Bell v. Consumer Cellular, Incorporated
Opinion and Order - Plaintiffs' Joint Motion for Settlement (ECF 28 ) is GRANTED. Plaintiff's Unopposed Motion for Attorney Fees (ECF 24 ) is GRANTED. Class Counsel is awarded attorney's fees in the amount of $250,000 and costs in the amount of $24,000. The named Plaintiff is awarded $2,500 as an incentive award. Signed on 6/21/2017 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
SHAWNA BELL, individually and on behalf
of all others similarly situated,
Case No. 3:15-cv-941-SI
OPINION AND ORDER
INCORPORATED, an Oregon Domestic
Alan J. Leiman and Drew G. Johnson, LEIMAN & JOHNSON, LLC, 44 W. Broadway, Suite 326,
Eugene, OR 97440. Of Attorneys for Plaintiff.
Francis T. Barnwell, Kathryn M. Hindman, and Liani Jeanheh Reeves, BULLARD LAW, 200 SW
Market Street, Suite 1900, Portland, OR 97201. Of Attorneys for Defendant.
Michael H. Simon, District Judge.
This is a class action under Federal Rule of Civil Procedure 23 brought by Plaintiff
Shawna Bell (“Plaintiff” or the “Class Representative”) individually and on behalf of current and
former employees of Defendant Consumer Cellular Incorporated (“Consumer Cellular”).
Plaintiff alleges that Consumer Cellular failed properly to pay her and others the correct amount
of overtime wages in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et
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seq., and Oregon wage and hour laws. Before the Court is the parties’ Joint Motion for
Settlement and Plaintiff’s Motion for Attorney’s Fees. The Court has considered the motions, the
proposed Settlement Agreement, the papers submitted in connection with both motions, the
arguments of counsel, the response of the Settlement Class to the Notice of Class Action
Settlement (“Class Notice”), and the files, records, and proceedings in the above-captioned
action (“Action”). The final approval hearing was held on April 28, 2017. For the following
reasons, the parties’ Joint Motion for Settlement and Plaintiff’s Motion for Attorney’s Fees are
granted. Class Counsel is awarded attorney’s fees in the amount of $250,000 and costs in the
amount of $24,000. The Class Representative is awarded $2,500 as an incentive award.
Federal Rule of Civil Procedure 23(e) provides, in part, that “[t]he claims, issues, or
defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the
court’s approval.” When a district court evaluates a class action settlement under Rule 23(e), the
court must determine whether the settlement is fundamentally fair, reasonable, and adequate. In
re Syncor ERISA Litig., 516 F.3d 1095, 1100 (9th Cir. 2008). “The purpose of Rule 23(e) is to
protect the unnamed members of the class from unjust or unfair settlements affecting their
rights.” Id.; see also 2 MCLAUGHLIN ON CLASS ACTIONS § 6:4 (12th ed. 2015) (“In the context of
reviewing a proposed class action settlement, the district court has a special duty to act as
guardian for the interests of absent class members because they are not present but will be bound
by the disposition of the case.”).
The Ninth Circuit has a “strong judicial policy that favors settlements, particularly where
complex class action litigation is concerned.” Class Plaintiffs v. City of Seattle, 955 F.2d 1268,
1276 (9th Cir. 1992). “But where, as here, class counsel negotiates a settlement agreement before
the class is even certified, courts ‘must be particularly vigilant not only for explicit collusion, but
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also for more subtle signs that class counsel have allowed pursuit of their own self-interests and
that of certain class members to infect the negotiations.’” Dennis v. Kellogg Co., 697 F.3d 858,
864 (9th Cir. 2012) (quoting In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 947
(9th Cir. 2011)). “In such a case, settlement approval ‘requires a higher standard of fairness’ and
‘a more probing inquiry than may normally be required under Rule 23(e).’” Id. (quoting Hanlon
v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998)).
On May 30, 2015, Plaintiff filed a collective and class action Complaint in this Court
alleging that Consumer Cellular failed properly to pay her and other similarly situated customer
service representatives (“CSRs”) the correct amount of overtime pay in violation of the FLSA
and Oregon state wage and hour laws. Specifically, Plaintiff alleged that Consumer Cellular did
not include non-discretionary incentive pay and bonuses in the computation of the regular rate of
pay for the purposes of computing the overtime rate. In its Answer, Consumer Cellular conceded
that a payroll system error that occurred from approximately September 2014 until March 2015
may have resulted in the improper calculation of overtime pay for CSRs. Consumer Cellular,
however, maintains that it acted in good faith to comply with the FLSA, had reasonable grounds
for believing that it was in compliance with the FLSA, and did not act willfully.
In January 2016, the parties participated in mediation with the Honorable Susa Leeson
and Richard “Sam” Hall and reached a preliminary settlement. On April 8, 2016, the parties filed
a joint motion for preliminary approval. The Court denied this motion on May 31, 2016,
identifying a number of issues, concerns, and deficiencies raised by the proposed settlement
agreement. After the Court’s denial of the first motion for preliminary approval, the parties
participated in further negotiations and reached a new settlement (the “Amended Settlement”).
On September 30, 2016, the parties filed a renewed joint motion for preliminary approval. The
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Court granted this motion, preliminarily approving the Amended Settlement and Settlement
Class; appointing Alan J. Leiman and Drew G. Johnson as class counsel; appointing Class
Action Administration, LLC (“CAA”) as settlement administrator; approving the settlement class
notices for distribution; and requiring that notice of the Amended Settlement be mailed and
posted on the web.
The parties propose a gross settlement amount (GSA) of $900,000 less requested
attorney’s fees of $250,000 (27.8% of the GSA), settlement administration expenses of $24,000,
and an incentive award to Plaintiff of $2,500. Thus, the remaining Net Settlement Fund (NSF) is
$626,000. The settlement provides for different award amounts for different subclasses of
claimants as follows: (1) current Oregon employees will receive $880 each if they submit a claim
form and $35 each if they do not; (2) former Oregon employees will receive $1,791 each if they
submit a claim form and $35 each if they do not; and (3) current and former Arizona employees
will receive $50 each or the amount of recomputed overtime if they submit a claim form and
nothing if they do not. There are 299 current Oregon employees, 197 former Oregon employees,
and 232 current and former Arizona employees. Thus, the Settlement Class contains 728
members (the “Settlement Class Members”).
CAA mailed 728 notice packets to the Settlement Class Members and tracked 65 packets
that had been returned as undeliverable. CAA re-mailed three of the returned notice packets to
forwarding addresses provided by USPS and 19 of the returned notice packets to addresses found
using skip-trace databases. In total, CAA mailed a notice packet to 685 class members, 94% of
the total, without the packets being returned as undeliverable.
CAA received 342 properly completed claim forms before the deadline to respond, which
is a response rate of 47%. Only two of the Settlement Class Members timely filed requests for
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exclusion, and no member filed an objection. Of the 342 Settlement Class Members who
submitted claim forms, 170 are members of the subclass of current Oregon employees and will
receive a total of $149,600, 114 are members of the subclass of former Oregon employees and
will receive a total of $204,174, and 58 are members of the subclass of current and former
Arizona employees and will receive $3,511.58. Of the 384 Settlement Class Members who did
not timely submit a claim form or a request for exclusion, 128 are members of the subclass of
current Oregon employees and will receive a total of $4,480, 82 are members of the subclass of
former Oregon employees and will receive a total of $2,870, and 174 are members of the
subclass of current and former Arizona employees and will receive nothing. In total Consumer
Cellular will pay $364,635.58 to class members, which is 58% of the NSF.
A. Certification of the Settlement Class
1. Notice to the Class
The Court granted preliminary approval to the parties’ proposed notice procedure after
the parties made certain amendments to the notice as requested by the Court. See ECF 19, 23.
The Court is satisfied that the notice procedure was carried out according to the applicable
standards. The Court finds that notice of the Amended Settlement was given to the Settlement
Class by the best means practicable under the circumstances, including mailing the notice and
claim form to the class members and posting the notice, claim form, settlement agreement, and
preliminary approval order on a dedicated website.
The Notice provided Settlement Class Members with all required information including,
among other things: (1) a summary of the lawsuit and the claims asserted; (2) a clear definition
of the Settlement Class; (3) a description of the material terms of the Amended Settlement; (4)
the requirement to submit a claim form and instructions as to how to do so and the deadline for
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doing so; (6) a disclosure of the release of claims should Settlement Class Members choose to
remain in the Settlement Class; (7) an explanation of Settlement Class Members’ opt-out rights,
the date by which Settlement Class Members must opt out, and information regarding how to do
so; (8) instructions about how to object to the Amended Settlement and the deadline for
Settlement Class Members to submit any objections; (9) the date, time, and location of the Final
Approval Hearing; (10) the internet address for the settlement website and the toll-free number
from which Settlement Class Members could obtain additional information about the Amended
Settlement; (11) contact information for the class counsel, the settlement administration, and the
court; and (11) information regarding how Class Counsel and the Class Representative would be
compensated. The Notice is sufficient. See Lane v. Facebook, Inc., 696 F.3d 811, 826 (9th
Cir. 2012) (reaffirming that a class notice need only “generally describe the terms of the
settlement in sufficient detail to alert those with adverse viewpoints to investigate and to come
forward and be heard” (alteration in original) (quoting Rodriguez v. W. Publ’g Corp., 563 F.3d
948, 962 (9th Cir. 2009)).
The form and method of notifying the Settlement Class fairly and adequately advised
Settlement Class Members of all relevant and material information concerning the Action and
the terms of the proposed Amended Settlement. The Court finds that the notice fully satisfies the
requirements of due process and Rule 23.
2. Final Certification
The parties jointly move to resolve this case as a settlement class. In order to certify a
settlement class, the requirements of Federal Rule of Civil Procedure 23 must be satisfied. See
Hanlon, 150 F.3d at 1019. Rule 23 affords this Court with “broad discretion over certification of
class actions . . . .” Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1021 (9th Cir. 2011). A
plaintiff seeking class certification must satisfy each requirement of Rule 23(a)—numerosity,
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commonality, typicality, and adequacy of representation—and at least one subsection of
Rule 23(b). See, e.g., Lozano v. AT & T Wireless Servs., Inc., 504 F.3d 718, 724 (9th Cir. 2007).
The parties agreed to certification of the class for settlement purposes, and the Court previously
evaluated the requisite factors in conditionally certifying the class for settlement purposes in the
preliminary approval of the Settlement. Having fully reviewed the record, the Court finds no
reason to alter that assessment. Accordingly, the Court certifies for settlement purposes the
following Settlement Class:
1. The Arizona Subclass consisting of a total of 232 current and former employees
of Consumer Cellular, Inc. who worked for Defendant between September 1,
2014 and March 31, 2015, and who allegedly earned overtime and nondiscretionary incentive pay and/or bonus pay during that time period;
2. The Oregon Current Employee Subclass consisting of a total of 300 current and
former employees of Consumer Cellular, Inc. who were working for Defendant as
of January 19, 2016, and who worked for Defendant between September 1, 2014
and March 31, 2015, and who allegedly earned overtime and non-discretionary
incentive pay and/or bonus pay during that time period; and
3. The Former Oregon Employee Subclass consisting of a total of 196 former
employees of Consumer Cellular, Inc. who worked for Defendant between
September 1, 2014 and March 31, 2015, and who allegedly earned overtime and
non-discretionary incentive pay and/or bonus pay during that time period.
B. Settlement Agreement
To approve a class action settlement, a court must find that the settlement is “fair,
reasonable, and adequate.” Fed. R. Civ. P. 23(e); Lane, 696 F.3d at 818. The settlement must be
considered as a whole, and although there are “strict procedural requirements on the approval of
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a class settlement, a district court’s only role in reviewing the substance of that settlement is to
ensure it is ‘fair, adequate, and free from collusion.’” Lane, 696 F.3d at 818-19 (quoting
Hanlon, 150 F.3d at 1027). A number of factors guide this review, including: (1) the strength of
plaintiff’s case; (2) the risk, expense, complexity, and likely duration of further litigation; (3) the
risk of maintaining class action status throughout the trial; (4) the amount offered in settlement;
(5) the extent of discovery completed and the stage of the proceedings; (6) the experience and
views of counsel; (7) the presence of a governmental participant; and (8) the reaction of the class
members to the proposed settlement. Id. at 819. Courts within the Ninth Circuit “put a good deal
of stock in the product of an arms-length [sic], non-collusive, negotiated resolution.”
Rodriguez, 563 F.3d at 965.
Additionally, class action settlements involve “‘unique due process concerns for absent
class members’ who are bound by the court’s judgments.” Radcliffe v. Experian Info. Sols.
Inc., 715 F.3d 1157, 1168 (9th Cir. 2013) (quoting In re Bluetooth, 654 F.3d at 946). Where the
settlement agreement is negotiated before formal class certification, as in this case, the district
court should engage in “an even higher level of scrutiny for evidence of collusion or other
conflicts of interest than is ordinarily required under Rule 23(e) . . . .” In re Bluetooth, 654 F.3d
at 946. Evidence of collusion may not be evident on the face of a settlement, and a court should
consider whether there is evidence of more subtle signs of collusion. Staton v. Boeing Co., 327
F.3d 938, 958 n.12, 960 (9th Cir. 2003). The Court reviews, in turn, the relevant factors bearing
on the evaluation of whether the Amended Settlement is fair, reasonable and adequate.
1. The Strength of Plaintiff’s Case
This factor examines the strength of a plaintiff’s case on the merits balanced against the
amount offered in the settlement. Ontiveros v. Zamora, 303 F.R.D. 356, 369 (E.D. Cal. 2014).
The “fairness hearing is not to be turned into a trial or rehearsal for trial on the merits,” and the
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court is not “to reach any ultimate conclusions on the contested issues of fact and law which
underlie the merits of the dispute, for it is the very uncertainty of outcome in litigation and
avoidance of wasteful and expensive litigation that induce consensual settlements.” Officers for
Justice v. Civil Serv. Comm’n, 688 F.2d 615, 625 (9th Cir. 1982).
The parties state that the settlement agreement was driven by Plaintiff’s claim for penalty
wages under Or. Rev. Stat. § 652.150 because the amount of unpaid overtime caused by
Consumer Cellular’s computation error was relatively small and had previously been paid to
class members who were employed at the time Consumer Cellular corrected the error. In order to
recover penalty wages for the two Oregon subclasses, Plaintiff would have had to establish that
Consumer Cellular willfully violated Oregon law, which Plaintiff states would be difficult to
accomplish. Plaintiff also states that it could face significant challenges in maintaining Rule 23
class certification on that issue. Thus, the Amended Settlement balances the strengths and
weaknesses of the parties’ positions on class treatment, liability, and damages, while providing
significant recovery for the class members. This factor weights in favor of approval.
2. The Risk, Expense, Complexity, and Likely Duration of Further Litigation
The central consideration for this factor is the expense of litigation. Nat’l Rural
Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 526 (C.D. Cal. 2004). Generally, “unless
the settlement is clearly inadequate, its acceptance and approval are preferable to lengthy and
expensive litigation with uncertain results.” Id.
The parties agree that if this case had not settled, they would have had to engage in
significant additional discovery and to file motions for conditional certification of the FLSA
Class, certification of the Rule 23 Class, likely cross-motions on summary judgment, and
Consumer Ceullar’s presumptive motions to decertify the FLSA and Rule 23 classes. These
litigation steps would have been expensive, complex, and protracted. The Amended Settlement
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avoids these expenditures of resources for all parties and the Court and provides Settlement Class
Members with “certain and prompt relief,” a “significant benefit that [they] would not receive if
the case proceeded.” See Barbosa v. Cargill Meat Sols. Corp., 297 F.R.D. 431, 446 (E.D.
Cal. 2013). This factor weights in favor of approval.
3. The Risk of Maintaining Class Action Status
The parties assert that even though certification of the FLSA collective class was
probable as a result of the FLSA regular rate computation error, Plaintiff faced the risk that she
would not be able to certify and to maintain a Rule 23 class for the Oregon employees. In
addition, even assuming Plaintiff prevailed on class certification, Plaintiff still faced
decertification on both classes because Consumer Cellular asserted that: (1) Plaintiff’s claims
suffered from multiple issues making class or collective treatment inappropriate, and (2) Oregon
rules relating to pre-conditions for class treatment applied and precluded class treatment of the
Oregon wage penalty claims. The Court finds that resolving the case now guarantees recovery
for the participating Settlement Class Members. This factor weights in favor of approval.
4. The Amount Offered in Settlement
When considering the fairness and adequacy of a settlement, “it is the complete package
taken as a whole, rather than the individual component parts, that must be examined for overall
fairness.” Ontiveros, 303 F.R.D. at 370 (quoting DIRECTV, 221 F.R.D. at 527). “It is
well-settled law that a proposed settlement may be acceptable even though it amounts to only a
fraction of the potential recovery that might be available to the class members at trial.” Id.
Members of the Arizona Employee Subclass will receive the amount of their actual
recomputed overtime or $50, whichever is greater. The parties state that the average recovery for
the 52 participating members of the Arizona Employee Subclass members is $60. Members of
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the Arizona Employee Subclass who did not return a Claim Form will not receive any benefit,
but they also do not release any rights under the FLSA or Arizona law.
The proposed settlement provides $364,635.58 (exclusive of attorneys’ fees, costs, and
the incentive payment) to the participating class members and the non-participating members of
the Oregon Current and Former Employee Subclasses. As discussed, participating Oregon
current employees will receive $880 each, and participating Oregon former employees will
receive $1,791 each. The parties assert that the differing recoveries for the Oregon Current and
Former Employee Subclasses are in recognition of fact that the entitlement of the Oregon
Current Employee Subclass to a wage penalty pursuant to Or. Rev. Stat. § 652.150 is less certain.
Although the entitlement of the members of the Oregon Former Employee Subclass to this
penalty is more likely, those subclass members still face uncertainties caused by Consumer
Cellular’s claim that it did not act willfully and its claim that Plaintiff failed to comply with
Oregon’s pre-litigation class action notice requirements. Oregon Current and Former Employee
Subclass members who did not opt-out will receive $35 and release claims under Oregon law,
but will not release any FLSA claims.
Moreover, the Settlement Class Members’ recovery far exceeds their actual damages.
The actual amount of overtime at issue for the Settlement Class Members ranged from $.02 to
$822, with the next closest amount at $360. 646 of the Settlement Class Members had actual
overtime amounts at issue under $25. Finally, the fact that there were no objections to the
Amended Settlement and only two opt-outs suggests that the amount is fair and adequate. See
Barbosa, 297 F.R.D. at 447 (noting that the lack of objections and single request to opt-out of the
agreement showed class member support of settlement). This factor weights in favor of approval.
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5. The Extent of Discovery Completed
Formal discovery is not required before a class action settlement. Linney v. Cellular
Alaska P’ship, 151 F.3d 1234, 1239-40 (9th Cir. 1998). Rather, “[a]pproval of a class action
settlement is proper as long as discovery allowed the parties to form a clear view of the strengths
and weaknesses of their cases.” Monterrubio v. Best Buy Stores, L.P., 291 F.R.D. 443, 454 (E.D.
Cal. 2013). The Court and the parties may also rely on discovery developed in prior or related
proceedings. Linney, 151 F.3d at 1239-40.
The parties assert that they obtained sufficient discovery to assess the claims and
defenses in this case. Before the mediation, Plaintiff required Consumer Cellular to produce
sufficient documentation regarding Consumer Cellular’s claim that the computation error was
limited to an approximately seven-month period and that Consumer Cellular paid the recomputed
overtime to the impacted employees still employed by Consumer Cellular when Consumer
Cellular discovered the error. Consumer Cellular provided this data. In addition, the parties’ use
of mediation after conducting discovery, and the exchanges of information that occurred during
and after the mediation, assure that the parties had more than adequate information with which to
assess their cases and reach a reasonable settlement. This factor weights in favor of approval.
6. The Experience and Views of Counsel
“‘Great weight’ is accorded to the recommendation of counsel, who are most closely
acquainted with the facts of the underlying litigation.” DIRECTV, 221 F.R.D. at 528 (quoting In
re Painewebber Ltd. P’ships Litig., 171 F.R.D. 104, 125 (S.D.N.Y. 1997)). “This is because
‘parties represented by competent counsel are better positioned than courts to produce a
settlement that fairly reflects each party’s expected outcome in the litigation.’” Id. (alteration
omitted) (quoting In re Pac. Enters. Sec. Litig., 47 F.3d 373, 378 (9th Cir. 1995)). Absent fraud
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or collusion, courts can, “and should, rely upon the judgment of experienced counsel for the
parties,” when assessing a settlement’s fairness and reasonableness. Barbosa, 297 F.R.D. at 447.
Class counsel have extensive experience in representing employees in wage and hour
litigation. Alan J. Leiman has over 24 years of litigation experience, including 5 years of
experience representing plaintiffs in wage and hour class and collective actions. Drew G.
Johnson has six years of legal experience, including 5 years of litigation experience representing
plaintiffs in wage and hour class and collective actions. Counsel for both parties agree that the
settlement is fundamentally fair, adequate, and reasonable; is the result of arm’s-length
negotiations between counsel representing the interests of Plaintiff and Consumer Cellular; was
facilitated by a skilled mediator; and occurred only after thorough factual and legal investigation.
This factor weights in favor of approval.
7. The Presence of a Government Participant
The Class Action Fairness Act (CAFA) provides in relevant part:
Not later than 10 days after a proposed settlement of a class action
is filed in court, each defendant . . . shall serve upon the
appropriate State official of each State in which a class member
resides and the appropriate Federal official, a notice of the
An order giving final approval of a proposed settlement may not be
issued earlier than 90 days after the later of the dates on which the
appropriate Federal official and the appropriate State official are
served with the notice required under subsection (b).
28 U.S.C. § 1715(b), (d). The parties state that they provided notice of the proposed settlement
to the Attorneys General of the United States, Arizona, and Oregon on March 19, 2017.1 The 90-
The Court observes that the parties did not comply with the 10-day notice period
required by Section 1715. Nevertheless, the Court finds that “ the substance of the requirements
have been satisfied insofar as giving federal and state officials sufficient notice and opportunity
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day notice period expired on June 19, 2017, with no Attorney General having objected to the
proposed settlement. This factor weights in favor of approval.
8. The Reaction of the Settlement Class
Of the 693 notice packets successfully mailed to Settlement Class Members, no one
objected and only two individuals sought to exclude themselves from the Amended Settlement.
CAA received responses from 344 of the 693 Settlement Class Members who received the notice
packet, which is a response rate of 50.1%. The participation rate, in combination with the lack of
any objections to the Amended Settlement, provides a strong presumption that the Amended
Settlement is fair, reasonable, and adequate. See, e.g., DIRECTV, 221 F.R.D. at 529 (“The
absence of a single objection to the Proposed Settlement provides further support for final
approval of the Proposed Settlement.”); OmniVision, 559 F. Supp. 2d at 1043 (“By any standard,
the lack of objection of the Class Members favors approval of the Settlement.”). Thus, this factor
weighs in favor of approval.
9. Evidence of Collusion
Courts considering a pre-class certification settlement must examine whether the
settlement was the result of good faith, arm’s-length negotiations or the result of fraud and
collusion. Bellinghausen, 306 F.R.D. at 258. The Ninth Circuit has identified three signs of
collusion: (1) class counsel receives a disproportionate distribution of the settlement, or when the
class receives no monetary distribution but counsel is amply awarded; (2) the parties negotiate a
“clear sailing” arrangement providing for the payment of attorneys’ fees separate and apart from
class funds without objection by a defendant; or (3) the parties arrange for payments not awarded
to be heard concerning the” Amended Settlement. In re Processed Egg Prods. Antitrust
Litig., 284 F.R.D. 278, 287 n.10 (E.D. Pa. 2012).
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to revert to a defendant rather than to be added to the class fund. In re Bluetooth, 654 F.3d
First, class counsel does not receive a disproportionate distribution of the settlement.
Although Consumer Cellular will pay a total of $364,635.58 to Settlement Class Members,
which is only about 44% more than the requested amount in attorney’s fees, the class still
receives considerably more than counsel. Greater participation would have increased the spread
between the requested attorney’s fees and the amounts paid to the class members, but at close
to 50%, the response rate was reasonable. Moreover, there is no evidence that CAA failed
adequately to notify the Settlement Class Members.
Second, the parties negotiated a “clear sailing” arrangement whereby Consumer Cellular
agreed not to object to the class counsel’s request for attorney’s fees, but this fact does not
warrant denying final approval because the Amended Settlement provides that the Court’s
approval of the attorney’s fees is separate from its approval of the Amended Settlement.
Moreover, the parties engaged in settlement negotiations overseen by a neutral mediator, and
there have been no objections to the settlement. See Deaver v. Compass Bank, 2015
WL 8526982, at *9 (N.D. Cal. Dec. 11, 2015) (approving a proposed settlement even though two
of three factors were present, including a clear sailing provision, because there were no
objections to the settlement and the “parties engaged in settlement talks overseen by a neutral
mediator before agreeing on this settlement”).
Third, although the Amended Settlement provides for reversion to Consumer Cellular of
payments not awarded, several factors support reversion, and there is no evidence that the
reversion is the product of collusion. Actual FLSA overtime underpayments were low, ranging
from $.02 to $822, with the next closest underpayment at $360. The average amount of unpaid
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overtime is $11.84. The recoveries provided for in the Amended Settlement, however, are
substantially greater than the actual underpayments. The Amended Settlement was driven by the
highly disputed alleged entitled of the Oregon Current and Former Employee Subclass Members
to penalty wages under Or. Rev. Stat. § 652.150, not fraud or collusion.
Although two of the Bluetooth factors are present, the record contains no evidence of
fraud or collusion. The parties reached the Amended Settlement only after working with a
neutral mediator and conducting an additional five months of negotiation after the Court’s denial
of the initial proposed settlement. Accordingly, this factor weighs in favor of approval.
After considering the relevant factors and circumstances, the Court finds that the
Amended Settlement is fair, reasonable, and adequate to the Settlement Class Members and that
each Settlement Class Members (except those who have timely submitted a valid request for
exclusion) shall be bound by the Amended Settlement. The persons who have timely requested
exclusion from the Settlement Class are not Settlement Class Members, shall have no rights or
interests with respect to the Amended Settlement, and shall not be bound by any orders or
judgments entered in respect to the Amended Settlement.
C. Incentive Award, Attorney’s Fees, and Costs
1. Incentive Award
“Incentive awards are payments to class representatives for their service to the class in
bringing the lawsuit.” Radcliffe, 715 F.3d at 1163. They are often taken from a common
settlement fund. Id. Although incentive awards are “fairly typical in class action cases,”
Rodriguez, 563 F.3d at 958, they should be scrutinized carefully to ensure “that they do not
undermine the adequacy of the class representatives.” Radcliffe, 715 F.3d at 1163. A court
should analyze incentive awards individually and, as relevant to this case, should consider
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factors such as “‘the actions the plaintiff has taken to protect the interests of the class, the degree
to which the class has benefitted from those actions, [and] the amount of time and effort the
plaintiff expended in pursuing the litigation . . . .’” Staton, 327 F.3d at 977 (alteration omitted)
(quoting Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998)).
Plaintiff contributed considerable time and effort and personal resources towards the
settlement in this case. Before the Plaintiff filed the case, Plaintiff provided the documentation
that allowed her counsel to discover the regular rate computation error that supports the
Plaintiff’s theory of the case. Plaintiff assisted with the preparation and review of the Complaint
before filing it. During the approximately 4.5 month period between filing and the mediation,
Consumer Cellular provided data and documentation to Plaintiff’s counsel for review and
analysis, and Plaintiff assisted her counsel by answering questions about incentive pay, bonuses,
and other issues that counsel was evaluating.
The parties note Plaintiff also traveled a considerable distance at her own expense to
attend an all-day mediation in Portland. Plaintiff was an active participant at the mediation, acted
as an advocate for the employees, and did not appear to be acting in her own self-interest. In
the 4.5 months that the parties spent negotiating the written settlement agreement after the
mediation, Plaintiff contacted counsel for updates, reviewed the settlement agreement, and posed
questions about it before signing it. Under these circumstances, Plaintiff’s requested incentive
award of $2,500 is reasonable.
2. Attorney’s Fees
Requests for attorney’s fees must be made by a motion pursuant to Federal Rules of Civil
Procedure 54(d)(2) and 23(h), and notice of the motion must be served on all parties and class
members. Fed. R. Civ. P. 23(h). When settlement is proposed along with a motion for
certification, notice to class members of the fee motion ordinarily accompanies the notice of the
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settlement proposal itself. Advisory Committee Notes to Fed. R. Civ. P. 23(h). The deadline for
class members to object to requested fees must be set after the motion for the fees and documents
supporting the motion have been filed. In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988,
993 (9th Cir. 2010). “Allowing class members an opportunity thoroughly to examine counsel’s
fee motion, inquire into the bases for various charges and ensure that they are adequately
documented and supported is essential for the protection of the rights of class members.” Id.
at 994. Here, the notice and filing of the motion for attorney’s fees complied with In re Mercury,
providing Settlement Class Members with the opportunity to review Class Counsel’s motion for
attorney’s fees and supporting documents before the deadline to object.
In considering the amount of attorney’s fees for class counsel where there is a common
fund, “courts have discretion to employ either the lodestar method or the percentage-of-recovery
method.” In re Bluetooth, 654 F.3d at 942. Courts typically use the percentage approach when
awarding attorney’s fees with the lodestar serving as a “cross check” on the reasonableness of
the percentage. See, e.g., Barbosa, 297 F.R.D. at 448; Franco v. Ruiz Food Prods., Inc., 2012
WL 5941801, at *18 (E.D. Cal. Nov. 27, 2012). Under either method, the court must exercise its
discretion to achieve a reasonable result. Because reasonableness is the goal, “mechanical or
formulaic application of either method, where it yields an unreasonable result, can be an abuse of
discretion.” Fischel v. Equitable Life Assurance Soc’y of the U.S., 307 F.3d 997, 1007 (9th
“Under the percentage-of-the-fund method, the district court may award plaintiffs’
attorneys a percentage of the common fund, so long as that percentage represents a reasonable
fee. The Ninth Circuit has set 25% of the fund as a ‘benchmark’ award under the percentage-ofthe-fund method.” Stanger, 812 F.3d at 738 (citation omitted); see also Hanlon, 150 F.3d
PAGE 18 – OPINION AND ORDER
at 1029. This amount may be adjusted, however, when “special circumstances” warrant a
departure. In re Bluetooth, 654 F.3d at 942. Courts must place in the record the relevant special
circumstances. Id. Factors that may be considered in making such a departure include: (1) the
result obtained; (2) the effort expended by counsel; (3) counsel’s experience; (4) counsel’s skill;
(5) the complexity of the issues; (6) the risks involved in the litigation; (7) the reaction of the
class; (8) non-monetary or incidental benefits, including helping similarly situated persons
nationwide by clarifying certain laws; and (9) comparison with counsel’s lodestar. See Vizcaino
v. Microsoft Corp., 290 F.3d 1043, 1048-50 (9th Cir. 2002); In re Heritage Bond Litig., 2005
WL 1594403, at *18 (C.D. Cal. June 10, 2005).
“Under the lodestar method, the Court multiplies a reasonable number of hours by a
reasonable hourly rate.” Id. at 1006. Because there is a strong presumption that the lodestar
amount represents a reasonable fee, adjustments to the lodestar ‘are the exception rather than the
rule.’” Stanger, 812 F.3d at 738 (quoting Fischel, 307 F.3d at 1007). “Once the lodestar has been
calculated, ‘the court may adjust it upward or downward by an appropriate positive or negative
multiplier reflecting a host of reasonableness factors, including the quality of representation, the
benefit obtained for the class, the complexity and novelty of the issues presented, and the risk of
nonpayment.’” Id. at 740 (quoting In re Bluetooth, 654 F.3d at 941-42).
Plaintiff seeks $250,000 in attorney’s fees, which is 27.8% of the $900,000 in the Gross
Settlement Fund. Thus, the Court considers whether any of the relevant special circumstances
warrant departure from the 25% benchmark and uses the lodestar as a cross-check.
a. Results Obtained
The most critical factor in granting attorney’s fees is the overall result and benefit to the
class. Richardson v. THD At-Home Servs., Inc., 2016 WL 1366952, at *8 (E.D. Cal. Apr. 6,
2016). The Amended Settlement provided a total possible settlement amount of up to $623,500
PAGE 19 – OPINION AND ORDER
to pay the Settlement Class, with the balance of the amount allocated to the negotiated attorney’s
fees, incentive award, and settlement administration costs. In addition, the individual unpaid
overtime actually accrued by class members ranges from a low of $.02 to a high of $822, with
the next closest amount of $360. Excluding the two individuals who had $360 and $822 in
overtime, the average amount of unpaid overtime due to the regular rate calculation error is
$11.84. Further, 646 of the 728 Settlement Class Members had less than $25 of overtime pay at
issue. Consumer Cellular states that before the commencement of this action, it had also paid
then current Arizona and Oregon employees the amount of their actual re-computed overtime
after correcting for the seven-month regular rate calculation error.
The Amended Settlement provides that participating Arizona subclass members receive
their actual re-computed overtime after correcting for the regular rate computation error or $50,
whichever is greater. The Oregon Current Employee Subclass will receive $880, and the Oregon
Former Employee Subclass will receive $1,791. Members of the Oregon subclasses who do not
return Claim Forms or request exclusion will receive $35. These payments are a positive result to
the Settlement Class Members relative to the actual damages that they suffered.
b. Risk of Litigation
“The risk of costly litigation and trial is an important factor in determining the fee
award.” Rosales, 2015 WL 4460635, at *20 (citing Chem. Batik v. City of Seattle, 19 F.3d 1297,
1299-1301 (9th Cir. 1994)). When considering the risks posed in litigation, “the risk of loss in a
particular case is a product of two factors: (1) the legal and factual merits of the claim, and (2)
the difficulty of establishing those merits.” City of Burlington v. Dague, 505 U.S. 557, 562
(1992). “In cases where recovery is uncertain, an award of one third of the common fund as
attorneys’ fees has been found to be appropriate.” Franco, 2012 WL 5941801, at *16.
PAGE 20 – OPINION AND ORDER
Plaintiff faced risks on multiple fronts in litigating this hybrid Rule 23 class and
collective action. Although the FLSA claims were common to the two-state collective, the
Oregon Rule 23 subclasses had separate issues relating to each subclass’ entitlement to an
Oregon wage penalty. Hybrid class and collective cases present substantial risks that subclass
groupings may be decertified after significant time and expense because of the myriad claims
and issues involved in the dispute. Consumer Cellular also raises a number of defenses that, if
successful, could significantly devalue or end the case. For instance, Consumer Cellular asserted
that Plaintiff did not provide an ORCP 32H notice of class action that Consumer Cellular
believes was required. Second, Consumer Cellular disputes the entitlement of the Current
Oregon Employee subclass members to penalty wages under Or. Rev. Stat. § 652.150. Third,
Consumer Cellular contended that it did not act “willfully.”
These legal and factual issues presented serious risks to the viability of this case and the
potential recovery that Plaintiff could receive. Plaintiff’s counsel’s ability to navigate these
matters and reach a favorable settlement for the class members warrants the 2.8% upward
departure from the 25% percent benchmark.
c. Counsel’s Skill
“The complexity of issues and skills required may weigh in favor of a departure from the
benchmark fee award.” Richardson, 2016 WL 1366952, at *9. “FLSA claims involve complex
mixed questions of fact and law, and issues must be resolved in light of volumes of legislative
history and over four decades of legal interpretation and administrative rulings.” Barrentine v
Ark.-Best Freight Sys., Inc., 450 U.S. 728, 743 (1981). Moreover, courts have recognized that
hybrid Rule 23 class and collective actions are the most complex FLSA cases. See Febus v.
Guardian First Funding Grp., LLC, 870 F. Supp. 2d 337, 340 (S.D.N.Y. 2012) (observing that
“courts have recognized that FLSA cases are complex and that ‘[a]mong FLSA cases, the most
PAGE 21 – OPINION AND ORDER
complex type is the hybrid action brought here, where state wage and hour violations are brought
as an opt out class action pursuant to Rule 23 in the same action as the FLSA opt in collective
action pursuant to 29 U.S.C. ' 216(b).’” (alteration in original) (quoting Johnson v.
Brennan, 2011 WL 4357376, at *17 (S.D.N.Y. Sept. 16, 2011)).
The materials filed in support of Plaintiff’s Motion for Attorneys’ Fees demonstrate that
Plaintiff’s counsel have substantial experience in wage and hour class and collective actions.
Alan Leiman has over 24 years of litigation experience, including five years of experience
representing plaintiffs in wage and hour class and collective actions. Drew Johnson has six years
of legal experience, including five years of litigation experience representing plaintiffs in wage
and hour class and collective actions. Johnson also has a Master’s Degree in Conflict Resolution,
in addition to 15 years of experience as a civil engineer and technical management consultant
that he applies to his evaluation of complex wage and hour cases. Stacy McKerlie, an associate
who assisted with this case, has two years of experience and has since left the firm for the
Oregon Bureau of Labor and Industries. This factor favors an upward departure of 2.8% from
the 25% benchmark.
d. Contingency Fee Agreement
In cases taken on contingency, courts tend to find above-market-value fee awards
appropriate to encourage counsel to take on contingency-fee cases for plaintiffs who otherwise
could not afford to pay hourly fees and to compensate counsel for the risk of non-payment that
they assume. Deaver, 2015 WL 8526982, at *11 (citing In re WPPSS Sec. Litig., 19 F.3d 1291,
1299 (9th Cir. 1994)). “This is especially true when class counsel has significant experience in
the particular type of litigation at issue; indeed, in such contexts, courts have awarded [a] 33
percent benchmark percentage.” Id.
PAGE 22 – OPINION AND ORDER
Plaintiff’s counsel accepted this case on a contingent basis, covered the costs of litigation,
and provided their time without a guarantee of compensation. This factor leans slightly in favor
of the 2.8% upward departure. See Richardson, 2016 WL 1366952, at *9 (“In considering both
the contingent nature of the work performed by Class Counsel as well as the risk involved in the
costs advanced, this factor weighs slightly in favor of a departure from the benchmark fee
e. Awards in Similar Cases
Several courts in the Ninth Circuit have held in wage and hour class actions that a 30% or
higher award is appropriate. See Miller, 2015 WL 4730176, at *8 (noting that courts in the Ninth
Circuit “usually award attorneys’ fees in the range of 30-40% in wage and hour class actions”
where the common fund is under $10 million). Courts have commonly approved awards of
approximately 33% in such cases. See, e.g., Deaver, 2015 WL 8526982, at *9; Lusby v.
GameStop Inc., 2015 WL 1501095, at *4 (N.D. Cal. Mar. 31, 2015); Burden v. SeleciQuote Ins.
Servs., 2013 WL 3988771, at *5 (N.D. Cal. Aug. 2, 2013); Barbosa, 297 F.R.D. at 450;
Franco. 2012 WL 5941801, at *18 same); Garcia v. Gordon Trucking, Inc., 2012 WL 5364575
(E.D. Cal. Oct. 31, 2012); Vasquez, 266 F.R.D. 482 ; Romero v. Producers Dairy Food
Inc., 2007 WL 3492841, at * 4 (E.D. Cal. Nov. 14, 2007). Plaintiff’s request for an award
of 27.8% of the common fund is in line with attorney’s fees approved in other wage and hour
class actions in the Ninth Circuit, which supports the slight upward departure from the
f. Comparison with Counsel’s Lodestar
Plaintiff’s counsel calculates the lodestar at $85,265 based on 283.2 billable hours,
including 50 hours to-be billed after the filing of the motion for attorney’s fees. Plaintiff seeks an
hourly rate of $325 for Alan J. Leiman, $275 for Drew G. Johnson, and $175 for Stacy
PAGE 23 – OPINION AND ORDER
McKerlie. The Court finds these hours and rates reasonable. The award sought by Plaintiff’s
counsel is 2.9 times the lodestar. “It is an established practice in the private legal market to
reward attorneys for taking the risk of non-payment by paying them a premium over their normal
hourly rates for winning contingency cases.” Franco, 2012 WL 5941801, at *21 (quoting
Fischel, 307 F.3d at 1008). “Multipliers in the 3-4 range are common in lodestar awards for
lengthy and complex class action litigation.” Miller, 2015 WL 4730176, at *9. The Court finds a
multiplier of 2.9 reasonable in this case. Thus, the Court grants Plaintiff’s request for an award
of $250,000 in attorney’s fees.
Plaintiff requests administrative costs of $24,000, which is the amount specified in the
Amended Settlement and the amount being charged by CAA, the third-party settlement
administrator retained by Plaintiff=s counsel to administer the settlement. These costs cover the
creation and hosting of a claims website, the maintenance of a call center and address database,
the mailing of notices, the processing of forms, and the distribution of benefits. The Court finds
that the requested costs have been reasonably and necessarily incurred and are recoverable from
the proceeds of the common fund. See, e.g., Wininger v. SI Mgmt., L.P., 301 F.3d 1115, 1120-21
(9th Cir. 2002) (noting that “jurisdiction over a fund allows for the district court to spread the
costs of the litigation among the recipients of the common benefit”); In re Media Vision Tech.
Sec. Litig., 913 F. Supp. 1362, 1366 (N.D. Cal. 1996) (“Reasonable costs and expenses incurred
by an attorney who creates or preserves a common fund are reimbursed proportionately by those
class members who benefit by the settlement.”).
The requested costs are consistent with costs awarded in wage and hour matters, and
payment of these costs is already factored into the allocation, which has been communicated to
Plaintiff. See, e.g., Rosales, 2015 WL 4460635, at *32 (approving costs of $36,620.54 in unpaid
PAGE 24 – OPINION AND ORDER
wages case); Barbosa, 297 F.R.D. at 454 (finding costs of $32,722.74 for travel, mediation fees,
photocopying, private investigator to locate missing class members, and delivery and mail
charges). Thus, the Court approves the requested costs of $24,000.
Plaintiffs’ Joint Motion for Settlement (ECF 28) is GRANTED. Plaintiff’s Unopposed
Motion for Attorney Fees (ECF 24) is GRANTED. Class Counsel is awarded attorney’s fees in
the amount of $250,000 and costs in the amount of $24,000. The named Plaintiff is awarded
$2,500 as an incentive award.
IT IS SO ORDERED.
DATED this 21st day of June, 2017.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 25 – OPINION AND ORDER
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