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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 KENNETH P. WADE, et al., ) ) ) Plaintiff(s), ) ) v. ) MINATTA TRANSPORTATION CO., ) ) et al., ) Defendant(s). ) ) No. C10-2796 BZ ORDER GRANTING ENHANCEMENT AWARD Before the court is Plaintiffs’ Motion for an Order 18 Granting Enhancement Awards to the Class Representatives. 19 two class representatives each seek a $10,000 incentive 20 payment for their services to the class. 21 The In the Ninth Circuit, a court has discretion to award a 22 class representative a reasonable incentive payment. 23 v. Boeing Co., 327 F.3d 938, 977 (9th Cir. 2003; Mego Fin’l 24 Corp. Sec. Litig. Nadler, 213 F.3d 454, 463 (9th Cir. 2000). 25 Courts have approached such incentives cautiously because they 26 tend to undermine the class representative’s incentive to 27 monitor sub-optimal or collusive settlements at the expense of 28 other class members whose interests the named plaintiff has a 1 Staton 1 duty to protect. Staton, 327 F.3d at 975. Accordingly, 2 courts generally consider the following criteria in 3 determining whether to award an incentive payment: (1) the 4 risk to the class representative in commencing suit, both 5 financial and otherwise; (2) the notoriety and personal 6 difficulties encountered by the class representative; (3) the 7 amount of time and effort spent by the class representative; 8 (4) the duration of litigation; and (5) the personal benefit 9 (or lack thereof) enjoyed by the class representative as a Id. at 977; Van Vranken v. Atlantic 10 result of the litigation. 11 Richfield Co., 901 F.Supp. 294, 299 (N.D. Cal. 1995). 12 Plaintiffs’ counsel argue without any factual support, 13 that by assuming the role of class representatives, they 14 subjected themselves to risks not faced by other class 15 members, including the risk of retaliation. 16 inherent in any suit by an employee against an employer, and 17 if the representatives or their counsel truly had a basis for 18 concern, they could have taken steps to protect the 19 representatives identities. 20 undermined by the Court’s experience that plaintiffs’ counsel 21 in FLSA suits frequently name a large number of class 22 representatives. 23 benefitted from agreeing to act as a class representative - 24 they received skillful representation of experienced counsel 25 which will yield them each a payment of over $8,000. 26 Carter v. Anderson Merchandisers, LP, 2010 WL 144067 (C.D. 27 Cal. 2010). 28 This is a risk This assertion is further That said, the representatives have See In their declarations, the representatives briefly state 2 1 that they were involved with the case by interacting with 2 counsel, participating in conferences, reviewing documents, 3 and attending the day-long mediation that resulted in the 4 settlement. 5 this participation, the brief statement in their declarations, 6 along with counsel’s similarly vague description of their 7 involvement, is insufficient to justify a $10,000 incentive 8 payment for each. 9 representatives they spent substantially more time and effort 10 on the lawsuit than if they were suing only on their behalf. 11 In fact, neither representative provided the court with an 12 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 13 There is however one factor which merits an enhancement. 14 During oral argument, counsel for plaintiffs represented that 15 the class representatives had assisted in trying to locate 16 those class members whose notice was returned or who did not 17 submit a claim. 18 made. 19 representing their fellow workers, it also went against their 20 financial interests since they would have received a prorated 21 share of the payments which went to the two additional 22 claimants. 23 representative receive an enhancement of $1,000. 24 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 25 26 Bernard Zimmerman United States Magistrate Judge 27 G:\BZALL\-BZCASES\WADE V. MINATTA\ORDER GRANTING ENHANCEMENT AWARD.wpd 28 3

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