Stonehocker v. Kindred Healthcare Operating, LLC

Filing 71

ORDER GRANTING MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; GRANTING IN PART MOTION FOR ATTORNEYS FEES, COSTS, AND SERVICE AWARDS; JUDGMENT; by Judge Yvonne Gonzalez Rogers granting in part 65 Motion for Attorney Fees; granting 66 Motion for Final Approval of Class Action Settlement. Post-distribution Accounting Report due by 8/20/2021. Compliance Deadline to verify timely filing of post-distribution accounting set for 8/27/2021 09:01 AM. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(fs, COURT STAFF) (Filed on 4/27/2021)

Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SARAH STONEHOCKER, Plaintiff, 8 vs. 9 10 KINDRED HEALTHCARE OPERATING LLC, ET AL., United States District Court Northern District of California 11 Defendants. 12 CASE NO. 19-CV-2494-YGR ORDER GRANTING MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; GRANTING IN PART MOTION FOR ATTORNEY’S FEES, COSTS, AND SERVICE AWARDS; JUDGMENT RE: Dkt. Nos. 65, 66 13 The Court previously granted a motion for preliminary approval of the Class Action 14 Settlement in this matter on November 24, 2020. (Modified Order Granting Preliminary Approval 15 of Class Action Settlement and Order Approving PAGA Settlement (“Preliminary Approval Order”), 16 Dkt. No. 64.) As directed by the Preliminary Approval Order, on January 15, 2021, plaintiff filed 17 her unopposed motion for attorney’s fees, costs, and service award. (Dkt. No. 65.) Thereafter, 18 plaintiff filed her unopposed motion for final settlement approval on March 2, 2021. (Dkt. No. 66.) 19 The Court held a hearing on April 6, 2020. 20 Having considered the motion briefing, the terms of the Settlement Agreement, the 21 arguments of counsel, and the other matters on file in this action, the Court GRANTS the motion for 22 final approval. The Court finds the settlement fair, adequate, and reasonable. The provisional 23 appointments of the class representative and class counsel are confirmed. The motion for attorney’s fees, costs, and service award is GRANTED IN PART. The Court 24 25 ORDERS that class counsel shall be paid $498,750.00 in attorney’s fees and $12,140.18 in litigation 26 costs and that class representative and named plaintiff Sarah Stonehocker shall be paid a $5,000.00 27 incentive award. 28 // 1 I. BACKGROUND 2 A. Procedural History 3 Plaintiff filed the putative class action complaint on February 14, 2019, alleging that 4 defendant Kindred Healthcare Operating LLC’s strict productivity standards resulted in plaintiff and 5 other individuals clocking in hours for which they were not paid. (Dkt. No. 1-5.) Plaintiff’s then- 6 operative amended complaint alleges claims for (1) failure to pay for all hours worked; (2) failure to 7 pay wages when due; and (3) unfair business practices under the California Unfair Competition Law 8 (Cal. Bus. & Prof. Code § 17200, et seq.). (Id.) Defendant denied plaintiff’s allegations in their 9 entirety. (Dkt. No. 1-7.) Defendant filed an early motion for summary judgment on grounds that (i) plaintiff was 10 United States District Court Northern District of California 11 bound by the judgment and dismissal entered in Cashon v. Kindred Healthcare Operating, Inc., et 12 al., Case No. 3:16-cv-04889-RS (“Cashon”), and thus, plaintiff’s claims were barred by the doctrine 13 of claim preclusion; and (ii) plaintiff released her right to bring the claims asserted in this action 14 through the Class Action Settlement Agreement and Stipulation approved by the court in Cashon. 15 (Dkt. No. 18.) The Court denied this motion on September 19, 2019. (Dkt. No. 30.) Thereafter, the parties reached a settlement prior to class certification with the assistance of 16 17 experienced mediator Tripper Ortman. The Settlement Agreement, attached hereto as Exhibit 1, the 18 terms of which are incorporated herein unless specifically stated otherwise, defines the class as: 19 [A]ll persons who are or were employed by one or more Defendants as nonexempt Skilled Clinicians to work at a skilled nursing facility in California at any time from February 14, 2015 through September 1, 2020. 20 21 22 (the “Settlement Class”). (Agreement ¶ 2.6.) “Skilled Clinicians” are all individuals who have held 23 one or more positions in the job title list attached as Exhibit A to the Settlement Agreement. (Id. ¶ 24 2.52.) 25 For settlement purposes, plaintiff filed the second amended complaint, adding defendants 26 Kindred Rehab Services LLC, Kindred Rehab Services, Inc., RehabCare Group East LLC, 27 RehabCare Group East, Inc., American VitalCare LLC, and RehabCare Group of California LLC. 28 This pleading alleges claims for: (1) failure to pay for all hours worked; (2) failure to furnish 2 1 accurate wage statements; (3) failure to provide compliant meal periods; (4) failure to provide 2 compliant rest periods; (5) failure to pay wages when due; (6) failure to keep accurate employment 3 records; (7) unlawful, unfair, and/or fraudulent business practices under the California Unfair 4 Competition Law (“UCL”); and (8) penalties pursuant to the Labor Code Private Attorneys General 5 Act of 2004, as amended (“PAGA”) (Lab. Code §§ 2698 et seq.). (Dkt. No. 59.) In its Preliminary Approval Order, the Court conditionally certified the Settlement Class and 6 7 provisionally appointed Matthew Carlson as Class Counsel, plaintiff Sarah Stonehocker as class 8 representative, and Simpluris Inc. as the class administrator. (Dkt. No. 64 ¶¶ 4–6.) B. 9 Terms of the Settlement Agreement Under the terms of the Settlement Agreement, defendant will pay $1,995,000.00 into a 10 United States District Court Northern District of California 11 common settlement fund, without admitting liability. This amount includes attorney’s fees and 12 costs, the cost of class notice and settlement administration, the class representative’s service award, 13 and PAGA payment. The PAGA Payment was defined as: 14 [A]n amount of One Hundred Thirty Thousand Dollars ($130,000) shall be allocated as the PAGA Payment. Ninety-Seven Thousand Five Hundred Dollars ($97,500.00), which is seventy-five percent (75%) of the PAGA Payment, shall be paid to the [California Labor and Workforce Development Agency]. The remaining Thirty-Two Thousand Five Hundred Dollars ($32,500.00), which is twenty-five percent (25%) of the PAGA Payment, shall be distributed to the PAGA Releasees, based on the number of PAGA Pay Periods worked by a PAGA Releasee, as a fraction of the total PAGA Pay Periods worked by al PAGA Releasees. . . . 15 16 17 18 19 20 (Agreement ¶ 3.1(c).) However, the fund is exclusive of the employer’s share of payroll taxes. 21 1. 22 Attorney’s Fees and Costs Under the Settlement Agreement, Plaintiff’s counsel agreed to seek up to $665,000.00 in 23 attorney’s fees and no more than $15,000.00 in litigation costs. The common settlement fund also 24 includes a provision for $22,500.00 in settlement administration costs; and up to $5,000.00 to be 25 paid to plaintiff Sarah Stonehocker as a service award in exchange for a general release of all claims 26 against defendants. 27 // 28 // 3 2. 1 2 Class Relief After deductions from the common fund for fees, costs, and service incentive awards as well 3 as the administration expenses, approximately $1,326,609.82 will remain to be distributed among the 4 participating class members.1 Class members will be paid based on the number of pay periods 5 worked as a fraction of the total class pay periods worked by all class members. Dividing this 6 amount across the 2,260 participating class members yields an average recovery of approximately 7 $586.99 per class member. The Agreement provides that no amount will revert to defendant. 3. 8 9 Cy Pres/Remainder The Settlement Agreement provides that any residue funds will be distributed to the Courtapproved cy pres beneficiary First Responders Children’s Foundation Covid-19 Emergency 11 United States District Court Northern District of California 10 Response Fund, with 95% of cy pres funds to benefit clinicians at skilled nursing facilities in 12 California and 5% of cy pres funds to benefit clinicians at skilled nursing facilities in states other 13 than California. 4. 14 15 16 Class Member Release In exchange for the settlement awards, class members will release claims against defendants as set forth in the Settlement Agreement at sections 4.3 and 4.4. 17 C. Class Notice and Claims Administration 18 Pursuant to the Settlement Agreement, the Court appointed Simpluris to administer the fund 19 and to contact the class members in the manner set forth therein and including the attachments 20 contained within the Preliminary Approval Order. 21 Class members were given until February 19, 2021, to object to or exclude themselves from 22 the Settlement Agreement. Out of 2,263 total class members, three persons filed timely requests to 23 opt out of the Settlement Class.2 24 25 26 27 28 1 $1,995,000.00 (gross settlement fund) – $498,750.00 (approved fee award) – $12,140.18 (approved cost award) – $22,500.00 (settlement administration expenses) – $5,000.00 (approved service award) – $130,000.00 (PAGA payment) = $1,326,609.82 2 After filing the final opt-out list indicating two requests for exclusion (Dkt. No. 67), plaintiff subsequently filed an additional request for exclusion by an individual who had mailed her request to counsel’s office. (Dkt. No. 68.) The request was timely and otherwise compliant with the terms of the Preliminary Approval Order. Defendants do not challenge this request. 4 1 II. FINAL APPROVAL OF SETTLEMENT 2 A. Legal Standard 3 A court may approve a proposed class action settlement of a class only “after a hearing and 4 on finding that it is fair, reasonable, and adequate,” and that it meets the requirements for class 5 certification. Fed. R. Civ. P. 23(e)(2). In reviewing the proposed settlement, a court need not 6 address whether the settlement is ideal or the best outcome, but only whether the settlement is fair, 7 free of collusion, and consistent with plaintiff’s fiduciary obligations to the class. See Hanlon v. 8 Chrysler Corp., 150 F.3d at 1027. The Hanlon court identified the following factors relevant to 9 assessing a settlement proposal: (1) the strength of the plaintiff’s case; (2) the risk, expense, complexity, and likely duration of further litigation; (3) the risk of maintaining class action status 11 United States District Court Northern District of California 10 throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed and 12 the stage of the proceeding; (6) the experience and views of counsel; (7) the presence of a 13 government participant; and (8) the reaction of class members to the proposed settlement. Id. at 14 1026 (citation omitted); see also Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 15 2004). 16 Settlements that occur before formal class certification also “require a higher standard of 17 fairness.” In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 458 (9th Cir. 2000). In reviewing such 18 settlements, in addition to considering the above factors, a court also must ensure that “the 19 settlement is not the product of collusion among the negotiating parties.” In re Bluetooth Headset 20 Prods. Liab. Litig., 654 F.3d 935, 946-47 (9th Cir. 2011). 21 22 23 24 25 26 B. Analysis 1. The Settlement Class Meets the Prerequisites for Certification The Court finds that the prerequisites of Rule 23 have been satisfied purposes of certification of the class members proffered through this settlement (“Settlement Class”). With respect to numerosity under Rule 23(a)(1), the Settlement Class includes 2,263 members, making it so numerous that joinder of all members is impracticable. 27 Rule 23(a)(2) commonality requires “questions of fact or law common to the class,” though 28 all questions of fact and law need not be in common. Hanlon, 150 F.3d at 1026. The focus of this 5 1 action is common to all class members, namely, whether defendants failed to pay all wages owed, 2 including pay for off-the clock time. 3 Rule 23(a)(3) requires that the plaintiff show that “the claims or defenses of the 4 representative parties are typical of the claims or defenses of the class.” Plaintiff and members of 5 the Settlement Class were all Skilled Clinicians during the relevant time period making plaintiff’s 6 claims typical of class members. 7 With respect to Rule 23(a)(4), the Court finds the class representative and class counsel have 8 fairly and adequately represented the interests of the Class. No conflicts of interest appear as 9 between plaintiff and the members of the Settlement Class. Class Counsel has demonstrated that he 10 United States District Court Northern District of California 11 is skilled in this area of the law and therefore adequate to represent the Settlement Class as well. The Settlement Class further satisfies Rule 23(b)(3) in that common issues predominate and 12 “a class action is superior to other available methods for fairly and efficiently adjudicating” the 13 claims here. 14 15 2. Adequacy of Notice A court must “direct notice [of a proposed class settlement] in a reasonable manner to all 16 class members who would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1). “The class must be 17 notified of a proposed settlement in a manner that does not systematically leave any group without 18 notice.” Officers for Justice v. Civil Serv. Comm'n, 688 F.2d 615, 624 (9th Cir. 1982). Adequate 19 notice requires: (i) the best notice practicable; (ii) reasonably calculated, under the circumstances, to 20 apprise the Class members of the proposed settlement and of their right to object or to exclude 21 themselves as provided in the settlement agreement; (iii) reasonable and constitute due, adequate, 22 and sufficient notice to all persons entitled to receive notice; and (iv) meet all applicable 23 requirements of due process and any other applicable requirements under federal law. Phillips 24 Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985). Due process requires “notice reasonably 25 calculated, under all the circumstances, to apprise interested parties of the pendency of the action 26 and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Tr. 27 Co., 339 U.S. 306, 314 (1950). 28 The Court approved the parties’ proposed notice procedures when it granted preliminary 6 1 approval. Pursuant to those procedures, the Class Administrator provided class members with a 2 Class Notice Packet mailed to all class members based upon last-known addresses provided by 3 defendants. The packet included the long-form notice which provided the class member with a 4 rough calculation of their estimated portion of the settlement based on the business records of the 5 defendant and the option of disputing the same. 6 The class is now estimated to have 2,263 members. Of these class members, twelve packets 7 were returned as undeliverable and reasonable follow-up efforts were not successful, resulting in a 8 reach rate of 99.5%. Moreover, three persons timely completed opt out forms, resulting in an 9 adjusted class member size of 2,260. 10 United States District Court Northern District of California 11 12 Based upon the foregoing, the Court finds that the Settlement Class has been provided adequate notice. After deductions from the common fund for fees, costs, and service enhancement awards, 13 settlement administration, and PAGA payment, approximately $1,326,609.82 will remain to be 14 distributed among the participating class members. Class members will be paid based on the number 15 of class pay periods worked as a fraction of the total class pay periods worked by all class members.3 16 The Agreement provides that no amount will revert to defendant. 3. The Settlement Is Fair And Reasonable 17 18 19 20 As to the Hanlon factors, the Court finds that they indicate the settlement here is fair and reasonable. Liability was contested and the settlement provides class members with a guaranteed and 21 not insubstantial monetary award. There is risk that the evidence could have diminished the value 22 of the claims. Defendant Kindred strenuously contested the allegations and would have persisted 23 in their position to prove their claimed policy regarding off-the-clock work. If Kindred prevailed, 24 plaintiff and the class members would not receive any amount. Proceeding to trial would have 25 been costly and recovery was not guaranteed. Further, there is the possibility of protracted 26 27 28 3 According to the declaration of the claims administrator, the average estimated payment is approximately $525.27 and the highest payment estimated at $2,354.37. (Dkt. No. 66-1.) These estimates are based on the requested amounts of fees and costs (as opposed to the fees and costs ultimately awarded here). 7 1 2 appeals. The settlement occurred only after extensive litigation including summary judgment 3 motion practice, pre-mediation exchange of requested information (including payroll and time 4 clock data), and communications. Counsel for both parties are highly experienced. The record 5 does not indicate collusion or self-dealing. 6 7 The Settlement Agreement appears to have been the product of arm’s length and informed negotiations. The relief provided for the Class appears to be adequate, taking into account: 8 (i) the costs, risks, and delay of trial and appeal; 9 (ii) the effectiveness of any proposed method of distributing relief to the class, including 10 the method of processing class-member claims; and United States District Court Northern District of California 11 (iii) the terms of any proposed award of attorney’s fees, including timing of payment. 12 Moreover, the Settlement Agreement appears to treat Class members equitably relative to 13 14 each other. The reaction of the class was overwhelmingly positive. As noted, the Court received only 15 three opt-outs and no objections. “[T]he absence of a large number of objections to a proposed 16 class action settlement raises a strong presumption that the terms of a proposed class settlement 17 action are favorable to the class members.” In re Omnivision Techs., Inc., 559 F.Supp.2d 1036, 18 1043 (N.D. Cal. 2008) (citation omitted); see also Churchill Vill., 361 F.3d at 577 (holding that 19 approval of a settlement that received 45 objections (0.05%) and 500 opt-outs (0.56%) out of 20 90,000 class members was proper). 21 22 4. Other Findings Notice to Government Agencies: The parties provided the required notice to federal and 23 state attorneys general under the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1715(b). (Dkt. 24 No. 66-1 ¶ 14.) Notice occurred more than 90 days before the date of this order, as required by 28 25 U.S.C. § 1715(d). 26 27 28 5. Certification Is Granted and the Settlement Is Approved After reviewing all of the required factors, the Court finds the Settlement Agreement to be fair, reasonable, and adequate, and certification of the Settlement Class as defined therein to be 8 1 proper. The Court grants class certification to the following Settlement Class: 2 All persons who are or were employed by one or more Defendants as non-exempt Skilled Clinicians to work at a skilled nursing facility in California at any time from February 14, 2015 through September 1, 2020. 3 4 5 The following persons are excluded from the Settlement Class: all persons who timely excluded themselves from the Settlement Class, as identified in Exhibit 2 hereto. 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 The cy pres recipient, First Responders Children’s Foundation Covid-19 Emergency Response Fund, is APPROVED. III. MOTION FOR ATTORNEY’S FEES, COSTS, AND CLASS REPRESENTATIVE AWARDS Attorney’s fees and costs may be awarded in a certified class action under Federal Rule of Civil Procedure 23(h). Such fees must be found “fair, reasonable, and adequate” in order to be approved. Fed. R. Civ. P. 23(e); Staton v. Boeing Co., 327 F.3d 938, 963 (9th Cir. 2003). To “avoid abdicating its responsibility to review the agreement for the protection of the class, a district court must carefully assess the reasonableness of a fee amount spelled out in a class action settlement agreement.” Id. at 963. “[T]he members of the class retain an interest in assuring that the fees to be paid class counsel are not unreasonably high,” since unreasonably high fees are a likely indicator that the class has obtained less monetary or injunctive relief than they might otherwise. Id. at 964. The Court analyzes an attorney’s fee request based on either the “lodestar” method or a percentage of the total settlement fund made available to the class, including costs, fees, and injunctive relief. Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 2002). The Ninth Circuit encourages courts to use another method as a cross-check in order to avoid a “mechanical or formulaic approach that results in an unreasonable reward.” In re Bluetooth, 654 F.3d at 944– 45 (citing Vizcaino, 290 F.3d at 1050–51.) Under the lodestar approach, a court multiplies the number of hours reasonably expended by the reasonable hourly rate. Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir. 2016) (“[A] court calculates the lodestar figure by multiplying the number of hours reasonably expended on a case by a reasonable hourly rate. A reasonable hourly rate is ordinarily the ‘prevailing market rate [] in the relevant community.’”). Under the percentage-of-the-fund method, courts in the Ninth Circuit 28 9 1 “typically calculate 25% of the fund as the ‘benchmark’ for a reasonable fee award, providing 2 adequate explanation in the record of any ‘special circumstances’ justifying a departure.” In re 3 Bluetooth, 654 F.3d at 942 (citing Six (6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 4 1301, 1311 (9th Cir. 1990)). The benchmark should be adjusted when the percentage recovery 5 would be “either too small or too large in light of the hours devoted to the case or other relevant 6 factors.” Six (6) Mexican Workers, 904 F.2d at 1311. When using the percentage-of-recovery 7 method, courts consider a number of factors, including whether class counsel “‘achieved 8 exceptional results for the class,’ whether the case was risky for class counsel, whether counsel’s 9 performance ‘generated benefits beyond the cash settlement fund,’ the market rate for the particular field of law (in some circumstances), the burdens class counsel experienced while 11 United States District Court Northern District of California 10 litigating the case (e.g., cost, duration, foregoing other work), and whether the case was handled 12 on a contingency basis.” In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 954-55 (9th Cir. 13 2015) (quoting Vizcaino, 290 F.3d at 1047-50. “[T]he most critical factor [in determining 14 appropriate attorney’s fee awards] is the degree of success obtained.” Hensley v. Eckerhart, 461 15 U.S. 424, 436 (1983). 16 Here, Class Counsel requests an attorney’s fee award of $665,000.00. Class counsel 17 contends that the attorney’s fees sought amount to 33% of the total settlement value 18 ($1,995,000.00) and reflect approximately an amount 2.39 times his lodestar totaling $274,440.00. 19 Defendants do not oppose the fee request. 20 Using the percentage-of-recovery method, the attorney’s fees sought exceed the 25% 21 federal benchmark. Plaintiff maintains that because she “asserts only state law claims, California 22 law, not Ninth Circuit law, sets the applicable standard for fees.” (Motion for Attorney’s Fees, 23 Costs, and Service Award, Dkt. No. 65, at 1 (offering authorities indicating some California courts 24 apply a 33% benchmark).) However, the Court finds an award of 25 percent of the common fund 25 more reasonable. This case was a follow-on case. Moreover, while it “reflects the very positive 26 result achieved for the class,” this award is tempered by a measure of undue billing discussed 27 below and “the lack of complex or novel issues.” See Lopez v. Management and Training Corp., 28 No. 17-CV-1624 (JTM), 2020 WL 1911571, at *8 (S.D. Cal. April 20, 2020) (“Analogous wage 10 1 and hour class action settlements in California district courts illustrate that courts have been 2 known to award fees ranging from well below the federal 25 percent benchmark to amounts equal 3 to or greater than the 33.33 percent being requested here.”); Smith v. CRST Van Expedited, Inc., 4 No. 10-CV-1116-IEG, 2013 WL 163293, at *5 (S.D. Cal. Jan. 14, 2013) (“Under the percentage 5 method, California has recognized that most fee awards based on either a lodestar or percentage 6 calculation are 33 percent and has endorsed the federal benchmark of 25 percent.”) (citing In re 7 Consumer Privacy Cases, 175 Cal. App. 4th 545, 557 n. 13 (2009) (“A fee award of 25 percent is 8 the benchmark award that should be given in common fund cases.”)). 9 Class counsel did not provide the Court with his detailed billings until requested by the Court at the hearing. Based on the time records submitted, the Court adjusts the lodestar to 11 United States District Court Northern District of California 10 $243,780.00 for analytical purposes. Class Counsel calculated his lodestar by applying his $600 12 hourly rate to the 457.4 total hours spent working on this matter. However, the Court finds the 13 hours to be slightly inflated. Analytically, the Court deducts 24.6 hours for time spent on a 14 companion case and cuts 33 hours of unspecified “post fee motion work” in half.4 Moreover, the 15 Court applies a discounted rate of $300 hourly rate to 20 hours of travel time. Rarely would 16 counsel be able to justify those amounts in a non-class context. These adjustments amount to a 17 difference of $30,660.00. The Court otherwise finds that the hours claimed were reasonably 18 incurred and that the rate charged is reasonable and commensurate with those charged by attorneys 19 with similar experience in the market. The Court also finds that Class Counsel represented his 20 clients with skill and diligence and obtained an excellent result for the class, taking into account 21 the possible outcomes and risks of proceeding trial. Therefore, the appropriate lodestar is 22 $243,780.00. 23 Application of the 25% benchmark ($498,750.00) yields a fee award of 2.04 times the 24 adjusted lodestar ($243,780.00). Accordingly, the Court finds an award of attorney’s fees in the 25 amount of $498,750.00 to be fair, reasonable, and adequate. 26 27 28 4 The spreadsheets submitted by Class Counsel list an estimated 75 hours of post-fee motion work. However, he also indicates that at the time of the filing of the fees motion, he had worked approximately 42 hours, resulting in a difference of 33 hours. 11 1 B. Costs Award 2 Class counsel is entitled to reimbursement of reasonable out-of-pocket expenses. Fed. R. 3 Civ. P. 23(h); see Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994) (holding that attorneys may 4 recover reasonable expenses that would typically be billed to paying clients in non-contingency 5 matters). Costs compensable under Rule 23(h) include “nontaxable costs that are authorized by 6 law or by the parties’ agreement.” Fed. R. Civ. P. 23(h). Here, class counsel seeks reimbursement 7 for litigation expenses, and provides records documenting those expenses, in the amount of 8 $14,343.70. Deducting $2,203.52 in costs from the companion case, the Court finds an award of 9 $12,140.18 in costs reasonable, fair, and adequate. C. 11 United States District Court Northern District of California 10 Service Award The district court must evaluate named plaintiff’s requested award using relevant factors 12 including “the actions the plaintiff has taken to protect the interests of the class, the degree to 13 which the class has benefitted from those actions . . . [and] the amount of time and effort the 14 plaintiff expended in pursuing the litigation.” Staton, 327 F.3d at 977. “Such awards are 15 discretionary . . . and are intended to compensate class representatives for work done on behalf of 16 the class, to make up for financial or reputational risk undertaken in bringing the action, and, 17 sometimes, to recognize their willingness to act as a private attorney general.” Rodriguez v. West 18 Publishing Corp., 563 F.3d 948, 958-959 (9th Cir. 2009). The Ninth Circuit has emphasized that 19 district courts must “scrutiniz[e] all incentive awards to determine whether they destroy the 20 adequacy of the class representatives.” Radcliffe v. Experian Info. Solutions, 715 F.3d 1157, 1163 21 (9th Cir. 2013). 22 Here, the plaintiff came forward to represent the interests of 2,263 others, with very little 23 personally to gain. Plaintiff was deposed, compiled documents, regularly corresponded with 24 counsel telephonically and by email, and took the substantial risk of litigation which, at a 25 minimum, involves a risk of losing and paying the other side’s costs. Because the laws are not 26 self-enforcing, it is appropriate to give incentives to those who come forward with little to gain 27 and at personal risk and who work to achieve a settlement that confers substantial benefits on 28 others. Thus, the Court approves the requested incentive award payment for plaintiff Sarah 12 1 Stonehocker. 2 IV. CONCLUSION 3 Based upon the foregoing, the motion for final approval of class settlement is GRANTED. 4 The motion for attorneys’ fees, costs, and service awards is GRANTED IN PART as follows: Class 5 Counsel is awarded $498,750.00 in attorney’s fees and $12,140.18 in litigation costs. Plaintiff Sarah 6 Stonehocker is granted an incentive award of $5,000.00. 7 Without affecting the finality of this order in any way, the Court retains jurisdiction of all 8 matters relating to the interpretation, administration, implementation, effectuation and enforcement 9 of this order and the Settlement. 10 IT IS HEREBY ORDERED, ADJUDGED AND DECREED that final judgment is ENTERED in United States District Court Northern District of California 11 accordance with the terms of the Settlement, the Modified Order Granting Preliminary Approval of 12 Class Action Settlement filed on November 24, 2020, and this order. This document will constitute 13 a final judgment (and a separate document constituting the judgment) for purposes of Rule 58, 14 Federal Rules of Civil Procedure. 15 The parties shall file a post-distribution accounting in accordance with this District’s 16 Procedural Guidance for Class Action Settlements no later than August 20, 2021. The Court SETS a 17 compliance deadline on August 27, 2021 on the Court’s 9:01 a.m. calendar to verify timely filing of 18 the post-distribution accounting. 19 IT IS SO ORDERED. 20 This terminates Docket Nos. 65 and 66. 21 Dated: April 27, 2021 22 YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 23 24 25 26 27 28 13

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?