 18 Another class member objected on the basis that she is deserving of more money, at least $7,000, 19 given her particular circumstances. Such a recovery is not realistic. Moreover, the objector was 20 entitled to opt out rather than remain in the class. 21 Turning to the remaining factors, i.e., the strength of the plaintiffs’ case and the amount 22 offered in settlement, the Court notes that these factors are related. For example, where the 23 plaintiffs’ case is weak, then a fair settlement may not have great value. See Yeagley v. Wells Fargo 24 & Co., No. C 05-03404 CRB, 2008 U.S. Dist. LEXIS 5040, at *8 (N.D. Cal. Jan. 18, 2008) (noting 25 that, “while the settlement offers little of value to the class, plaintiff’s case is weak and the class 26 could not do better if the Court rejected the settlement”), rev’d on other grounds, 365 Fed. Appx. 27 886 (9th Cir. 2010). In contrast, the stronger the case, the more value the settlement should have in 28 order to be fair and adequate. 5 1 In the instant case, there was considerable risk if the class were to take the case to trial. Most 2 notably, if this Court or an appellate court were to find in Vector’s favor on the fourth Portland 3 Terminal factor (i.e., whether the employer derives an immediate advantage from the activities of the 4 trainees), then the class could lose on the training time claim. As for the sample kit claim, that claim 5 was weak from the outset because a Sales Representative could get his or her deposit back by 6 returning the sample kit. Finally, although this Court rejected Vector’s argument that a Rule 7 23(b)(3) class should not have been certified because the FLSA collective action was a superior way 8 of proceeding, see Docket No. 375 (Order at 28-30), there was authority to support Vector’s position 9 that a 23(b)(3) class for the state law claims was not proper in view of the FLSA opt-in class. See Leuthold v. Destination Am., 224 F.R.D. 462 (N.D. Cal. 2004). Thus, there was a risk to class 11 For the Northern District of California United States District Court 10 certification. The Court concludes that, in light of the above risks, the settlement reached by the 12 parties is sufficiently fair, adequate, and reasonable such that it should be approved. 13 In so holding, the Court acknowledges that the fairness of the settlement with respect to the 14 training claim – the stronger of the two claims – is a close call. In its order granting preliminary 15 approval, the Court had expressed concern that, with a claims procedure for the training time claim, 16 the actual pay-out to the class might be quite low. As it turns out, the claims rate – although not 17 robust – was not inordinately low. Given the claims rate, the training time claim ultimately settled 18 (on a net basis) for approximately 15.3 percent of the maximum verdict value.10 Although this is a 19 relatively small percentage, the Court cannot say that it renders the settlement unfair given the risks 20 identified above. Cf. Glass v. UBS Fin. Servs., Inc., No. C-06-4068 MMC, 2007 U.S. Dist. LEXIS 21 8476, at *13 (N.D. Cal. Jan. 26, 2007) (stating that, given the uncertainties involved in the litigation, 22 it was reasonable for the parties to settle the case for approximately 25 to 35 percent of the amount 23 of damages plaintiff could have hoped to prove at trial). 24 25 26 27 28 10 The maximum verdict value for the training time claim was $7.6 million. See Docket No. 466 (Order at 15 & n.6) (noting that the parties calculated the maximum verdict value by “multip[lying] the number of Training Time class members (69,000) by the unpaid average wage for the training time ($110.85)”). The training time claim settled for approximately $1.16 million (i.e., 16,834 x $69). 6 1 Furthermore, the Court notes that, in approving the settlement, which contains a cy pres 2 component, it has taken into account the Ninth Circuit’s holding in Nachshin v. AOL, LLC, 663 F.3d 3 1034 (9th Cir. 2011). In Nachshin, the Ninth Circuit clarified that 4 the cy pres doctrine allows a court to distribute unclaimed or non-distributable portions of a class action settlement fund to the “next best” class of beneficiaries. Cy pres distributions must account for the nature of the plaintiffs’ lawsuit, the objectives of the underlying statutes, and the interests of the silent class members, including their geographic diversity. 5 6 7 8 9 Id. at ----. In the instant case, Vector argues that the additional $1.39 million that was freed up constitutes an “unclaimed fund,” and therefore a cy pres distribution is appropriate. While, as a 11 For the Northern District of California United States District Court 10 formal matter, the money cannot be characterized as an unclaimed fund (e.g., it is more than likely 12 that those who did make claims under the original settlement would want more money if given the 13 opportunity to stake out an additional claim), the Court is satisfied that, as a practical matter, the 14 money may be so characterized. This is because, if the $1.39 million were to be made available to 15 the entire class (more than 60,000 people), then each class member would get more money but not 16 that much more. Therefore, it is likely that the response of the class would not be materially 17 different – i.e., the vast majority of class members would not make a claim. Thus, at the end of the 18 day, the original claimants would be getting only a bit more and the rest of the fund would be 19 unclaimed; that unclaimed amount would fairly be put into the cy pres, similar to the result under the 20 new settlement. 21 Furthermore, Vector has stated it would not participate in a settlement that would 22 significantly enhance the per class member award (e.g., if the unclaimed funds were distributed to 23 those members who filed a claim resulting in an award close to full verdict value of their training 24 time claim). Vector states it believed the claims lacked merit and a full award per claimant would 25 constitute an unjust windfall. Thus, redistributing $1.39 million directly to the class is not an 26 available option. 27 28 Under these circumstances, the Court is satisfied that the cy pres distribution here is appropriate and consistent with Nachshin. The Court also notes that the cy pres beneficiaries 7 1 identified by the parties are all proper, taking into account “the nature of the plaintiffs’ lawsuit, the 2 objectives of the underlying statutes, and the interests of the silent class members, including their 3 geographic diversity.” Id. 4 Finally, the new settlement obviates the Court’s previously stated concern relating to 5 potential unfairness and collusion under In re Bluetooth Headset Prods. Liability Litig., 654 F.3d 6 935 (9th Cir. 2011). Unlike the initial settlement, the award to the class (directly and via cy pres) 7 under the new settlement is not substantially outstripped by a “clear sailing” attorney fee provision. 8 Furthermore, the new settlement provides that if the fee award is reduced from the requested 9 amount, there is no full reversion to Vector. Instead, half will go to the class. Accordingly, the Court grants final approval to the new, or modified, settlement proposed by 11 For the Northern District of California United States District Court 10 the parties. 12 B. Motion for Attorney’s Fees and Costs 13 1. 14 As indicated above, Ms. Harris is now seeking only $2.8 million in attorney’s fees (instead Attorney’s Fees 15 of $4.19 million). The new fee request is approximately 21.5% of the total settlement (i.e., $13 16 million x 21.5% . $2.8 million). In the renewed motion, Ms. Harris notes (as this Court noted 17 above) that this puts fees on par with the money to the class and the cy pres combined ($2.4 million 18 total). She also points out that the new amount requested is even less than the lodestar, which is 19 claimed to be $3,046,763.75. See Docket No. 470 (Mot. at 8). 20 The Court concludes that the new fee request is fair. First, 25% is the benchmark if the 21 percentage method is used, see Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1407 (9th Cir. 2002), 22 and Ms. Harris is now asking for less than the benchmark. That discount from the benchmark is 23 warranted because, although the settlement for the class is adequate, it is far short of the total 24 settlement fund of $13 million. As this Court previously noted, given the 1% response rate on the 25 sample kit claim, the final amount allocated to that claim (over $3.8 million) was practically 26 illusory. Thus, were the 25% benchmark to apply to the full $13 million, the fee award would be 27 unduly inflated. The discount here is warranted. Second, as Ms. Harris argues, fees are now on par 28 with the money to the class and the cy pres combined (roughly 1:1). The Court is not faced with a 8 1 situation where fees are disproportionate to the class award as in Bluetooth. Third, while the 2 claimed lodestar is arguably excessive (particularly in terms of hours), the Court takes into account 3 the fact that class counsel did spent additional time working on the case since the fee motion was 4 filed back in June 2011. 5 Accordingly, the Court grants the motion for attorney’s fees in the amount of $2.8 million. 6 2. 7 Ms. Harris also asks that class counsel be reimbursed for their costs, totaling $411,522.12, 8 and for the costs incurred or to be by the claims administrator (Epiq Systems, Inc.), not to exceed 9 $250,000. The Court notes that the amounts requested do not exceed the amounts agreed to in the 11 For the Northern District of California United States District Court 10 Costs parties’ settlement agreement (i.e., $1 million total). The Court further notes that counsel and the 12 claims administrator have provided evidence supporting their claims that costs in the above amounts 13 have been or will likely be incurred. See Docket No. 476 (Lee Decl. ¶ 3 & Ex. A) ($144,241,44); id. 14 (Jung Decl. ¶ 3 & Ex. A) ($40,481.25); Docket No. 478 (Saltzman Decl. ¶ 6 & Ex. A) 15 ($226,799.43); Docket No. 476 (Braun-Wronowski Decl. ¶ 20) (noting that, for Epiq, costs in the 16 amount of $68,111.71 were incurred from January 1, 2011, through March 31, 2011, for mailing the 17 notice of certification and that an additional $180,386.42 has been incurred from April 1, 2011, 18 through June 30, 2011). Although the Court has questions about some costs (e.g., the lump sum of 19 $15,000 incurred by Ms. Jung for class administration) and, arguably, some costs may have been 20 unnecessary (e.g., travel costs for multiple attorneys to attend certain hearings or conferences), these 21 costs, as a whole, appear reasonable and were incurred. 22 Accordingly, the Court grants the motion for costs, both as to costs incurred by counsel as 23 well as costs incurred or likely to be incurred by Epiq. Counsel is awarded costs in the amount of 24 $411,522.12 and Epiq is awarded the costs incurred not to exceed $250,000. 25 C. 26 27 28 Motion for Incentive Award Finally, Ms. Harris asks to be awarded $25,000 as an incentive payment. It is well-established in this circuit that named plaintiffs in a class action are eligible for reasonable incentive payments, also known as service awards. In fact, the Ninth Circuit recently noted that 9 1 2 3 4 5 6 7 8 incentive payments to named plaintiffs have become “fairly typical” in class actions. However, while incentive payments have become increasingly common, there is no entitlement to an incentive payment. Rather, “[s]uch awards are discretionary . . . and are intended to compensate class representatives for work done on behalf of the class, to make up for financial or reputational risk undertaken in bringing the action, and, sometimes, to recognize their willingness to act as a private attorney general.” When incentive payments are part of a settlement, the court must carefully consider the disparity created by incentive payments to named plaintiffs because “excessive payments to named class members can be an indication that the agreement was reached through fraud or collusion.” Particularly, the Ninth Circuit has cautioned that, “if class representatives expect routinely to receive special awards in addition to their share of the recovery, they may be tempted to accept suboptimal settlements at the expense of the class members whose interests they are appointed to guard.” 9 15 When considering a request for an incentive payment, the court must evaluate each request individually, taking into account the following factors: (1) the actions the plaintiff has taken to protect the interests of the class; (2) the degree to which the class has benefitted from those actions; (3) the duration of the litigation and the amount of time and effort the plaintiff expended in pursing it; and (4) the risks to the plaintiff in commencing the litigation, including reasonable fears of workplace retaliation, personal difficulties, and financial risks. Additionally, to ensure that an incentive payment is not excessive, the court must balance “the number of named plaintiffs receiving incentive payments, the proportion of the payments relative to the settlement amount, and the size of each payment.” 16 Wren v. RGIS Inventory Specialists, No. C-06-05778 JCS, 2011 U.S. Dist. LEXIS 38667, at *92-94 17 (N.D. Cal. Apr. 1, 2011). Several courts in this District have indicated that incentive payments of 18 $10,000 or $25,000 are quite high and/or that, as a general matter, $5,000 is a reasonable amount. 19 See, e.g., Thieriot v. Celtic Ins. Co., No. C 10-04462 LB, 2011 U.S. Dist. LEXIS 44852, at *21-22 20 (N.D. Cal. Apr. 21, 2011) (noting that incentive payment of $25,000 is on the “high end,” although 21 ultimately awarding that amount); Chu v. Wells Fargo Invs., LLC, Nos. C 05-4526 MHP,C 06-7924 22 MHP, 2011 U.S. Dist. LEXIS 15821, at *14 (N.D. Cal. Feb. 16, 2011) (stating that $10,000 is 23 “perhaps somewhat on the high end of the acceptable range for the size of the class [approximately 24 2,700 members] and the amount of the settlement [$6.9 million]”); Jacobs v. California State Auto. 25 Ass’n Inter-Ins. Bureau, No. C 07-00362 MHP, 2009 U.S. Dist. LEXIS 101586, at *13-14 (N.D. 26 Cal. Oct. 27, 2009) (stating that “[a] $ 25,000 incentive payment is quite high for this district, in 27 which a $ 5,000 payment is presumptively reasonable”; rejecting $25,000 request and awarding 28 $7,500 instead); Hopson v. Hanesbrands Inc., No. CV-08-0844 EDL, 2009 U.S. Dist. LEXIS 33900, 11 For the Northern District of California United States District Court 10 12 13 14 10 1 at *27-28 (N.D. Cal. Apr. 3, 2009) (stating that, “[i]n general, courts have found that $ 5,000 2 incentive payments are reasonable”); see also Wren, 2011 U.S. Dist. LEXIS 38667, at *96 (noting 3 that “there is ample case law finding $5,000 to be a reasonable amount for an incentive payment”). 4 Implicitly cognizant of the above case law, Ms. Harris defends the $25,000 requested by 5 noting that (1) she spent more than 100 hours on this case (which included being deposed twice); (2) 6 her private information was disclosed (e.g., telephone, school, and work records) and she had to 7 explain to family and friends why they were being subpoenaed; (3) her future employment is 8 threatened because she agreed to be a class action plaintiff; and (4) unlike the rest of the class, she is 9 giving Vector a release of all claims. For the most part, the Court finds these arguments unpersuasive. First, that Ms. Harris has 11 For the Northern District of California United States District Court 10 spent more than 100 hours on this case is not particularly compelling, especially because some of the 12 time spent on the case was tied to issues with the merits of her individual claim. Second, her 13 suggestion that her future employment is threatened is entirely speculative. Courts typically have a 14 concern about retaliation where the plaintiff is still employed by the defendant; that is not the case 15 here. Finally, the fact that Ms. Harris is giving up all of her claims against Vector is not enough to 16 justify an award in the amount of $25,000. When asked at the hearing what additional claims she 17 had against Vector, Ms. Harris indicated that she had incurred expenses post-training. But those 18 expenses were likely very minimal as even Ms. Harris has basically admitted during this litigation 19 that she did not work as a Sales Representative for a long period of time. 20 The only point raised by Ms. Harris that does give the Court some pause is the fact that 21 Vector pursued disclosure of her private information and subpoenaed her family and friends. The 22 Court notes that, on the one hand, Vector’s conduct was not completely unjustified. For example, 23 according to Vector, it never received from Ms. Harris a request for payment for qualified sales 24 presentations (“QSPs”). Therefore, it was not unreasonable for Vector to make inquiry as to 25 whether Ms. Harris actually made QSPs to the persons she subsequently identified. Also, it was 26 reasonable for Vector to seek Ms. Harris’s telephone records in order to evaluate her claim that was 27 in constant contact with her managers. But, on the other hand, Vector’s conduct in other ways 28 11 1 bordered on the being overly aggressive – in particular, Vector’s pursuit of Ms. Harris’s school and 2 employment records and its challenge to Ms. Vector’s competency. 3 Given the above, the Court shall award Ms. Harris more than the typical incentive award, but 4 not the $25,000 requested. Notably, the case law on which Ms. Harris relies justifying such awards 5 are distinguishable. For example, in Van Vranken v. Atlantic Richfield Co., 901 F. Supp. 294 (N.D. 6 Cal. 1995), and Glass, 2007 U.S. Dist. LEXIS 8476, the amounts obtained for the class were vastly 7 larger than the settlement amount obtained here ($67 million and $45 million), and, in Van Vranken, 8 there was actually a trial in which the class representative testified. In Cook v. Niedert, 142 F.3d 9 1004 (7th Cir. 1998), the class representative had spent “hundreds of hours” on the case and there was a finding by a special master that he reasonably feared workplace retaliation. Id. at 1016. 11 For the Northern District of California United States District Court 10 Similarly, in Brotherton v. Cleveland, 141 F. Supp. 2d 907 (S.D. Ohio 2001), the class 12 representative spent approximately 800 hours working on the lawsuit. None of these extreme facts 13 exist here. 14 Taking into account the totality of the circumstances, the Court concludes that an incentive 15 award of $12,500 is more than fair to compensate Ms. Harris for her time and efforts on the 16 litigation. 17 18 III. CONCLUSION In sum, in accordance with the above, the Court grants the motion for final approval, grants 19 the motion for fees and costs, and grants the motion for an incentive award. With respect to fees, the 20 award is limited to $2.8 million. With respect to costs, class counsel is awarded costs in the amount 21 of $411,522.12 and Epiq is awarded the costs incurred not to exceed $250,000. Finally, Ms. Harris 22 is awarded an incentive payment of $12,500. 23 24 25 The case is dismissed with prejudice and without costs to any party, other than as specified in the settlement agreement and this order. Upon entry of this order, Ms. Harris and the settlement class members who have not opted 26 out of the settlement shall be deemed to have released the “Released Parties” of the “Released 27 Claims” (as defined in the settlement agreement). 28 12 1 Without affecting the finality of this judgment in any way, the Court retains jurisdiction over 2 (a) implementation of the settlement and the terms of the settlement agreement; (b) distribution of 3 the settlement proceeds; and (c) all other proceedings related tot he implementation, administration, 4 consummation, and enforcement of the terms of the settlement agreement and/or settlement, as well 5 as the administration of claims. The time to appeal from this judgment shall commence upon its 6 entry. 7 In the event that the “Settlement Effective Date” (as defined in the settlement agreement) 8 does not occur, this judgment shall be rendered null and void and shall be vacated, nunc pro tunc, 9 except insofar as expressly provided to the contrary in the settlement agreement, and without prejudice to the status quo ante rights of Ms. Harris, the settlement class members, and Vector. 11 For the Northern District of California United States District Court 10 The Court instructs the Clerk of the Court to enter judgment in accordance with this opinion. 12 This order disposes of Docket No. 505. 13 14 IT IS SO ORDERED. 15 16 Dated: February 6, 2012 17 _________________________ EDWARD M. CHEN United States District Judge 18 19 20 21 22 23 24 25 26 27 28 13

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