Brown et al v. Permanente Medical Group, Inc.

Filing 105

ORDER Granting 99 MOTION for Attorneys' Fees, Litigation/Settlement Administration Expenses, and Class Representative Service Awards (vclc3S, COURT STAFF) (Filed on 10/11/2017)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 12 DEBRA BROWN, SANDRA MORTON, and BARBARA LABUSZEWSKI, individually and on behalf of all other similarly situated individuals, 13 Plaintiffs, 14 v. 15 16 17 18 19 THE PERMANENTE MEDICAL GROUP, INC., a California corporation, Defendant. No. 3:16-CV-05272-VC CLASS ACTION [PROPOSED] ORDER GRANTING MOTION FOR ATTORNEYS’ FEES, LITIGATION/SETTLEMENT ADMINISTRATION EXPENSES, AND CLASS REPRESENTATIVE SERVICE AWARDS AS MODIFIED Date: October 5, 2017 Time: 10:00 a.m. Courtroom: 4 450 Golden Gate Avenue, 17th Floor San Francisco, California 94102 Judge: Hon. Vince Chhabria 20 21 22 23 24 25 26 27 28 ORDER GRANTING ATTORNEYS’ FEES, LITIGATION/SETTLEMENT ADMINISTRATION EXPENSES, AND CLASS REPRESENTATIVE SERVICE AWARDS U.S.D.C., N.D. Cal., No. 3:16-CV-05272-VC 1 On October 5, 2017, a hearing was held on the joint motion of plaintiffs Debra Brown, Sandra 2 Morton and Barbara Labuszewski and defendant The Permanente Medical Group, Inc. (“TPMG”), and 3 on the separate motion of Plaintiffs’ and Class Counsel for Attorneys’ Fees, Litigation Expenses, 4 Settlement Administration Expenses, and Class Representative Service Awards. Kevin J. Stoops and 5 Jason L. Thompson of Sommers Schwartz, P.C., and Jahan C. Sagafi of Outten & Golden LLP appeared 6 for plaintiffs; and Jeffrey D. Wohl and Caitlin M. Wang of Paul Hastings LLP appeared for TPMG. 7 The parties have submitted their Settlement, which this Court preliminarily approved by its order 8 entered on June 9, 2017. In accordance with the Preliminary Approval Order, Class Members have been 9 given notice of the terms of the Settlement and the opportunity to object to it or to exclude themselves 10 from its provisions. 11 Having received and considered the motion of Plaintiffs’ and Class Counsel for Attorneys’ Fees, 12 Litigation Expenses, Settlement Administration Expenses, and Class Representative Service Awards; the 13 Memorandum and corresponding declarations and documents filed in support of that motion; Plaintiffs’ 14 and Class Counsel’s Reply Brief in support of their motion for Attorneys’ Fees, Litigation Expenses, 15 Settlement Administration Expenses, and Class Representative Service Awards; the Memorandum and 16 corresponding declarations and documents filed in support of that reply; and based on the entire record 17 of this action; the Court HEREBY ORDERS and MAKES DETERMINATIONS as follows: 1. 19 20 The Court has jurisdiction over the subject matter of this action, the Defendant, and the 2. 18 Notice of the requested award of attorneys’ fees, reimbursement of litigation expenses, Class. 21 reimbursement of settlement administration expenses, and awards of class representative service 22 payments was directed to Class Members in an reasonable manner, and complies with Rule 23(h)(1) of 23 the Federal Rules of Civil Procedure. 24 25 3. Class Members and any party from whom payment is sought have been given the opportunity to object in compliance with Fed. R. Civ. P. 23(h)(2). 26 Appointment of Class Representatives and Approval of Class Representative 27 Awards 28 ORDER GRANTING ATTORNEYS’ FEES, LITIGATION/SETTLEMENT ADMINISTRATION EXPENSES, AND CLASS REPRESENTATIVE SERVICE AWARDS U.S.D.C., N.D. Cal., No 3:16-CV-05272-VC 1 2 3 4. The Court confirms as final the appointment of Debra Brown, Sandra Morton and Barbara Labuszewski as Class Representatives of the FLSA Collective and the California Rule 23 Class. 5. The requested Class Representative service awards of $10,000 each for Class 4 Representatives Brown, Morton and Labuszewski, are fair and reasonable in light of the time and effort 5 the Class Representatives expended for the benefit of the Class Members, as well as the risk accepted by 6 initiating the litigation and publicly representing the Class. See, e.g., Stevens v. Safeway, Inc., No. 05 7 Civ. 01988, 2008 U.S. Dist. LEXIS 17119, at *34-37 (C.D. Cal. Feb. 25, 2008) ($20,000 and $10,000 to 8 two class representatives); Glass v. UBS Financial Services, Inc., 7 Case No. 06 Civ. 4068, 2007 WL 9 221862, at *16-17 (N.D. Cal. Jan. 26, 2007) ($25,000 each to four class representatives); Van Vranken v. 10 Atl. Richfield Co., 901 F. Supp. 294, 300 (N.D. Cal. 1995) ($50,000 to one class representative); In Re 11 Janney Montgomery Scott LLC Financial Consultant Litig., No. 06 Civ. 3202, 2009 U.S. Dist. LEXIS 12 60790, at *35-37 (E.D. Pa. July 16, 2009) ($20,000 each to three class representatives); Wade v. Kroger 13 Co., No. 01 Civ. 699, 2008 WL 4999171, at *13 (W.D. Ky. Nov. 20, 2008) ($30,000 each to multiple 14 class representatives); Wright v. Stern, 553 F. Supp. 2d 337, 342 (S.D.N.Y. 2008) ($50,000 each to 15 eleven class representatives ); In re Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366, 16 374 (S.D. Ohio 1990) ($35,000-55,000 each to five class representatives). The Class Representatives 17 have satisfied the criteria as set forth in Staton v. Boeing Co., 327 F.3d 938, 963 (9th Cir. 2003). Under 18 Staton, a service award request should be evaluated using “‘relevant factors, includ[ing] the actions the 19 Plaintiff has taken to protect the interests of the class, the degree to which the class has benefited from 20 those actions, … the amount of time and effort the Plaintiff expended in pursuing the litigation … and 21 reasonabl[e] fear[s] of workplace retaliation.’” Staton, 327 F.3d at 977 (citing Cook v. Niedert, 142 F.3d 22 1004, 1016 (7th Cir. 1998)) (ellipses in original). Here, the Class Representatives’ leadership of this 23 action caused them personal exposure and potential adverse consequences with future employers, and 24 their representation of the FLSA and state law Classes enhanced the case’s value overall by increasing 25 TPMG’s potential exposure, tolling the statutes of limitations for those claims. Furthermore, Class 26 Counsel attests that the Class Representatives were substantially involved throughout the litigation, 27 educating Class Counsel regarding Class Members’ job experiences and TPMG’s policies and 28 -2- Order Granting ATTORNEYS’ FEES, LITIGATION/SETTLEMENT ADMINISTRATION EXPENSES, AND CLASS REPRESENTATIVE SERVICE AWARDS U.S.D.C., N.D. Cal., No 3:16-CV-05272-VC 1 procedures. Accordingly, the Court approves payment of Class Representative service awards in the 2 amount of $10,000 each to Debra Brown, Sandra Morton and Barbara Labuszewski. Appointment of Class Counsel; Approval of Class Counsel’s Attorneys’ Fees and Litigation Expenses 3 4 6. The Court confirms as final the appointment of the following law firms and attorneys as 5 class counsel (“Class Counsel”) for the Rule 23 and FLSA Classes: Kevin Stoops and Jason Thompson 6 of Sommers Schwartz, P.C., Jahan C. Sagafi of Outten & Golden LLP. 7 7. The Court finds and determines that Class Counsel’s requested award of $1,876,500 in 8 attorneys’ fees, or 30% of the common funds, is reasonable under the percentage of the common fund 9 method, as it is consistent with Ninth Circuit authority. See, e.g., Vizcaino v. Microsoft Corp., 290 F.3d 10 1043 (9th Cir. 2002) (affirming award of 28% of $96.885 million common fund, while recognizing that 11 the percentage of an award generally increases as the common fund decreases); In re Pacific Enterprises 12 Sec. Litig., 47 F.3d 373, 379 (9th Cir. 1995) (affirming award of 33% of $12 million common fund); In 13 re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 460 (9th Cir. 2000) (affirming award of 33.3% of $1.725 14 million fund); see also In re Activision Sec. Litig., 723 F. Supp. 1373, 1378 (N.D. Cal. 1989) (surveying 15 cases and stating, “in class action common fund cases the better practice is to set a percentage fee and 16 that, absent extraordinary circumstances that suggest reasons to lower or increase the percentage, the rate 17 should be set at 30%.”). The Court reaches this conclusion based on attorneys’ fees awards issued in 18 similar wage and hour cases in this District, and the fact that the common fund of $6,255,000 was 19 created for Class Members through the efforts of Class Counsel. See Boyd v. Bank of Am. Corp., No. 13 20 Civ. 0561, 2014 WL 6473804, at *9 (C.D. Cal. Nov. 18, 2014) (approving fee award of 36% of common 21 fund settlement); In re Quantum Health Res., Inc., 962 F. Supp. 1254, 1258 (C.D. Cal. 1997) (attorneys 22 representing a class “routinely recover attorneys’ fees in the range of 20 to 40 percent of the common 23 fund”); see also Vasquez v. Coast Valley Roofing, Inc., 266 F.R.D. 482, 492 (E.D. Cal. 2010) (33.3% fee 24 award; $300,000 common fund) (collecting cases). 25 8. The requested fee award is also reasonable under the lodestar method. The hours devoted 26 to this case by Class Counsel and their rates are reasonable. The award results in a multiplier of 27 approximately 3.0, which falls within the range of fee multipliers courts routinely approve, and is 28 -3- Order Granting ATTORNEYS’ FEES, LITIGATION/SETTLEMENT ADMINISTRATION EXPENSES, AND CLASS REPRESENTATIVE SERVICE AWARDS U.S.D.C., N.D. Cal., No 3:16-CV-05272-VC 1 reasonable in light of the time and labor required, the difficulty of the issues involved, the requisite legal 2 skill and experience necessary, the results obtained for the Class, the contingent nature of the fee and 3 risk of no payment, and the range of fees that are customary. Courts routinely approve similar or higher 4 lodestar multipliers in comparable common fund cases. See Vizcaino, 290 F.3d at 1052-54; Steiner v. 5 Am. Broad. Co., 248 Fed. Appx. 780, 783 (9th Cir. 2007) (affirming award with multiplier of 6.85); see 6 also Newberg, Attorney Fee Awards, § 14.03 at 14-5 (1987) (“multiples ranging from one to four are 7 frequently awarded in common fund cases when the lodestar method is applied.”); Rabin v. Concord 8 Assets Group, Inc., No. No. 89 Civ. 6130 (LBS), 1991 WL 275757 (S.D.N.Y. 1991) (4.4 multiplier) (“In 9 recent years multipliers of between 3 and 4.5 have become common.”) (internal quotations and citations 10 omitted); In re Xcel Energy, Inc., Securities, Derivative & “'ERISA” Litig., 364 F. Supp. 2d 980, 998-99 11 (D. Minn. 2005) (approving 25% fee, resulting in 4.7 multiplier); In re Aremissoft Corp. Sec. Litig., 210 12 F.R.D. 109, 134-35 (D.N.J. 2002) (approving 28% fee, resulting in 4.3 multiplier); Maley v. Del Global 13 Techs. Corp., 186 F. Supp. 2d 358, 371 (S.D.N.Y. 2002) (approving 33.3% fee, resulting in “modest 14 multiplier of 4.65”); Di Giacomo v. Plains All Am. Pipeline, Nos. 99-4137 & 99-4212, 2001 WL 15 34633373, at *10-11 (S.D. Fla. Dec. 19, 2001) (approving 30% fee, resulting in 5.3 multiplier); Roberts 16 v. Texaco, Inc., 979 F. Supp. 185, 198 (S.D.N.Y. 1997) (5.5 multiplier); Roberts v. Texaco, 979 F. Supp. 17 185 (S.D.N.Y. 1997) (5.5 multiplier); Weiss v. Mercedes-Benz of N. Am., Inc., 899 F. Supp. 1297, 1304 18 (D.N.J. 1995) (9.3 multiplier), aff'd, 66 F.3d 314 (3d Cir. 1995). 19 20 21 9. For these reasons, the Court awards Class Counsel attorneys’ fees in the amount of $1,876,500. 10. The Court finds and determines, pursuant to the terms of the Settlement, that within 7 22 days of receipt of the Total Settlement Amount from TPMG (which must be paid within 14 days of the 23 Settlement becoming Final) the Settlement Administrator will wire transfer the attorneys’ fee award of 24 $1,876,500 to Sommers Schwartz, P.C., and Sommers Schwartz, P.C., will be responsible for 25 distribution of fees to Class Counsel including Outten & Golden LLP. 26 27 11. The Court finds and determines that Class Counsel’s request for reimbursement of litigation expenses in the amount of $52,715.52 is reasonable and is consistent with Ninth Circuit 28 -4- Order Granting ATTORNEYS’ FEES, LITIGATION/SETTLEMENT ADMINISTRATION EXPENSES, AND CLASS REPRESENTATIVE SERVICE AWARDS U.S.D.C., N.D. Cal., No 3:16-CV-05272-VC 1 authority. The litigation expenses incurred by Class Counsel have been adequately documented and 2 were reasonably incurred for the benefit of the Class. The Court finds that these litigation expenses are 3 justified. 4 12. The Court finds and determines, pursuant to the terms of the Settlement, that within 7 5 days of receipt of the Total Settlement Amount from TPMG (which must be paid within 14 days of the 6 Settlement becoming Final) the Settlement Administrator will wire transfer the fees expenses to 7 Sommers Schwartz, P.C., and Sommers Schwartz, P.C., will be responsible for distribution of litigation 8 expenses to Class Counsel including Outten & Golden LLP. Settlement Administration Expenses 9 10 11 12 13. Settlement Administrator, Simpluris, Inc., has filed a declaration identifying the work it has performed and will perform in this matter and identifying its total invoice amount of $26,600. 14. The Court finds that these settlement administration expenses are fair and reasonable and 13 appropriate in this case and awards reimbursement of that amount to Simpluris, Inc., from the Total 14 Settlement Amount. 15 IT IS SO ORDERED. 16 Dated: October 11, 2017. 17 Vince Chhabria United States District Judge 18 19 20 21 22 23 24 25 26 27 28 -5- Order Granting ATTORNEYS’ FEES, LITIGATION/SETTLEMENT ADMINISTRATION EXPENSES, AND CLASS REPRESENTATIVE SERVICE AWARDS U.S.D.C., N.D. Cal., No 3:16-CV-05272-VC

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