Adams et al v. City and County of Honolulu
ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR AWARD OF INCENTIVE PAYMENT re 107 - Signed by MAGISTRATE JUDGE BARRY M. KURREN on 9/5/2017. "The court grants Adams's motion for payment of an incentive award in the amount o f $10,000. Because this order adjudicates the last remaining issue in this case, the parties are ordered to submit a stipulation to dismiss this case no later than September 12, 2017. This court will retain jurisdiction to enforce the te rms of the settlement and this incentive fee award." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
SONYA ADAMS, et al,
CITY AND COUNTY OF
CIV. NO. 12-00667 BMK
ORDER GRANTING IN PART
PLAINTIFF’S MOTION FOR
AWARD OF INCENTIVE
ORDER GRANTING IN PART PLAINTIFF’S MOTION
FOR AWARD OF INCENTIVE PAYMENT
Plaintiff Sonya Adams, an emergency management technician for
Defendant City and County of Honolulu, filed this collective class action under the
Fair Labor Standards Act, 29 U.S.C. § 201, et seq., to collect overtime payments.
See Third Amended Complaint, ECF No. 105. Adams is the lead plaintiff in this
case and has been joined by 317 other plaintiffs out of 436 people who potentially
had similar FLSA claims. See Report and Recommendations of Special Master,
ECF No. 106, PageID # 913, 919. Because neither party objected to the Special
Master’s Report and Recommendations, the parties are bound by them. See
Stipulation to Appointment of Special Master, ECF No. 78, PageID # 510.
On July 17, 2017, Adams filed the present Motion for Award of
Incentive Payment to Collective Representative, seeking an incentive payment of
$17,310.00. See ECF No. 107. Although there is no dispute that this court has the
discretion to award an incentive payment to Adams, see ECF No. 109, PageID
# 990, the City and County of Honolulu objects to such an award in this case.
This court rules that an incentive award of $10,000 to Adams is appropriate under
the circumstances presented here.
An Incentive Award is Appropriate in This Case.
Incentive awards are discretionary and “fairly typical in class action
cases.” Rodriguez v. West Publ’g Corp., 563 F.3d 948, 958 (9th Cir. 2009) . As
the City and County of Honolulu concedes, “the United States Court of Appeals
for the Ninth Circuit has approved ‘incentive awards’ to class representatives in
class action lawsuits.” ECF No. 109, PageID # 990 (citing Stanton v. Boeing Co.,
327 F.3d 938, 976-77 (9th Cir., 2003)). In evaluating whether to award incentive
payments to named class action plaintiffs, courts examine the actions taken by
named class action plaintiffs to protect the interests of the class, the degree to
which the class benefitted from those actions, the amount of time and effort
plaintiffs expended in pursuing litigation, and the plaintiffs’ reasonable fears of
workplace retaliation. Stanton, 327 F.3d at 977.
Based on the court’s observations and discussions with the parties, it
is abundantly clear that Adams spent an enormous amount of time helping her
attorney and the arbitrator understand the facts underlying the claims in this case.
See Decl. of Sonya Adams, ECF No. 107-2, PageID # 950 (estimating that Adams
spent more than 1000 hours reviewing payroll records, calculating unpaid
overtime, and discussing various facts and issues with her attorney and special
master). Moreover, there is no dispute that she played an integral role in getting
317 of the possible 436 people to join in this litigation and settle their claims.
Adams, for example, drove to various plaintiffs’ homes and workplaces to explain
the case, the process, and the settlement proposal. See id. (estimating that Adams
spent 640 hours meeting with the various plaintiffs). Accordingly, Adams’s role
in this collective class action was significantly greater than the average class
representative. Without Adams’s tireless efforts, the settlement of the claims in
this case would not have happened to the same extent. Although the record does
not establish that Adams feared workplace retaliation, it was clear from their
interactions before this judge that Adams had an acrimonious relationship with her
employer and that there was and is the possibility of retaliation. See, e.g., ECF
No. 109, PageID # 995 (arguing that any incentive award to Adams would amount
to paying her with city funds for personal work and then stating, “The City
rightfully terminates employees who ‘game the system’ by receiving City pay but
not performing City services”). Under these circumstances, this court determines
that an incentive award is appropriate.
The Court Awards Adams an Incentive Award of $10,000.
Once the court determines that an incentive award is appropriate, the
court must determine the amount of the award. In determining an appropriate
incentive award, courts examine the number of plaintiffs receiving the award, the
proportion of the incentive award relative to the settlement amount, the size of
each payment, the complexity of the litigation, and the number of hours plaintiffs
spent with respect to the litigation. In re Online DVD-Rental Antitrust Litig., 779
F.3d 934, 948 (9th Cir. 2015).
Adams seeks an incentive award of $17,310.00, which represents
what she estimates to be 1731 hours worked on this case at $100 per hour, which
is what she claims should be the hourly rate of a paralegal. See ECF No. 107-2,
PageID # 950. But Adams is not a paralegal. That fact is amply demonstrated by
the number of hours she spent working on certain matters. For example, she says
she spent 350 hours reviewing the summary payroll records and 500 hours
calculating the unpaid overtime payments for 10 sample plaintiffs. It would
appear that a trained paralegal would have been able to make those calculations
much quicker. The court therefore declines to grant an incentive award to Adams
based on any kind of lodestar method. Nevertheless, the court determines that a
$10,000 award is appropriate.
This modest, single incentive award represents a minuscule amount of
the total settlement amount with the 318 plaintiffs. Given the complexity of this
case and the hundreds of hours Adams undoubtably spent to help facilitate the
settlement and award to each of the plaintiffs, a $10,000 award is reasonable and
does not create a conflict of interest with the other plaintiffs who are not receiving
the incentive payment. See In re Online DVD-Rental Antitrust Litig., 779 F.3d at
947-48 (approving $5,000 incentive award to each of nine class representatives
when total settlement amount equaled $27,250,000); Aguilar v. Wawona Frozen
Foods, 2017 WL 2214936, at *8 (E.D. Cal. May 19, 2017) (approving $7,500
incentive payment to each of two plaintiffs when award was $4.5 million); Roe v.
Frito-Lay, Inc., 2017 WL 1315626, at *8 (N.D. Cal. Apr. 7, 2017) (approving
$5,000 incentive payment to one plaintiff when award was $950,000); Low v.
Trump Univ., LLC, 2017 WL 1275191, at *16 (S.D. Cal. Mar. 31, 2017)
(approving $15,000 incentive award to each of five plaintiffs who had expended
over 100 hours in connection with litigation); Hawthorne v. Umpqua Bank, 2015
WL 1927342, at *5 (N.D. Cal. Apr. 28, 2015) (approving $5,000 incentive
payment to two each of three plaintiffs when award was $2.9 million); Ko v.
Natura Pet Prod., Inc., 2012 WL 3945541, at *15 (N.D. Cal. Sept. 10, 2012)
(approving $5,000 incentive award for plaintiff who had expended 50-100 hours
in the case).
This court is unpersuaded by the City and County of Hawaii’s
argument that the award will “impact the morale of the department.” See ECF No.
109, PageID # 992. Given the number of hours that Adams spent explaining the
case and settlement to various plaintiffs, it is hard to see how any of those
plaintiffs would begrudge Adams this modest award, even if it exceeds the total
awarded to a particular plaintiff.
This court is also unpersuaded by the City and County of Honolulu’s
argument that an incentive award in this case is inappropriate because the cases in
which incentive awards have been approved involved “huge, multi-billion dollar,
multistate/multinational, private, for-profit corporations.” Id. The City and
County of Honolulu is not some small, non-profit corporation. To the contrary, the
City and County of Honolulu encompasses the entire island of Oahu where nearly
one-million people live. See https://www.census.gov/quickfacts/fact/
table/honolulucountyhawaii/PST045216 (estimating Honolulu population as of
July 1, 2016, to be 992,605) (last visted August 31, 2017). It has an operating
budget of over $2 billion per year. See http://www4.honolulu.gov/docushare/
dsweb/Get/Document-186020/DOC%20(2).PDF (last visited August 31, 2017).
The City and County of Honolulu is therefore very much like the companies it
tries to distinguish itself from.
Finally, the City and County of Honolulu’s argument that the
incentive payment would essentially amount to improperly paying Adams in
violation of its charter is also unavailing. See ECF No. 109, PageID # 995 (arguing
that an incentive award to Adams would pay her for personal services and would
amount to “a direct personal financial interest in the outcome of the case for work
performed in her official duties” in violation of section 11-102(c) of the Revised
Charter of the City and County of Honolulu). Adams is not being paid with city
funds for work done outside her duties for the city. Instead, the court is granting
her an incentive award to reward her for work she did on behalf of the class, to
make up for financial or reputational risk undertaken in bringing the action, and to
recognize her willingness to essentially act as a private attorney general. See
Rodriguez, 563 F.3d at 958–59. That the city is ultimately footing the bill is
simply the byproduct of the city being the defendant in a case alleging that it failed
to properly calculate and pay overtime. The incentive award is not a “personal
financial interest” in the outcome of this case that amounts to payment for work
done outside Adams’s official duties.
The court grants Adams’s motion for payment of an incentive award
in the amount of $10,000.
Because this order adjudicates the last remaining issue in this case,
the parties are ordered to submit a stipulation to dismiss this case no later than
September 12, 2017. This court will retain jurisdiction to enforce the terms of the
settlement and this incentive fee award.
IT IS SO ORDERED.
Dated: Honolulu, Hawaii, September 5, 2017.
/s/ Barry M. Kurren
Barry M. Kurren
United States Magistrate Judge
Adams, et al. v. City and County of Honolulu, CIV. NO. 12-00667 BMK; ORDER GRANTING IN PART
PLAINTIFF’S MOTION FOR AWARD OF INCENTIVE PAYMENT
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