Ehret v. Uber Technologies, Inc.

Filing 137

ORDER Re Supplemental Briefing on 134 Plaintiff's Motion for Preliminary Approval. Signed by Judge Edward M. Chen on 9/2/2016. (emcsec, COURT STAFF) (Filed on 9/2/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CAREN EHRET,
Plaintiff,

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UBER TECHNOLOGIES, INC.,

Docket No. 134

Defendant.

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For the Northern District of California

United States District Court

ORDER RE SUPPLEMENTAL
BRIEFING ON PLAINTIFF'S MOTION
FOR PRELIMINARY APPROVAL

v.

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Case No. 14-cv-00113-EMC

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The Court has reviewed Plaintiff’s motion for preliminary approval, and hereby orders the

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parties to provide a joint supplemental brief regarding the following issues. The supplemental

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briefing should be filed no later than September 8, 2016 at 12:00 PM PDT.
Attorneys’ Fees

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1.

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Plaintiff’s counsel intends to seek a fee award of $431,138.54. Docket No. 134 at 10.

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Counsel characterizes this award as “separate from and in addition to the class relief,” which totals

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$343.861.46. Id. at 1, 3. The Court notes, however, that if it were to treat the total recovery of

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$775,000.00 as a “constructive common fund,” see In re Bluetooth Headset Prods. Liability Litig.,

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654 F.3d 935, 943 (9th Cir. 2011), counsel’s portion would come to nearly 56% of the whole.

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This is, of course, a substantial departure from the 25% figure typically used as a “benchmark” in

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this Circuit. See id. at 942. Plaintiff asserts that the proposed fee “will actually be significantly

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less than their lodestar amount without any multiplier.” Docket No. 134 at 1. Plaintiff should

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explain in detail (legally and factually) why the use of the lodestar method – rather than the

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percentage-of-recovery method – to calculate counsel’s fees is appropriate. See Bluetooth, 654

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F.3d at 942 (noting that “courts have discretion to choose which calculation method they use”).

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Further, particularly because Plaintiff relies on the lodestar method, to assess the fee

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request, even for the purposes of preliminary approval only, the Court is in need of information as

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to the lodestar claimed – i.e., the number of hours incurred in the case and the hourly rates

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claimed. Plaintiff’s attorneys shall file with this Court, ex parte and under seal, one (1)

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declaration that states the total number of hours worked on this litigation, and which breaks the

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number of hours down by task (e.g., “Initial Case Investigation,” “Settlement Negotiations and

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Mediation,” etc.). Counsel shall attach their actual time records to the declaration. The

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declaration and associated records shall be filed with the Court no later than September 8, 2016 at

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12:00 PM PDT. The parties should also ensure that that the fee motion is filed and available on

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the Class Administrator’s website at least twenty-one (21) days before objections to the proposed

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settlement are due.
2.

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For the Northern District of California

United States District Court

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Full Verdict Value of the Case

Plaintiff emphasizes that under the terms of the settlement, “Class Members will receive

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essentially a full refund of the amounts at issue in this suit.” Docket No. 134 at 5. However,

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Plaintiff does not appear to provide an estimate of the total potential recovery in the case, were it

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to proceed to trial, which could be greater than the actual damages to the class. See, e.g., Cal. Civ.

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Code § 1780(a)(4) (providing for punitive damages for violations of the Consumers Legal

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Remedies Act). Thus, the Court has no point of comparison to determine that this settlement is, in

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fact, a significant recovery for the class. The parties must provide an estimate of the full aggregate

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verdict value of each of Plaintiff’s claims.

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3.

Distribution of the Settlement Fund

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The settlement provides that for those “Class Members who have an existing Uber account

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and either fail to timely provide a valid mailing address or who fail to cash their settlement checks,

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Uber will credit their Uber account in an amount equal to their individual Class Member

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Payment.” Docket No. 134 at 3. The parties should explain why Class Members may not receive

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direct payment – rather than Uber credits – e.g. by crediting the credit card Uber has on file.

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4.

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The settlement calls for an incentive award of $10,000 to the named plaintiff. Docket No.

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Incentive Award

134 at 9. “Several courts in this District have indicated that incentive payments of $10,000 or
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$25,000 are quite high and/or that, as a general matter, $5,000 is a reasonable amount.” Harris v.

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Vector Mktg. Corp., No. C-08-5198 EMC, 2012 WL 381202, at *7 (N.D. Cal. Feb. 6, 2012).

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Plaintiff describes in general terms how the named plaintiff “stayed actively involved in the

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litigation for several years,” but given the size of the requested award, the parties should provide

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more detail as to why this extraordinary amount is warranted, particularly in view of the typical

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per capita recovery in this case.

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: September 2, 2016
______________________________________
EDWARD M. CHEN
United States District Judge

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