Morrison v. American National Red Cross

Filing 54

ORDER by Judge Haywood S. Gilliam, Jr. GRANTING #48 MOTION FOR FINAL APPROVAL AND GRANTING IN PART AND DENYING IN PART #47 MOTION FOR ATTORNEYS FEES. (ndrS, COURT STAFF) (Filed on 1/8/2021)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

LA TOIYA MORRISON,
Plaintiff,

8
v.

9

AMERICAN NATIONAL RED CROSS,

11

United States District Court
Northern District of California

10

Defendant.

Case No. 19-cv-02855-HSG
ORDER GRANTING MOTION FOR
FINAL APPROVAL AND GRANTING
IN PART AND DENYING IN PART
MOTION FOR ATTORNEYS’ FEES
Re: Dkt. Nos. 47, 48

12
13
14

Pending before the Court are Plaintiff La Toiya Morrison’s motions for final approval of
class action settlement and for attorneys’ fees, costs, and incentive award. Dkt. Nos. 47, 48. The

15
Court held a final fairness hearing on January 7, 2021. For the reasons detailed below, the Court
16
GRANTS final approval. The Court also GRANTS IN PART and DENIES IN PART
17

Plaintiff’s motion for attorneys’ fees, costs, and incentive award.

18
19
20

I.

BACKGROUND
A.

Factual Background

Plaintiff brought this wage and hour class action against Defendant American National
21
Red Cross on behalf of herself and a putative class of instructors who taught training courses to
22

Defendant’s clients in California. See generally Dkt. No. 39 (“SAC”). Plaintiff alleges that

23
Defendant required its instructors to use their personal cell phones to carry out their job duties,
24
including communicating with Defendant and its clients regarding class scheduling, but Defendant
25

did not reimburse any portion of instructors’ cell phone expenses. See id. at ¶¶ 3, 27–29, 44.

26
Additionally, according to Plaintiff, Defendant did not authorize and permit instructors to take
27
meal and rest breaks, nor did Defendant compensate instructors for missed breaks. Id. at ¶¶ 4–5,
28

1

30–33, 51–52, 59, 63. Instead, Defendant required instructors to be available to students during

2

all scheduled class time, which impeded instructors’ ability to take any meal or rest breaks. See id.

3

at ¶ 31. Plaintiff contends that as a result of these practices, Defendant also failed to comply with

4

numerous provisions of California’s Labor Code and with Wage Orders promulgated by

5

California’s Industrial Welfare Commission (“IWC”). See id. at ¶¶ 34–38, 42–77. Plaintiff

6

further argues that Defendant’s conduct constitutes unfair business practices, in violation of

7

California’s Unfair Competition Law (“UCL), California Business and Professions Code §§ 17200

8

et seq. See id. at ¶¶ 39, 78–84.

9

On the basis of these allegations, Plaintiff also sought to represent a class defined as “all
individuals who are or were employed by [Defendant] as Training Services instructors (formerly

11

United States District Court
Northern District of California

10

known as Preparedness and Health and Safety Services instructors) and Nurse Assistant Training

12

instructors and who taught courses to Red Cross clients in California” during the four years prior

13

to the filing of this action. Id. at ¶ 1.

14

B.

15

Plaintiff initially filed this action in Alameda County Superior Court on April 24, 2019.

Procedural History

16

See Dkt. No. 1-1, Ex. A. At the time, Plaintiff only challenged Defendant’s failure to reimburse

17

instructors for their cell phone related business expenses, alleging violations of California Labor

18

Code § 2802 and the UCL. Id. Soon after, on May 23, 2019, Defendant removed this action to

19

federal court. See Dkt. No. 1. On July 8, 2019, Plaintiff filed an amended complaint, seeking

20

PAGA penalties on behalf of herself and other instructors from April 17, 2018, through the present

21

(“PAGA Period”), for the underlying violation of California Labor Code § 2802. See Dkt. No. 15.

22

The parties subsequently agreed to attend early mediation and engaged in informal discovery. See

23

Dkt. Nos. 20, 26. As part of this process, Plaintiff’s counsel sent surveys to and conducted

24

interviews of putative class members. See Dkt. No. 36-1 at ¶ 11. On January 27, 2020, the parties

25

participated in a full-day mediation with mediator Lisa Klerman. See Dkt. No. 36-1 at ¶ 14.

26

Following the parties’ informal discovery, and with the assistance of a mediator, the parties

27

entered into a settlement agreement, fully executed on June 2, 2020. Dkt. No. 36-2, Ex. A (“SA”).

28

Plaintiff filed a motion for preliminary approval on June 2, 2020, see Dkt. No. 36, and the Court
2

1

granted the motion on July 27, 2020, see Dkt. No. 44. The parties now seek final approval of the

2

class action settlement and Plaintiff seeks attorneys’ fees, costs, and an incentive award for the

3

named Plaintiff. See Dkt. Nos. 47, 48.

4

C.

5

The key terms of the parties’ settlement are as follows:

6

Class Definition: The Settlement Class is defined as:

7

[A]ll individuals who are or were employed by the American
National Red Cross as Training Services instructors (formerly
known as Preparedness and Health and Safety Services instructors)
and/or Nurse Assistant Training instructors and who have taught
courses to Red Cross clients in California at any time from April 24,
2015 through and including the date the Preliminary Approval Order
is entered by the Court.

8
9
10

United States District Court
Northern District of California

11

Settlement Agreement

SA ¶ 2.4.

12

Settlement Benefits: Defendant will make a $377,000 non-reversionary payment. Id.

13

¶¶ 2.21, 3.1. The parties propose that ten percent of this gross settlement fund, or $37,700, be

14

allocated to the PAGA claim as civil penalties. See SA ¶¶ 2.35, 3.1(c). Of this PAGA Payment,

15

$28,275 will be paid to the California Labor and Workforce Development Agency (“LWDA”) and

16

$9,425 will be distributed pro rata to instructors who taught courses for Defendant in California

17

from April 17, 2018, through the date of the preliminary approval order (“PAGA Releasees”). Id.;

18

see also Cal. Lab. Code § 2699(i) (providing that penalties under PAGA are split 75% to LWDA

19

and 25% to aggrieved employees). The gross settlement fund also includes Court-approved

20

attorneys’ fees and costs, settlement administration fees, any additional payment to Plaintiff as

21

class representative, and payments to class members. SA ¶ 3.1. The cash payments to the class

22

will be based on the number of pay periods each class member worked during the relevant class

23

period. Id. at ¶ 3.1(e). The parties have estimated that after the deductions identified above, as

24

well as applicable taxes and required withholdings, individual class members will receive

25

approximately $557. Dkt. No. 36 at 4; Dkt. No. 36-1 at ¶ 60; see also SA ¶ 3.2.

26

Cy Pres Distribution: Settlement checks that are not cashed within 90 days of mailing will

27

be void and those funds will be donated to Bet Tzedek, a non-profit legal services organization

28

that offers free legal services to low-income residents in Southern California, where Defendant’s
3

1

headquarters are located and the region in which Plaintiff worked during the time she was

2

employed by Defendant. SA ¶ 6.8(b); Dkt. No. 36 at 5–6. Bet Tzedek’s Employment Rights

3

Project enforces minimum labor standards in the workplace by assisting low-wage workers

4

through a combination of individual representation before the Labor Commissioner, litigation in

5

state and federal court, legislative advocacy, and community education. See Dkt. No. 36-1 at ¶ 68.

6

Release: During the hearing on the motion for preliminary approval, the Court raised

7

concerns that the proposed release was potentially overly broad, requiring class members to

8

release claims that do not arise from the claims that were or could have been pled in the complaint

9

based on the facts alleged. The parties have since clarified this language, and filed an amended
Paragraph 4.3 of the Settlement Agreement. See Dkt. No. 43. Under this amendment, all

11

United States District Court
Northern District of California

10

Settlement Class Members will release:

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

any and all claims pleaded or that could have been pleaded in the
Complaint based on the facts and/or allegations in the Complaint,
Plaintiff’s April 17, 2019 LWDA Letter and/or Plaintiff’s February
18, 2020 Supplemental LWDA Letter, including, but not
limited to, any and all underlying statutory provisions identified in the
Complaint, Plaintiff’s April 17, 2019 LWDA Letter and/or Plaintiff’s
February 18, 2020 Supplemental LWDA Letter, any and all penalties
and any and all of the following claims or forms of relief that arose at
any time during the Settlement Period to the maximum extent
permitted by law:
(a) Any claims for expense reimbursement, meal break
violations, rest break violations, unpaid wages (including
but not limited to minimum wages, regular wages and
overtime pay), improper itemized wage statements,
improper payroll records maintenance and failure to pay
all wages due at the time of termination;
(b) Any claims under California Labor Code sections 201
through 203, 226, 226.7, 510, 512, 558, 1174, 1174.5,
1194, 1197, 1197.1, 1198, 2698 and 2802 et seq., and
related provisions contained in the California Wage
Orders and the California Code of Regulations; the
California Business and Professions Code predicated on
such Labor Code sections, California Wage Orders, and
California Code of Regulations, including but not limited
to California Business and Professions Code section
17200 et seq.; and any claims under the Fair Labor
Standards Act for unpaid wages (including but not limited
to minimum wages, regular wages and overtime pay),
improper meal breaks, improper rest breaks, improper
itemized wage statements, improper payroll records
maintenance, failure to pay all wages due at the time of
4

termination and failure to reimburse for expenses;

1

(c) Any claims for damages, penalties, interest, attorney’s
fees and costs, injunctive relief, declaratory relief,
restitution, fraudulent business practices, punitive
damages or any other damages which were alleged or
which could have been alleged based in whole or in part
on the factual or legal allegations and/or claims in the
Complaint, Plaintiff’s April 17, 2019 LWDA Letter and/or
Plaintiff’s February 18, 2020 Supplemental LWDA
Letter.

2
3
4
5
6
7
8

Id. PAGA Releasees also agree to release “any and all PAGA claims premised in whole or in part

9

on any of the claims set forth in Paragraph 4.3 above that arose at any time during the PAGA

10

Period.” See SA ¶ 4.4.

United States District Court
Northern District of California

11

Class Notice: A third-party settlement administrator will send class notices via first-class

12

U.S. mail to each member of the class, using the most current known address. See SA ¶ 6.3. The

13

notice will include the nature of the action; a summary of the settlement terms; the formula to be

14

used in calculating the individual settlement payment as well as the share of the PAGA Payment;

15

instructions on how to object to and opt out of the settlement, including relevant deadlines; and the

16

released claims. Id. at ¶ 6.3(d); see also Dkt. No. 36-1, Ex. B.
Opt-Out Procedure: The deadline for a class member to submit a request for exclusion or

17
18

to object to the Settlement is 45 days after the initial mailing date of the notice. SA ¶¶ 6.3(e), 6.5,

19

6.7. Defendant retains the right to “rescind/void” the Settlement if twenty or more class members

20

opt out. See id. at ¶ 6.6. Class members cannot, however, opt out of or otherwise object to the

21

PAGA Payment or release of PAGA claims. See id.; see also id. at ¶ 3.1(c).
Incentive Award: The named Plaintiff may apply for an incentive award of no more than

22
23

$10,000. Id. at ¶ 3.1(b).
Attorneys’ Fees and Costs: Class Counsel will file an application for attorneys’ fees not to

24
25

exceed $125,666.67, as well as costs not to exceed $15,000. Id. at ¶ 3.1(a).

26

//

27

//

28

//
5

1
2
3
4

II.

ANALYSIS
A.

Final Settlement Approval
i.

Class Certification

Final approval of a class action settlement requires, as a threshold matter, an assessment of

5

whether the class satisfies the requirements of Federal Rule of Civil Procedure 23(a) and

6

(b). Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019–1022 (9th Cir. 1998). Because no facts that

7

would affect these requirements have changed since the Court preliminarily approved the class on

8

July 27, 2020, this order incorporates by reference its prior analysis under Rules 23(a) and (b) as

9

set forth in the order granting preliminary approval. See Dkt. No. 44 at 6–10.

10

United States District Court
Northern District of California

11

ii.

The Settlement

“The claims, issues, or defenses of a certified class may be settled . . . only with the court’s

12

approval.” Fed. R. Civ. P. 23(e). The Court may finally approve a class settlement “only after a

13

hearing and on finding that it is fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2); Officers

14

for Justice v. Civil Serv. Comm’n of the City and County of San Francisco, 688 F.2d 615, 625 (9th

15

Cir. 1982) (“The district court’s role in evaluating a proposed settlement must be tailored to fulfill

16

the objectives outlined above. In other words, the court’s intrusion upon what is otherwise a

17

private consensual agreement negotiated between the parties to a lawsuit must be limited to the

18

extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or

19

overreaching by, or collusion between, the negotiating parties . . . ”). To assess whether a

20

proposed settlement comports with Rule 23(e), the Court “may consider some or all” of the

21

following factors: (1) the strength of plaintiff’s case; (2) the risk, expense, complexity, and likely

22

duration of further litigation; (3) the risk of maintaining class action status throughout the trial;

23

(4) the amount offered in settlement; (5) the extent of discovery completed, and the stage of the

24

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

25

participant; and (8) the reaction of the class members to the proposed settlement. Rodriguez v.

26

West Publ’g Corp., 563 F.3d 948, 963 (9th Cir. 2009); see also Hanlon, 150 F.3d at 1026. “The

27

relative degree of importance to be attached to any particular factor” is case specific. Officers for

28

Justice, 688 F.2d at 625.
6

In addition, “[a]dequate notice is critical to court approval of a class settlement under Rule

1
2

23(e).” Hanlon, 150 F.3d at 1025. As discussed below, the Court finds that the proposed

3

settlement is fair, adequate, and reasonable, and that Class Members received adequate notice.

4

a. Adequacy of Notice
Under Federal Rule of Civil Procedure 23(e), the Court “must direct notice in a reasonable

5
6

manner to all class members who would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1).

7

Rule 23(c)(2)(B) requires “the best notice that is practicable under the circumstances, including

8

individual notice to all members who can be identified through reasonable effort.” The notice

9

must “clearly and concisely state in plain, easily understood language” the nature of the action, the
class definition, and the class members’ right to exclude themselves from the class. Fed. R. Civ.

11

United States District Court
Northern District of California

10

P. 23(c)(2)(B). Although Rule 23 requires that reasonable efforts be made to reach all class

12

members, it does not require that each class member actually receive notice. See Silber v. Mabon,

13

18 F.3d 1449, 1454 (9th Cir. 1994) (noting that the standard for class notice is “best practicable”

14

notice, not “actually received” notice).
The Court finds that the notice and notice plan previously approved by the Court was

15
16

implemented and complies with Rule 23(c)(2)(B). See Dkt. No. 44 at 5, 15–16. The Court

17

ordered the third-party settlement administrator to send class notice via U.S. mail based on a class

18

list Defendant provided. Id. at 5, 15. Simpluris, Inc., the third-party settlement administrator,

19

represents that class notice was provided as directed. Dkt. No. 48-1 at ¶¶ 3–9. Simpluris verified

20

the mailing addresses from the class list with the National Change of Address Database. Id. ¶ 5.

21

A total of 377 notice packets were sent out, and 25 packets were initially returned as

22

undeliverable. Id. ¶¶ 6, 9. For those 25 returned notice packets, Simpluris performed an address

23

trace to find more current addresses and re-mailed 21 of the notice packets. Id. ¶ 9. As of

24

November 30, 2020, therefore, only four of the total 377 notice packets were undeliverable. Id.

25

In light of these facts, the Court finds that the parties have sufficiently provided the best

26

practicable notice to the Class Members.

27

//

28

//
7

1
2
3
4
5

b. Fairness, Adequacy, and Reasonableness
Having found the notice procedures adequate under Rule 23(e), the Court next considers
whether the entire settlement comports with Rule 23(e).
1. Strength of Plaintiff’s Case and Litigation Risk
Approval of a class settlement is appropriate when plaintiffs must overcome significant

6

barriers to make their case. Chun-Hoon v. McKee Foods Corp., 716 F. Supp. 2d 848, 851 (N.D.

7

Cal. 2010). Courts “may presume that through negotiation, the Parties, counsel, and mediator

8

arrived at a reasonable range of settlement by considering Plaintiff’s likelihood of recovery.”

9

Garner v. State Farm Mut. Auto. Ins. Co., No. 08-cv-1365-CW, 2010 WL 1687832, at *9 (N.D.
Cal. Apr. 22, 2010). Additionally, difficulties and risks in litigating weigh in favor of approving a

11

United States District Court
Northern District of California

10

class settlement. Rodriguez, 563 F.3d at 966. “Generally, unless the settlement is clearly

12

inadequate, its acceptance and approval are preferable to lengthy and expensive litigation with

13

uncertain results.” Ching v. Siemens Indus., Inc., No. 11-cv-04838-MEJ, 2014 WL 2926210, at *4

14

(N.D. Cal. June 27, 2014) (quotations omitted).

15

The Court finds that the amount offered in settlement is reasonable in light of the

16

complexity of this litigation and the substantial risk Plaintiff would face in litigating the case given

17

the nature of the asserted claims. See Dkt. No. 48 at 4–5; see also Dkt. No. 47 at 3–6; Dkt. No. 36

18

at 10–16. Defendant refutes the factual allegations underlying several of Plaintiff’s claims, and

19

were the case to proceed, Defendant would argue against class certification. Id. In reaching a

20

settlement, Plaintiff has ensured a favorable recovery for the class. See Rodriguez, 563 F.3d at

21

966 (finding litigation risks weigh in favor of approving class settlement). Accordingly, these

22

factors weigh in favor of approving the settlement. See Ching, 2014 WL 2926210, at *4 (favoring

23

settlement to protracted litigation).

24
25

2. Risk of Maintaining Class Action Status
In considering this factor, the Court looks to the risk of maintaining class certification if

26

the litigation were to proceed. Certifying a class encompassing approximately 377 National Red

27

Cross Training Services instructors, who worked offsite throughout California, presents complex

28

issues, especially in the context of labor laws, that could undermine certification. See Dkt. No. 48
8

1

at 4–5; see also Dkt. No. 47 at 3–4; Dkt. No. 36 at 10–16. Accordingly, this factor also weighs in

2

favor of settlement.
3. Settlement Amount

3
4

The amount offered in the settlement is another factor that weighs in favor of approval.

5

Based on the facts in the record and the parties’ arguments at the final fairness hearing, the Court

6

finds that the $377,000 settlement amount, which constitutes approximately 71% of what Class

7

Counsel estimates to be the realistic recovery at trial, falls well “within the range of

8

reasonableness” in light of the risks and costs of litigation. See Dkt. No. 48 at 5; Dkt. No. 36-1 at

9

¶ 55; see also Villanueva v. Morpho Detection, Inc., No. 13-cv-05390-HSG, 2016 WL 1070523 *4
(N.D. Cal. March 18, 2016) (citing cases). The average net recovery, after deduction of

11

United States District Court
Northern District of California

10

administration costs and the requested attorneys’ fees, costs, and incentive award, is $589.45 per

12

Settlement Class Member. Dkt. No. 48-1 at ¶¶ 13–16. The settlement administrator has estimated

13

that, based on the pay periods worked by each Class Member, the highest individual settlement

14

payment to be paid is approximately $2,274.08, the lowest is approximately $16.36, and the

15

average is approximately $589.45. See id. at ¶ 14. This factor therefore weighs in favor of

16

approval.

17
18

4. Extent of Discovery Completed and Stage of Proceedings
The Court finds that Class Counsel had sufficient information to make an informed

19

decision about the merits of the case. See In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 459

20

(9th Cir. 2000). The parties settled only after Plaintiff investigated Defendant’s policies and

21

practices, the parties engaged in informal discovery, and Plaintiff reviewed Defendant’s payroll

22

and scheduling data prior to a full-day mediation. See Dkt. No. 47-1 at ¶ 14. The Court finds that

23

the parties received, examined, and analyzed information, documents, and materials sufficient to

24

allow them to assess the likelihood of success on the merits. This factor weighs in favor of

25

approval.

26
27
28

5. Experience and Views of Counsel
The Court next considers the experience and views of counsel. “[P]arties represented by
competent counsel are better positioned than courts to produce a settlement that fairly reflects each
9

1

party’s expected outcome in litigation.” Rodriguez, 563 F.3d at 967 (quotations omitted).

2

Accordingly, “[t]he recommendations of plaintiffs’ counsel should be given a presumption of

3

reasonableness.” In re Omnivision Techs., Inc., 559 F. Supp. 2d 1036, 1043 (N.D. Cal. 2008).

4

Class Counsel has substantial experience in labor and wage class actions. See Dkt. No. 47-1 ¶¶ 4–

5

5; Dkt. No. 36-1 at ¶ 7. The Court recognizes, however, that courts have diverged on the weight

6

to assign counsel’s opinions. Compare Carter v. Anderson Merch., LP, 2010 WL 1946784, at *8

7

(C.D. Cal. May 11, 2010) (“Counsel’s opinion is accorded considerable weight.”), with Chun-

8

Hoon, 716 F. Supp. 2d at 852 (“[T]his court is reluctant to put much stock in counsel’s

9

pronouncements. . . .”). This factor’s impact is therefore modest, but favors approval.

10

United States District Court
Northern District of California

11

6. Reaction of Class Members
The reaction of the Class Members supports final approval. “[T]he absence of a large

12

number of objections to a proposed class action settlement raises a strong presumption that the

13

terms of a proposed class settlement action are favorable to the class members.” Nat’l Rural

14

Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 528–29 (C.D. Cal. 2004); In re Linkedin

15

User Privacy Litig., 309 F.R.D. 573, 589 (N.D. Cal. 2015) (“A low number of opt-outs and

16

objections in comparison to class size is typically a factor that supports settlement approval.”).

17

Class notice, which was served in accordance with the method approved by the Court,

18

advised the Class of the requirements to object to or opt out of the settlement. The deadline to do

19

so was November 13, 2020. See Dkt. No. 48-1 at ¶¶ 10–12. Simpluris received no objections and

20

only three requests for exclusion, out of the 377 Class Members. See id. The Court finds that the

21

lack of objections and minimal number of opt-outs in comparison to the size of the class indicate

22

overwhelming support among the Class Members and weigh in favor of approval. See, e.g.,

23

Churchill Village LLC v. Gen. Elec., 361 F.3d 566, 577 (9th Cir. 2004) (affirming settlement

24

where 45 of approximately 90,000 class members objected); Rodriguez v. West Publ. Corp., Case

25

No. CV05–3222 R, 2007 WL 2827379, at *10 (C.D. Cal. Sept. 10, 2007) (finding favorable class

26

reaction where 54 of 376,301 class members objected).

27
28

*

*

*

After considering and weighing the above factors, the Court finds that the settlement
10

1

agreement is fair, adequate, and reasonable, and that the settlement Class Members received

2

adequate notice. Accordingly, Plaintiff’s motion for final approval of the class action settlement is

3

GRANTED.
Attorneys’ Fees, Costs and Expenses, and Incentive Award

4

B.

5

In its unopposed motion, Class Counsel asks the Court to approve an award of $94,250 in

6

attorneys’ fees and $9,095.15 in costs. Dkt. No. 63 at 1–12. Class Counsel also seeks an $8,000

7

incentive award for the Named Plaintiff. Id. at 13–14.
i.

8

a. Legal Standard

9
10

Attorneys’ Fees

“In a certified class action, the court may award reasonable attorney’s fees and nontaxable

United States District Court
Northern District of California

11

costs that are authorized by law or by the parties’ agreement.” Fed. R. Civ. P. 23(h). In a state

12

law action—like this one—state law also governs the calculation of attorneys’ fees. See Vizcaino

13

v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 2002). Nevertheless, the Court may still look to

14

federal authority for guidance in awarding attorneys’ fees. See Apple Computer, Inc. v. Superior

15

Court, 126 Cal. App. 4th 1253, 1264 n.4 (2005) (“California courts may look to federal authority

16

for guidance on matters involving class action procedures.”).

17

Under California law, the “percentage of fund method” is proper in class actions. Laffitte

18

v. Robert Half Int’l Inc., 1 Cal. 5th 480, 506 (2016). In addition, “trial courts have discretion to

19

conduct a lodestar cross-check on a percentage fee.” Id. The “lodestar figure is calculated by

20

multiplying the number of hours the prevailing party reasonably expended on the litigation (as

21

supported by adequate documentation) by a reasonable hourly rate for the region and for the

22

experience of the lawyer.” In re Bluetooth, 654 F.3d at 941 (citing Staton v. Boeing Co., 327 F.3d

23

938, 965 (9th Cir. 2003). Trial courts “also retain the discretion to forgo a lodestar cross-check

24

and use other means to evaluate the reasonableness of a requested percentage fee.” Laffitte, 1 Cal.

25

5th at 506.

26
27
28

b. Discussion
Class Counsel here seeks $94,250 in fees, or 25% of the settlement amount. See Dkt. No.
47 at 1–12. Using federal law for guidance, 25% of the common fund is the benchmark for
11

1

attorney fee awards. See, e.g., In re Bluetooth, 654 F.3d at 942 (“[C]ourts typically calculate 25%

2

of the fund as the ‘benchmark’ for a reasonable fee award, providing adequate explanation in the

3

record of any ‘special circumstances’ justifying a departure.”). The Court considers the

4

reasonableness of the percentage requested in light of the factors endorsed by the Ninth Circuit,

5

with the 25% award as a starting point. The Ninth Circuit has identified several factors that a

6

court should consider to determine whether to adjust a fee award from the benchmark: (1) the

7

results achieved; (2) the risk of litigation; (3) the skill required and the quality of work; (4) the

8

contingent nature of the fee and the financial burden carried by the plaintiff; and (5) awards made

9

in similar cases. See Vizcaino, 290 F.3d at 1048–50.

10

The Court recognizes that Class Counsel obtained significant results for the class. The

United States District Court
Northern District of California

11

settlement amount represents approximately 71% of what Class Counsel estimates to be the

12

realistic recovery at trial. Moreover, no Class Member objected to the settlement and only three

13

members requested exclusion, suggesting strong support for the settlement’s outcome. Further,

14

Class Counsel assumed substantial risk in litigating this action on a contingency fee basis, despite

15

“the unpredictable risks that are common to most complex employment class actions . . . .” Dkt.

16

No. 47-1 at ¶ 11. With respect to the quality of litigation, Class Counsel is experienced in

17

litigating large class actions concerning employment matters and wage and hour cases. The

18

successful result involved significant commitment of effort and skill. In particular, the attorneys

19

spent many hours analyzing Defendant’s payroll and scheduling data. See id. at ¶ 14.

20

Class Counsel further contends that its lodestar supports the reasonableness of its request.

21

In calculating its lodestar, Class Counsel states that it expended a total of 127.80 hours litigating

22

this action. Id. at ¶ 13. With respect to hourly rates, the rates requested are $495 for the two

23

associates and $625 for the partner on this case. Id. The Court finds that the billing rates used by

24

Class Counsel to calculate the lodestar are reasonable and in line with prevailing rates in this

25

district for personnel of comparable experience, skill, and reputation. See, e.g., Hefler v. Wells

26

Fargo & Co., No. 16-CV-05479-JST, 2018 WL 6619983, at *14 (N.D. Cal. Dec. 18, 2018) (rates

27

from $650 to $1,250 for partners or senior counsel, $400 to $650 for associates); In re Volkswagen

28

“Clean Diesel” Mktg., Sales Practices, & Prod. Liab. Litig., No. 2672 CRB (JSC), 2017 WL
12

1

1047834, at *5 (N.D. Cal. Mar. 17, 2017) (billing rates ranging from $275 to $1600 for partners,

2

$150 to $790 for associates, and $80 to $490 for paralegals reasonable “given the complexities of

3

this case and the extraordinary result achieved for the Class.”). According to Class Counsel, based

4

on the number of hours billed and the hourly rates, this yields a lodestar of $71,620.00. See Dkt.

5

No. 47-1 at ¶ 13. This does not include, however, any time spent preparing the motion for final

6

approval or in overseeing the distribution of settlement funds. See id. at ¶ 15. Class Counsel is

7

therefore seeking fees with a 1.3 lodestar multiplier. Dkt. No. 47 at 10–11.

8
9

The Court finds that these factors warrant attorneys’ fees in the amount of the 25%
benchmark. In recognition of the favorable settlement, the substantial risks of litigation, and the
financial burden assumed, the Court GRANTS attorneys’ fees of 25% of the total settlement

11

United States District Court
Northern District of California

10

amount, or $94,250.

12
13

ii.

Attorneys’ Costs

Class Counsel is entitled to recover “those out-of-pocket expenses that would normally be

14

charged to a fee paying client.” Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994) (quotations

15

omitted). Class Counsel seeks reimbursement of $9,095.15 in out-of-pocket costs. See Dkt. No.

16

47 at 12–13. Class Counsel submitted a table summarizing the costs and expenses incurred. Dkt.

17

No. 47-1 at ¶ 17. These expenses include mediation and travel related fees, as well as filing fees

18

for the complaint and service of process. Id. The Court is satisfied that these costs were

19

reasonably incurred and GRANTS the motion for costs in the amount of $9,095.15.

20
21

iii.

Incentive Award

Class Counsel requests an incentive award of $8,000 for the Named Plaintiff. “[N]amed

22

plaintiffs . . . are eligible for reasonable incentive payments.” Staton, 327 F.3d at 977; Rodriguez,

23

563 F.3d at 958 (“Incentive awards are fairly typical in class action cases.”). They are designed to

24

“compensate class representatives for work done on behalf of the class, to make up for financial or

25

reputational risk undertaken in bringing the action, and, sometimes, to recognize their willingness

26

to act as a private attorney general.” Rodriguez, 563 F.3d at 958–59. Nevertheless, the Ninth

27

Circuit has cautioned that “district courts must be vigilant in scrutinizing all incentive awards to

28

determine whether they destroy the adequacy of the class representatives . . . .” Radcliffe v.
13

1

Experian Info. Solutions, Inc., 715 F.3d 1157, 1165 (9th Cir. 2013) (quotations omitted). This is

2

particularly true where “the proposed service fees greatly exceed the payments to absent class

3

members.” Id. The district court must evaluate an incentive award using “relevant factors

4

includ[ing] the actions the plaintiff has taken to protect the interests of the class, the degree to

5

which the class has benefitted from those actions, . . . [and] the amount of time and effort the

6

plaintiff expended in pursuing the litigation . . . .” Id. at 977.

7

In wage and hour cases, many courts in this district have held that a $5,000 incentive
award is “presumptively reasonable.” See, e.g., Harris v. Vector Marketing Corp., No. 08-cv-

9

5198-EMC, 2012 WL 381202, at *7 (N.D. Cal. Feb. 6, 2012) (observing that “as a general matter,

10

$5,000 is a reasonable amount”); Smith v. Am. Greetings Corp., No. 14-CV-02577-JST, 2016 WL

11

United States District Court
Northern District of California

8

362395, at *11 (N.D. Cal. Jan. 29, 2016) (awarding $5,000); Odrick v. UnionBancal Corp., No. C

12

10-5565 SBA, 2012 WL 6019495, at *7 (N.D. Cal. Dec. 3, 2012) (same). Incentive awards may

13

also be especially appropriate in wage and hour class actions, where a named plaintiff undertakes

14

“a significant ‘reputational risk’ in bringing [an] action against [plaintiff’s] former employer.

15

Covillo v. Specialtys Cafe, No. C-11-00594 DMR, 2014 WL 954516, at *8 (N.D. Cal. Mar. 6,

16

2014) (citing Rodriguez, 563 F.3d at 958–59). In determining the reasonableness of a requested

17

incentive award, some courts have considered, among other factors, the proportionality between

18

the incentive award requested and the average class member’s recovery. See Austin v. Foodliner,

19

Inc., No. 16-CV-07185-HSG, 2019 WL 2077851, at *8 (N.D. Cal. May 10, 2019); Smith, 2016

20

WL 362395, at *10.

21

Plaintiff requests an $8,000 service award, at the high end of the range of awards granted

22

by this Court in comparable class actions. See Austin, 2019 WL 2077851, at *8; McDonald v. CP

23

OpCo, LLC, No. 17-CV-04915-HSG, 2019 WL 2088421, at *8 (N.D. Cal. May 13, 2019).

24

Although Plaintiff suggests that the requested incentive award “is fair when considered relative to

25

the $377,000 Gross Settlement,” the Court disagrees. Plaintiff is seeking almost fourteen times

26

the amount of the average recovery for each Class Member. Moreover, given that the case settled

27

before any formal discovery, Plaintiff was not even deposed in this case. Rather, she estimates

28

that she spent approximately 30 hours “discussing the case with counsel, responding to calls from
14

1

counsel, gathering and providing documents and other information to Class Counsel, and meeting

2

with Class Members, both in person and over the phone, to discuss her lawsuit.” See Dkt. No. 47

3

at 13. The Court does not minimize Plaintiff’s role in enabling a highly favorable result for her

4

fellow Class Members, but considering all the circumstances of this case, the Court finds that the

5

presumptive $5,000 service award is reasonable to compensate Plaintiff for her efforts. The Court

6

therefore GRANTS IN PART the request for an incentive award in the amount of $5,000.

7

III.

8
9

CONCLUSION
Accordingly, the Court GRANTS the motion for final approval of class action settlement

and GRANTS IN PART the motion for attorneys’ fees and incentive award. The Court approves
the settlement amount of $377,000; administrator fees not to exceed $7,500; and attorneys’ fees

11
United States District Court
Northern District of California

10

and costs in the amount of $103,345.15. The Court further awards named Plaintiff an incentive

12

award of $5,000.

13

The parties and settlement administrator are directed to implement this Final Order and the

14

settlement agreement in accordance with the terms of the settlement agreement. The parties are

15

further directed to file a short stipulated final judgment of two pages or less within 21 days from

16

the date of this order. The judgment need not, and should not, repeat the analysis in this order.

17
18
19
20

IT IS SO ORDERED.
Dated: 1/8/2021
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

21
22
23
24
25
26
27
28
15