Ehret v. Uber Technologies, Inc.

Filing 155

ORDER by Judge Edward M. Chen granting 148 Motion for Attorney Fees; granting 151 Motion for Final Approval of Settlement. (bpfS, COURT STAFF) (Filed on 2/16/2017)

1

DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

2
3

5

CAREN EHRET, individually and on
behalf of a class of similarly situated
persons,

6

Plaintiff,

4

7
8
9

v.
UBER TECHNOLOGIES, INC., a
Delaware Corporation,

10

Defendant.

11
12
13
14
15
16
17
18
19
20
21
22
23

)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 3:14-cv-113-EMC

[PROPOSED] ORDER GRANTING
FINAL APPROVAL OF SETTLEMENT
AND AWARDING ATTORNEYS’ FEES
AND COSTS

Plaintiff Caren Ehret (“Plaintiff”) and Defendant Uber Technologies, Inc. (“Uber” or
“Defendant”), having appeared before the Court on February 9, 2017 for a hearing on final
approval of the class action settlement and Plaintiff’s Petition for Attorneys’ Fees and Costs, the
Court having reviewed the Motion for Final Approval of Class Action Settlement, Plaintiff’s
Petition for Attorneys’ Fees and Costs and other materials submitted by the parties, as well as the
parties’ presentation at the hearing on final approval and otherwise being fully informed in the
premises:
IT IS HEREBY ORDERED AND ADJUDGED as follows:
1.

This Court has jurisdiction over the subject matter of this action and over all parties

to this action pursuant to 28 U.S.C. § 1332(d)(2), including all members of the Class which was
certified, prior to settlement, after a contested hearing by Order dated December 2, 2015, and
defined as follows:

24
25
26
27
28

All individuals who received Uber’s e-mail with the representation that the 20%
charge would be gratuity only, who then arranged and paid for taxi rides through
Uber’s service from April 20, 2012 to March 25, 2013 (the “Class”).
2.

The Notice sent to the Class via email at the email addresses Class Members have

on file for their Uber accounts adequately informed Class Members of the terms of the Settlement

04978-23677/8775813.1

1

Agreement, their anticipated recovery if the Settlement was approved, their right to request

2

exclusion from the Settlement and pursue their own remedies, and their opportunity to file written

3

objections and to appear and be heard at the final approval hearing regarding approval of the

4

Settlement Agreement. The Court finds that the Class Notice satisfied the requirements of Rule

5

23(c)(2)(B) and Rule 23(e)(1).

6

3.

The Court hereby approves the proposed Settlement Agreement and finds that the

7

Settlement is fair, adequate and reasonable. To evaluate the fairness of a settlement, the Court

8

must consider the following factors: “(1) the strength of the plaintiffs’ case; (2) the risk, expense,

9

complexity, and likely duration of further litigation; (3) the risk of maintaining class action status

10

throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed

11

and the stage of the proceedings; (6) the experience and views of counsel; (7) the presence of a

12

governmental participant; and (8) the reaction of the class members to the proposed settlement.”

13

Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004). In addition, “the settlement

14

may not be the product of collusion among the negotiating parties.” Id. at 576. Each of these

15

factors favors approval of the settlement reached here and supports the Court’s finding that the

16

settlement is fair, adequate and reasonable:

17

a.

The strength of Plaintiff’s case: While Plaintiff’s claims were facially

18

meritorious and survived a motion to dismiss, Defendant vigorously contested both

19

liability and the ability of Plaintiff and Class Members to recover damages. The merits

20

of the case likely would have been decided by a jury on all issues so triable, the outcome

21

of which was far from certain for either side. Defendant also claimed that its terms of

22

use included an arbitration clause during a significant portion of the class period, the

23

applicability and enforceability of which had not yet been decided by the Court. In

24

short, the settlement provides significant monetary relief to Class Members for hotly

25

contested claims. This factor, therefore, favors settlement approval.

26

b.

The risk, expense, complexity and likely duration of continued

27

litigation: Trying a class action lawsuit to conclusion would have been a complex,

28

lengthy and expensive endeavor, and appeals almost certainly would have followed any

2

1

judgment. The parties would certainly expend substantial time, effort and cost if further

2

litigation is required. In light of the amount at stake in this lawsuit, the second factor

3

clearly favors approval of the settlement. See Ebarle v. Lifelock, Inc., No. 15-CV-

4

00258-HSG, 2016 WL 5076203, at *4 (N.D. Cal. Sept. 20, 2016) (“Given Defendant’s

5

willingness to defend against this action, there would be no guarantee in a favorable

6

result even if the parties were to proceed through protracted litigation. In reaching a

7

settlement, Plaintiffs have ensured a favorable recovery for the class in a litigation

8

which otherwise could have taken years to complete. These factors weigh in favor of

9

approving the settlement.”).

10

c.

The risk of maintaining class action status throughout the trial: The

11

third factor also clearly weighs in favor of approval. The settlement amount is large

12

enough to ensure that all Class Members will obtain essentially a full refund of the

13

amount at issue in this lawsuit. The risk of maintaining a class action through trial is

14

significant in light of the full recovery Class Members can obtain now. Uber, for

15

example, intended to attempt to enforce an arbitration clause that it claims was included

16

in its terms of use during a significant portion of the class period. An unfavorable

17

ruling on the enforceability of that provision may have substantially reduced the class

18

or otherwise negatively impacted the certified class. In re Linkedin User Privacy Litig.,

19

309 F.R.D. 573, 587 (N.D. Cal. 2015) (“[T]he notion that a district court could decertify

20

a class at any time is an inescapable and weighty risk that weighs in favor of a

21

settlement.”). In other words, Class Members can obtain nearly full relief now without

22

the risk, expense and uncertainty of maintaining a class action through trial. This

23

factor, therefore, clearly favors approval of the settlement.

24

d.

The amount offered in settlement: The amount of the Settlement clearly

25

weighs in favor of approval. Plaintiff’s claims are based on Uber allegedly retaining a

26

portion of the 20% charge that it represented as a “gratuity” during the class period. It

27

was Uber’s position in this litigation that Plaintiff and the Class could only recover

28

monies that it actually retained. Thus, under this theory, Plaintiff and Class Members

3

1

could not recover any amounts other than the portion of the gratuity retained by Uber.

2

Uber claimed that was none while Plaintiff alleged that it was typically 40% of the 20%

3

gratuity charge. The Settlement provides substantial relief to Class Members in that it

4

refunds essentially the full amount of the gratuity charge Plaintiff claimed was retained

5

by Uber. The relief awarded to the Class, therefore, weighs heavily in favor of

6

settlement approval.

7

e.

The extent of discovery completed and the stage of the proceedings:

8

The case settled after years of litigation in two forums and the completion of extensive

9

discovery. Due to the extensive investigation and discovery that occurred, including

10

with respect to the class size and damages, both parties were in a position to fully assess

11

the strengths and weaknesses of the claims and defenses in negotiating this Settlement.

12

Accordingly, this factor favors approval of the settlement as well.

13

f.

The experience and views of counsel: Plaintiff submitted the Declaration

14

of Myron M. Cherry, a lawyer with over 50 years of experience in complex and class

15

action litigation. Based on his extensive experience, Mr. Cherry opined that the

16

settlement is fair, reasonable and adequate and provides a significant benefit to the

17

Class. This opinion of experienced counsel familiar with the claims being asserted

18

“should be given a presumption of reasonableness.” In re Omnivision Techs., Inc., 559

19

F. Supp. 2d 1036, 1043 (N.D. Cal. 2008); see also Smith v. Am. Greetings Corp., 14-

20

cv-02577, 2016 WL 362395, *5 (N.D. Cal. Jan. 29, 2016) (“Here, class counsel have

21

demonstrated that they are sufficiently informed about the current dispute and that

22

[counsel] has more than 20 years of experience defending and prosecuting class actions.

23

*** In light of the foregoing, class counsel’s support for the settlement weighs in favor

24

of approving the settlement.”).

25

g.

The presence of a governmental participant: There is no governmental

26

participant to this suit, nor did any governmental agency lodge any objection to the

27

settlement despite the parties’ compliance with CAFA’s notice requirements. This

28

factor, therefore also favors approval. See In re Google Referrer Header Privacy Litig.,

4

1

87 F. Supp. 3d 1122, 1134 (N.D. Cal. 2015) (“Although CAFA does not create an

2

affirmative duty for either state or federal officials to take any action in response to a

3

class action settlement, CAFA presumes that, once put on notice, state or federal

4

officials will raise any concerns that they may have during the normal course of the

5

class action settlement procedures.”) (quoting Garner v. State Farm Mut. Auto. Ins.

6

Co., No. CV 08 1365 CW EMC, 2010 WL 1687832, at *14 (N.D. Cal. Apr. 22, 2010)).

7

h.

The amount of opposition to settlement among affected parties: There

8

was no opposition to the settlement amongst Class Members. Of the more than 46,000

9

Class Members, not a single one submitted an objection to the proposed settlement or

10

requested exclusion from the Class. The lack of any opposition to the settlement

11

strongly favors final approval of the Settlement.

12

i.

The Settlement was the product of non-collusive negotiations: The

13

Court finds no evidence of collusion between the parties in negotiating the settlement.

14

To the contrary, all material terms of the Settlement Agreement were reached after

15

multiple adversarial settlement discussions, including a private mediation before

16

Martin Quinn, Esq. at JAMS. See Satchell v. Fed. Exp. Corp., No. 03-cv-2659, 2007

17

WL 1114010, *4 (N.D. Cal. Apr.13, 2007) (“The assistance of an experienced mediator

18

in the settlement process confirms that the settlement is non-collusive.”). The parties

19

also engaged in extensive discovery and had the benefit of several decisions from the

20

Court, including its ruling on key legal issues presented in Defendant’s motion to

21

dismiss and the decision certifying the case as a class action. Plaintiff also obtained in

22

discovery information on the size of the class and potential damages. Plaintiff and

23

Class Counsel, therefore, “had adequate information before them to gauge the value of

24

the class’s claims and assess whether [Defendant’s] proffered settlement amounts

25

adequately compensated the class members for their damages.” Harris v. Vector Mktg.

26

Corp., No. C-08-5198 EMC, 2011 WL 1627973, at *8 (N.D. Cal. Apr. 29, 2011).

27
28

4.

The Court reaffirms its approval of KCC, LLC (the “Settlement Administrator”) as

the settlement administrator.

5

1
2

5.

The Court approves the Class Relief as provided in Section II of Settlement

Agreement as follows:

3

a.

4

Settlement Fund: Defendant shall fund the settlement in accordance

with the terms of the Settlement Agreement.

5

b.

Monetary Payment to Class Members:

The Settlement

6

Administrator shall within twenty-eight (28) days after the Final Settlement Date

7

mail the Class Member Payments (as defined in the Settlement Agreement) to the

8

Class Members who did not opt out and who timely provided a mailing address.

9

“Final Settlement Date” shall mean the date in which either of the following events

10

has occurred: (a) if there is no appeal from this Order, thirty-one (31) days after

11

the Court enters this Order and provides any objector notice that the Court entered

12

this Order, or (b) if an appeal is taken from this Order, seven (7) days after a

13

reviewing court either affirms this Order or denies review, and all avenues of

14

appeal have been exhausted or the time for seeking further appeals has expired.

15

c.

Uber Account Credits to Class Members: With respect to Class

16

Members who failed to timely provide a valid mailing address and who have an

17

existing rider account with Uber, Defendant shall credit their Uber account in an

18

amount equal to their individual Class Member Payment pursuant to Paragraphs

19

19-20 of the Settlement Agreement.

20
21
22

6.

The Court approves all other provisions and obligations of the Settlement

Agreement.
7.

The Court finds the requested attorneys’ fees and costs are fair and reasonable

23

considering the excellent value of the settlement, the benefits conferred on the Class and Class

24

Counsel’s knowledge and experience. Furthermore, not a single Class Member objected to the

25

requested attorneys’ fees and costs.

26

8.

The Court finds that the lodestar method should be used to calculate Class

27

Counsel’s attorneys’ fees because Plaintiff and the class obtained essentially full restitution and

28

Class Counsel should be awarded their fees under the fee-shifting provisions of the California

6

1

Unfair Competition Law (UCL) and Consumer Legal Remedies Act (CLRA). See In re Bluetooth

2

Headset Prods. Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011) (“The ‘lodestar method’ is

3

appropriate in class actions brought under fee-shifting statutes … where the legislature has

4

authorized the award of fees to ensure compensation for counsel undertaking socially beneficial

5

litigation.”); Tait v. BSH Home Appliances Corp., No. SACV100711DOCANX, 2015 WL

6

4537463, at *10 (C.D. Cal. July 27, 2015), appeal dismissed (Jan. 13, 2016) (“Under California

7

law, ‘[i]n so-called ‘fee shifting’ cases ... the primary method for establishing the amount of

8

‘reasonable’ attorney fees is the lodestar method.’”) (quoting Lealao v. Beneficial California, Inc.,

9

82 Cal. App. 4th 19, 26 (2000)).

10

9.

Attorney fees under the lodestar method are “calculated by multiplying the number

11

of hours the prevailing party reasonably expended on the litigation (as supported by adequate

12

documentation) by a reasonable hourly rate for the region and for the experience of the lawyer.”

13

In re Yahoo Mail Litig., No. 13-CV-4980-LHK, 2016 WL 4474612, at *9 (N.D. Cal. Aug. 25,

14

2016) (quoting In re Bluetooth, 654 F.3d at 941). “The district court may adjust this lodestar figure

15

‘upward or downward by an appropriate positive or negative multiplier reflecting a host of

16

reasonableness factors,’” including “the quality of representation, the benefit obtained for the class,

17

the complexity and novelty of the issues presented, and the risk of nonpayment.” Id. (quoting In

18

re Bluetooth, 654 F.3d at 941-42). A reasonable hourly rate is the “rate prevailing in the

19

community for similar work performed by attorneys of comparable skill, experience, and

20

reputation.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008) (quoting Barjon

21

v. Dalton, 132 F.3d 496, 502 (9th Cir. 1997)). “An attorney’s actual billing rate is presumptively

22

appropriate to use as the lodestar market rate.” In re Animation Workers Antitrust Litigation, No.

23

14-CV-4062-LHK, 2016 WL 6663005, at *6 (N.D. Cal. Nov. 11, 2016).

24

10.

Class Counsel submitted detailed summaries of their billing records reflecting the

25

amount of time expended on this matter, by whom and the hourly rate for such services. Class

26

Counsel’s hourly rates are consistent with the fair market rate for attorneys of comparable

27

experience, skill and reputation in the San Francisco legal market and comparable markets

28

nationwide. See In re High-Tech Employee Antitrust Litig., No. 11-CV-02509-LHK, 2015 WL

7

1

5158730, at *9 (N.D. Cal. Sept. 2, 2015) (finding hourly rates for partners as high as $975 and

2

non-partners from $310 to $800 “reasonable in light of prevailing market rates in this district”); In

3

re Magsafe Apple Power Adapter Litig., No. 5:09-CV-01911-EJD, 2015 WL 428105, at *12 (N.D.

4

Cal. Jan. 30, 2015) (“In the Bay Area, reasonable hourly rates for partners range from $560 to

5

$800, for associates from $285 to $510, and for paralegals and litigation support staff from $150

6

to $240.”) (citing cases); Rose v. Bank of Am. Corp., No. 5:11-CV-02390-EJD, 2014 WL 4273358,

7

at *7–8 (N.D. Cal. Aug. 29, 2014), reconsideration denied, No. 5:11-CV-02390-EJD, 2015 WL

8

1969094 (N.D. Cal. May 1, 2015) (finding billing rates as high as $525 for associate and $775 for

9

partners reasonable).

10

11.

As set forth in Class Counsel’s detailed billing summaries, the law firms that have

11

worked on this case collectively expended 1,326.50 hours and $667,572.50 in attorneys’ fees on

12

this matter and have incurred $28,318.26 in out-of-pocket costs. These amounts are more than

13

reasonable given the nature of the services performed and the complexity of the case.

14

12.

While the factors referenced above support an increased multiplier, the attorneys’

15

fees requested here are substantially less than Class Counsel’s lodestar amount. Class Counsel

16

provided excellent representation for the class, engaged in extensive discovery and exhaustive

17

investigative efforts, defeated Defendant’s motion to dismiss, successfully certified the class and

18

prosecuted the case against a well-funded adversary that put up a vigorous defense. The claims

19

also raised novel legal questions that had not yet been squarely addressed by existing law.

20

Compare Searle v. Wyndham Int’l, 102 Cal. App. 4th 1327 (2002) (dismissing similar, but

21

factually and legally distinguishable, claims involving alleged misrepresentation of a “service

22

charge”). Class Counsel also dedicated substantial time for several years and in two jurisdictions

23

prosecuting this action and incurred substantial out-of-pocket costs all on a contingency basis with

24

no guarantee of payment.

25

13.

Most importantly, Class Counsel achieved an excellent settlement that provided the

26

Class with essentially full relief. And while the total amount awarded to the class is relatively

27

modest, that is solely a function of the total amount of damages at issue, not because Plaintiff only

28

partially prevailed on her claims. See Quesada v. Thomason, 850 F.2d 537, 540 (9th Cir. 1988)

8

1

(“[I]t is inappropriate for a district court to reduce a fee award below the lodestar simply because

2

the damages obtained are small.”); Caudle v. Bristow Optical Co., 224 F.3d 1014, 1029 n.11 (9th

3

Cir. 2000), as amended on denial of reh’g (Nov. 2, 2000) (holding that it is an abuse of discretion

4

for a district court to reduce award of attorneys’ fees “because ‘the amount of recovery’ … realized

5

was itself modest”).

6

14.

The costs incurred by Class Counsel were also reasonable and necessary, most of

7

which were for filing fees, deposition transcripts, hosting for Defendant’s document production,

8

the mediation before Martin Quinn of JAMS, and travel expenses. All of these costs were

9

reasonable and necessary to the successful prosecution of the lawsuit.

10
11
12

15.

The Court approves attorneys’ fees and costs to Class Counsel in the total amount

of $431,138.54, which shall be paid by Defendant separate from the Settlement Fund.
16.

The Court also finds that the proposed incentive award of $5,000 to the named

13

Plaintiff is fair and reasonable. Plaintiff submitted a declaration demonstrating that she stayed

14

actively involved in the litigation for several years, including responding to discovery, searching

15

for and producing documents, being deposed and communicating with Class Counsel. Plaintiff

16

was also required to take time off of work to participate in the litigation.

17

circumstances, the amount of $5,000 for an incentive award is fair and reasonable. See In re Yahoo

18

Mail Litig., 2016 WL 4474612, at *11 (“The Ninth Circuit has established $5,000.00 as a

19

reasonable benchmark award for representative plaintiffs.”); Harris, 2012 WL 381202, at *7

20

(finding that $5,000 is “a reasonable amount” for an incentive award). Accordingly, the Court

21

approves an incentive award of $5,000 to the named Plaintiff, which shall be paid by Defendant

22

separate from the Settlement Fund.

23

17.

Under such

This Court hereby dismisses all claims released in the Settlement Agreement with

24

prejudice and without awarding costs to any of the parties as against any other party, except as

25

provided in the Settlement Agreement.

26
27

18.

The Court orders that Plaintiff and all Class Members release and discharge the

claims defined in Paragraph 21 of the Settlement Agreement.

28

9

1

19.

2

prejudice.

3

20.

The Court grants final approval of the Settlement. This matter is dismissed with

The Clerk is directed to enter judgment consistent with this order and close this file.

4

IT IS SO ORDERED.

5

Dated:

2/16/2017

6

R NIA

FO

ER

H

13

RT

12

NO

11

__________________________________________
UNITED STATES DISTRICT JUDGE
Chen
ard M.
dge Edw
Ju

LI

10

DERED

O OR
IT IS S

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

10

A

9

UNIT
ED

8

RT
U
O

S

7

S DISTRICT
TE
C
TA

N

F
D IS T IC T O
R

C