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