G.F. et al v. Contra Costa County et al

Filing 307

ORDER by Judge Maria-Elena James granting Final Approval of the Settlement Agreements 303 and granting Motion for Reasonable Attorneys' Fees and Costs 292 (mejlc2, COURT STAFF) (Filed on 11/25/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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G. F., et al.,

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Case No. 13-cv-03667-MEJ
Plaintiffs,

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v.
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CONTRA COSTA COUNTY, et al.,

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Defendants.

Re: Dkt. Nos. 292, 303

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United States District Court
Northern District of California

ORDER GRANTING FINAL
APPROVAL OF SETTLEMENT
AGREEMENTS AND GRANTING
MOTION FOR REASONABLE
ATTORNEYS’ FEES AND COSTS

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INTRODUCTION

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The Court preliminarily approved the parties’ settlement of this class case on July 30,

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2015. Prelim. Approval Order, Dkt. No. 288. Now pending before the Court is Plaintiffs’

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unopposed Motion for Final Approval of the Settlement Agreements (Dkt. No. 303) and Motion

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for Reasonable Attorneys’ Fees and Costs (Dkt. No. 292). The Court held a final fairness hearing

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on these matters on November 12, 2015. Dkt. No. 306. Having carefully considered the Motions,

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the relevant legal authority, and the proposed Settlement Agreements and all supporting

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documents, the Court GRANTS FINAL APPROVAL of the Settlement Agreements and

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GRANTS Plaintiffs’ Counsel’s Motion for Attorneys’ Fees and Costs as set forth below.
BACKGROUND1

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A.

Case Background
On August 8, 2013, Plaintiffs G.F. (by and through her guardian ad litem, Gail F.), W.B.,

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and Q.G. filed this action on behalf of themselves and all others similarly situated, alleging

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discrimination against a proposed class of youth with disabilities who are detained, or will be

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A more thorough description of the background of this case, the settlement negotiations, and the
terms of the settlement agreement can be found in the Preliminary Approval Order. See Prelim.
Approval Order at 1-15.

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detained, at the Juvenile Hall located in Martinez, California (“Juvenile Hall”). See Compl. at 1-6,

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Dkt. No. 1; see also First Am. Compl. (“FAC”) at 1-5, Dkt. No. 87. In doing so, Plaintiffs sued

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Defendant Contra Costa County (the “County”), which operates Juvenile Hall through its

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Probation Department, and is responsible for the care of youth detained there. FAC ¶¶ 34-35, 61.

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Plaintiffs also sued Defendant Contra Costa Office of Education (“CCCOE”), in conjunction with

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the County Probation Department, which operates Mt. McKinley, the public onsite school that

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provides educational services for youth held at Juvenile Hall. Id. ¶¶ 47, 122.
In bringing this action, Plaintiffs assert CCCOE and the County (collectively,

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“Defendants”) have adopted and implemented policies and practices with regard to solitary

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confinement that have a disparate impact on youth with disabilities. Id. ¶ 297. Specifically,

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Plaintiffs alleged that Defendants’ solitary confinement policies and practices deny youth

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educational and rehabilitative services, which disproportionately burdens youth with disabilities

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who require additional assistance to access the general education curriculum and rehabilitative

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programs. Id. ¶¶ 2, 9. Plaintiffs also contend that while Individualized Education Plans (“IEPs”)

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are legally required for youth with disabilities, Defendants have an established policy of simply

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disregarding those requirements, noting the IEPs in Juvenile Hall are strikingly similar regardless

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of the students’ varying disabilities, needs, and previous IEPs. Id. ¶¶ 134, 150. Plaintiffs allege

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Juvenile Hall’s IEPs do not consider disability-related behavior that may impact education, and

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Defendants do not rely on positive behavioral interventions and supports to counter behavior that

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impedes learning. Id. ¶¶ 166, 169.

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Plaintiffs filed their Motion for Class Certification contemporaneously with their original

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Complaint, and subsequently re-filed their motion for class certification following the filing of

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their FAC on December 24, 2013. See Dkt. Nos. 8-9 (Mot. and Br. in Supp. of. Class

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Certification), 92-93 (Am. Mot. and Br. in Supp. of. Class Certification). Plaintiffs’ FAC asserts

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six causes of action against Defendants: (1) violation of the Individuals with Disabilities

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Education Improvement Act (“IDEA”), 20 U.S.C. § 1400 et seq.; (2) violation of the Americans

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with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; (3) violation of Section 504 of the

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Rehabilitation Act, 29 U.S.C. § 794, et seq.; (4) violation of California Government Code section
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11135; (5) violation of California Education Code for Special Education Requirements, sections

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56000, et seq.; and (6) violation of California Education Code for General Education

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Requirements. FAC ¶¶ 247-342.
On January 24, 2014, Defendants filed Motions to Dismiss the FAC, Dkt. Nos. 113, 118,

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and on February 7, 2014, they filed their Oppositions to Plaintiffs’ Motion for Class Certification,

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Dkt. Nos. 133, 136. All motions have been fully briefed, but upon notification about the parties’

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ongoing efforts to reach a settlement, the Court deferred ruling on these motions.
After extensive negotiations and the assistance of three experienced mediators, including

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Magistrate Judge Joseph C. Spero, the parties reached an agreement to settle this case. Plaintiffs’

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final agreement with CCCOE (“CCCOE Agreement”) was fully executed on May 18, 2015, and

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their final agreement with the County (“County Agreement”) was fully executed on May 19, 2015

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(collectively, “Settlement Agreements”). Mary-Lee Smith Decl. in Supp. of Prelim. Approval ¶

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24, Dkt. No. 279-1; see also Dkt. No. 279-2 (“CCCOE Agmt.”); Dkt. No. 279-3 (“Cty. Agmt.”).

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Plaintiffs filed an unopposed Motion for Preliminary Approval of their Settlement Agreements on

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June 30, 2015. Dkt. No. 279.

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B.

Settlement Terms

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1.

The County Agreement

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Under the County Agreement, Probation Staff will no longer use room confinement for

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discipline, punishment, administrative convenience, retaliation, staffing shortages or reasons other

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than a temporary response to behavior that threatens immediate harm to the youth or others. Cty.

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Agmt. at 5, § IV(D)(2). Additionally, Probation Staff is prohibited from placing youth in

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continuous room confinement for longer than four hours. Id., § IV(D)(3). After four continuous

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hours, Staff must return the youth to the general population, develop “specialized individualized

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programming” for the youth, or consult with a qualified mental health professional about whether

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a youth’s behavior requires that he or she be transported to a mental health facility. Id.

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Further, Probation Staff must develop special individualized programming for youth with

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persistent behavior problems that threaten the safety of youth or staff or the security of the facility

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and may not use room confinement as a substitute for special individualized programming. Id. at
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5, § IV(D)(4). Special individualized programming includes the development of any

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individualized plan designed to improve the youth’s behavior, which is created in consultation

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with the youth, Contra Costa County Mental Health (“County Mental Health”) staff, and the

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youth’s family members, when available. Id. at 5-6, § IV(D)(4)(a).
The County Agreement calls for increased coordination between Probation, CCCOE, and

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County Mental Health through the use of multi-disciplinary team meetings, to be held at least once

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per month with additional meetings held as needed. Id. at 4, § IV(B). Among other things, the

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meetings will address coordination of responses and interventions as well as coordination of

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special education and counseling services to all eligible youth. Id., §§ IV(B)(1)-(3).
The County will also retain Professor Barry Krisberg as an expert in this matter, and

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Northern District of California

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Professor Krisberg will work with Professor Edward Latessa to conduct a review of the County’s

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policies and practices at Juvenile Hall. Id., § IV(A)(1)-(2). Specifically, Professors Krisberg and

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Latessa will review policies and practices relating to: (a) room confinement; (b) use of behavior

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incentives; (c) coordination between CCCOE and the Probation Department, including but not

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limited to, the County’s coordination with CCCOE on CCCOE’s implementation of IEPs, Section

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504 Plans2, and behavior intervention plans; (d) identification, assessment and tracking of youth

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with disabilities who are detained at Juvenile Hall and referral systems to identify these youth for

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CCCOE and County Mental Health; and (e) the implementation of Juvenile Detention Alternatives

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Initiative standard V.D.4., which specifies that disability must be considered in determining an

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appropriate response when assigning consequences. Id., §§ IV(A)(1)(a)-(e). Following review by

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the experts of the above policies and practices, the joint recommendations of Professors Krisberg

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and Latessa will be submitted to the County and Plaintiffs’ counsel, and the County will

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implement those joint recommendations. Id., § IV(A)(2). The County Agreement also sets forth a

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dispute resolution process if the experts do not agree on recommendations. Id. at 3-4, §§

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IV(A)(2)(a)-(e). If the parties are unable to reach a resolution, they may submit the matter for

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further mediation or to the Court and ultimately the Ninth Circuit if necessary. Id., § IV(A)(2)(a)-

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Section 504 Plans refer to plans established in accordance with the Rehabilitation Act.
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(d). Attorneys’ fees and costs are permitted to the prevailing party under the Agreement. Id., §

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(IV)(A)(2)(e).
The County Agreement consists of two primary phases: the Implementation Period and the

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Monitoring Period. The Implementation Period lasts 18 months, allowing for the experts to

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conduct their review, issue their expert report detailing their findings and recommendations, and

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for the County to train staff and revise policies to implement those recommendations. Id. at 6, §

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IV(E). Following that Period, there will be a Monitoring Period that lasts for 24 months, during

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which the experts will provide the parties with monitoring reports every six months. Id. The

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parties will rely on benchmarks to show the County’s compliance with the County Agreement
during the initial phase of the Monitoring Period, concluding with the provision that all units will

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be in substantial compliance with the provisions of the County Agreement. Id., § IV(E).

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The County Agreement provides for the payment of $1,340,000 as full and final settlement

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of all attorneys’ fees and costs related to this case and the named Plaintiffs’ individual due process

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claims, as set forth in Contra Costa County v. Barbara C., Civil Case No. C-14-00268 MEJ,

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Contra Costa County v. CiCi C., Civil Case No. C-14-00269 MEJ, and Contra Costa County v.

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Gail F., Civil Case No. C-14-00270 MEJ. Id. at 11-12, § IX.

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2.

The CCCOE Agreement

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The CCCOE Agreement provides for CCCOE to retain an expert with expertise in: (1) the

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IDEA; (2) the Rehabilitation Act and the ADA; (3) California state law requirements pertaining to

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special education; and (4) the operation of juvenile court schools. CCCOE Agmt. at 2, § 4.1.1.

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This expert will conduct a review of CCCOE’s policies, procedures and practices in the following

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areas: (a) Child Find obligations3 in accordance with the IDEA, related California law, and the

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Rehabilitation Act for youth with suspected disabilities who are detained at Juvenile Hall; (b)

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development and implementation of IEPs and Section 504 Plans in accordance with the IDEA,

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According to Plaintiffs’ FAC, “a local education agency (‘LEA’) has what are called ‘Child
Find’ obligations, which means it must have procedures to identify, locate and evaluate ‘[a]ll
children with disabilities . . . who are in need of special education and related services[.]’ 20
U.S.C. § 1412(a)(1)(A); Cal. Educ. Code § 56301(a); see also 45 C.F.R. § 84.32(a). When a LEA
identifies a student suspected of having a disability, an initial assessment must be conducted by
qualified persons in all areas of suspected disability. Cal. Educ. Code § 56320.” FAC ¶ 128.
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related California law, and the Rehabilitation Act for all eligible disabled youth detained in

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Juvenile Hall; (c) discipline in accordance with applicable law for all eligible disabled youth

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detained in Juvenile Hall; and (d) CCCOE’s obligation to coordinate with Probation regarding all

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matters in which CCCOE and Probation have joint or overlapping responsibilities, in accordance

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with relevant California law. Id. at 3-4, § 4.1.7.

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To conduct this review, the CCCOE Agreement gives the expert full and reasonable access

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to any and all information he or she deems necessary, including: (1) full access to the areas in

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which CCCOE operates; (2) the ability to talk with, consult with, and interview staff from

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CCCOE; (3) the ability to observe youth in the classroom setting, attend IEP meetings with the
consent of the educational rights holder, observe youth during other special education related

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Northern District of California

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services (except for individual counseling services), and review recordings of IEP team meetings;

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(4) access to CCCOE records, with the exception of private personnel files; and (5) the ability to

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conduct written surveys of youth detained in Juvenile Hall and to speak with small groups of

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students as needed. Id. at 4-5, § 4.1.8.

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Based on this review, the expert will develop a report (“Expert Report”) that will include

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all proposed revisions to policies, procedures, and practices he or she recommends. Id. at 5, §

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4.1.10. This report will be completed within six months of the commencement of the expert’s

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review. Id. Following the issuance of the Expert Report, both Plaintiffs and CCCOE will have an

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opportunity to challenge any recommendation contained in the report on the basis that it is not

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required by and/or does not comply with federal and/or state law. Id., § 4.1.11. Once all

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challenges have been resolved, CCCOE will adopt and implement the report. Id., § 4.1.12.

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CCCOE shall use best efforts when implementing the Expert Report to coordinate and cooperate

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with other authorities operating in and providing services at Juvenile Hall, including, but not

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limited to, the County’s Probation Department. Id. at 6, § 4.3.1.

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Following selection of the Expert and drafting and approval of the Expert Report, there

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will be a 24-month monitoring term. Id. at 5, § 4.1.12. During this time, the Expert will provide

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the parties with monitoring reports on a quarterly basis for the first 12 months and on a semi-

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annual basis thereafter with a final report at the end of the monitoring term. Id. at 6, § 5.2.
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In addition, CCCOE will designate at least one employee at Juvenile Hall as an “ADA

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Coordinator” who will be responsible for ensuring compliance with the ADA generally and for

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investigating and responding to any ADA complaints. Id. at 6, § 4.2.1.

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To the extent disputes arise regarding the Expert Report and/or compliance with the

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CCCOE Agreement during its term, the CCCOE Agreement provides for a dispute resolution

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process, which may be heard by this Court or appealed further. Id. at 7, § 6.2.

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Finally, the CCCOE Agreement provides for a total payment of $1,165,000 for reasonable

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attorneys’ fees and costs incurred during the course of the lawsuit, to be paid in installments, with

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$70,000 of this amount put aside to compensate for fees, expenses and costs incurred in

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monitoring CCCOE’s implementation of the Settlement Agreement. Id. at 11, §§ 12.2-7.

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3.

Similar Provisions in Both Agreements

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Under the CCCOE Agreement, the “Released Injunctive Claims” are “any and all claims,

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rights, demands, charges, complaints, actions, suits and causes of action, whether known or

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unknown, suspected or unsuspected, accrued or unaccrued, for injunctive or declaratory relief, that

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have been brought in the Lawsuit or which could have been brought as educationally-based claims

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under the ADA, Rehabilitation Act, and/or IDEA, arising from August 8, 2013 through the Term

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of the Agreement.” Id. at 10, § 11.2. The Term of the Agreement is defined as “from the

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Effective Date [i.e., the date of Final Approval] until the completion of the Expert Monitoring

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Term and issuance of the final Monitoring Report[.]” Id. at 8, § 7.1. The County Agreement is

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similar: the “Released Injunctive Claims” are “any and all claims[,] rights, demands, charges,

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complaints, actions, suits and causes of action, whether known or unknown, suspected or

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unsuspected, accrued or unaccrued, for injunctive or declaratory relief, that have been brought in

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this lawsuit under the IDEA, Section 504, the ADA, California Government Code § 11135 and/or

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the California Education Code[,] arising from August 8, 2013 through the Term of the

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Agreement[.]” Cty. Agmt. at 10, § VI. The Term of the Agreement is defined as “from the

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Effective Date [i.e., the date of Final Approval] until the completion of the Monitoring Period,

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which shall be the date of the issuance of the final Monitoring Report.” Id. at 12, § X(A). At the

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hearing, Plaintiffs’ counsel confirmed the “Terms” of these Agreements would last approximately
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three years to three and a half years, give or take the time built into the CCCOE Agreement to

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select experts for CCCOE’s monitoring.

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The settlements do not: (1) provide for any monetary relief to be paid to class members;

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(2) release any individual claims for damages, or otherwise affect the rights of class members to

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pursue individual claims for compensatory education or other individual relief under the IDEA

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and/or Section 504 of the Rehabilitation Act; and (3) do not affect any claims for reasonable

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accommodations related to physical access, communication access, and/or accommodations

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otherwise relating to hearing, vision and/or mobility disabilities arising under the ADA or the

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Rehabilitation Act. CCCOE Agmt. at 10-11, § 11; Cty. Agmt. at 10, § VI.4
The Agreements provide for the Court to retain jurisdiction for purposes of approval and

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enforcement of any award of attorneys’ fees and costs, as well for purposes of dispute resolution.

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Cty. Amgt. at 11, § VIII; CCCOE Agmt. at 10, § 10.1; see also Stipulation, Dkt. No. 284.

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C.

Preliminary Approval

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On Preliminary Approval, the Court conditionally certified the stipulated and proposed

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class for purposes of settlement pursuant to Federal Rules of Civil Procedure 23(a) and (b)(2),

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defined as:

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[A]ll youth with disabilities as defined under the ADA and the
Rehabilitation Act who are currently detained at or who will be
detained at the Contra Costa County Juvenile Hall.

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Prelim. Approval Order at 26; see also Cty. Agmt. at 2, § V(B).; CCCOE Agmt. at 2, § 3.2.1. The

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Court also appointed Disability Rights Advocates (“DRA”) and Public Counsel as class counsel to

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effectuate the settlement, and Plaintiffs G.F., by and through her guardian ad litem, Gail F.; W.B.;

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and Q.G as class representatives for settlement purposes only. Prelim. Approval Order at 26.

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Under the County Agreement, however, the three named Plaintiffs have released their individual
claims for compensatory education against the County as a resolution of their related individual
appeals cases, Contra Costa County v. Barbara C., Civil Case No. C-14-00268 MEJ, Contra
Costa County v. CiCi C., Civil Case No. C-14-00269 MEJ, and Contra Costa County v. Gail F.,
Civil Case No. C-14-00270 MEJ. Cty. Agmt. at 10-11, §§ VI-VII. Specifically, the County will
pay the named Plaintiffs a total of $1,140, representing the amount awarded to them for
compensatory education by an administrative judge from the Office of Administrative Hearings
(“OAH”) in their separate individual due process administrative proceedings. See Prelim.
Approval Mot. at 4-5 & 10 n.6. The County will provide these funds in exchange for Plaintiffs
dismissing their cross appeals of the OAH’s decisions. Id. at 10 n.6.
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The Court also largely approved the form and content of the proposed Notice of Proposed

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Settlement of Class Action Lawsuit (“Notice”), Dkt. No. 284-1, as well as the Notice Plan as set

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forth in the parties’ Agreements (CCCOE Agmt. at 8, § 8.4; Cty. Agmt. at 9, § V(F)). Id. at 26-27.

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D.

Post-Preliminary Approval

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Following preliminary approval of the Settlement Agreements, the parties set off to

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accomplish the Notice Plan, see Decl. of Kimberly Smith Confirming Distribution of Notice to Pl.

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Settlement Class Members (“CCCOE Decl.”) ¶ 5(a)-(b), Dkt. No. 300; Decl. of D. Cameron Baker

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Regarding Distribution of Notice of Settlement (“Cty. Decl.”) ¶ 4(b), Dkt. No. 301; Mary-Lee

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Smith Decl. In Supp. of Pls.’ Unopposed Mot. for Final Approval of the Settlement Agmts.

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(“Smith Final Approval Decl.”) ¶ 11, Dkt. No. 304.
Plaintiffs filed their Motion for Reasonable Attorneys’ Fees and Costs (“Attys’ Fees

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Northern District of California

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Mot.”), Dkt. No. 292, on September 29, 2015, and subsequently, on October 29, 2015, filed their

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unopposed Motion for Final Approval of the Settlement Agreements (“Final Approval Mot.”),

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Dkt. No. 303. The Court held the fairness hearing on these matters on November 12, 2015. Dkt.

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No. 306.
DISCUSSION – FINAL APPROVAL

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A.

Legal Standard
The Ninth Circuit maintains a “strong judicial policy” that favors the settlement of class

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actions. Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992). Nonetheless,

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“[t]he claims, issues, or defenses of a certified class may be settled . . . only with the court’s

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approval.” Fed. R. Civ. P. 23(e). “The purpose of Rule 23(e) is to protect the unnamed members

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of the class from unjust or unfair settlements affecting their rights.” In re Syncor ERISA Litig.,

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516 F.3d 1095, 1100 (9th Cir. 2008) (citation omitted).

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“Adequate notice is critical to court approval of a class settlement under Rule 23(e).”

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Hanlon v. Chrysler Corp., 150 F.3d 1011, 1025 (9th Cir. 1998). Additionally, Rule 23(e) requires

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the Court to determine whether the proposed settlement “is fundamentally fair, adequate, and

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reasonable.” Id. at 1026; Fed. R. Civ. P. 23(e)(2) (“If the proposal would bind class members, the

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court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate.”).
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To assess whether a settlement proposal is fair, adequate, and reasonable, the Court must generally

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balance a number of factors, including:

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(1) the strength of the plaintiffs’ case; (2) the risk, expense,
complexity, and likely duration of further litigation; (3) the risk of
maintaining class action status throughout the trial; (4) the amount
offered in settlement; (5) the extent of discovery completed and the
state of the proceedings; (6) the experience and views of counsel; (7)
the presence of a governmental participant; and (8) the reaction of
the class members to the proposed settlement.

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In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 946 (9th Cir. 2011) (citations omitted).

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Where a settlement agreement is negotiated prior to formal class certification, it is subject to a

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higher level of scrutiny, and a court’s approval order must ensure that the settlement is not the

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product of collusion among the negotiating parties. Id. at 946-47.

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B.

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Adequacy of Notice
Rule 23(e) requires that “[t]he court must direct notice in a reasonable manner to all class

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members who would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1). The notice must be

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“reasonably calculated, under all the circumstances, to apprise interested parties of the pendency

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of the action and afford them an opportunity to present their objections.” Mullane v. Central

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Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950) (citations omitted); see also Officers for

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Justice v. Civil Serv. Comm’n of City & Cty. of S.F., 688 F.2d 615, 624 (9th Cir. 1982) (“The class

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must be notified of a proposed settlement in a manner that does not systematically leave any group

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without notice.” (citation omitted)). “Rule 23(e) requires notice that describes ‘the terms of the

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settlement in sufficient detail to alert those with adverse viewpoints to investigate and to come

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forward and be heard.’” In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 946 (9th Cir.

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2015) (quotation omitted). The court’s role in reviewing a proposed settlement is to represent

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those class members who were not parties to the settlement negotiations and agreement. See, e.g.,

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S.F. NAACP v. S.F. Unified Sch. Dist., 59 F. Supp. 2d 1021, 1027 (N.D. Cal. 1999).

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How Notice Was Effected

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The Court previously approved (1) the form and content of the proposed Notice, Dkt. No.

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284-1; (2) the Notice Plan as set forth in the parties’ Agreements in Dkt. Nos. 279-2 (CCCOE

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Agmt. at 8, § 8.4) and 279-3 (Cty. Agmt. at 9, § V(F)); and (3) the parties’ Stipulation at Dkt. No.
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284. Prelim. Approval Order at 26-27. The Court also ordered the distribution of the Notice to

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the class be completed by August 21, 2015. Id. at 27. The parties have largely fulfilled the Notice

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Plan, as discussed below.

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i.

County’s Notice

First, the County posted the approved Notice in visitor areas, in a prominent place in each

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unit, and in the entrance lobby of Juvenile Hall, commencing on or about August 6, 2015. Cty.

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Decl. ¶ 4(b). Second, the County e-mailed the approved Notice to the Contra Costa County

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Juvenile Court Judges, the Contra Costa County Public Defender’s Office, and the Contra Costa

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County District Attorney’s Office. Id. ¶ 4(a). Finally, Plaintiffs and the County Department of
Probation posted the Notice and proposed Agreement in prominent places on their respective

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Northern District of California

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websites on or before August 20, 2015. Id. ¶ 4(c); Smith Final Approval Decl. ¶ 11.

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ii.

CCCOE Notice

First, CCCOE distributed the approved Notice to education rights holders of all youth

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currently enrolled at Mt. McKinley with an IEP and/or a Section 504 plan, by personal delivery or

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by First Class U.S. mail to the last known address. CCCOE Decl. ¶ 5(a)-(b). CCCOE sent out a

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total of 65 notices and only two were returned as undeliverable. Supplemental Declaration of

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Kimberly A. Smith Regarding Distribution of Notice to Plaintiff Settlement Class Members

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(“CCCOE Suppl. Decl.”) ¶ 4, Dkt. No. 302. At the Hearing, CCCOE’s counsel represented to the

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Court that it had successfully re-sent one of those previously returned notices, meaning only one

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notice was ultimately undeliverable. See also id. In addition, CCCOE posted the approved Notice

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in each classroom of Juvenile Hall, id. ¶ 5(c), and Plaintiffs’ Counsel and CCCOE posted the

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Notice and proposed Agreement in a prominent place on their respective websites, on or before

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August 20, 2015. Id. ¶ 6; Smith Final Approval Decl. ¶ 12.

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iii.

CAFA Compliance

Defendants provided Notice of the proposed Agreements to the U.S. Department of

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Justice, the U.S. Department of Education, the Office of Juvenile Justice and Delinquency, the

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Attorney General for the State of California, the California Department of Education, and the

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California Board of State and Community Corrections, as required by the Class Action Fairness
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Act (“CAFA”), 28 U.S.C. § 1715(b), by registered mail sent on July 10, 2015. Cty. Decl. ¶ 4(d)

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and Ex. B. None of these class notices were returned as undeliverable. Id. ¶ 4(d).
iv.

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Website Link Issues

There were a couple problems that arose in posting the Notice and Proposed Settlement

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Agreements online. Specifically, around August 4, 2015, the County Department of Probation

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posted the Notice on its website but did not directly provide the Agreement; instead, the County

7

directed viewers to follow a link to the DRA website to find the proposed Agreement. Id. ¶ 4(c).

8

The County discovered this deficiency on October 2, 2015, and promptly posted the Agreement

9

directly to its website. Id. CCCOE likewise had a problem posting this information. Around

10

August 20, 2015, CCCOE posted an announcement of the proposed settlement with a link that

11
United States District Court
Northern District of California

4

opened the Proposed Settlement Agreement, but it was later discovered on September 30, 2015

12

that the link did not include the Notice. CCCOE Decl. ¶ 6. CCCOE corrected the website on

13

October 1, 2015. Id.

14

2.

Whether Notice Was Adequate

15

Given the foregoing, the Court finds that notice was directed in a reasonable manner to

16

class members who will be bound by the parties’ proposed Agreements. See Fed. R. Civ. P.

17

23(e)(1). First, the Court previously approved the language of the Notice itself and remains

18

satisfied that the notice describes the terms of the settlement in sufficient detail to alert those with

19

adverse viewpoints to investigate and to come forward and be heard. In re Online, 779 F.3d at

20

946. Second, the Court finds Defendants’ manner of effecting notice “apprise[d] interested parties

21

of the pendency of the action and afford[ed] them an opportunity to present their objections.”

22

Mullane, 339 U.S. at 314. While there were some minor issues with the posting of the

23

Agreements on the Defendants’ websites, the Court finds these minor mistakes do not detract from

24

the overall reasonableness of the notice effected in this case. The Court is satisfied that the notice

25

mailed and personally delivered to the education-rights holders, as well as the various postings of

26

the notice in the classrooms and lobby areas ensures class members received reasonable notice of

27

the Settlement Agreements.

28

//
12

1
2

C.

Fairness, Adequacy, and Reasonableness
The Court now examines the Settlement Agreements to ensure they are “fair, reasonable,

3

and adequate.” Fed. R. Civ. P. 23(e)(2). In doing so, the Court considers the settlement factors

4

listed above. As noted, when settlement occurs before formal class certification, settlement

5

approval requires a higher standard of fairness in order to ensure that class representatives and

6

their counsel do not secure a disproportionate benefit at the expense of the class. See Lane v.

7

Facebook, Inc., 696 F.3d 811, 819 (9th Cir. 2012).
Strength of Plaintiffs’ Case

8

1.

9

Approval of a class settlement is appropriate when plaintiffs must overcome significant
barriers to make their case. Chun-Hoon v. McKee Foods Corp., 716 F. Supp. 2d 848, 851 (N.D.

11
United States District Court
Northern District of California

10

Cal. 2010). Here, Plaintiffs recognize the multitude of barriers they face to prevail with their

12

claims, including “acknowledg[ing] the novel nature of their class claims” and the obstacles in

13

establishing their claims in light of the uncertainties surrounding class certification and

14

Defendants’ Motions to Dismiss. See Final Approval Mot. at 9 (citing Smith Final Approval Decl.

15

¶ 8). Plaintiffs and the Court have previewed Defendants’ arguments in those Motions, and there

16

are several contentious issues that threaten Plaintiffs’ ability to maintain this case and their class

17

claims. While Plaintiffs maintain the Court would have certified the class and they would have

18

prevailed at summary judgment or trial, the challenges Plaintiffs face in this case weigh in favor of

19

approving the settlement.

20

2.

Risk, Expense, Complexity, and Likely Duration of Further Litigation

21

Difficulties and risks of litigating weigh in favor of approving a class settlement. See

22

Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 966 (9th Cir. 2009). According to Plaintiffs, “both

23

parties agree that, absent settlement, this case would involve prolonged and costly litigation,

24

which might last years and involve extensive and complex law and motion practice.” Final

25

Approval Mot. at 10 (citing Smith Final Approval Decl. ¶ 9). In addition to the complexities

26

inherent with the claims here, the case is still at a relatively early stage in the proceedings, with

27

potentially years more protracted litigation before trial. Additionally, as Plaintiffs discussed, the

28

issues raised in this case are somewhat novel, which in the Court’s experience raises the likelihood
13

1

of significant motion practice and often appeals as well. See Rodriguez, 563 F.3d at 966

2

(“Inevitable appeals would likely prolong the litigation, and any recovery by class members, for

3

years. This factor, too, favors the settlement.”). Plaintiffs maintain “[t]he proposed Agreements

4

avoid the risk, delay, and cost of further litigation, and allow all parties to participate in fashioning

5

almost immediate relief for young people with disabilities at Juvenile Hall.” Final Approval Mot.

6

at 10. Given the foregoing, the Court finds this factor weighs in favor of approving the settlement.

7

3.

Risk of Maintaining Class Action Status Throughout Trial

8

The potential difficulties associated with achieving and maintaining class certification in
this case weigh in favor of approving the settlement. See Chun-Hoon, 716 F. Supp. 2d at 851. At

10

the time the parties executed the Settlement Agreements, the Court had not certified the class, and

11
United States District Court
Northern District of California

9

it is unclear whether certification would have been granted. Defendants raised a number of

12

forceful challenges to Plaintiffs’ operative Class Certification Motion, including moving to strike

13

Plaintiffs’ expert. See Dkt. No. 143. Plaintiffs’ Counsel acknowledges that even if the Court

14

originally certified the class, there was a risk that “after granting Plaintiffs’ motion [for class

15

certification]” the Court could “later decertify the class.” Final Approval Mot. at 9-10 (citing

16

Smith Final Approval Decl. ¶ 9). Given these circumstances, the Court finds this factor weighs in

17

slight favor of approving the settlement.

18

4.

19

The class-wide relief proposed in the Settlement Agreements is wholly injunctive;

20

Amount Offered in Settlement

accordingly, this factor does not have weight in the Court’s analysis.

21

5.

Extent of Discovery Completed and the State of the Proceedings

22

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

23

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

24

about settlement.” In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 459 (9th Cir. 2000) (quotation

25

omitted). Accordingly, courts often “look to the amount of exchanged information prior to

26

settlement to determine whether the parties have made an informed decision to settle the case.”

27

Willner v. Manpower Inc., 2015 WL 3863625, at *4 (N.D. Cal. June 22, 2015) (citation omitted).

28

The extent of discovery completed and the stage of the proceedings weigh in favor of final
14

1

approval. The parties entered into the proposed Agreements nearly two years after Plaintiffs filed

2

their Complaint. See Dkt. Nos. 1, 279-2, 279-3. Before filing, Plaintiffs’ counsel conducted an

3

extensive investigation of policies and practices affecting youth at Juvenile Hall, including

4

reviewing thousands of pages of documents obtained through Public Records Act requests and

5

education records requests as well as making numerous visits to Juvenile Hall to meet with

6

detained youth. Smith Final Approval Decl. ¶ 6. Since the action commenced, the parties have

7

engaged in significant discovery. Among other things, Defendants produced extensive education

8

records concerning individual young people held at Juvenile Hall, and each of the named Plaintiffs

9

have been deposed. Id. Additionally, the parties have briefed two separate sets of motions to
dismiss and a motion for class certification, and Plaintiffs have pursued administrative

11
United States District Court
Northern District of California

10

proceedings against the County and CCCOE on behalf of each of the named Plaintiffs. Id. By the

12

time the Settlement Agreements were reached, the litigation had proceeded to a point where both

13

Plaintiffs and Defendants “ha[d] a clear view of the strengths and weaknesses of their cases.”

14

Chun-Hoon, 716 F. Supp. 2d at 852. Approval of the settlement is thus favored.

15

6.

The Experience and Views of Counsel

16

“Parties represented by competent counsel are better positioned than courts to produce a

17

settlement that fairly reflects each party’s expected outcome in litigation.” In re Pac. Enters. Sec.

18

Litig., 47 F.3d 373, 378 (9th Cir. 1995). Class Counsel, the DRA and Public Counsel, are well-

19

qualified litigators with specialized expertise in the fields of disability and education rights. DRA

20

has served as lead counsel in over one hundred disability rights class action cases across the

21

United States and has specialized expertise in class action litigation to improve physical and

22

programmatic access to governmental programs and activities. Smith Preliminary Approval Decl.

23

¶ 6, Dkt. No. 279-1; see also Californians for Disability Rights, Inc. v. Cal. Dep’t of Transp., 2010

24

WL 2228531, at *3 n.3 (N.D. Cal. June 2, 2010) (acknowledging DRA’s “extensive experience

25

litigation ADA class action claims.”). Likewise, Public Counsel’s education rights team has

26

extensive experience in impact litigation to improve access to education services, particularly

27

special education services. Laura Faer Decl. in Supp. of Pls.’ Mot. for Attorneys’ Fees & Final

28

Approval of Class Settlement Agmts. (“Faer Decl.”) ¶¶ 5-9, Dkt. No. 294.
15

1

Class Counsel consider the proposed Agreements to be fair and reasonable compromises of

2

the disputed issues. Smith Final Approval Decl. ¶ 10. They also indicate they are aware of no

3

other class action challenging disciplinary and educational policies and practices in a juvenile hall

4

on the basis of disability discrimination that has resulted in such comprehensive reforms,

5

particularly, the adoption of national best practices found in the Juvenile Detention Alternatives

6

Initiative standards. Id. ¶ 10. Accordingly, this factor weighs in favor of the settlements.

7

7.

8

While the government participants in this case are the Defendants, their support of the

9

The Presence of a Governmental Participant

settlements nevertheless weights slightly in favor of approval. Moreover, the United States
Department of Justice submitted a Statement of Interest in this case in February 2014 (Dkt. No.

11
United States District Court
Northern District of California

10

159), and it has not objected to the Settlements, despite receiving Notice of the Agreements. See

12

Cty. Decl. ¶ 4(d) and Ex. B. These facts weigh slightly in favor of the settlements.

13

8.

Reaction of the Class Members to the Proposed Settlement

14

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

15

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

16

members.” In re Omnivision Techs., Inc., 559 F. Supp. 2d 1036, 1043 (N.D. Cal. 2008) (quotation

17

omitted). No class members submitted objections to either the County or CCCOE Agreement.

18

Smith Final Approval Decl. ¶ 13. There were no other responses received by Plaintiffs’ counsel

19

from class members. Id. Accordingly, this factor weighs in favor of the settlements.

20

9.

Potential Collusion

21

In addition to the eight factors above, where a settlement is agreed upon prior to class

22

certification, the Court must also consider whether the settlement is the product of collusion

23

among the negotiating parties. In re Bluetooth, 654 F.3d at 947. In its Preliminary Approval

24

Order, the Court found “[t]he settlements in this case appear to be the product of serious,

25

informed, non-collusive negotiations.” Prelim. Approval Order at 22. In doing so, the Court

26

primarily considered the procedure by which the parties arrived at their settlements. See Chun-

27

Hoon, 716 F. Supp. 2d at 852. In charting out all the various negotiations that took place to settle

28

this case, the Court found these negotiations were “extensive and serious . . . lasting virtually the
16

1

duration of the litigation,” but at the same time the “parties continued to vigorously litigate the

2

action, which in turn permitted them to become more informed about the facts of this case.”

3

Prelim. Approval Order at 22-23. Additionally, the Court noted “the Parties did not negotiate

4

Plaintiffs’ attorney’s fees or costs until after agreement was reached on the key merits issues.” Id.

5

at 23; Hanlon, 150 F.3d at 1027 (affirming trial court’s approval of class action settlement where

6

parties reached agreement after several months of negotiation and the record contained no

7

evidence of collusion).

8
9

In addition to the procedure by which the parties arrived at their settlements, the Court
must also look for other signs that may demonstrate collusion, including (1) when counsel receive
a disproportionate distribution of the settlement, or when the class receives no monetary

11
United States District Court
Northern District of California

10

distribution but class counsel are amply rewarded; (2) when the parties negotiate a “clear sailing”

12

arrangement providing for the payment of attorneys’ fees separate and apart from class funds,

13

which carries the potential of enabling a defendant to pay class counsel excessive fees and costs in

14

exchange for counsel accepting an unfair settlement on behalf of the class; and (3) when the

15

parties arrange for fees not awarded to revert to defendants rather than be added to the class fund.

16

In re Bluetooth, 654 F.3d at 947.

17

The first potential sign of collusion is present here: class counsel seek approximately $2.5

18

million in fees (Attys’ Fees Mot. at 1), while the class receives no monetary compensation under

19

the Settlement Agreements. The second potential sign of collusion is also present to an extent;

20

while there are no class funds, the Settlement Agreements arrange for class counsel to be paid

21

apart from some of the relief for to the class in the sense that Class Counsel will be paid before the

22

Defendants implement much of the injunctive relief established in the Settlement Agreements after

23

the expert reports. The third potential sign of collusion is not present: the Settlement Agreements

24

do not provide for fees not awarded to revert to Defendants. Although two of the potential signs

25

of collusion appear to be present here, their presence is not dispositive; rather, “[w]here a class

26

action settlement results in injunctive relief, the court must ensure that the amount of the requested

27

attorneys’ fees does not result in ‘less injunctive relief for the class than could otherwise have been

28

obtained.’” In re Bluetooth, 654 F.3d at 947 (quotation omitted).
17

The Court is reassured the amount of requested attorneys’ fees has not resulted in less

1
2

injunctive relief for the class than could have otherwise been obtained. First, as noted previously,

3

the fact that the parties only negotiated attorneys’ fees after agreement was reached on the key

4

merits issues is favorable in showing class counsel did not allow their attorneys’ fees to interfere

5

with the injunctive relief sought for the class. In support of this fact, Class counsel submitted the

6

Declaration of Mary-Lee Smith, an attorney with the DRA, who states under the penalty of perjury

7

that the parties “did not negotiate Plaintiffs’ attorneys’ fees or costs until after reaching agreement

8

on the key merits issues.” Smith Final Approval Decl. ¶ 7. Second, the parties worked with

9

neutral mediators, including Judge Spero (id.), which is “a factor weighing in favor of a finding of
non-collusiveness,” though not dispositive on its own of whether the end product is a fair,

11
United States District Court
Northern District of California

10

adequate, and reasonable settlement agreement. In re Bluetooth, 654 F.3d at 948. Third, the

12

Agreements provide that Class Counsel can seek addition attorneys’ fees in monitoring

13

Defendants’ compliance with the Agreements, which indicates the fee amounts provided for in the

14

Agreements are not necessarily class counsel’s final settling point and provides incentive to ensure

15

the injunctive relief is fully implemented. See Cty. Agmt. at 11, § IX; CCCOE Agmt. at 6, § 5.3

16

and 11, § 12.4. Fourth, considering the Settlement Agreements in their entireties, and comparing

17

the relief originally sought in this case to the relief achieved through these Agreements, the Court

18

finds the Agreements largely accomplish the injunctive relief sought in Plaintiffs’ First Amended

19

Complaint. See Final Approval Mot. at 7-8. Finally, the Court has considered Plaintiffs’

20

Counsel’s fee request and the reasonableness of those fees in the section below and finds them to

21

be fair and reasonable under the circumstances.
In sum, while the attorneys’ fees in this case are not insignificant, the Court has not

22
23

uncovered grounds for finding the requested fees have resulted in less injunctive relief for the

24

class or that there is evidence of collusion between the parties.

25

10.

Summary

26

Given the foregoing analysis, the Court finds that even under heightened scrutiny, the

27

Settlement Agreements are “fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2).

28

//
18

1

D.

Certification of the Settlement Class

2

In considering Plaintiffs’ Preliminary Approval Motion, the Court considered in detail

3

whether all of the elements of Rule 23 are met such that certification of a settlement class was

4

warranted. See Prelim. Approval Order at 16-22. “Because the Settlement Class has not changed,

5

the Court sees no reason to revisit the analysis of Rule 23.” Sadowska v. Volkswagen Grp. of Am.,

6

Inc., 2013 WL 9600948, at *10 (C.D. Cal. Sept. 25, 2013).

7

E.

Summary Regarding Final Approval

8

Given the foregoing analysis, the Court finds that Final Approval of the Settlement

9

Agreements is warranted under the circumstances. The Court now turns to the matter of Plaintiffs’

10

attorneys fees’ and costs.
ATTORNEYS FEES’ AND COSTS – DISCUSSION

United States District Court
Northern District of California

11
12

A.

Legal Standard
“In a certified class action, the court may award reasonable attorney’s fees and nontaxable

13
14

costs that are authorized by law or by the parties’ agreement.” Fed. R. Civ. P. 23(h). Thus, in

15

awarding attorneys’ fees under Federal Rule of Civil Procedure 23(h), “courts have an

16

independent obligation to ensure that the award, like the settlement itself, is reasonable, even if the

17

parties have already agreed to an amount.” In re Bluetooth, 654 F.3d at 941 (citations omitted).
In this circuit, there are two primary methods used to calculate reasonable attorneys’ fees:

18
19

the lodestar method and the percentage-of-recovery method. In re Online, 779 F.3d at 949. The

20

lodestar method is most appropriate where the relief sought is “primarily injunctive in nature,” and

21

a fee-shifting statute authorizes “the award of fees to ensure compensation for counsel undertaking

22

socially beneficial litigation.” In re Bluetooth, 654 F.3d at 941.5 The lodestar represents a

23

reasonable hourly fee multiplied by the number of hours reasonably expended on the litigation.

24

See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); see also Hanlon, 150 F.3d at 1029-30

25

(explaining that courts employ the lodestar method of calculating attorneys’ fees in injunctive

26

5

27
28

See also Gonzalez v. City of Maywood, 729 F.3d 1196, 1209-10 (9th Cir. 2013) (“It is not per se
unreasonable for attorneys to receive a fee award that exceeds the amount recovered by their
clients,” which is “especially true in civil rights cases, where the dollar amount lawyers recover
for their clients is not the sole measure of the results the prevailing parties’ attorneys obtained.”).
19

1

relief class actions, multiplying the hours worked by a reasonable hourly rate). The lodestar figure

2

is a presumptively reasonable fee. Clark v. City of L.A., 803 F.2d 987, 990-91 (9th Cir. 1986).
Because Plaintiffs pursued claims under statutes with fee-shifting provisions—42 U.S.C. §

3
4

12205 and California Civil Code sections 52(a) and 54.3(a) (see Attys’ Fee Mot. at 1)—and

5

because the relief sought is injunctive in nature, the Court applies the lodestar method to assess the

6

reasonableness of Plaintiffs’ attorneys’ fees request. See, e.g., Lara v. Renaissance Hotel

7

Operating Co., 2011 WL 6002521, at *4 (D. Haw. Nov. 29, 2011) (“Although Plaintiffs do not

8

request a lodestar award of attorneys’ fees in this case, this Court uses the fees that it could have

9

awarded Plaintiffs under the lodestar analysis as a gauge of the reasonableness of the attorneys’
fees provided for in the Settlement Agreement.” (citations omitted)).

11
United States District Court
Northern District of California

10

B.

Lodestar Analysis
As an initial matter, the Court notes that in the Preliminary Approval Order it required

12
13

Plaintiffs’ Counsel to file their Motion for Attorneys’ Fees and Costs by September 29, 2015—

14

two weeks in advance of the deadline for objections, and over one month in advance of the

15

Fairness Hearing. Prelim. Approval Order at 27. Plaintiffs’ Counsel timely filed their Motion for

16

Attorneys’ Fees, and the Court has received no objections to the Motion. Accordingly, the Court

17

weighs for itself whether Plaintiffs’ Counsel’s request is reasonable under the lodestar method.

18

Four legal organizations represented Plaintiffs throughout this action: DRA, Public

19

Counsel, Paul Hastings LLP (“Paul Hastings”) and Zelle Hofmann Voelbel & Mason LLP6 (“Zelle

20

Hofmann”). The following chart represents the breakdown of each of the four law firms’ lodestar

21

in the Federal Class Action7:

22

6

23

Paul Hastings withdrew as Plaintiffs’ counsel on March 13, 2014, and Zelle Hofmann joined
thereafter. Attys’ Fee Mot. at 2 n.1.
7

24
25
26
27
28

Plaintiffs’ Counsel provided the numbers and lodestar calculations for their other work on the
related administrative actions for the class representatives (Dkt. Nos. 294-5 and 294-6, Exs. E-F to
Smith Decl.), but for purposes of this Order, the Court finds it more appropriate to focus on the
numbers related to the Federal Class Action (i.e., the litigation apart from the appeals from the
administrative hearings), as those numbers apply more concretely to the Court’s required analysis
under Rule 23(h). It is possible that the time spent on the administrative actions could be
considered under the Rule 23(h) analysis, but the Court finds it unnecessary to consider that data
at this point, particularly as the lodestars for the Federal Class Action are well above the fees
sought through the Settlement Agreements.
20

1

Firm8

2

Disability Rights Advocates 5293.6

$195-$895

$451.92

$2,375,735.50

3

Public Counsel

772.5

$175-$570

$311

$240,247.50

4

Zelle Hofmann

79.6

$175-$550

$336.25

$33,090.00

5

Paul Hastings

2548.10 $205-$975

$497.33

$1,606,542.75

6

TOTALS:

8693.80 ---

---

$4,322,068.75

7

10

Rate Range9 Avg. Rate Lodestar10

See Dkt. No. 293-4 (Ex. D to Mary-Lee Smith Decl. in Supp. of Attys’ Fees Mot.).
Plaintiffs did not settle fees and costs separately, and thus the costs are included in the

8
9

Hours

settlement amounts from the Defendants. The following chart represents the breakdown of each
of the four firms’ costs related to the Federal Class Action:

United States District Court
Northern District of California

11

Firm

12

Disability Rights Advocates $15,490.94

13

Public Counsel

$0

14

Zelle Hofmann

$24.33

15

Paul Hastings

$76,461.53

16

TOTAL:

$91,976,80

17

Costs

Id.

18

1.

Hourly Rate

19

First, to determine the appropriate lodestar amount, the reasonableness of the hourly billing

20

rate must be assessed. Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008). In

21

8

22
23
24
25
26
27
28

In the co-counsel agreement between Paul Hastings, Public Counsel, and DRA, these entities
agreed that if they recovered fees and costs, Paul Hastings would be reimbursed for its out-ofpocket expenses but would donate to Public Counsel and DRA any attorneys’ fees obtained as a
result of Paul Hastings’ work. “Therefore, the Paul Hastings share of fees . . . will be donated to
Public Counsel and DRA.” Carter Decl. ¶ 32, Dkt. No. 296.
9

DRA, Public Counsel, and Zelle Hofmann seek only their 2014 rates as negotiations began in
2014 and as a concession in the process of settlement; Paul Hastings seeks only its 2013 rates as
their participation in the case ended in early 2014. Attys’ Fees Mot. at 12.
10

The lodestar figures listed here take into account the hours spent by the various attorneys
working on the case. A breakdown of all the hours spent by the various attorneys and related staff
on the Federal Class Action is found at Docket Number 293-4, an exhibit to the Declaration of
Mary-Lee Smith of DRA.
21

1

considering the reasonableness of Plaintiffs’ attorneys’ hourly rates, as the Court has noted above,

2

Plaintiffs seek an hourly rate of between $175 per hour and $975 per hour depending on the

3

particular attorney or counsel. Plaintiffs seek an hourly rate of $845-$975 for two of the most

4

senior and experienced litigators at the DRA, Sid Wolinsky and Laurence Paradis, as well as the

5

most senior litigator working on this case from Paul Hastings LLP, Grace Carter. The other

6

attorneys’ hourly rates fall between $210 and $700. For non-attorneys, Plaintiffs seek hourly rates

7

of between $175 and $340.

8

To determine whether rates are reasonable, courts must identify the relevant community,
and assess the prevailing hourly rate in that community for similar services by lawyers of

10

reasonably comparable skill, experience, and reputation. See Camacho, 523 F.3d at 979.

11
United States District Court
Northern District of California

9

“Generally, when determining a reasonable hourly rate, the relevant community is the forum in

12

which the district court sits.” Id. Consequently, Plaintiffs submit that the relevant community in

13

this case is the San Francisco Bay Area, and the reasonableness of rates charges should be

14

determined by reference to the rates charged by Bay Area attorneys with commensurate skill,

15

experience, and reputation. Attys’ Fees Mot. at 9-10.

16

In support of their rates, skill, experience, and reputation, Plaintiffs provided supporting

17

declarations of attorneys from each of the organizations that worked on this case: Declaration of

18

Mary-Lee Smith of DRA (“Smith Decl.”), Dkt. No. 293; Declaration of Laura Faer of Public

19

Counsel (“Faer Decl.”), Dkt. No. 294; Declaration of Lillian Chen of Public Counsel (“Chen

20

Decl.”), Dkt. No. 295; Declaration of Grace Carter of Paul Hastings (“Carter Decl.”), Dkt. No.

21

296; and Declaration of Daniel S. Mason of Zelle Hofmann (“Mason Decl.”), Dkt. No. 297.

22

These declarations describe the organization the individual declarant attorney works with, their

23

efforts in this litigation, their methods for calculating their lodestars, as well as the experience,

24

skill, and reputation of the organizations and the individuals who worked on this case. All of the

25

declarations demonstrate these firms are experienced and tested in the area of complex litigation

26

with strong reputations in the legal community.

27

In addition, Plaintiffs submitted the declaration of William Alderman, a partner at the San

28

Francisco office of the law firm Orrick, Herrington, & Sutcliffe LLP, who has expertise regarding
22

1

prevailing billing rates for Bay Area attorneys who handle complex litigation and is the co-author

2

of the chapter entitled “Fee Arrangements” in West Group’s treatise, “Successful Partnering

3

Between Inside and Outside Counsel.” Alderman Decl. ¶¶ 1-9, Dkt. No. 298. The majority of his

4

practice focuses on defense of securities class actions and he also is the co-editor of the monthly

5

“Securities Reform Act Litigation Reporter,” both of which give him familiarity with attorney fee

6

requests and awards. Id. ¶ 10. According to Alderman, the rates requested by Plaintiffs’ Counsel

7

are well within the range of market rates for Bay Area attorneys who handle comparable, complex

8

litigation. Id. ¶¶ 13-14. Alderman’s own hourly rate in 2014 was $995 per hour. Id. ¶ 11.

9

Alderman also notes he has personal knowledge of the work and reputation of Mary-Lee Smith
and Sid Wolinsky, two attorneys from the DRA, and notes they are “among the leading experts in

11
United States District Court
Northern District of California

10

the country in the area of disability rights.” Id. ¶ 14.

12

The Court finds the evidence submitted by Plaintiffs demonstrates that the range of rates

13

requested by the attorneys here are in line with the overall range of market rates for attorneys and

14

for litigation support staff of similar abilities and experience in this District between 2013 and

15

2014. See Prison Legal News v. Schwarzenegger, 608 F.3d 446, 455 (9th Cir. 2010) (finding

16

district court did not abuse its discretion in awarding 2008 hourly rates for Bay Area attorneys of

17

up to $875 for a partner, $700 for an attorney with 23 years of experience, $425 for an attorney

18

with approximately five years of experience, and $190 for paralegals); see also Gutierrez v. Wells

19

Fargo Bank, N.A., 2015 WL 2438274, at *5 (N.D. Cal. May 21, 2015) (in a complex action,

20

finding reasonable rates for Bay Area attorneys of between $475-$975 for partners, $300-$490 for

21

associates, and $150-$430 for litigation support and paralegals). While under other circumstances

22

greater scrutiny might be appropriate for some of the hourly rates sought here, the Court is

23

satisfied Plaintiffs’ attorneys’ hourly rates fall under the range of reasonable fees—particularly as

24

the Court is only analyzing the lodestar figure as a secondary test in order to determine whether

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the sums already agreed to by the parties are reasonable.

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2.

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Beyond establishing a reasonable hourly rate, a party seeking attorneys’ bears the burden

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Hours Expended

to “document[ ] the appropriate hours expended.” Hensley, 461 U.S. at 437. Such an applicant
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must exercise sound “billing judgment” as to the number of hours worked, eliminating excessive,

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redundant, or unnecessary hours, and provide billing records supporting the time claimed. Id. at

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433-34. Plaintiffs’ counsel “is not required to record in great detail how each minute of his time

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was expended,” but should “identify the general subject matter of his time expenditures.” Id. at

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437 n.12; Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1121 (9th Cir. 2000) (“plaintiff’s counsel can

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meet his burden—although just barely—by simply listing his hours and ‘identifying the general

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subject matter of his time expenditures.’” (quotation omitted)).

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Plaintiffs provided declarations from each of the four organizations working on their
behalf, which explain the sorts of things these attorneys worked on and now seek compensation
for through this fee request. Plaintiffs note their counsel “devoted a reasonable and necessary

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Northern District of California

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amount of time to develop the case and the legal and factual claims, prepare the complaint (and

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eventually the First Amended Complaint,” as well as “fully brief two major motions (i.e.,

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Defendants’ motions to dismiss and Plaintiffs’ motion for class certification, propound and

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respond to discovery including defending three named plaintiff depositions, and prepare mediation

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briefs and settlement proposals for numerous unsuccessful settlement attempts.” Attys’ Fees Mot.

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at 15. They further note Plaintiffs’ counsel “dedicated substantial resources to obtain the

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settlement agreements that ultimately resolved the matter[,]” which “included numerous

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mediations and the drafting of the settlement agreements, for which Plaintiffs’ Counsel took the

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lead.” Id. Plaintiffs’ counsel also “took the lead in drafting the motion for preliminary approval

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and supporting papers, the class notice, the proposed order, this motion and the application for

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final approval.” Id.

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In their declarations, each of the four organizations explain they sought fees related to the

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foregoing activities and tasks related to those activities, including for investigation and research,

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drafting and editing briefs and related documents, negotiating and structuring the settlement

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agreements, reviewing documents, interviewing witnesses, preparing and defending depositions,

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and other such advocacy. See Smith Decl. ¶ 18; Faer Decl. ¶ 15; Carter Decl. ¶ 25; Mason Decl. ¶

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13. Additionally, each attorney attests to the fact that they reviewed their organization’s time

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records in this case and independently exercised their billing judgment to eliminate or reduce
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certain time that did not appear to be reasonably spent or to otherwise limit their time to that

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which was reasonable and benefitted the class. Smith Decl. ¶¶ 19-20; Faer Decl. ¶¶ 16-17; Carter

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Decl. ¶¶ 23, 26; Mason Decl. ¶¶ 10, 14. The hours spent on the Federal Class Action for each of

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the four organizations is as follows: DRA = 5, 293.6 hours (Smith Decl. ¶ 21); Public Counsel =

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772.5 hours (Faer Decl. ¶ 18); Paul Hastings = 2,548.1 hours (Carter Decl. ¶ 27); Zelle Hofmann =

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79.6 hours (Mason Decl. ¶ 15).
Although Plaintiffs did not provide detailed time records for the attorneys and support staff

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working on this case, having carefully reviewed the declarations above and the supporting

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documentation, the Court finds Plaintiffs have met their burden of demonstrating the
reasonableness of the time their counsel expended on this litigation.11 There has been no

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challenge to the time spent by these organizations, and the Court cannot find grounds for further

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reducing the hours spent in this litigation.12 In the Court’s own first-hand interactions with

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Plaintiffs’ counsel and their work, the Court has found them consistently well-prepared and

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thorough. Accordingly, the Court finds the number of hours spent by attorneys and related staff in

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these four organizations was reasonably expended on the litigation and settlement of this case.

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3.

Summary of Lodestar and Cost Comparison to Settlement Agreement Amounts

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As noted above, the total lodestar for the four organizations working on Plaintiffs’ Federal

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Class Action totals $4,322,068.75 and the costs total $91,976.80. Plaintiffs have only requested

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that the Court approve the amounts proposed in the parties’ Settlement Agreements, i.e., the

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Former Supreme Court Justice Sandra Day O’Connor, sitting by designation, has emphasized
the overall equitable nature of fee analysis: “[t]he net result of fee-setting jurisprudence . . . is that
the district courts must engage in an equitable inquiry of varying methodology while making a
pretense of mathematical precision.” Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cty.
of Albany, 522 F.3d 182, 189 (2d Cir. 2007) (O’Connor, J., sitting by designation, joining in the
opinion) (citation omitted). Supreme Court Justice Elena Kagan has recently echoed these
sentiments: “[T]rial courts need not, and indeed should not, become green-eyeshade accountants.
The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing
perfection. So trial courts may take into account their overall sense of a suit, and may use
estimates in calculating and allocating an attorney’s time.” Fox v. Vice, 563 U.S. 826, 131 S. Ct.
2205, 2216 (2011).
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As noted earlier, the Court has chosen not to consider the time spent on the administrative
actions for the individual class representatives. Adding the time spent on the administrative
actions adds hundreds of thousands of dollars to Plaintiffs’ attorneys’ lodestar amount. See Dkt.
Nos. 293-5 and 293-6 (charts demonstrating the hourly rates, hours worked, and costs of the
attorneys working on the administrative actions).
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$1,165,000 from CCCOE and $1,340,000 from the County for a total of $2,505,000. That amount

2

is significantly less than what these attorneys might otherwise be entitled to under the lodestar

3

analysis or if Plaintiffs’ costs were included.13 Given the significant reduction in fees and costs,

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the Court finds Plaintiffs’ request for attorneys’ fees and costs reasonable under the circumstances.

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CONCLUSION

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In light of the foregoing analysis, the Court GRANTS FINAL APPROVAL to the

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Settlement Agreements in this case and GRANTS Plaintiffs’ Motion for Reasonable Attorneys’

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Fees and Costs in the amounts specified in the parties’ Settlement Agreements.
The Court thus ORDERS the following:

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1.

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Northern District of California

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the Court confirms class certification of the class for settlement purposes only.
2.

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The Court confirms the appointment of Plaintiffs G.F., by and through her guardian

ad litem, Gail F.; W.B.; and Q.G as class representatives.
3.

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For the reasons set forth in the Order Granting Preliminary Approval, Dkt. No. 288,

The Court confirms the appointment of Disability Rights Advocates and Public

Counsel as Class Counsel.
4.

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In accordance with the terms of the settlement agreement between Plaintiffs and

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Defendant County, the County shall pay Plaintiffs’ Counsel $1,340,000 within 60 days of the date

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of this Order.
5.

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In accordance with the terms of the settlement agreement between Plaintiffs and

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Defendant CCCOE and the stipulation amending the terms of the settlement agreement (Dkt. No.

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Plaintiffs included very little detail about their costs in this litigation; potentially this is because
they already agreed to amounts for fees and costs in their Settlement Agreements. Given the fact
that Plaintiffs’ attorneys’ lodestar for the Federal Class Action is so much more than they
recovered through the amounts assigned in the Settlement Agreements, it seems unnecessary for
the Court to proceed with the typical analysis to assess the reasonableness of Plaintiffs’ costs
under Rule 23(h). See Fed. R. Civ. P. 23(h) (“In a certified class action, the court may award
reasonable attorney’s fees and nontaxable costs that are authorized by law or by the parties’
agreement.”); see also Newberg on Class Actions § 16:10 (5th ed.) (“[R]ecoverable nontaxable
costs include counsel’s out-of-pocket expenses that would normally be charged to a fee paying
client.”); Dang v. Cross, 422 F.3d 800, 814 (9th Cir. 2005) (permitting recovery of costs for “an
expense that would normally be charged to a fee paying client.”). In other circumstances, the
Court might have difficulty determining whether to award costs authorized by the parties’
agreement without greater explanation about what those costs were. Nonetheless, considering the
entirety of the Settlement Agreements in comparison to Plaintiffs’ attorneys’ lodestar and
requested costs, the Court is satisfied that it may issue such an award under Rule 23(h).
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283), CCCOE shall pay Plaintiffs’ Counsel on the following schedule: (1) the first installment of

2

$435,000.00 is payable within 60 days of the date of this Order; (2) the second installment of

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$435,000.00 is payable on July 1, 2016; and (3) the third installment of $295,000.00 is payable on

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July 1, 2017.

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6.

The above-captioned action is DISMISSED on the merits and with prejudice,

subject to the Court retaining jurisdiction to administer and enforce the Settlement Agreements.
7.

The Court retains continuing jurisdiction over this matter for purposes of

enforcement and for purposes of dispute resolution, including disputes related to the final

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monitoring report with the County and the Expert Report with CCCOE, and to determine and

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enforce the amount of an award of attorneys’ fees and costs to which Class Counsel is entitled,

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Northern District of California

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including fees and costs resulting from the litigation to-date and from any future dispute

12

resolution.

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8.

Judgment is hereby entered on the terms set forth above. The Clerk of Court shall

close the file on this matter.
IT IS SO ORDERED.

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Dated: November 25, 2015
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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