Legere-Gordon v. FirstCredit Incorporated

Filing 50

MEMORANDUM DECISION AND ORDER. IT IS THEREFORE ORDERED that plaintiff's unopposed motion for final approval of the parties' class action settlement and attorneys' fees, costs, and a class representative service payment (Docket Nos. 35 - 38 ) be, and the same hereby is, GRANTED. This action is dismissed with prejudice. However, without affecting the finality of this Order, the court shall retain continuing jurisdiction over the interpretation, implementation, and enforcement of the Settlement Agreement and this Order, which includes the 24-month injunction, with respect to all parties to this action and their counsel of record. The clerk is instructed to enter judgment accordingly. Signed by Judge William B. Shubb. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (kt)

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UNITED STATES DISTRICT COURT

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DISTRICT OF IDAHO

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----oo0oo----

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NAOMI LEGERE-GORDON,
individually and on behalf of
others similarly situated,
Plaintiff,

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No. 1:19-cv-360 WBS

MEMORANDUM AND ORDER RE:
MOTION FOR FINAL APPROVAL OF
CLASS ACTION SETTLEMENT AND
MOTION FOR ATTORNEYS’ FEES,
COSTS, AND REPRESENTATIVE
SERVICE PAYMENT

v.
FIRSTCREDIT INCORPORATED,
Defendant.

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----oo0oo----

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Plaintiff Naomi Legere-Gordon, individually and on

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behalf of all others similarly situated, brought this putative

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class action against defendant Firstcredit Incorporated, alleging

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violations of the Telephone Consumer Protection Act (“TCPA”), 47

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U.S.C. § 227.

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the court granted plaintiff’s unopposed motion for preliminary

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approval of class action settlement.

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Preliminary Approval (Docket No. 43).)

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unopposed for final approval of the parties’ class action

(See Compl. (Docket No. 1).)

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On January 26, 2021,

(See Order Granting
Plaintiff now moves

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settlement and attorneys’ fees, costs, and a class representative

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service payment.

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I.

(See Docket No. 46.)

Discussion1

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The Ninth Circuit has declared a strong judicial policy

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favoring settlement of class actions.

Class Plaintiffs v. City

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of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992); see also

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Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 965 (9th Cir. 2009)

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(“We put a good deal of stock in the product of an arms-length,

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non-collusive, negotiated resolution[.]”) (citation omitted).

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Rule 23(e) provides that “[t]he claims, issues, or defenses of a

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certified class may be settled . . . only with the court’s

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approval.”

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Fed. R. Civ. P. 23(e).

“Approval under 23(e) involves a two-step process in

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which the Court first determines whether a proposed class action

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settlement deserves preliminary approval and then, after notice

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is given to class members, whether final approval is warranted.”

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Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523,

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525 (C.D. Cal. 2004) (citing Manual for Complex Litig. (Third),

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§ 30.41 (1995)).

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plaintiff’s unopposed motion for preliminary approval of class

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action settlement on January 26, 2021.

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following notice to the class members, the court will consider

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whether final approval is merited by evaluating: (1) the

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treatment of this litigation as a class action and (2) the terms

This court satisfied step one by granting

(Docket No. 43.)

Now,

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The court already recited the factual and procedural
background in its order granting plaintiff’s unopposed motion for
preliminary approval of the class action settlement. (See Order
Granting Preliminary Approval at 2-5.) Accordingly, the court
will refrain from doing so again.
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of the settlement.

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876 F.2d 1401, 1408 (9th Cir. 1989).

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A.

See Diaz v. Tr. Territory of Pac. Islands,

Class Certification

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A class action will be certified only if it meets the

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requirements of Rule 23(a)’s four prerequisites and fits within

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one of Rule 23(b)’s three subdivisions.

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(b).

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whether the moving party has satisfied each Rule 23 requirement,

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the court must conduct a rigorous inquiry before certifying a

Fed. R. Civ. P. 23(a)-

Although a district court has discretion in determining

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class.

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Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982).

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See Califano v. Yamasaki, 442 U.S. 682, 701 (1979); Gen.

1.

Rule 23(a)

Rule 23(a) restricts class actions to cases where:
(1) the class is so numerous that joinder of all
members is impracticable; (2) there are questions
of law or fact common to the class; (3) the claims
or defenses of the representative parties are
typical of the claims or defenses of the class;
and (4) the representative parties will fairly and
adequately protect the interests of the class.

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Fed. R. Civ. P. 23(a).

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to as numerosity, commonality, typicality, and adequacy of

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representation.

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approval of the settlement, the court found that the putative

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class satisfied the Rule 23(a) requirements.

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Preliminary Approval at 5-13.)

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changes that would affect its conclusion that the putative class

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satisfies the Rule 23(a) requirements, and the parties have not

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indicated that they are aware of any such developments.

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Mot. for Final Approval.)

These requirements are commonly referred

In the court’s order granting preliminary

(See Order Granting

The court is unaware of any

(See

The court therefore finds that the

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class definition proposed by plaintiff meets the requirements of

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Rule 23(a).

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2.

Rule 23(b)

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An action that meets all the prerequisites of Rule

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23(a) may be certified as a class action only if it also

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satisfies the requirements of one of the three subdivisions of

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Rule 23(b).

Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th

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Cir. 2013).

In its order granting preliminary approval of the

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settlement, the court found that the requirements of Rule

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23(b)(2) were satisfied.

(Order Granting Preliminary Approval at

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13-15.)

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its conclusion that Rule 23(b)(2) is satisfied.

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settlement class satisfies both Rule 23(a) and 23(b)(2), the

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court will grant final class certification of this action.

The court is unaware of any changes that would affect
Because the

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3.

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Under Rule 23(c)(2), whether notice to class members of

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certification under Rule 23(b)(2) must be provided is left to the

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district court’s discretion.

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(“For any class certified under Rule 23(b)(1) or (b)(2), the

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court may direct appropriate notice to the class.” (emphasis

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added)); Equal Opportunity Emp’t Comm’n v. Gen. Tel. Co. of Nw.,

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Inc., 599 F.2d 322, 334 (9th Cir. 1979) (“When an action is

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certified under Rule 23(b)(2) . . . absent class members are not

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required to receive notice or to have the opportunity to opt-out

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of the suit.”).

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Rule 23(c)(2) Notice Requirements

See Fed. R. Civ. P. 23(c)(2)(A)(

In this case, the court required the parties to provide

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notice to the class because the proposed settlement would bind

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absent class members by waiving their right to bring a class
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claim for damages against defendant.

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(Order Granting Preliminary Approval at 25).

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See Fed. R. Civ. P. 23(e);

While there are “no rigid rules to determine whether a

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settlement notice to class members satisfies constitutional and

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Rule 23(e) requirements,” Wal-Mart Stores, Inc. v. Visa U.S.A.,

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Inc., 396 F.3d 96, 114 (2d Cir. 2005), notice of settlement--like

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any form of notice--must comply with due process requirements

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under the Constitution.

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Actions § 8:15 (5th ed.).

See Rubenstein, 4 Newberg on Class
That is, the notice must be

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“reasonably calculated, under all the circumstances, to apprise

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interested parties of the pendency of the action and afford them

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an opportunity to present their objections.”

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Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950).

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notice is not required, the notice provided must be “reasonably

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certain to inform the absent members of the plaintiff class.”

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Silber v. Mabon, 18 F.3d 1449, 1454 (9th Cir. 1994) (citation

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omitted).

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‘generally describes the terms of the settlement in sufficient

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detail to alert those with adverse viewpoints to investigate and

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to come forward and be heard.’”

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Elec., 361 F.3d 566, 575 (9th Cir. 2004).

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Mullane v. Cent.
While actual

The content of the “[n]otice is satisfactory if it

See Churchill Vill., LLC v. Gen.

Here, the court ordered the parties to conduct a

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digital media notice plan using the Google Display Network, which

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provided a summary version of the notice of class action

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settlement and directed viewers to a website containing the full

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version of the settlement notice.

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Preliminary Approval at 28-31.)

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Action Services (“KCC”) to serve as the Settlement Administrator.

(See Order Granting
The parties selected KCC Class

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(Decl. of Jay Geraci re: Notice Procedures ¶ 1 (“Geraci Decl.”)

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(Docket No. 46-1).)

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distributed via various websites.

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appeared on both mobile and desktop devices from February 15,

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2021 through March 17, 2021.

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ultimately delivered (232,034 were delivered at no extra charge).

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(Id.)

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KCC purchased 41,267,000 “impressions” to be
(Id. at ¶ 2.)

(Id.)

The impressions

41,499,034 impressions were

On February 10, 2021, KCC set up a website and a tollfree telephone number dedicated to (1) providing information to

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class members about the Settlement Agreement; (2) answering

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frequently asked questions; and (3) downloading copies of the

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full notice of settlement or for requesting that a notice packet

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be mailed.

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motion for final approval, the website had been visited 9,855

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times and the hotline had received 6 calls.

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date of plaintiff’s motion for final approval, KCC had not

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received any objections to the settlement.

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(Id. at ¶¶ 3-4.)

As of the date of plaintiff’s

(Id.)

As of the

(Id. at ¶ 5.)

The notice provided on the settlement website

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identifies the parties, explains the nature of the proceedings,

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defines the class, provides the terms of the settlement, and

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explains the procedure for objecting to the settlement.

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Ex. B.)

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by the settlement, that class members will waive their right to

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participate in future class claims for damages against defendant

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for calls made during the class period, the amount that class

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counsel is requesting in attorneys’ fees, and the size of

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plaintiff’s requested incentive award.

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notice complies with Rule 23(e)’s requirements.

(Id. at

The notice also explains the injunctive relief provided

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(Id.)

Accordingly, the

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B.

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Rule 23(e): Fairness, Adequacy, and Reasonableness of
Proposed Settlement
Having determined that class treatment is warranted,

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the court must now address whether the terms of the parties’

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settlement appear fair, adequate, and reasonable.

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Civ. P. 23(e)(2).

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reasonableness of the agreement, Rule 23(e) requires the court to

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consider four factors: “(1) the class representatives and class

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counsel have adequately represented the class; (2) the proposal

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was negotiated at arm's length; (3) the relief provided for the

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class is adequate; and (4) the proposal treats class members

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equitably relative to each other.”

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also identified eight additional factors the court may consider,

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many of which overlap substantially with Rule 23(e)’s four

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factors:

To determine the fairness, adequacy, and

Id.

The Ninth Circuit has

The strength of the plaintiff’s case; the risk,
expense, complexity, and likely duration of
further litigation; the risk of maintaining class
action status throughout the trial; the amount
offered in settlement; the extent of discovery
completed and the stage of the proceedings; the
experience and views of counsel; the presence of
a governmental participant; and the reaction of
the class members to the proposed settlement.

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See Fed. R.

Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998).

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1.

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The court must first consider whether “the class

Adequate Representation

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representatives and class counsel have adequately represented the

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class.”

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“redundant of the requirements of Rule 23(a)(4) . . . .”

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v. Libre Tech., Inc., No. 3:18-cv-1371-GPC-KSC, 2020 WL 2467060,

Fed. R. Civ. P. 23(e)(2)(A).

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This analysis is
Hudson

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at *5 (S.D. Cal. May 13, 2020) (quoting Rubenstein, 4 Newberg on

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Class Actions § 13:48 (5th ed.)) see also In re GSE Bonds Antitr.

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Litig., 414 F. Supp. 3d 686, 701 (S.D.N.Y. 2019) (noting

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similarity of inquiry under Rule 23(a)(4) and Rule 23(e)(2)(A)).

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Because the Court has found that the proposed class

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satisfies Rule 23(a)(4) for purposes of class certification, the

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adequacy factor under Rule 23(e)(2)(A) is also met.

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2020 WL 2467060, at *5.

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2.

See Hudson,

Negotiation of the Settlement Agreement

Counsel for both sides appear to have diligently

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pursued settlement after thoughtfully considering the strength of

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their arguments and potential defenses.

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in an arms-length mediation before an experienced employment

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litigation mediator and former federal judge, Hon. James Ware

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(ret.) on September 15, 2020, ultimately coming to a tentative

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agreement at the close of the mediation and producing a final

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agreement the next month.

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Decl.”) ¶ 25 (Docket No. 46-3).)

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experience of plaintiff’s counsel and the parties’ representation

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that the settlement reached was the product of arms-length

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bargaining, the court does not question that the proposed

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settlement is in the best interest of the class.

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Facebook, Inc., 966 F. Supp. 2d 939, 942 (N.D. Cal. 2013)

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(holding that a settlement reached after informed negotiations

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“is entitled to a degree of deference as the private consensual

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decision of the parties” (citing Hanlon, 150 F.3d at 1027)).

The parties participated

(Decl. of Anthony Paronich (“Paronich
Given the sophistication and

See Fraley v.

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3.

Adequate Relief

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In determining whether a settlement agreement provides
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adequate relief for the class, the court must “take into account

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(i) the costs, risks, and delay of trial and appeal; (ii) the

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effectiveness of any proposed method of distributing relief to

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the class, including the method of processing class-member

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claims; (iii) the terms of any proposed award of attorney's fees,

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including timing of payment; and (iv) any [other] agreement[s]”

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made in connection with the proposal.

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23(e)(2)(C); Baker v. SeaWorld Entm’t, Inc., No. 14-cv-02129-MMA-

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AGS, 2020 WL 4260712, at *6-8 (S.D. Cal. Jul. 24, 2020).

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See Fed. R. Civ. P.

The court notes that, in evaluating whether the

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settlement provides adequate relief, it must consider

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several of the same factors as outlined in Hanlon,

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including the strength of the plaintiff’s case, the risk,

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expense, complexity, and likely duration of further

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litigation, the risk of maintaining class action status

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throughout the trial, and the amount offered in settlement.

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See Hanlon, 150 F.3d at 1026.

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In determining whether a settlement agreement is

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substantively fair to class members, the court must balance

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the value of expected recovery against the value of the

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settlement offer.

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484 F. Supp. 2d 1078, 1080 (N.D. Cal. 2007).

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plaintiff’s counsel estimates that defendant could face up

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to $16,500,000 in statutory penalties based on records of

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the violative calls at issue, the Settlement Agreement does

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not provide any monetary relief to class members.

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generally Mot. for Preliminary Approval of Class Action

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Settlement, Ex. 1 (“Settlement Agreement”) (Docket No. 38-

See In re Tableware Antitrust Litig.,

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Though

(See

1

1).)

2

relief for class members by requiring defendant to scrub

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its call list of all cellular numbers for which defendant

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does not have a good faith belief that consent to call has

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been provided, and to implement specific, delineated

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changes to its policies and procedures to ensure future

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TCPA compliance.

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this relief in consideration for a limited release which

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preserves the class members’ individual claims against

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Instead, the Settlement Agreement provides injunctive

defendant.

(See id. ¶¶ 21-25.)

Plaintiff obtained

(See id.)

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Plaintiff’s counsel represents that, absent

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settlement, continuing litigation--which would likely

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include class certification and a motion for summary

14

judgment--would be costly, time consuming, and uncertain in

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outcome.

16

Settlement at 9 (Docket No. 46); Decl. of Gary M. Klinger

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(“Klinger Decl.”) ¶ 11 (Docket No. 46-2).)

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Supreme Court recently narrowed the TCPA’s definition of

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Automated Telephone Dialing Systems (“ATDS”) to systems

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that must either have the capacity to store a number using

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a random or sequential number generator, see Facebook, Inc.

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v. Duguid, 141 S. Ct. 1163 (2021), class counsel represents

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that there is a risk that class members’ claims could be

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completely eliminated or “zeroed out.”

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Agreement’s injunctive relief provides class members with

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some relief, while allowing them each to pursue defendant

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individually for damages in the future.

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Final Approval at 9.)

(See Mot. for Final Approval of Class Action

Because the

The Settlement

(See Mot. for

The settlement’s injunctive relief
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is also in line with the TCPA’s purpose, which is to

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prevent cell phone users from receiving harassing phone

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calls from robocallers.

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Given the strength of plaintiff’s claims and

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defendants’ potential exposure, as well as the risk,

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expense, and complexity involved in further litigation, and

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in light of defendant’s limited funds and corresponding

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inability to pay a class-wide monetary judgment (see id.),

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the court is satisfied that the settlement and resulting

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distribution provides a strong result for the class.

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Tableware, 484 F. Supp. 2d at 1079.

12

See

The Settlement Agreement further provides for an award

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of attorney’s fees and costs totaling $180,000.

14

Agreement ¶ 30.)

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includes an award of attorney’s fees, then the court “ha[s] an

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independent obligation to ensure that the award, like the

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settlement itself, is reasonable, even if the parties have

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already agreed to an amount.”

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Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011).

20

(See Settlement

If a negotiated class action settlement

In re Bluetooth Headset Prods.

Plaintiff’s counsel has included a request for

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attorneys’ fees and costs in its motion for final approval of the

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class action settlement pursuant to Federal Rule 23(h).

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for Final Approval at 15.)

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below, the court finds plaintiff’s counsel’s request for

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attorneys’ fees in the amount of $172,566.63 to be excessive, and

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will instead award a lower sum, $74,153.00.

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satisfied that this lower sum is reasonable and supports approval

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of the settlement.

(Mot.

As discussed in additional detail

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The court is

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In light of the claims at issue, defendants’ potential

2

exposure and the risk to plaintiff and to the class of proceeding

3

to trial, the court finds that the substance of the settlement is

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fair to class members and thereby “falls within the range of

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possible approval.”

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Ramirez, 2017 WL 3670794, at *3.

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court to any other relevant agreements that would alter this

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analysis.

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factor is satisfied.

See Tableware, 484 F. Supp. 2d at 1079;
Counsel has not directed the

The court therefore finds that Rule 23(e)’s third
See Fed. R. Civ. P. 23(e)(C).

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4.

Equitable Treatment of Class Members

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Finally, the court must consider whether the Settlement

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Agreement “treats class members equitably relative to each

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other.”

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determines whether the settlement “improperly grant[s]

15

preferential treatment to class representatives or segments of

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the class.”

17

484 F. Supp. at 1079.

See Fed. R. Civ. P. 23(e)(2)(D).

In doing so, the Court

Hudson, 2020 WL 2467060, at *9 (quoting Tableware,

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Here, the Settlement Agreement does not improperly

19

discriminate between any segments of the class, as all class

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members are entitled to the same injunctive relief.

21

Settlement Agreement ¶ 13.)

22

allows plaintiff to seek an incentive award of $3,500 (Settlement

23

Agreement ¶ 29), the court is satisfied that the prospect of

24

additional compensation, in and of itself, has not caused Ms.

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Legere-Gordon’s interests to diverge from the class, primarily

26

because other class members are free to pursue their own claims

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for damages against defendant.

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below, in Section E, the court will only award plaintiff $1,500.

(See

While the Settlement Agreement

However, as detailed further

12

1
2
3

See Hudson, 2020 WL 2467060, at *9.
The court therefore finds that the Settlement Agreement
treats class members equitably.

See Fed. R. Civ. P. 23(e)(D).

4

5.

Remaining Hanlon Factors

5

In addition to the Hanlon factors already considered as

6

part of the court’s analysis under Rule 23(e)(A)-(D), the court

7

must also take into account “the extent of the discovery

8

completed . . . the presence of government participation, and the

9

reaction of class members to the proposed settlement.”

10

Hanlon,

150 F.3d at 1026.

11

Through formal discovery, defendant provided plaintiff

12

with class data including a call list, call logs, and call data,

13

including the dates and times of calls made to class members, to

14

the extent defendant possessed records reflecting such data.

15

(See Docket No. 31. )

16

approval of the settlement.

17

This factor weighs in favor of final

The seventh Hanlon factor, pertaining to government

18

participation, is neutral, as there was no governmental

19

participation in this matter.

20

eighth Hanlon factor, the reaction of the class members to the

21

proposed settlement, also weighs in favor of final approval.

22

Hanlon, 150 F.3d at 1026.

23

sought to opt out of the settlement.

24

Hanlon, 150 F.3d at 1026.

The

See

No class members have objected to or
See id.

The court therefore finds that the remaining Hanlon

25

factors weigh in favor of preliminary approval of the Settlement

26

Agreement.

27
28

See Ramirez, 2017 WL 3670794, at *3.

In sum, the four factors that the court must evaluate
under Rule 23(e) and the eight Hanlon factors, taken as a whole,
13

1

appear to weigh in favor of the settlement.

2

therefore grant final approval of the Settlement Agreement.

3

C.

The court will

Attorneys’ Fees

4

Federal Rule of Civil Procedure 23(h) provides, “[i]n a

5

certified class action, the court may award reasonable attorney’s

6

fees and nontaxable costs that are authorized by law or by the

7

parties’ agreement.”

8

class action settlement includes an award of attorneys’ fees,

9

that fee award must be evaluated in the overall context of the

Fed. R. Civ. P. 23(h).

If a negotiated

10

settlement.

11

Cir. 2002); Monterrubio v. Best Buy Stores, L.P., 291 F.R.D. 443,

12

455 (E.D. Cal. 2013) (England, J.).

13

independent obligation to ensure that the award, like the

14

settlement itself, is reasonable, even if the parties have

15

already agreed to an amount.”

16

941.

17

Knisley v. Network Assocs., 312 F.3d 1123, 1126 (9th

The court “ha[s] an

Bluetooth Headset, 654 F.3d at

The Ninth Circuit recognizes two different methods for

18

assessing the reasonableness of attorneys’ fees: the lodestar

19

method and the percent-of-recovery method.

20

at 1029.

21

23(b)(2), the lodestar method is preferred, as “there is no way

22

to gauge the net value of the settlement or any percentage

23

thereof.”

24

calculated by multiplying the number of hours reasonably expended

25

by a reasonable hourly rate.

26

Soc’y of United States, 307 F.3d 997, 1006-07 (9th Cir. 2002).

27

There is a “strong presumption” that the lodestar figure

28

represents a reasonable fee.

See Hanlon, 150 F.3d

In injunctive-relief class actions certified under Rule

Id.

Under the lodestar method, a lodestar value is

Fischel v. Equitable Life Assurance

D'Emanuele v. Montgomery Ward &
14

1

Co., 904 F.2d 1379, 1384 (9th Cir. 1990), overruled on other

2

grounds by Burlington v. Dague, 505 U.S. 557 (1992).

3

although a court can adjust the lodestar upward or downward based

4

on certain factors, adjustments are “the exception rather than

5

the rule.”

6

Thus,

Id. at 1383–84.

One instance in which an upward adjustment is

7

appropriate is when there is a risk of nonpayment.

See Fischel,

8

307 F.3d at 1008.

9

“is an abuse of discretion to fail to apply a risk multiplier . .

In fact, the Ninth Circuit has held that it

10

. when (1) attorneys take a case with the expectation that they

11

will receive a risk enhancement if they prevail, (2) their hourly

12

rate does not reflect that risk, and (3) there is evidence that

13

the case was risky.

14

Id.

Here, class counsel calculates their lodestar at

15

$111,532.50.

Counsel states in their declarations that this

16

lodestar was calculated using applicable billing rates for

17

Chicago, Washington D.C., and Boston--their firms’ places of

18

business--as follows:

19

Name

Position

Hourly Rate

Total Hours

Lodestar

20

Gary Klinger

Partner

$700/hour

78.25

$54,775.00

21

Danielle

Partner

$650/hour

17.25

$11,212.50

22

Perry

23

Taylor Heath

Paralegal

$170/hour

8.5

$1,445.00

24

Anthony

Partner

$600/hour

73.5

$44,100.00

25

Paronich

26

Total:

$111,532.50

27
28

(See Klinger Decl. ¶¶ 15-20; Paronich Decl. ¶¶ 20-21.)
15

Class

1

counsel estimates that they will incur an additional $7,500.00 in

2

fees “in connection with preparing for argument at the final

3

approval hearing and other miscellaneous matters, including

4

responding to class member inquiries and claims administration,”

5

increasing the lodestar to $119,032.50.

6

at 16.)

7

multiplier of 1.45, which would result in a total attorneys’ fee

8

award of $172,566.63.

(Mot. for Final Approval

Class counsel further asks that the court apply a

(See id.)

9

To determine whether counsel has employed a “reasonable

10

hourly rate” for purposes of calculating the lodestar amount, the

11

court must look to the “prevailing market rates in the relevant

12

community.”

13

(9th Cir. 2013) (quoting Blum v. Stenson, 465 886, 895 (9th Cir.

14

2001)).

15

the relevant community is the forum in which the district court

16

sits.”

17

Legal News v. Schwarzenegger, 608 F.3d 446, 454 (9th Cir.2010)).

18

Within this geographic community, the district court should

19

“tak[e] into consideration the experience, skill, and reputation

20

of the attorney [or paralegal].”

21

813 (9th Cir. 2005) (internal quotation marks omitted).

22

Importantly, the fee applicant has the burden of producing

23

“satisfactory evidence” that the rates he requests meet these

24

standards.

25

and other attorneys regarding prevailing fees in the relevant

26

community, and rate determinations in other cases, particularly

27

those setting a rate for the plaintiffs' attorney, are

28

satisfactory evidence of the prevailing market rate.

Gonzalez v. City of Maywood, 729 F.3d 1196, 1206

“Generally, when determining a reasonable hourly rate,

Id. (internal quotation marks omitted) (quoting Prison

Id. at 814.

Dang v. Cross, 422 F.3d 800,

Affidavits of the plaintiffs' attorney

16

Chalmers v.

1

City of Los Angeles, 796 F.2d 1205, 1214 (9th Cir. 1986), opinion

2

amended on denial of reh'g, 808 F.2d 1373 (9th Cir. 1987).

3

The only evidence class counsel has provided that their

4

hourly rates are reasonable is a single case from 2014, in which

5

the Northern District of California approved partner billing

6

rates between $350 and $775 per hour, and the Legal Services

7

Institute Laffey Matrix, a “widely accepted fees matrix utilized

8

in the District of Columbia where Class Counsel has an office.”

9

(Id. at 17.)

The relevant inquiry for the court, however, is not

10

whether counsels’ rates are reasonable in their home markets, but

11

whether they are reasonable in the District of Idaho, the forum

12

in which the district court sits.

13

1206.

14

See Gonzalez, 729 F.3d at

A survey of recent cases in which Idaho district courts

15

have awarded attorneys’ fees shows that billing rates of $245-

16

$280/hour are generally held to be reasonable for partners in the

17

Idaho community.

18

II & III, No. 1:20-cv-00402-SEH, 2021 WL 733309, at *1 n.10 (D.

19

Idaho Feb. 16, 2021) (citing Asset Vision, LLC v. Fielding, No.

20

4:13-CV-00288-BLW (D. Idaho Dec. 16, 2014) (finding $245-280 to

21

be reasonable rates for partners); Giltner Logistics Services,

22

Inc. v. Syny Logistics Inc., 1:18-CV-00305-BLW (D. Idaho April 4,

23

2019) (finding $245 to be a reasonable rate for a partner)).

24

Similarly, Idaho district courts generally hold that billing

25

rates of $120/hour for paralegals are reasonable.

26

Gonzales on behalf of A.G. v. Burley High School, No. 4:18-cv-

27

00092-DCN, 2020 WL 7047747, at *7 (D. Idaho Nov. 30, 2020);

28

Fuller v. Dep’t of Corr., No. 1:13-cv-00035-DCN, 2019 WL 6332850

See, e.g., Scoyni v. Central Valley Fund L.P.

17

See, e.g.,

1

(D. Idaho Nov. 26, 2019).

Given the sophistication and

2

experience of class counsel in this case (see Decl. of Gary

3

Klinger in Support of Mot. for Preliminary Approval ¶¶ 4-17

4

(Docket No. 38-3); Decl. of Anthony Paronich in Support of Mot.

5

for Preliminary Approval ¶¶ 3-7 (Docket No. 38-2)), the court

6

finds a reasonable hourly rate for the partners in this case is

7

$280/hour, a figure at the high end of the range of rates

8

approved by courts in the District of Idaho.

9

733309, at *1.

See Scoyni, 2021 WL

The court further finds that a rate of $120/hour

10

is reasonable for Mason Lietz & Klinger’s paralegal, Ms. Heath.

11

Gonzales, 2020 WL 7047747, at *7.

12

Substituting these hourly rates for those submitted by

13

counsel, and assuming that counsel would incur an additional

14

$2,800 in fees for remaining tasks in this case under Idaho

15

rates, yields a lodestar of $51,140.00, as follows:

16

Name

Position

Hourly Rate

Total Hours

Lodestar

17

Gary Klinger

Partner

$280/hour

78.25

$21,910.00

18

Danielle

Partner

$280/hour

17.25

$4,830.00

19

Perry

20

Taylor Heath

Paralegal

$120/hour

8.5

$1,020.00

21

Anthony

Partner

$280/hour

73.5

$20,580.00

22

Paronich

23

Additional

24

Fees

25

Total:

$2,800

$51,140

26
27

“A district court generally has discretion to apply a

28
18

1

multiplier to the attorneys’ fees calculation to compensate for

2

the risk of nonpayment.”

3

counsel represents that there was a substantial risk of

4

nonpayment in this case because of the inherent unpredictability

5

of litigation and because of the rapidly evolving nature of

6

jurisprudence involving the TCPA, “where jurisdictions have been

7

historically split as to the particularly technology included in

8

the definition of the statute.”

9

the Supreme Court recently held that the definition of an ATDS

See Fischel, 307 F.3d at 1008.

(Klinger Decl. ¶ 11.)

Here,

Indeed,

10

under the statute was significantly narrower than many courts had

11

assumed.

12

retained on a contingent basis, these risks posed a threat not

13

only to success in the case but to the chances counsel would be

14

compensated for its work representing the class.

15

court will therefore grant the 1.45 multiplier requested by

16

counsel, which the court finds to be well within the range of

17

multipliers granted by courts in this circuit to successful

18

plaintiffs.

19

No. 16-cv-03698-NC, 2018 U.S. Dist. LEXIS 80219, at *20 (N.D.

20

Cal. May 11, 2018) (finding multiplier of 4.37 to be reasonable);

21

In re NCAA Ath. Grant-In-Aid Cap Antitrust Litig., 2017 U.S.

22

Dist. LEXIS 201108, at *21 (N.D. Cal. Dec. 6, 2017) (finding

23

multiplier of 3.66 to be “well within the range of awards in

24

other cases.”).

See Duguid, 141 S. Ct. at 1163.

Because counsel was

(See id.)

The

See Johnson v. Fujitsu Tech. & Bus. of Am., Inc.,

25

Accordingly, the court will grant attorneys’ fees to

26

class counsel in the amount of $74,153.00 ($51,140.00 x 1.45).

27
28

D.

Costs
“There is no doubt that an attorney who has created a
19

1

common fund for the benefit of the class is entitled to

2

reimbursement of reasonable litigation expenses from that fund.”

3

In re Heritage Bond Litig., Civ. No. 02-1475, 2005 WL 1594403, at

4

*23 (C.D. Cal. June 10, 2005).

5

plaintiff’s counsel shall be entitled to recover reasonable

6

attorneys’ fees and costs, not to exceed $180,000.

7

Agreement ¶ 30.)

8

and necessary litigation costs to date in the amount of

9

$7,433.37.

Here, the parties agreed that

(Settlement

Counsel states that it has incurred reasonable

(Klinger Decl. ¶ 22; Paronich Decl. ¶ $5,149.94.)

10

These expenses include mediation fees, research expenses, and

11

expert witness fees.

12

reasonable litigation expenses, and will therefore grant class

13

counsel’s request for costs in the amount of $7,433.37.

14

E.

15

(Id.)

The court finds that these are

Representative Service Award
“Incentive awards are fairly typical in class action

16

cases.”

17

compensate class representatives for work done on behalf of the

18

class, to make up for financial or reputational risk undertaken

19

in bringing the action, and, sometimes, to recognize their

20

willingness to act as a private attorney general.”

21

59.

22

Rodriguez, 563 F.3d at 958.

“[They] are intended to

Id. at 958-

Nevertheless, the Ninth Circuit has cautioned that

23

“district courts must be vigilant in scrutinizing all incentive

24

awards to determine whether they destroy the adequacy of the

25

class representatives . . . .”

26

Solutions, Inc., 715 F.3d 1157, 1164 (9th Cir. 2013).

27

assessing the reasonableness of incentive payments, the court

28

should consider “the actions the plaintiff has taken to protect

Radcliffe v. Experian Info.

20

In

1

the interests of the class, the degree to which the class has

2

benefitted from those actions” and “the amount of time and effort

3

the plaintiff expended in pursuing the litigation.”

4

Boeing Co., 327 F.3d 938, 977 (9th Cir. 2003) (citation omitted).

5

The court must balance “the number of named plaintiffs receiving

6

incentive payments, the proportion of the payments relative to

7

the settlement amount, and the size of each payment.”

8
9

Staton v.

Id.

In the Ninth Circuit, an incentive award of $5,000 is
presumptively reasonable.

Davis v. Brown Shoe Co., Inc., No.

10

1:13-01211 LJO BAM, 2015 WL 6697929, at *11 (E.D. Cal. Nov. 3,

11

2015) (citing Harris v. Vector Marketing Corp., No. C-08-5198

12

EMC, 2012 WL 381202, at *7 (N.D. Cal. Feb. 6, 2012) (collecting

13

cases).

14

an incentive payment of $3,500.

15

The single named plaintiff, Naomi Legere-Gordon, seeks
(Klinger Decl. ¶ 28.)

In its Order Granting Preliminary Approval, the court

16

noted that, while plaintiff’s request for an incentive payment is

17

within the range the Ninth Circuit has designated “presumptively

18

reasonable,” plaintiff would “have to submit additional evidence

19

documenting her time and effort spent on this case and the likely

20

value of other class members’ individual claims for damages to

21

ensure that her additional compensation above other class members

22

is justified.”

23

(Order Granting Preliminary Approval at 25.)

The only evidence submitted evidencing plaintiff’s

24

efforts in this case is a single sentence in the declaration of

25

her counsel, Gary Klinger: “such efforts [of Ms. Legere-Gordon]

26

include, answering Class Counsel’s questions, reviewing, and

27

approving the Complaint, remaining in touch with counsel during

28

discovery, being available to Class Counsel during mediation, and
21

1

reviewing and approving the Settlement Agreement.”

2

Decl. ¶ 28.)

3

declaration in support of her motion.

4

46.)

5

likely value of the individual claims other class members will be

6

free to pursue.

7

(Klinger

Ms. Legere-Gordon did not submit her own
(See generally Docket No.

Plaintiff’s motion also contains no evidence showing the

In light of the lack of evidence submitted by

8

plaintiff, the court is not satisfied that it could award

9

plaintiff a $3,500 incentive payment without “improperly granting

10

preferential treatment to [the] class representative[].”

11

2020 WL 2467060, at *5.

12

not receive any financial benefit from this class action.

13

Plaintiff has not provided sufficient evidence to demonstrate why

14

she should be entitled to $3,500 more than any other class member

15

will receive.

16

contributed much effort to this action, other than “being

17

available” to confer with counsel and reviewing and approving key

18

documents, such as the complaint and the Settlement Agreement.

19

(Klinger Decl. ¶ 28.)

20

indicate that plaintiff attended the mediation which led to

21

settlement in this matter.

22

the service award is also meant to compensate plaintiff for the

23

risk she took in putting her name on a complaint, the court

24

struggles to discern exactly what risk plaintiff now faces.

25

Unlike a wage and hour class action, for instance, where a named

26

plaintiff may suffer retaliation from her future employer or

27

prejudice in attempting to obtain future employment, see Flores

28

v. Dart Container Corp., No. 2:19-cv-00083 WBS JDP, 2021 U.S.

See id.

Hudson,

Plaintiff’s fellow class members will

It does not appear as if plaintiff

Counsel’s declaration does not even

(See id.)

22

While counsel asserts that

1

Dist. LEXIS 94456, at **25-26 (E.D. Cal. May 18, 2021),

2

plaintiff does not identify any specific harm she is likely to

3

suffer in the future as a result of her association with a TCPA

4

class action alleging that she received unsolicited robocalls on

5

her cell phone.

6

However, because service awards are also designed to

7

“recognize [named plaintiffs’] willingness to act as a private

8

attorney general,” Rodriguez, 563 F.3d at 958, the court will

9

still grant plaintiff a service award, though not one as large as

10

requested in her motion.

11

plaintiff in this case, and in recognition of her willingness to

12

act as a “private attorney general,” the court will authorize

13

payment of a $1,500 service award.

14

II.

15

Based on the efforts expended by

Staton, 327 F.3d at 977

Conclusion
Based on the foregoing, the court will grant final

16

certification of the settlement class and will approve the

17

settlement set forth in the settlement agreement as fair,

18

reasonable, and adequate.

19

binding upon all participating class members.

20

The settlement agreement shall be

IT IS THEREFORE ORDERED that plaintiff’s unopposed

21

motion for final approval of the parties’ class action settlement

22

and attorneys’ fees, costs, and a class representative service

23

payment (Docket Nos. 35-38) be, and the same hereby is, GRANTED.

24

IT IS FURTHER ORDERED THAT:

25

(1) Solely for the purpose of this settlement, and

26

pursuant to Federal Rule of Civil Procedure 23, the court hereby

27

certifies the following class: All natural and juridical persons

28

within the United States (a) to whom defendant placed, or caused
23

1

to be placed, a call, (b) directed to a number assigned to a

2

cellular telephone service, but not assigned to the intended

3

recipient of defendant’s calls, (c) by using an automatic

4

telephone dialing system or an artificial or prerecorded voice,

5

(d) from September 18, 2015 through January 26, 2021 (i.e., the

6

Class Period);

7

(2) The court appoints the named plaintiff Naomi

8

Legere-Gordon as class representative and finds that she meets

9

the requirements of Rule 23;

10

(3) The court appoints law firm of Mason Lietz &

11

Klinger LLP, by and through Gary Klinger, and Paronich Law, P.C.,

12

by and through Anthony Paronich, as class counsel and finds that

13

they meet the requirements of Rule 23;

14

(4) The plan for class notice set forth in the parties’

15

January 19, 2021 Joint Status Report and in the court’s Order

16

Granting Preliminary Approval of the Class Action Settlement is

17

the best notice practicable under the circumstances and satisfies

18

the requirements of due process and Rule 23.

19

approved and adopted. The notice to the class complies with Rule

20

23(e) and is approved and adopted;

21

The plan is

(5) The court finds that the parties and their counsel

22

took appropriate efforts to locate and inform all class members

23

of the settlement.

24

to the settlement, the court finds that no additional notice to

25

the class is necessary;

26

Given that no class member filed an objection

(6) As of the date of the entry of this order,

27

plaintiff and all class members who have not timely opted out of

28

this settlement herby do and shall be deemed to have fully,
24

1

finally, and forever released, settled, compromised,

2

relinquished, and discharged defendants of and from any and all

3

settled claims, pursuant to the release provisions stated in the

4

parties’ settlement agreement;

5

(7) Plaintiff’s counsel is entitled to fees in the

6

amount of $74,153.00, and litigation costs in the amount of

7

$7,433.37;

8
9
10
11
12

(8) KCC Class Action Services, LLC is entitled to
administration costs in the amount of $41,500.00;
(9)

Plaintiff Naomi Legere-Gordon is entitled to an

inventive award in the amount of $1,500.00;
(10) Beginning sixty days after issuance of this Order,

13

and continuing for a period of no less than two (2) years, or

14

until there are such changes in the law related to the below

15

practices that occur after the date of this Order, defendant

16

shall update and improve its processes and procedures concerning

17

compliance with the TCPA as follows:

18

(a)

defendant shall implement a scrub of phone

19

numbers placed by clients or otherwise obtained to determine

20

whether the number is a cell phone.

21

phone number is a cell phone, defendant will not put it on its

22

dialing equipment unless it has a good faith basis to believe

23

there is consent to call the number or the law otherwise permits

24

such calls;

25

(b)

If a scrub determines a

defendant shall revise its written TCPA

26

processes, procedures, and training materials consistent with

27

paragraph (10)(a);

28

(c)

defendant shall implement regular training
25

1

for its employees concerning its TCPA processes and procedures as

2

set forth in paragraph (10)(a)

3

(d)

FCI shall issue quarterly reports to class

4

counsel concerning TCPA litigation during the two-year injunctive

5

period;

6

(e)

FCI shall submit proof of compliance with the

7

injunction to Class Counsel by way of providing the training and

8

testing materials used in the training upon the commencement of

9

such training.

Furthermore, a declaration of the responsible

10

person at FCI for ensuring compliance with the training

11

requirements of the injunction shall be provided upon completion

12

of the training.

13

documentation of compliance as they might deem necessary to

14

confirm compliance, upon request, subject to either party seeking

15

review by the court as to the reasonableness of the request(s).

16

Class Counsel shall be provided such other

(f)

At the end of the 24-month injunction,

17

defendant shall submit to Class Counsel a declaration from its

18

training coordinator confirming that training was provided on a

19

regular basis during the injunction term, as required by

20

paragraph (10)(c).

21

Stipulated Injunction, FCI shall also submit to Class Counsel an

22

exemplar of the revised TCPA testing materials to confirm FCI’s

23

compliance with paragraph (10)(b).

24

(g)

Further, at the end of the 24-month

During the 24-month term of the injunction,

25

both plaintiff and defendant shall have the right to seek relief

26

from, or modification of, the injunction based upon an unfair

27

burden on the business, or a change in the law.

28

alteration or modification of the injunction’s terms shall be
26

Any request for

1

made to the court.

2

injunction shall not extend the length of the 24-month

3

injunction.

4

prospectively for the remainder of the 24-month injunction.

5

Any alteration or modification of this

Any alteration or modification shall only apply

(11) This action is dismissed with prejudice.

However,

6

without affecting the finality of this Order, the court shall

7

retain continuing jurisdiction over the interpretation,

8

implementation, and enforcement of the Settlement Agreement and

9

this Order, which includes the 24-month injunction, with respect

10

to all parties to this action and their counsel of record.

11
12

The clerk is instructed to enter judgment accordingly.
Dated:

June 2, 2021

13
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