Wade et al v. Minatta Transportation Company et al

Filing 48

ORDER by Magistrate Judge Bernard Zimmerman granting 33 Motion for Attorney Fees (bzsec, COURT STAFF) (Filed on 2/1/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KENNETH P. WADE, et al.,

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Plaintiff(s),
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v.
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MINATTA TRANSPORTATION CO., )
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et al.,
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Defendant(s).
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No. C10-2796 BZ
ORDER GRANTING
ENHANCEMENT AWARD

Before the court is Plaintiffs’ Motion for an Order

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Granting Enhancement Awards to the Class Representatives.

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two class representatives each seek a $10,000 incentive

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payment for their services to the class.

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The

In the Ninth Circuit, a court has discretion to award a

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class representative a reasonable incentive payment.

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v. Boeing Co., 327 F.3d 938, 977 (9th Cir. 2003; Mego Fin’l

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Corp. Sec. Litig. Nadler, 213 F.3d 454, 463 (9th Cir. 2000).

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Courts have approached such incentives cautiously because they

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tend to undermine the class representative’s incentive to

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monitor sub-optimal or collusive settlements at the expense of

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other class members whose interests the named plaintiff has a
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Staton

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duty to protect.

Staton, 327 F.3d at 975.

Accordingly,

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courts generally consider the following criteria in

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determining whether to award an incentive payment: (1) the

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risk to the class representative in commencing suit, both

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financial and otherwise; (2) the notoriety and personal

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difficulties encountered by the class representative; (3) the

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amount of time and effort spent by the class representative;

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(4) the duration of litigation; and (5) the personal benefit

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(or lack thereof) enjoyed by the class representative as a
Id. at 977; Van Vranken v. Atlantic

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result of the litigation.

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Richfield Co., 901 F.Supp. 294, 299 (N.D. Cal. 1995).

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Plaintiffs’ counsel argue without any factual support,

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that by assuming the role of class representatives, they

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subjected themselves to risks not faced by other class

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members, including the risk of retaliation.

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inherent in any suit by an employee against an employer, and

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if the representatives or their counsel truly had a basis for

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concern, they could have taken steps to protect the

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representatives identities.

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undermined by the Court’s experience that plaintiffs’ counsel

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in FLSA suits frequently name a large number of class

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representatives.

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benefitted from agreeing to act as a class representative -

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they received skillful representation of experienced counsel

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which will yield them each a payment of over $8,000.

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Carter v. Anderson Merchandisers, LP, 2010 WL 144067 (C.D.

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Cal. 2010).

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This is a risk

This assertion is further

That said, the representatives have

See

In their declarations, the representatives briefly state
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that they were involved with the case by interacting with

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counsel, participating in conferences, reviewing documents,

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and attending the day-long mediation that resulted in the

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settlement.

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this participation, the brief statement in their declarations,

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along with counsel’s similarly vague description of their

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involvement, is insufficient to justify a $10,000 incentive

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payment for each.

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representatives they spent substantially more time and effort

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on the lawsuit than if they were suing only on their behalf.

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In fact, neither representative provided the court with an

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estimate of the hours he spent on this litigation.

While the court does not minimize the import of

They have not demonstrated that as class

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There is however one factor which merits an enhancement.

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During oral argument, counsel for plaintiffs represented that

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the class representatives had assisted in trying to locate

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those class members whose notice was returned or who did not

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submit a claim.

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made.

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representing their fellow workers, it also went against their

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financial interests since they would have received a prorated

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share of the payments which went to the two additional

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claimants.

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representative receive an enhancement of $1,000.

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Dated: February 1, 2012

This resulted in two additional claims being

This activity not only demonstrated their dedication to

For these reasons, IT IS ORDERED that each class

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Bernard Zimmerman
United States Magistrate Judge

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