Robles v. Comtrak Logistics, Inc.

Filing 195

ORDER granting 186 Motion for Final Approval of Class Action Settlement; granting 187 Motion for Attorneys' Fees, signed by Judge Samuel H. Mays, Jr. on 12/14/2022. (Mays, Samuel)

Case 2:15-cv-02228-SHM-tmp Document 195 Filed 12/14/22 Page 1 of 40

PageID 2570

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
)
)
)
)
)
)
)
Plaintiffs,
)
)
v.
)
No. 15-cv-2228
)
COMTRAK LOGISTICS, INC., HUB
)
GROUP INC., HUB GROUP
)
TRUCKING INC., and DOES 1
)
through 10,
)
)
Defendants.
)
)
ORDER GRANTING MOTION FOR FINAL APPROVAL OF CLASS ACTION
SETTLEMENT AND GRANTING MOTION FOR ATTORNEYS’ FEES, COSTS,
AND INCENTIVE AWARDS
SALVADOR ROBLES, JORGE
AVALOS, JOSE MARQUEZ, and
CARLOS BARILLAS, individually
and on behalf of others
similarly situated,

This

is

Defendants,

a
who

misclassified

class

action

operate

their

a

drivers

in

which

shipping
as

and

it

is

alleged

trucking

independent

that

business,

contractors

in

violation of California law. The parties came to a settlement,
and this Court granted preliminary approval on July 21, 2022.
(ECF No. 183.) Representative Plaintiffs Salvador Robles, Jorge
Avalos, Jose Marquez, and Carlos Barillas filed their Unopposed
Motion for Final Approval of Class Action Settlement (“Final
Approval Motion”) on November 3, 2022. (ECF No. 186.) On the
same day, Representative Plaintiffs filed their Unopposed Motion
for Approval of Attorneys’ Fees, Costs, and Service Payments

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from Class Action Settlement (“Fees Motion”). (ECF No. 187.) The
Court held a fairness hearing to consider the motions on November
17, 2022. (ECF No. 188.) For the following reasons, the Motions
are GRANTED.
I. Factual and Procedural Background
A. Plaintiffs’ Class Action Labor and Employment Claims
1. The Pleadings and Defendants’ Motions to Dismiss
Defendants hired California-based drivers for their freight
shipping and trucking business and classified those drivers as
independent contractors. (ECF No. 57 at ¶ 5.) Representative
Plaintiff Robles filed this lawsuit against Defendant Comtrak
Logistics, Inc. (“Comtrak”) on January 25, 2013, in the United
States District Court for the Eastern District of California,
alleging essentially that Comtrak should have classified its
drivers as employees. (ECF No. 1.) Robles alleged that, because
the

drivers

were

misclassified,

they

are

owed

considerable

compensation for unpaid wages, missed meal and rest breaks,
unreimbursed

business

expenses,

and

various

other

related

statutory penalties and damages. (See id.)
On May 6, 2013, Robles filed his First Amended Complaint
(“FAC”) against Comtrak addressing issues raised by Defendants
in a motion to dismiss. (ECF No. 24.) On June 3, 2013, Defendants
filed a renewed motion to dismiss directed solely to whether the
Federal

Aviation

Administration
2

Authorization

Act

of

1994

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(“FAAAA”) preempted California’s Labor Code with respect to
interstate drivers in California. (ECF No. 25.)
The renewed motion to dismiss was fully briefed by the
parties. On August 5, 2013, the Eastern District of California
stayed all proceedings pending a ruling from the Ninth Circuit
Court of Appeals on either of two separate cases then before the
appellate court addressing the same FAAAA preemption issues
raised in the motion to dismiss. (ECF No. 36.) Both sides
thereafter regularly submitted supplemental briefs addressing
pertinent issues that were evolving while the

parties were

awaiting the Ninth Circuit’s decision on FAAAA preemption. (ECF
Nos. 29-36, 43, 50-53.)
On September 8, 2014, the Ninth Circuit handed down Dilts
v. Penske Logistics, LLC, 769 F.3d 637, 640 (9th Cir. 2014)
(“Dilts”). The ruling largely favored plaintiff truck drivers
with

similar

misclassification

claims

and

denied

federal

preemption. Id. Following Dilts, on December 19, 2014, the Court
denied Defendants’ motion to dismiss the FAC. (ECF No. 54.)
2. Comtrak
Members

Settles

with

Individual

Putative

Class

On about August 27, 2014 -- six weeks after Dilts, and
before the district court issued its ruling on the motion to
dismiss

--

Comtrak

began

a

campaign

of

making

individual

settlement offers to putative class members. (ECF No. 192 at

3

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¶ 6.)

The

individual

settlement

agreements

and

PageID 2573

releases

(“Individual Settlement(s)”) included consideration ranging from
$3,000 to $45,000 based on the driver’s tenure with Comtrak.
(Id.)
The next day, Representative Plaintiffs filed an ex parte
application to enjoin Comtrak’s Individual Settlement efforts.
(ECF No. 44.) The court denied that request. (ECF No. 49.) Over
a period of about a week, Comtrak was able to reach settlements
with 632 of the 683 class members and paid a total of $9,087,000
to those 632 drivers, an average settlement payment of $14,378
per driver. (ECF No. 182 at 3.)
3. Comtrak’s Motion to Change Venue
On January 16, 2015, Comtrak moved to change venue under a
venue-selection clause in the governing contracts. (ECF No. 59.)
On April 3, 2015, the Eastern District of California granted
Comtrak’s motion to transfer the case to the Western District of
Tennessee. (ECF Nos. 66, 67.)
4. The Second Amended Complaint & Defendants’ Motion
to Dismiss
On May 15, 2015, Representative Plaintiffs filed their
Second Amended Complaint (“SAC”), which added allegations that
the

Individual

Settlements

were

improper

and

should

be

invalidated. (ECF No. 86.) Representative Plaintiffs pled that
they brought this action on behalf of “[a]ll current and former

4

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California-based1 truck drivers for Defendants, at any time from
January 2009, to the present (the ‘Class Period’) and who were
classified by Defendants as independent contractors” (the “Class
Members”). (ECF No. 86 at ¶ 142.)
On June 8, 2015, Defendants filed a motion to dismiss the
SAC. (ECF No. 91.) In their motion, Defendants: (1) again raised
FAAAA preemption issues; (2) argued that Tennessee law should
govern; (3) asserted that none of the California state law claims
could survive under Tennessee law; and (4) asserted that the
Individual

Settlements

were

enforceable

and

barred

the

“settlement class” from proceeding. (ECF Nos. 91, 92.) On July
19, 2016, this Court applied California law, denied most of the
challenges raised in the motion to dismiss, and ruled that the
632 Individual Settlements were valid and enforceable. (ECF No.
110.) On August 11, 2016, Representative Plaintiffs filed a
motion for reconsideration of one particular issue, which this
Court denied on July 2, 2018. (ECF Nos. 113, 125.)

1

“California-based” refers to drivers “(i) who had a residential
address in California at any time during the Class Period; and/or (ii)
who were assigned or associated with a terminal in California at any
time during the Class Period.” (ECF No. 86 at ¶ 142.) The phrase
“assigned or associated with a terminal” is defined to include “any
and all Drivers listed in Defendants’ database in connection with a
terminal.” (Id.)
5

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5. The Operative Third Amended Complaint
On March 16, 2022, Plaintiffs filed their operative Third
Amended Complaint (“TAC”) with leave of Court to: (i) amend one
of the subclass definitions to conform to developments in the
case since the filing of the SAC, and (ii) to add a fourth
Representative Plaintiff, Carlos Barillas, because Barillas had
filed his own lawsuit against Comtrak years ago but had dismissed
it to be part of this case. (See ECF Nos. 175-177.) The class
definition remained unchanged from the definition in the SAC,
but the subclasses were amended to include: (1) the Robles
Subclass, which is defined as all Class Members who did not
execute releases of their claims in this action on or around and
after August 27, 2014; and (2) the Settlement-Release Subclass
(also referred to as the “Avalos/Marquez Subclass”), which is
defined as all Class Members who executed releases of their
claims in this action on or around and after August 27, 2014.
(ECF No. 177 at ¶¶ 143-144.)
B. The Concurrent California Private Attorney General Act
(“PAGA”) Action
On August 5, 2015, Plaintiff Andres Adame and others filed
a second action in California state court under the California
Private Attorneys General Act (“Adame PAGA Action”), asserting
various claims as agents of California, acting for the benefit
of both the state and a limited subgroup of drivers. (ECF No.

6

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186-4, Ex. 1.) Under PAGA, only state mandated penalties can be
sought, with 75% of those penalties paid directly to the state
of California, and 25% to litigants. Cal. Lab. Code § 2699(i).
No wage claims or failure to reimburse expense claims can be
asserted

in

a

PAGA

action

other

than

to

support

statutory

penalties. See id. § 2699. The filing of the Adame PAGA Action
in California resulted in another wave of motion practice, which
took considerable time to resolve.2
C. Global Mediation, Continued Negotiations, and Eventual
Settlement
1. The Parties’ Global Settlement Efforts
After this Court’s denial of Representative Plaintiffs’
motion for reconsideration in July 2018, the only potential
avenue

for

relief

for

those

drivers

2

who

had

entered

into

Defendants removed the PAGA case to the District Court for the
Central District of California. (ECF No. 186-4, Ex. 1 at 23.)
Plaintiffs filed a motion to remand. Defendants filed a motion to
transfer the case to this Court. On April 7, 2016, the Central District
of California granted Plaintiffs’ motion to remand and denied as moot
the transfer motion. The PAGA matter was then remanded to the
California Superior Court for the County of San Bernardino. (Id.)
Defendants subsequently filed in state court motions: (1) seeking an
order staying or dismissing the Adame PAGA Action; (2) seeking an
order striking allegations in the PAGA complaint, and (3) demurring
(the California state court equivalent to a 12(b)(6) motion to dismiss)
to the entire action. (Id., Ex. 1 at 20-22.) Following full briefing,
oral argument, multiple rounds of supplemental briefing, and another
hearing, the motions were largely denied. (Id., Ex. 1 at 8–20.) This
process took nearly a year. (See id.) In December 2017, Defendants
filed a motion for judgment on the pleadings in the Adame PAGA Action.
(Id., Ex. 1 at 15–16.) After multiple rounds of briefing and two
hearings, the California Superior Court denied Comtrak’s preemption
motion in large part. (Id., Ex. 1 at 12–20.)
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Individual Settlements was their right to seek appellate review
of this Court’s ruling enforcing those settlement in the United
States

Court

of

Appeals

for

the

Sixth

Circuit.

The

misclassification claims of the fifty-one drivers who had not
accepted Individual Settlements were still alive, and the Adame
PAGA Action was also proceeding. During the years those actions
were

pending,

operations

in

Defendants
California

restructured
so

that

no

their

transportation

owner-operator

drivers

remained in the state. (ECF No. 186-1 at ¶ 26, n.3.) As a result,
the damages Defendants faced were capped because of the change
to its business model.
Against this backdrop of many years of procedural and
substantive legal developments, and the reality of the effect of
the Individual Settlements, along with the prospect of more years
of litigation on two fronts, the parties turned their efforts
toward settlement. (Id. at ¶ 2.) In spring 2019, Defendants
agreed to produce mediation privileged data and information about
the fifty-one non-settled drivers, as well as data necessary to
evaluate the potential value of the Adame PAGA Action. (Id. at
¶ 3.) Counsel for both sides voluntarily exchanged detailed legal
memoranda addressing the many legal issues in both cases and the
impact of those issues on case valuations. (Id. at ¶ 5.)
An in-person settlement meeting took place on August 9,
2019, in Chicago, in which lead counsel for both parties and
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Defendants’ then-General Counsel participated. (Id. at ¶ 6.)
There was a full and frank discussion of the issues for many
hours, including debates about the likelihood that Defendants
would prevail on one or more of their preemption defenses, that
Representative Plaintiffs would succeed in obtaining and holding
onto

a

class

certification

ruling,

and

that

Representative

Plaintiffs would obtain a favorable verdict at trial and retain
it through appeal. (Id.)
Having been prepared by months of document review, data
analysis, and many years of litigation, the parties ultimately
reached what Representative Plaintiffs’ counsel asserts is a
fair and reasonable settlement for the three relevant groups:
(1) the Robles Subclass; (2) the Avalos/Marquez Subclass; and
(3) the Adame PAGA Action drivers. (Id. at ¶ 8.) Although an
agreement in principle was reached on the day of the settlement
conference,

the

parties

continued

to

work

for

many

months

establishing the details of the settlement and reducing their
agreement to writing. (Id. at ¶ 9.)
2. The Settlement Agreement
Conditional Certification of Two Subclasses for Settlement.
The Settlement Agreement defines two subclasses for purposes of
settlement: (1) all Class Members who did not sign an Individual
Settlement agreement (the “Robles Subclass”), consisting of 51
Class Members; and (2) all Class Members who signed an Individual
9

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Settlement agreement (the “Avalos/Marquez Subclass”), consisting
of the remaining 632 Class Members. (ECF No. 178-2 at ¶¶ 11-14.)
Settlement Amount and Allocation. Under the terms of the
Settlement Agreement, Defendants will pay $4,750,000 to settle
all claims raised in the pending litigation and the Adame PAGA
Action. (ECF No. 178-2 at ¶ 12.) Although the bulk of the
settlement funds will be directed to the Robles Subclass, who
have active and valuable claims, a modest component of the fund
will be directed to the subclass of drivers who signed Individual
Settlement Agreements. (Id.) Specifically, the Avalos/Marquez
Subclass is being paid a 10% “bump” over the amount they received
in their Individual Settlements years ago. (Id.) In exchange for
the 10% increase over the amount of their prior Individual
Settlements,

drivers

in

the

Avalos/Marquez

Subclass

release

their right to seek appellate review in the Sixth Circuit of the
Court’s

order

upholding

the

validity

of

the

Individual

Settlements. (Id. at ¶¶ 30, 46.) This was explained to the
Avalos/Marquez Subclass in the Notice approved by the Court.
(ECF No. 178-4.)
The Settlement Agreement provides for a maximum combined
total of $125,000 in service awards for the Representative
Plaintiffs. (ECF No. 178-2 at ¶ 19.)
The Settlement amount is non-reversionary; all funds will
be paid to the intended recipient or, as a last resort, to
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California’s unclaimed property fund in the intended recipient’s
name. (Id. at ¶ 45.) All Class Members who did not opt-out of
the Settlement will automatically receive their payments when
the Settlement becomes final. (Id.)
The Adame PAGA Action. The Settlement Agreement allocates
$150,000 to resolve the PAGA claims. Those funds are to be
distributed to the PAGA drivers (25%) and the State of California
(75%), as required by California law. ECF No. 178-2 at ¶ 19;
Cal. Lab. Code § 2699(i). The PAGA provisions cover all drivers
who were classified as independent contractors between June 26,
2014, and September 30, 2014 (356 drivers, all of whom are also
members of the Robles Subclass or the Avalos/Marquez Subclass).
(Id. at ¶ 12.)
On

August

11,

2022,

the

parties

moved

the

California

Superior Court for the County of San Bernadino to approve the
settlement. (ECF No. 186-4, Ex. 1 at 8.) The state court held a
hearing on November 30, 2022 and issued an order approving the
Settlement the same day. See Superior Court of California, County
of San Bernadino, Court Case Information and Document Sales,
Case

No.

CIVDS1511291,

https://www.sb-court.org/divisions/

civil-general-information/court-case-information-and-documentsales (last accessed Dec. 13, 2022).
Fairness and Reasonableness of the Settlement. The parties
and their counsel agree that the terms and conditions of the
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Settlement are fair, reasonable, and in the best interests of
all involved. (ECF No. 178-2 at ¶ 22–29.)
Class

Notice.

The

notice

provided

by

the

Settlement

Agreement was approved by the Court on July 21, 2022. (ECF No.
183.) The notice fully complies with Federal Rule of Civil
Procedure 23(c)(2)(B) in that it provides “individual notice to
all members who can be identified through reasonable effort” and
constitutes “the best notice that is practicable under the
circumstances.” The notice was sent to each Class Member’s last
known address via United States mail, as updated by appropriate
U.S. Postal Service searches, and clearly states: (i) the nature
of the action; (ii) the definition of the classes certified;
(iii) the class claims, issues, or defenses; (iv) that a Class
Member may enter an appearance through an attorney if the member
desires; (v) that the court will exclude from the class any
member who requests exclusion; (vi) the time and manner for
requesting exclusion or objecting; and (vii) the binding effect
of a class judgment on members under Rule 23(c)(3). (See ECF No.
178-4.)
3. Preliminary Approval of the Settlement
On March 24, 2022, Representative Plaintiffs moved for
preliminary approval of the Settlement Agreement. (ECF No. 178.)
The Court held a status conference on July 20, 2022, to discuss
the pending motion and concluded that a preliminary approval
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hearing was not necessary. (ECF No. 182.) The next day, the Court
issued an order granting the preliminary approval motion, in
which the Court: (1) conditionally certified a settlement class
with two subclasses, (2) appointed Marlin & Saltzman as class
counsel, (3) preliminarily approved the settlement, (4) approved
the class notice methods and form, (5) reserved judgment on the
requested fees, costs, and incentive awards, and (6) set a date
for a final approval hearing. (ECF No. 183.)
4. The Settlement Notice Process Following Preliminary
Approval
Beginning on August 4, 2022, the parties transmitted the
class lists to the settlement administrator. (ECF No. 186-3 at
¶ 5.) On August 15, 2022, the settlement administrator mailed
settlement notices to all Class Members, with a deadline of
September 29, 2022, for individuals to object or opt-out of the
settlement. (Id. at ¶ 7.) Thirty-seven notices were returned,
traced, and re-mailed. (Id. at ¶ 8.) Following remailing, three
notices were deemed undeliverable. (Id. at ¶ 9.) The settlement
administrator received one objection and one dispute as to the
amount of the settlement payment. (Id. at ¶10.) The individual
who objected subsequently withdrew his objection. (ECF No. 1861 at ¶ 35; ECF No. 186-2 at 94.) At the fairness hearing, counsel
for Representative Plaintiffs represented that the settlement
administrator had contacted the individual who had disputed the

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amount of his settlement and that that individual had withdrawn
his dispute. There are no pending objections or disputes about
the settlement.
II. Jurisdiction
The Court has jurisdiction under the Class Action Fairness
Act (“CAFA”), 28 U.S.C. § 1332(d)(2). Under CAFA, federal courts
have original jurisdiction of class actions in which: (1) any
member of the putative class of plaintiffs is a citizen of a
state different from any defendant; (2) the number of members of
the putative class is at least one hundred; and (3) the amount
in controversy exceeds the sum or value of $5,000,000, exclusive
of interest and costs. 28 U.S.C. § 1332(d)(2). Those requirements
are met here.3
III. Class Certification
Following preliminary approval, the approval of a class
action settlement is generally presumed to be reasonable, and
“an objecting class member must overcome a heavy burden to prove
that the settlement is unreasonable.” Levell v. Monsanto Research

3

Although the parties decided to settle for $4,750,000 (i.e., less
than the $5,000,000 threshold), “[t]he general rule is that ‘if
jurisdiction exists at the time an action is commenced, such
jurisdiction may not be divested by subsequent events.’” Metz v. Unizan
Bank, 649 F.3d 492, 501 (6th Cir. 2011) (quoting Freeport McMoRan,
Inc. v. K N Energy, Inc., 498 U.S. 426, 428 (1991)); see also ECF No.
186-2 at 4. Plaintiffs alleged in their initial complaint that the
aggregate value of putative Class Members’ claims exceeded $5 million.
(ECF No. 1 at ¶ 41.) That allegation is supported by the fact that the
total value of Comtrak’s Individual Settlements with drivers was more
than $9 million. (See ECF No. 186-1 at ¶ 3 n.1.)
14

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Corp.,

191

F.R.D.

conditionally

543,

certified

550

(S.D.

Ohio

Representative

2000).

The

Plaintiffs’

PageID 2584

Court

proposed

class when it preliminarily approved the settlement. (ECF No.
183 at 22.) There are no pending objections. Therefore, for the
reasons set forth in the Court’s order granting preliminary
approval, the Court finds that Representative Plaintiffs have
satisfactorily

shown

numerosity,

commonality,

typicality,

adequacy of representation by class counsel, predominance, and
superiority. (Id. at 7-14.)
IV. Final Approval of the Settlement
Sixth Circuit caselaw favors the settlement of class action
lawsuits. UAW v. Gen. Motors Corp., 497 F.3d 615, 632 (6th Cir.
2007). Approving a fair and reasonable settlement agreement
“promotes the public’s interest in encouraging settlement of
litigation.” Edwards v. City of Mansfield, No. 1:15-CV-959, 2016
U.S. Dist. LEXIS 64159, at *10 (N.D. Ohio May 16, 2016). “The
fairness of the settlement must be evaluated primarily based on
how it compensates class members.” Greenberg v. Procter & Gamble
Co. (In re Dry Max Pampers Litig.), 724 F.3d 713, 720 (6th Cir.
2013) (emphasis removed) (quoting Synfuel Techs., Inc. v. DHL
Express (USA), Inc., 643 F.3d 646, 654 (7th Cir. 2006)).
Under the Federal Rules of Civil Procedure, district courts
may approve a settlement upon a finding that the settlement is
fair, reasonable, and adequate after considering whether:
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(A) the class representatives and class counsel have
adequately represented the class;
(B) the proposal was negotiated at arm’s length;
(C) the relief provided for the class is adequate, taking
into account:
(i) the costs, risks, and delay of trial and appeal;
(ii) the effectiveness of any proposed method of
distributing relief to the class, including the method
of processing class-member claims;
(iii) the terms of any proposed award of attorney’s
fees, including timing of payment; and
(iv) any agreement required to be identified under
Rule 23(e)(3); and
(D) the proposal treats class members equitably relative to
each other.
Fed R. Civ. P. 23(e)(2).
In the Sixth Circuit, courts must also consider: (1) the
risk of fraud or collusion; (2) the complexity, expense and
likely duration of the litigation; (3) the amount of discovery
completed; (4) the likelihood of success on the merits; (5) the
opinion of class counsel and representatives; (6) the reaction
of absent class members; and (7) the public interest” (the “GM
Factors”). Gen. Motors, 497 F.3d at 631.
A. Class Representatives and Counsel Adequately Represented
the Class
Class

counsel

and

the

Representative

Plaintiffs

have

diligently prosecuted this case for nearly ten years. (See ECF
No. 1.) In that time, they have opposed multiple motions to
dismiss,

engaged

in

extensive

settlement

negotiations,

and

ultimately achieved a significant recovery on behalf of the
class. The absence of any objection evidences the Class Members’

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satisfaction

with

the

representation

of

their

PageID 2586

counsel

and

representatives. Under these circumstances, the first factor
under the Rules of Civil Procedure -- adequacy of representation
by

class

counsel

and

class

representatives

--

is

clearly

satisfied, as is the first GM Factor (i.e., no risk of fraud or
collusion). See Fed. R. Civ. P. 23(e)(2)(A); Gen. Motors, 497
F.3d at 631; Leonhardt v. ArvinMeritor, Inc., 581 F. Supp. 2d
818, 838 (E.D. Mich. 2008) (“Courts presume the absence of fraud
or collusion in class action settlements unless there is evidence
to the contrary.”).
B. The Proposed Settlement Was Negotiated at Arm’s Length
This case has been vigorously litigated by counsel on both
sides for many years. The parties did not enter into settlement
negotiations until after the resolution of multiple contested
motions to dismiss. (See ECF Nos. 25, 29, 91, 95, 186-1 at
¶¶ 2-5.) On beginning their negotiations, the parties produced
substantial mediation-privileged data, some going back more than
five years, to develop a fair and reasonable damages range. (ECF
No. 186-1 at ¶ 3.) The parties exchanged detailed legal memoranda
addressing the many complex legal issues in the case and the
impact of those issues on case valuations. (Id. at ¶ 5.)
The parties then held an in-person settlement meeting in
which

they

engaged,

over

the

course

of

many

hours,

in

a

discussion of all the pertinent issues, including but not limited
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PageID 2587

to the viability of a preemption defense and the likelihood of
Representative

Plaintiffs’

obtaining

a

class

certification

ruling. (ECF No. 186-1 at ¶ 6.) General Counsel for Defendants
participated in the meeting. (Id.) After reaching an agreement
in principle, the parties continued to work for many months
negotiating and reducing that agreement to writing. (Id. at ¶ 9.)
Under these circumstances, the second factor -- that the
settlement was negotiated at arm’s length -- is satisfied, as is
the third GM Factor (i.e., adequate discovery completed prior to
settlement). See Fed. R. Civ. P. 23(e)(2)(A); Gen. Motors, 497
F.3d at 631.
C. The Relief Provided for the Class is Adequate
The Settlement reached is fair and reasonable. On average
and before any deductions, each of the drivers included in the
Robles Subclass will be receiving approximately $1061.08 gross
for every week he or she drove for Defendants. (ECF No. 186-1 at
¶ 13.) Assuming the Court grants all requested attorneys’ fees,
costs,

and

incentive

awards,

the

settlement

administrator

estimates that the average payment to each Robles Subclass member
will be $55,080.75, the highest will be $237,774.92, and the
lowest

will

be

$2,988.90.

(ECF

No.

186-3

at

¶ 14.)

After

attorneys’ fees, costs, and incentive awards, the approximate
average payment to each Avalos/Marquez Subclass member will be
$1,137.95, the highest will be $3,546.53, and the lowest will be
18

Case 2:15-cv-02228-SHM-tmp Document 195 Filed 12/14/22 Page 19 of 40

PageID 2588

$236.44. (Id. at ¶ 15.) These numbers represent a significant
recovery for Class Members. The recovery for the Avalos/Marquez
Subclass is in addition to the $9,087,000 already paid to that
Subclass pursuant to the Individual Settlements.4
Although not a benefit provided directly by the agreement,
the Settlement was entered into only after Defendants ceased
hiring independent contractor drivers in the state of California.
(ECF No. 186-1 at ¶ 26, n.3.) Representative Plaintiffs’ lawsuit
thus provided an additional benefit to Class Members in that it
caused Defendants to change their allegedly unlawful business
practices.
The fifth GM Factor, the opinions of class counsel and class
representatives, favors the Settlement. Gen. Motors, 497 F.3d at
631.

Class

“outstanding

counsel
result”

opines
for

that

the

the

Robles

Settlement
Subclass

provides

and

that

an
the

Avalos/Marquez Subclass’s recovery is “more than adequate” given
the anticipated difficulty members of that subclass would have
in an attempt to void their Individual Settlements. (ECF No.
186-1 at ¶¶ 23-24.) Representative Plaintiffs have also said
they believe the Settlement is fair and reasonable. (ECF Nos.
178-7, 178-8, 178-9, 178-10.)

4

There were 632 drivers who accepted Individual Settlements. (ECF No.
186-1 at ¶ 3 n.1.) The average payment was $14,378.16. The Individual
Settlements ranged from $3000 to $45,000 based on the driver’s tenure
with Comtrak. (Id.)
19

Case 2:15-cv-02228-SHM-tmp Document 195 Filed 12/14/22 Page 20 of 40

Absent

Class

Members

support

the

Settlement.

PageID 2589

Only

one

objection and one dispute about the payment amount were filed.
(See ECF No. 186-3 at ¶ 10.) Both were subsequently withdrawn.
(Id.) The sixth GM Factor, the reaction of absent class members,
thus weighs in favor of approving the Settlement. See Gen.
Motors, 497 F.3d at 631.
1. The Costs, Risks, and Delay of Trial and Appeal
Taking into consideration the costs, risks and delay of
trial and appeal requires an analysis of Plaintiffs’ legal
claims, Defendants’ potential defenses, the strength of each set
of arguments, and the overall legal posture and circumstances of
the litigation. When these factors are considered, the relief
provided for the class is adequate, and GM Factors 2 (the
complexity, expense and likely duration of the litigation) and
4 (the likelihood of success on the merits) are satisfied. See
id.; Fed. R. Civ. P. 23(e)(2)(C)
First, the risks of continued litigation are substantial
due to the uncertainty and changing legal landscape affecting
several

critical

federal

preemption

issues.

The

relevant

preemption issues include:5

5

Because a successful preemption defense could prevent plaintiffs from
recovering anything from Defendants, such a defense poses a “‘real
risk of complete non-recovery’ if the action were to proceed.” Indirect
Purchasers v. Arctic Glacier, Inc. (In re Packaged Ice Antitrust
Litig.), No. 17-2137, 2018 U.S. App. LEXIS 13882, at *14 (6th Cir. May
24, 2018) (unpublished).
20

Case 2:15-cv-02228-SHM-tmp Document 195 Filed 12/14/22 Page 21 of 40

PageID 2590

1. Whether the FAAAA bars the application of California
employment laws in their entirety, as alleged by Defendants.
Although

both

this

Court

and

the

Eastern

District

of

California have concluded that the FAAAA does not pre-empt
California law, ECF No. 110 at 13–17, those rulings would
be subject to reexamination on appeal. The outcome of such
an appeal is not a foregone conclusion; the First Circuit
has ruled that, in at least some circumstances, the FAAAA
does preempt state employment laws. See, e.g., Schwann v.
FedEx Ground Package Sys., Inc., 813 F.3d 429, 436–40 (1st
Cir. 2016).
2. Whether regulations under the Federal Leasing Act
preempt expense reimbursement claims asserted in the Adame
PAGA Action. (See ECF No. 186 at 5 n.2.)
3. Whether a 2018 order of the Federal Motor Carrier
Safety Administration (“FMCSA”) applies retroactively so as
to eliminate the meal and rest break claims in this case.
The FMCSA’s December 28, 2018 order exercised the agency’s
authority to determine which state commercial motor vehicle
safety laws are preempted and overrode California’s meal
and rest break rules. California's Meal and Rest Break Rules
for Commercial Motor Vehicle Drivers, 83 Fed. Reg. 67,470
(Fed. Motor Carrier Safety Admin. Dec. 28, 2018); see also
Int'l Brotherhood of Teamsters, Loc. 2785 v. Fed. Motor
21

Case 2:15-cv-02228-SHM-tmp Document 195 Filed 12/14/22 Page 22 of 40

PageID 2591

Carrier Safety Admin., 986 F.3d 841, 845-46 (9th Cir. 2021).
The Ninth Circuit upheld that order, Loc. 2785, 986 F.3d at
845-46, and also recently held (over a dissent) that the
FMCSA’s

order

applies

retroactively,

Valiente

v.

Swift

Transp. Co. of Ariz., No. 21-55456, 2022 U.S. App. LEXIS
32424, at *3-4 (9th Cir. Nov. 23, 2022) (published). The
retroactivity

of

the

FMCSA’s

order

would,

however,

be

subject to litigation on appeal before the Sixth Circuit
and, potentially, the Supreme Court. Absent a settlement,
the issue is likely to generate further litigation, expense,
and uncertainty.
Second, the risks of continued litigation are increased
because California law governing independent contractor status
is continually evolving. See Dynamex Operations W., Inc. v.
Superior Ct., 416 P.3d 1, 7 (Cal. 2018) (modifying test for
independent contractor status); Cal. Lab. Code § 2775 (partially
adopting and partially modifying Dynamex). Frequent changes to
controlling

law,

and

the

accompanying

questions

of

retroactivity, increase the risk and uncertainty of litigation.
Third, class action litigation is time-consuming, and the
standard for obtaining and retaining class certification is
relatively difficult to satisfy. That increases the delay and
risk associated with continued litigation. The inherent risk and
difficulty of litigating as a class are further increased by the
22

Case 2:15-cv-02228-SHM-tmp Document 195 Filed 12/14/22 Page 23 of 40

PageID 2592

numerosity of the class and the existence of a parallel state
court action, both of which make a swift and decisive global
settlement more desirable.
Fourth, although it is axiomatic that continuing to litigate
imposes additional costs and leads to larger attorneys’ fees,
those expenses should not be ignored. If this case had not
settled,

Representative

Plaintiffs

would

have

incurred

substantial additional costs, including deposition fees, expert
witness fees, trial preparation fees, and travel expenses, as
well as considerable additional attorney time. (See ECF No. 1861 at ¶ 25.) The Settlement Agreement, in addition to providing
a certain and significant recovery to the class, forecloses those
additional costs.
Considering the risks, delay, and costs of trial and appeal,
the relief provided for the class is adequate. Fed. R. Civ. P.
23(e)(2)(C)(i). The magnitude of the recovery for Class Members,
the risk of non-recovery, and the financial and temporal costs
of continued litigation also make the settlement in the public
interest (GM Factor 7). See Gen. Motors, 497 F.3d at 631.
2. The Effectiveness of Any Proposed Method of
Distributing Relief to the Class, Including the
Method of Processing Class-Member Claims
Considering the effectiveness of distributing funds to the
class, the Settlement Agreement provides adequate relief. See
Fed.

R.

Civ.

P.

23(e)(2)(C)(ii).
23

Under

the

terms

of

the

Case 2:15-cv-02228-SHM-tmp Document 195 Filed 12/14/22 Page 24 of 40

PageID 2593

Settlement Agreement, the parties provided Class Members’ full
names, social security numbers, and last known addresses to the
settlement administrator, who then processed and updated those
lists using the National Change of Address Database maintained
by the U.S. Postal Service. (ECF Nos. 186-2, Ex. 1 at ¶ 38, 1863 at ¶ 6.) The settlement administrator sent the class notices
to the putative Class Members via U.S. mail. (ECF No. 186-3 at
¶ 7.) If any notice was returned as undeliverable, the settlement
administrator ran a “skip-trace” on the individual to locate an
updated address, and if an updated address was located, the
administrator re-sent the class notice via U.S. mail. (Id. at
¶¶8-9.)
The Settlement Agreement is an “opt-out” class. All Class
Members will be included in the Settlement and will be paid
automatically unless they expressly opt-out. (ECF No. 186-2, Ex.
1, at ¶¶ 42-43.) Putative class members who wished to opt-out
had forty-five days to do so and needed only to sign, date, and
mail notice to the settlement administrator. (Id. at ¶ 40.)
These

procedures

are

reasonable

and

are

likely

to

effectively distribute relief to the class, as shown by the fact
that the settlement administrator was unable to find a valid
address for only three of more than 630 Class Members. (ECF No.
186-3 at ¶ 9.)

24

Case 2:15-cv-02228-SHM-tmp Document 195 Filed 12/14/22 Page 25 of 40

PageID 2594

3. The Terms of the Requested Award of Attorney’s Fees
Class counsel seeks an award of $950,000 in attorneys’ fees,
which amounts to twenty percent of the gross settlement of
$4,750,000. (ECF No. 187.) Class counsel has pursued this case
since 2013 and invested approximately 1798 hours, representing
a lodestar value of $1,388,650. (ECF Nos. 1, 186-1 at ¶ 28-29.)
Under

these

discussed

circumstances,

in

this

Order

and

for

the

granting

the

reasons
Fees

more

fully

Motion,

the

contemplated attorneys’ fees are fair, just and reasonable.
4. Any Agreement Required to be Identified Under Rule
23(e)(3)
The Settlement Agreement and Amendment have been submitted
to the Court and are fully considered in this Order. (ECF No.
186-2.) Class counsel has filed a declaration saying that there
are no other agreements relating to this litigation. (ECF No.
186-1 at ¶ 34.)
D. The Proposal Treats Class Members Equitably Relative To
Each Other
Before approving a class action settlement, a court must
decide that the “proposal treats class members equitably relative
to each other.” Fed. R. Civ. P. 23(e)(2)(D). The court should
particularly evaluate “whether the apportionment of relief among
class members takes appropriate account of differences among
their claims, and whether the scope of the release may affect
class members in different ways that bear on the apportionment
25

Case 2:15-cv-02228-SHM-tmp Document 195 Filed 12/14/22 Page 26 of 40

PageID 2595

of relief.” Fed. R. Civ. P. 23(e)(2)(D), advisory committee’s
note to 2018 amendment.
Each member of the Robles Subclass will be paid based on
the number of weeks he or she worked for Defendants during the
relevant time period. (ECF No. 186-2 at 15.) That formula is
inherently
according

fair
to

the

and

equitable

amount

of

because

time

each

it

apportions

driver

was

relief

allegedly

misclassified. This distribution scheme aligns payments with the
claim size of each individual driver.
Because
Individual

the

Court

Settlement

has

recognized

Agreements,

the

the

validity
members

of
of

the
the

Avalos/Marquez Subclass will keep any money already paid to them.
(Id. at 15, 51.) Those Individual Settlement payments were
proportional to each driver’s tenure with Comtrak. (ECF No. 1861 at ¶ 3 n.1.) Under the Settlement, the Avalos/Marquez Subclass
will receive a 10% “bump” in addition to any amounts already
received in exchange for the waiver of any appellate challenge
to the enforceability of their Individual Settlement Agreements.
(ECF No. 186-2 at 15.) The payments to this Subclass, both under
the Individual Settlements and the Settlement Agreement, are
proportional to the amount of time drivers worked for Comtrak.
Members

of

each

Subclass

are

being

treated

equitably

relative to other members of their Subclass. The treatment of
members across both Subclasses is also equitable and provides
26

Case 2:15-cv-02228-SHM-tmp Document 195 Filed 12/14/22 Page 27 of 40

PageID 2596

adequate relief because the lower compensation (on a per driver
basis) paid to the Avalos/Marquez Subclass is aligned with, and
reasonable in light of, the greater difficulty members of that
Subclass would have in recovering further sums from Defendant
through continued litigation.
V. The Fees Motion
A. Attorneys’ Fees and Costs
“In a certified class action, the court may award reasonable
attorney’s fees and nontaxable costs that are authorized by law
or by the parties’ agreement.” Fed. R. Civ. P. 23(h). “In
general, there are two methods for calculating attorney’s fees:
the

lodestar

and

the

percentage-of-the-fund.”

Van

Horn

v.

Nationwide Prop. & Cas. Ins. Co., 436 F. App’x 496, 498 (6th
Cir. 2011) (unpublished). District courts have discretion in
selecting the fee amount and the method used to determine the
fee. Bowling v. Pfizer, Inc., 102 F.3d 777, 779 (6th Cir. 1996).
The percentage-of-the-fund method, however, tends to be favored
over the lodestar approach by courts in this circuit. See Lonardo
v. Travelers Indem. Co., 706 F.Supp.2d 766, 789 (N.D. Ohio 2010)
(stating that “percentage of the fund has been the preferred
method for common fund cases”); Sweetwater Valley Farm, Inc. v.
Dean Foods Co. (In re Se. Milk Antitrust Litig.), No. 2:07-CV
208, 2018 U.S. Dist. LEXIS 131855, at *13 (E.D. Tenn. July 11,
2018) (“[T]he percentage-of-the-fund method, however, clearly
27

Case 2:15-cv-02228-SHM-tmp Document 195 Filed 12/14/22 Page 28 of 40

PageID 2597

appears to have become the preferred method in common fund
cases.”).

Regardless

of

the

method

used,

the

principal

requirement is that the district court’s fee award be “reasonable
under the circumstances.” Rawlings v. Prudential-Bache Props.,
Inc., 9 F.3d 513, 516 (6th Cir. 1993).
Courts

in

this

Circuit

have

held

that

a

one-third

contingency fee is “within the range of fees often awarded in
common fund cases, both nationwide and in the Sixth Circuit.”
Se. Milk, 2018 U.S. Dist. LEXIS 131855, at *15; accord Johnson
v. Midwest Logistics Sys., Ltd., 2013 U.S. Dist. LEXIS 74201, at
*2 (S.D. Ohio May 25, 2013) (approving 33% attorneys’ fees plus
an incentive award); Stanley v. U.S. Steel Co., No. 04-74654,
2009 U.S. Dist. LEXIS 114065, at *8-10 (E.D. Mich. Dec. 8, 2009)
(30% award); In re Broadwing, Inc. ERISA Litig., 252 F.R.D. 369,
380 (S.D. Ohio 2006) (noting that a 23% common fund fee award is
“comparable to, and indeed, well below the percentage of the
recovery approved in similar cases” and collecting cases). This
Court has approved larger percentage awards. In re Regions Morgan
Keegan Sec., Derivative & ERISA Litig., No. 2:09-md-2009-SHMdkv, 2013 WL 12110279, at *8 (W.D. Tenn. Aug. 6, 2013) (granting
30% fee award).
Courts employing the percentage-of-the-fund approach are
not required to conduct a crosscheck using the lodestar method.
Feiertag v. DDP Holdings, LLC, No. 14-CV-2643, 2016 U.S. Dist.
28

Case 2:15-cv-02228-SHM-tmp Document 195 Filed 12/14/22 Page 29 of 40

PageID 2598

LEXIS 122297, at *20-21 (S.D. Ohio Sept. 9, 2016). However, doing
so often aids the court in determining the reasonableness of the
requested fee award. See id.
“Often, but by no means invariably,” the district court’s
explanation of its fee award will address “(1) the value of the
benefit rendered to the plaintiff class; (2) the value of the
services on an hourly basis; (3) whether the services were
undertaken on a contingent-fee basis; (4) society’s stake in
rewarding

attorneys

who

produce

such

benefits

in

order

to

maintain an incentive to others; (5) the complexity of the
litigation; and (6) the professional skill and standing of
counsel involved on both sides.” Moulton v. U.S. Steel Corp.,
581 F.3d 344, 352 (6th Cir. 2009).
Class counsel requests $950,000 in attorneys’ fees, plus
$41,053.25

in

costs

and

$11,000

for

the

fee

paid

to

the

settlement administrator. (ECF No. 186-1 at ¶¶ 12, 29-30.) The
total amount is $1,002,053.25, which is 21.1% of the gross
settlement amount of $4,750,000. (Id. at ¶ 12.) Class counsel’s
request falls well within the range of percentages typically
awarded by courts in common fund cases. See Broadwing, 252 F.R.D.
at 380; Se. Milk, 2018 U.S. Dist. LEXIS 131855, at *15. The
benefit provided to the plaintiff class is substantial, with
average relief of more than $50,000 to the Robles Subclass and
more than $1000 to the Avalos/Marquez Subclass. (ECF No. 186-3
29

Case 2:15-cv-02228-SHM-tmp Document 195 Filed 12/14/22 Page 30 of 40

PageID 2599

at ¶¶ 14-15.) Representation was undertaken on a contingent fee
basis. (ECF No. 186-1 at ¶ 26.) The complexity of the litigation,
which implicated numerous preemption issues, involved parallel
state and federal court actions, and was contested for nearly a
decade,

favors

the

requested

fee

award.

Representative

Plaintiffs’ counsel’s extensive experience with class action
cases likewise weighs in favor of the award. (See ECF No. 186-1
at ¶ 21.) The award of $950,000, plus costs, is reasonable.
A cross-check of the requested percentage using the lodestar
method confirms that the award is appropriate. Class counsel’s
firm invested 1564 hours of attorney time at hourly rates ranging
from

$625

to

$1200.

This

produces

$1,388,650. 6 Counsel’s requested

a

lodestar

amount

of

fee of $950,000 produces a

lodestar multiplier of 0.68.
The

hourly

rates

are

higher

than

is

typical

in

this

district. See Adcock-Ladd v. Sec’y of Treasury, 227 F.3d 343,
350 (6th Cir. 2000) (holding that reasonable hourly rate in
lodestar calculation should be based on market rates in the
court’s

jurisdiction,

rather

than

foreign

counsel’s

typical

rate). Even if the Court were to halve the hourly rates, however,
the lodestar amount would be decreased only to $694,325, and the
lodestar multiplier increased to 1.37. This higher multiplier

6

Also included in this amount are 234 hours of paralegal time, billed
at $250 an hour.
30

Case 2:15-cv-02228-SHM-tmp Document 195 Filed 12/14/22 Page 31 of 40

PageID 2600

remains well within the range of values approved by courts. See,
e.g., Singleton v. Domino’s Pizza, LLC, 976 F. Supp. 2d 665, 689
(D. Md. 2013) (stating that multipliers in large, complicated
class actions typically range from 2.26 to 4.5). Considering the
contingent nature of counsel’s fee award, the excellent results
produced for the class, and class counsel’s skill and tenacity,
the fee request is reasonable.7
B. Representative Plaintiffs’ Incentive Awards
Class counsel and Representative Plaintiffs request that
Salvador Robles, Jorge Avalos, Jose Marquez, Carlos Barillas,
and Andres Adame be granted incentive awards of $25,000 each.
Incentive awards “are not uncommon, and courts routinely approve
[them] to compensate named plaintiffs for the services they
provided and the risks they incurred during the course of the
class action litigation.” Ross v. Jack Rabbit Servs., LLC, No.
3:14-cv-44-DJH, 2016 U.S. Dist. LEXIS 173292, at *13 (W.D. Ky.
Dec. 15, 2016) (quoting Dillworth v. Case Farms Processing, Inc.,
No. 5:08-cv-1694, 2010 U.S. Dist. LEXIS 20446, at *17 (N.D. Ohio
Mar. 8, 2010)).

7

Although counsel’s fee request merits approval even with a lodestar
multiplier of 1.37, a more accurate assessment of the multiplier would
yield a figure somewhat below 1.37 because a significant portion of
counsel’s work was conducted in the Eastern District of California and
the California Superior Court. The reasonable hourly rate would be
higher in those courts’ jurisdictions.
31

Case 2:15-cv-02228-SHM-tmp Document 195 Filed 12/14/22 Page 32 of 40

Although

district

courts

have

expressed

PageID 2601

enthusiasm

for

incentive awards, the Sixth Circuit has been ambivalent. See
Greenberg v. Procter & Gamble Co. (In re Dry Max Pampers Litig.),
724

F.3d

714,

722

(6th

Cir.

2013)

(“[T]o

the

extent

that

incentive awards are common, they are like dandelions on an
unmowed lawn -- present more by inattention than by design.”);
id. (“Our court has never approved the practice of incentive
payments to class representatives, though in fairness we have
not disapproved the practice either.”). The Sixth Circuit has
instructed
“scrutinized

that

requests

carefully,”

for
as

incentive

courts

may

awards
“sensibly

should
fear

be
that

incentive awards may lead named plaintiffs to expect a bounty
for bringing suit or to compromise the interest of the class for
personal gain.” Hadix v. Johnson, 322 F.3d 895, 897 (6th Cir.
2003).
Despite this skepticism, the Sixth Circuit has said that
“there

may

be

circumstances

where

incentive

awards

are

appropriate.” Id. at 898. The circuit has not laid out a general
framework under which a proposed incentive award should be
assessed, but district courts in this circuit consider three
factors. See Jack Rabbit, 2016 U.S. Dist. LEXIS 173292, at *14.
Those factors are:
(1) the action taken by the Class Representatives to
protect the interests of the Class Members and others
and whether these actions resulted in a substantial
32

Case 2:15-cv-02228-SHM-tmp Document 195 Filed 12/14/22 Page 33 of 40

PageID 2602

benefit to Class Members; (2) whether the Class
Representatives
assumed
substantial
direct
and
indirect financial risk; and (3) the amount of time
and effort spent by the Class Representatives in
pursuing the litigation.
Id. (quoting In re Skechers Toning Shoe Prods. Liab. Litig., No.
3:11-MD-2308-TBR, 2013 U.S. Dist. LEXIS 67441, at *54-55 (W.D.
Ky. May 10, 2013)).
In their original Fees Motion, Representative Plaintiffs
supported their request for incentive awards with declarations
from Plaintiffs Robles, Avalos, Marquez, and Barillas detailing
their efforts in the case and estimating the hours they had
spent. (ECF No. 187 at 11 (citing ECF Nos. 178-7, 178-8, 178-9,
178-10).) At the final approval hearing, the Court inquired about
the absence of any declaration from Plaintiff Adame and asked
that class counsel file a declaration providing counsel’s own
assessment of each Plaintiff’s contribution to the prosecution
of the case. Counsel complied by filing his declaration and that
of Adame. (ECF Nos. 192, 193.) With these additional filings,
the Court has sufficient information to judge the appropriateness
of the requested incentive awards.8

8

Andres Adame is not a named plaintiff in the case before this Court.
(See ECF No. 177.) He has been, however, the lead plaintiff in the
parallel Adame PAGA Action. (ECF No. 192 at ¶ 2.) Class counsel
represents that Plaintiff Adame’s efforts “supported both the class
claims and the PAGA action.” (Id. at ¶ 14.) The Court will refer to
Adame as a Representative Plaintiff for the purposes of its incentive
award analysis. At least one district court has granted an incentive
award to a plaintiff who was not a named plaintiff in the action
directly before the court. See In re Synchronoss Techs., Inc.
33

Case 2:15-cv-02228-SHM-tmp Document 195 Filed 12/14/22 Page 34 of 40

1. Action Taken by Representative
Benefit to Class Members

PageID 2603

Plaintiffs

and

Representative Plaintiffs undertook significant steps to
initiate and aid the litigation. Plaintiffs Robles and Barillas
independently secured counsel to bring an action on behalf of
themselves and other drivers.9 (ECF No. 192 at ¶¶ 10, 12.) Each
Representative Plaintiff served as an intermediary between class
counsel and drivers and gathered information and documentation
to

support

the

case.

(Id.

at

¶¶ 10,

12-14.)

Class

counsel

represents that each Representative Plaintiff was “instrumental
to the success of this litigation” and opines that “without their
contributions the settlement now before this Court would not
have been achieved.” (Id. at 2, 15.) The size of the recovery,
with relief in the thousands to tens of thousands of dollars per
Class Member, strongly supports a high estimation of the value
of Representative Plaintiffs’ efforts.
2. Class
Representatives’
Financial Risk

Direct

and

Indirect

Because class counsel litigated this case on a contingent
fee basis, Representative Plaintiffs did not directly assume the

Stockholder Derivative Demand Refused Litig., No. 20-07150, 2021 U.S.
Dist. LEXIS 238014, at *42 & n.9 (D.N.J. Dec. 13, 2021). As in this
case, the plaintiff there was a named representative in a related
state court action resolved as part of a global settlement. Id.
9

Although Plaintiff Barillas originally procured representation
separate from class counsel litigating the action before this Court,
Barillas eventually dismissed his original suit to join this action.
(ECF No. 192 at ¶ 12.)
34

Case 2:15-cv-02228-SHM-tmp Document 195 Filed 12/14/22 Page 35 of 40

financial

risks

Representative

of

litigation.

Plaintiffs

did,

(ECF

No.

however,

186-1

assume

at
an

PageID 2604

¶ 26.)

indirect

financial risk by publicly associating their names with lawsuits
against their employers, a fact which, if discovered through a
public records search, could hinder future employment. (ECF No.
192 at ¶ 17.)
3. Time and Effort Spent by Class Representatives in
Pursuing the Litigation
Representative
Barillas

estimate

Plaintiffs
the

number

Robles,
of

hours

Avalos,
they

Marquez,
spent

on

and
this

litigation as 30, 35, “hundreds,” and 336, respectively. (ECF
Nos.

178-7,

178-8,

178-9,

178-10.)

Representative

Plaintiff

Adame reports spending 40 hours plus an additional, unquantified
amount of time communicating with other drivers. (ECF No. 193.)
Class counsel qualifies those numbers, stating he believes that,
due to their unfamiliarity with legal billing and measuring time
spent on legal matters, Representative Plaintiffs underestimate
or overestimate the amount of time they spent supporting the
litigation. (ECF No. 192 at ¶¶ 10-15.) Counsel estimates that
each Representative Plaintiff spent between 100 and 150 hours
working

on

the

case.

(Id.)

Given

the

long

course

of

this

litigation, the multiplicity of ways in which Representative
Plaintiffs participated, and counsel’s greater experience in
accounting for legal time, ECF No. 192 at ¶¶ 10-11, 13, the Court

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PageID 2605

places greater weight on counsel’s estimate of 100 to 150 hours
than on the lower estimates of 30 or 35 hours. Because each
Representative Plaintiff likely contributed more than 100 hours
to

supporting

this

case,

a

significant

incentive

award

is

appropriate, particularly given the remarkable recovery made for
the class. The Court therefore approves the requested incentive
awards of $25,000 for each Representative Plaintiff.
VI. Conclusion
For the foregoing reasons, the Final Approval Motion, ECF
No. 186, and the Fees Motion, ECF No. 187, are GRANTED.
The Court ORDERS that:
1. The terms in this Order shall have the meanings set
forth in the Settlement Agreement, ECF No. 186-2, Ex.1.
2. The Court has jurisdiction over the subject matter
of this action, the Representative Plaintiffs, the Class
Members, and the Defendants.
3. The Court certifies, for purposes of settlement
only, the following class and subclasses:
The
Class:
All
current
and
former
California-based truck drivers for Defendants, at
any time from January 2009, to the present (the
“Class Period”) and who were classified by
Defendants as independent contractors.
“California-based” refers to Drivers: (i)
who had a residential address in California at
any time during the Class Period; and/or (ii) who
were assigned or associated with a terminal in
California at any time during the Class Period.
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PageID 2606

The phrase “assigned or associated with a
terminal” includes any and all Drivers listed in
Defendants’ database in connection with a
terminal.
The “Robles Subclass”: All class members who
did not execute releases of their claims in this
action on or around and after August 27, 2014.
The “Settlement-Release Subclass” (or the
“Avalos/Marquez Subclass”): All class members who
executed releases of their claims in this action
on or around and after August 27, 2014.
4. For the reasons set forth in this Order, the Court
enters final judgment of dismissal of the Litigation, with
prejudice.

The

Court

further

approves

the

Settlement

Agreement as fair, reasonable, in the best interest of the
participating

Settlement

Class,

and

adequate

in

all

respects to the Settlement Class, pursuant to California
law and all applicable law, and orders the settling parties
to consummate the Settlement in accordance with the terms
of the Settlement Agreement.
5. In full compliance with the requirements of due
process, on August 15, 2022, the Settlement Administrator
mailed the Class Notice by first-class mail to each Class
Member at that Member’s last known address, based upon
Defendants’

business

records

and

reasonable

address

verification measures.
6. The Court has determined that the Class Notice
constituted valid, due, and sufficient notice to all Class
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PageID 2607

Members, and complied fully with California law, the U.S.
Constitution, and any other applicable laws.
7. Due and adequate notice of the proceedings having
been provided to the Class Members, and a full opportunity
having been offered to them to participate in the fairness
hearing, it is hereby determined that all Class Members are
bound by this final approval order of the Litigation and
final

judgment

of

dismissal

of

the

Litigation

entered

herein.
8. The plan of distribution, as set forth in the
Settlement Agreement providing for the distribution of the
Net Settlement Amount to participating Class Members, is
approved as being fair, reasonable, and adequate pursuant
to California law and all applicable law.
9.

On

Litigation

entry
and

of

this

final

final

judgment

approval
of

order

dismissal

of
of

the
the

Litigation, and by operation of this final approval order
and

final

judgment

of

dismissal,

the

claims

of

each

participating Settlement Class Member against Defendants
are fully, finally, and forever released, relinquished, and
discharged

pursuant

to

the

Agreement.

38

terms

of

the

Settlement

Case 2:15-cv-02228-SHM-tmp Document 195 Filed 12/14/22 Page 39 of 40

PageID 2608

10. This final approval order and the final judgment
of dismissal resolve all pending claims against Defendants
in the Litigation.
11. Without further order of the Court, the parties
may jointly agree to reasonable extensions of time to carry
out any provisions of the Settlement Agreement.
12. Counsel’s requested attorneys’ fees of $950,000,
plus

$41,053.25

in

costs

and

$11,000

in

settlement

administration costs, are approved.
13. The Court approves incentive awards of $25,000
each to Plaintiffs Salvador Robles, Jorge Avalos, Jose
Marquez, Carlos Barillas, and Andres Adame, as provided in
the Settlement Agreement.
14. Without affecting the finality of this order, the
Court shall retain exclusive and continuing jurisdiction
over

the

Settlement

Litigation,
Class,

and

Representative
Defendants

supervising

the

consummation,

implementation,

enforcement,

and

Plaintiffs,
for

purposes

the
of

administration,

interpretation

of

the

Settlement Agreement and all other matters covered in this
Order.

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PageID 2609

SO ORDERED this 14th day of December, 2022.

/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

40