Lopez v. PW Stephens

Filing 83

ORDER re 73 MOTION for Attorney Fees Expenses and Service Awards filed by Aned Lopez. Signed by Judge James Donato on 1/27/2017. (jdlc3S, COURT STAFF) (Filed on 1/27/2017)

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Diane L. Webb (SBN 197851)
Carole Vigne (SBN 251829)
LEGAL AID SOCIETY- EMPLOYMENT LAW CENTER
180 Montgomery Street, Suite 600
San Francisco, CA 94104
Telephone:
[phone]
Facsimile:
[phone]
Email: [e-mail]
[e-mail]
Aaron D. Kaufmann (SBN 148580)
David P. Pogrel (SBN 203787)
Giselle Olmedo (SBN 294750)
LEONARD CARDER LLP
1330 Broadway, Suite 1450
Oakland, CA 94612
Telephone:
[phone]
Fax:
[phone]
Email: [e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiffs and Class

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ANED LOPEZ and CRISTIAN ALAS, on
Behalf of Himself and Others Similarly Situated,

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Plaintiffs,

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v.
P.W. STEPHENS ENVIRONMENTAL, INC., a
Delaware Corporation, and DOES 1-10
inclusive,

Case No.: 3:15-cv-03579-JD
[PROPOSED] ORDER APPROVING
ATTORNEYS’ FEES, EXPENSES, AND
CLASS REPRESENTATIVE SERVICE
AWARDS
Date:
Time:
Ctrm:
Before:

December 8, 2016
10:00 a.m.
11, 19th Floor
Hon. James Donato

Defendants.

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[PROPOSED] ORDER APPROVING ATTORNEYS’ FEES, EXPENSES, AND CLASS REPRESENTATIVE SERVICE AWARDS
CASE NO. 3:15-cv-03579-JD

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On December 8, 2016, this Court heard Plaintiffs’ Motion for Order Approving Attorneys’

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Fees, Expenses, and Class Representative Service Awards, at which Counsel for Plaintiffs and the

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settlement Class appeared. Based on the papers filed with the Court and presentations made to the

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Court at the hearing, the Court hereby grants Class Counsel’s request for an award of $375,000 in

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attorneys’ fees, $13,800 in litigation expenses, and an aggregate of $5,000 in class representative

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service payments to the two named Plaintiffs.

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I.

THE REQUESTED AWARD OF ATTORNEYS’ FEES IS APPROPRIATE AND IS

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APPROVED.
1.

Plaintiffs request an award of $375,000 in attorney’s fees for Class Counsel’s work

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in this case. In a class settlement, courts may calculate an appropriate award of fees under the

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“lodestar” method or the “common fund” method, using either one as a cross check on the other.

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Hanlon v. Chrysler Group, 150 F. 3d 1011, 1029 (9th Cir. 1998) (courts have discretion to apply

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the “lodestar/multiplier” method to determine a reasonable attorneys’ fee or as a crosscheck on the

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percentage fee calculation). Here, the requested fee award of $375,000 is reasonable under both

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methods.

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2.

Plaintiffs’ fee request is reasonable and appropriate under the lodestar method. The

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lodestar is the product of the reasonable hours expended times the reasonable hourly rate. “The

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court may then enhance the lodestar with a ‘multiplier,’ if necessary, to arrive at a reasonable fee.”

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In re Wash. Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1295 fn. 2 (9th Cir. 1994).

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3.

Class Counsel has presented evidence that they have devoted nearly 1,500 hours of

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time investigating, prosecuting and settling this case, and that all of these hours were necessarily

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and appropriately incurred. Vigne Dec., ¶¶ 13-14; Kaufmann Dec., ¶¶ 4-6, 8-9. This evidence

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reflects significantly fewer hours than what Counsel dedicated to the case, as it (1) reflects an

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across-the-board deduction of five-percent (5%) of all reported hours on the case in the interest of

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exercising billing judgment; (2) excludes timekeepers at each firm who recorded less than 25 hours

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on this matter as well as law students, fellows, and volunteer attorneys; and (3) excludes substantial

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hours yet to be incurred in securing final approval of this settlement and overseeing

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-1[PROPOSED] ORDER APPROVING ATTORNEYS’ FEES, EXPENSES, AND CLASS REPRESENTATIVE SERVICE AWARDS
CASE NO. 3:15-cv-03579-JD

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implementation of the settlement (if approved). Vigne Dec., ¶¶ 13, 20; Kaufmann Dec., ¶¶ 7, 9, 11.

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The Court finds that this amount of time spent resolving this case is reasonable and appropriate.

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The Court further finds that Class Counsel’s hourly rates are reasonable in light of

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their experience, and comparable to those of other class action attorneys with similar experience

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and years of practice. Vigne Dec., ¶¶ 16, 18 & Exh. 1; Kaufmann Dec., ¶ 11.

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5.

Class Counsel’s collective lodestar as of July 30, 2016 is $704,530.50. This

represents almost twice the $375,000 in fees requested for approval in this motion.
6.

Plaintiffs’ request for approval of $375,000 is reasonable, as it represents

substantially less than Class Counsel’s lodestar. Vigne Dec., ¶ 9; Kaufmann Dec., ¶ 11
7.

The Court also finds that Plaintiffs’ fee request is reasonable and appropriate under

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the common fund method. Under the common fund doctrine, “‘a litigant or a lawyer who recovers

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a common fund for the benefit of persons other than himself or his client is entitled to a reasonable

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attorney’s fee from the fund as a whole.’” In re Immune Response Sec. Litig., 497 F.Supp.2d 1166,

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1175 (S.D. Cal. 2007) (quoting Staton v. Boeing Co., 327 F.3d 938, 967 (9th Cir. 2003); Boeing

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Co. v. Van Gemert, 444 U.S. 472, 478 (1980).

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8.

The typical range of acceptable attorneys' fees in the Ninth Circuit under the

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common fund method is 20% to 33 1/3% of the total settlement value, with 25% considered the

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benchmark. Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 271 (9th Cir. 1989) (citing

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with approval benchmark of 25% and noting that common fund fee awards generally range from

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20% to 30%); Powers v. Eichen, 229 F.3d 1249, 1256 (9th Cir. 2000) (citing with approval

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benchmark of 25%);

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9.

Here, the requested fee award of $375,000 is supported by a percentage-of-the-fund

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cross-check, as it constitutes only 25% of the total settlement fund of $1,500,000, which is

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consistent with the benchmark in the Ninth Circuit.

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10.

Likewise, Class Counsel’s fee request is more modest than the fees awarded in other

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cases in the Ninth Circuit. The typical range of acceptable attorneys’ fees in the Ninth Circuit

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under this method is 20 to 33.3 percent of the total settlement value, with 25 percent considered the

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-2[PROPOSED] ORDER APPROVING ATTORNEYS’ FEES, EXPENSES, AND CLASS REPRESENTATIVE SERVICE AWARDS
CASE NO. 3:15-cv-03579-JD

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benchmark. Paul, 886 F.3d at 271 (citing with approval benchmark of 25% and noting that

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common fund fee awards generally range from 20% to 30%); Powers, 229 F.3d at 1256 (citing

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with approval benchmark of 25%); Bluetooth, 654F.3d at 942 (“courts typically calculate 25% of

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the fund as the ‘benchmark’ for a reasonable fee award”); Vasquez v. Coast Valley Roofing, Inc.,

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266 F.R.D. 482, 492 (E.D. Cal. 2010) (fee awards of 30-33% typical for wage and hour class

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actions); Rigo v. Kason Industries, Inc., 2013 WL 3761400, *7 (S.D. Cal., July 16, 2013)

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(approving 30% fee award; noting that “in a study of 287 settlements ranging from less than $1

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million to $450 million, “[t]he average attorney’s fees percentage is shown as 31.71%, and the

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median turns out to be one-third.”); In re Activision Sec. Litig., 723 F. Supp. 1373, 1377-78 (N.D.

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Cal. 1989) (noting that benchmark is 25% but also stating “nearly all common fund awards range

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around 30%”).

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Accordingly, the percentage-of-the-fund cross-check supports approval of the

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requested fee award, as does the lodestar cross-check method. Accordingly, this Court finds that

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Class Counsel’s request for a fee award of $375,000 is reasonable and shall be granted.

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II.

CLASS COUNSEL’S REQUEST FOR REIMBURSEMENT OF OUT-OF-POCKET

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EXPENSES IS REASONABLE AND IS APPROVED
12.

Class Counsel attests that it has or will incur $13,800 in litigation costs and

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associated expenses for items such as filing fees, deposition costs, mediator’s fees, copying

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charges, legal research charges, travel expenses, and delivery charges. See Vigne Dec., ¶ 21;

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Kaufmann Dec., ¶ 10,12. Class Counsel further attests that all of these costs were relevant and

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necessary to the litigation, reasonable in amount, and expended with no assurance that they would

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be recovered. Id.

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13.

The Court finds that expenditure of these costs was reasonable and approves

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reimbursement of these costs to Class Counsel from the settlement fund. Fed.R.Civ.P. 23(h);

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see also Grove v. Wells Fargo Fin., Inc., 606 F.3d 577, 580 (9th Cir. 2010) (approving out-of-

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pocket expenses as part of attorney fee award under a fee-shifting statute); Covillo v. Specialtys

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Café, 2014 WL 954516, *7 (N.D. Cal., Mar. 6, 2014) (“Class counsel is also entitled to

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CASE NO. 3:15-cv-03579-JD

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reimbursement of reasonable expenses.”).
III.

PLAINTIFFS’ REQUEST FOR CLASS REPRESENTATIVE SERVICE AWARDS

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IS REASONABLE
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Plaintiffs seek class representative service awards of $4,000 to Plaintiff Lopez and

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$1,000 to Plaintiff Alas, for an aggregate payment of $5,000 from the settlement fund. In support

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of this request, the named Plaintiffs have tendered declarations to the Court variously describing

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the tasks they performed as representative plaintiffs in actively participating in assisting in the

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prosecution of this case., their service to the class, and the risks they undertook in placing their

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names on the Complaint and delay due to class action litigation, and their willingness to forgo their

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own individual action – and in the case of Plaintiff Lopez, to withdraw his Labor Commissioner

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wage claim for over $52,000, without waiting time penalties and interest, pending for over a year

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and a half at the time it was withdrawn. See Declaration of Aned Lopez (“Lopez Dec.”);

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Declaration of Cristian Alas (“Alas Dec.”).

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15.

The service awards that Plaintiffs seek are at the low end of the range of class

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representative awards approved by other federal judges in class actions. “Numerous courts in the

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Ninth Circuit and elsewhere have approved incentive awards of $20,000 or more where . . . the

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class representative has demonstrated a strong commitment to the class.” Garner v. State Farm

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Mut. Auto. Ins., No. CV 08 1365 CW (EMC), 2010 WL 1687832, at *17 n.8 (N.D. Cal. Apr. 22,

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2010) (collecting cases); Kairy v. SuperShuttle Int’l, Inc., No. 3:08-cv-02993 JSW (Dkt. No. 405 at

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¶ 15 quoting Garner, approving service awards ranging from $4,000 to $18,000 to 8 plaintiffs);

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Gilmer v. A-C Transit, No. 4:08-cv-05186 CW (N.D. Cal. 2012) (Dkt. No. 269 at 5:7-19 approving

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$10,000 service awards to each of the five plaintiffs); Van Vranken v. Atlantic Richfield Co., 901

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F.Supp. 294, 299-300 (N.D. Cal. 1995) (approving $50,000 to one named plaintiff). Accordingly,

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courts have found a service award of $5,000 to be “presumptively reasonable.” See Dyer v. Wells

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Fargo Bank N.A., 303 F.R.D. 326,335 (N.D. Cal. 2014) (citing Harris v. Vector Mktg. Corp., No.

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08-cv-5198 EMC, 2012 WL 381202, at *7 (N.D. Cal. Feb. 6, 2012)).

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16.

The requested service awards are modest in light of the total value of the settlement.

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CASE NO. 3:15-cv-03579-JD

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The aggregate amount of requested service awards ($5,000) is only 0.0033% of the total settlement

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value of $1,500,000. Vigne Dec., ¶ 10. Given the robust payouts class members are receiving—

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which will average $4,600 for workers who did not sign releases and $1,500 who did, these

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requested amounts are reasonable.

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17. The Court finds the proposed class service representative payments are fair

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and reasonable, in recognition of the time and effort that the named Plaintiffs invested in assisting

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Class Counsel with the investigation, prosecution, and settlement of the case, as well as the risks

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they bore in serving as plaintiffs, and the service they rendered to the unnamed class members.

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IT IS HEREBY ORDERED that:

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1.

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$375,000.

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2.

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3.

The Court hereby grants Plaintiffs’ requestDISTR awards in the amount of
for service

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The awarded attorneys’ fees, costs, and class representative service payments shall

ICT
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$4,000 to Plaintiff Lopez and $1,000 to Plaintiff Alas, for an aggregate service reward of $5,000.
TA
ED

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expenses in the amount of $13,800.

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The Court hereby grants Plaintiffs’ request for reimbursement of litigation costs and

UNIT
ED

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The Court hereby grants Plaintiffs’ request for an award of attorneys’ fees of

be paid pursuant to the terms, conditions, and obligationsPROV
AP of the Settlement Agreement.

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IT IS SO ORDERED.

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LI

FO

a to
es Don
d ge J a m
Ju ____________________________
Hon. James Donato
E R UNITED STATES DISTRICT JUDGE
C

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H

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DATE: January 2 , 2017

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NO

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CASE NO. 3:15-cv-03579-JD