Felix v. WM. Bolthouse Farms, Inc. ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ERIC FELIX, an individual, on behalf of ) Case No.: 1:19-cv-00312-AWI-JLT himself and others similarly situated, ) 12 ) FINDINGS AND RECOMMENDATIONS Plaintiff, ) GRANTING PLAINTIFF’S MOTION FOR FINAL 13 ) APPROVAL OF THE CLASS SETTLEMENT AND v. ) GRANTING IN PART PLAINTIFF’S MOTION 14 ) FOR ATTORNEYS’ FEES AND COSTS AND 15 WM. BOLTHOUSE FARMS, INC., ) CLASS REPRESENTATIVE INCENTIVE ) PAYMENT 16 Defendant. ) ) (Doc. 36) 17 18 Eric Felix seeks final approval of a class action settlement reached with Defendant WM. 19 Bolthouse Farms, Inc. (Doc. 36.) In addition, Plaintiff seeks an award of attorneys’ fees and costs from 20 the Settlement fund; a class representative enhancement; and costs for settlement administration. (Doc. 21 36-1.) Defendant does not oppose these requests, and no objections were filed by class members. 22 Because Plaintiff meets his burden to demonstrate certification of the Settlement Class is 23 appropriate under Rule 23 of the Federal Rules of Civil Procedure and that the terms of the Settlement 24 are fair, adequate, and reasonable the Court recommends Plaintiff’s request for final approval of the 25 Settlement be GRANTED. In addition, the Court recommends Plaintiff’s request for attorneys’ fees 26 be GRANTED in the amount of $39,425.00; costs be awarded in the amount of $931.11; settlement 27 administration costs be granted in the amount of $18,500.00; and Plaintiff’s request for a class 28 representative incentive payment be GRANTED in the modified amount of $2,500.00. 1 BACKGROUND 2 Mr. Felix filed this action against Defendant on March 7, 2019. (Doc. 1.) In the complaint, 3 Plaintiff alleged that Defendant violated the Fair Credit Reporting Act, 15 U.S.C. § 1681 b(b)(2)(A)(i), 4 by allegedly requiring Plaintiff and the FCRA Class Members to execute a “Consent to Request 5 Consumer Report & Investigative Consumer Report Information” form to permit Sterling Infosystems 6 Inc. to obtain and use consumer report information for employment purposes for Plaintiff and all the 7 FCRA Class Members, and Defendant therefore obtained consumer reports regarding Plaintiff and the 8 Class Members without proper authorization in violation of 15 U.S.C. § 1681 b(b)(2)(A)(ii). The 9 complaint further alleged Defendant failed to provide lawful meal and rest breaks to the proposed 10 California Class Members. 11 On May 3, 2019, Defendant filed a motion to partially dismiss and strike Plaintiff’s third and 12 fourth causes of action. (Doc. 10.) Subsequently, on May 20, 2019, Plaintiff filed his first amended 13 complaint removing his third and fourth causes of action. (Doc. 12.) The operative first amended 14 complaint alleges claims for (1) violation of the Fair Credit Reporting Act for failure to make proper 15 disclosures, 15 U.S.C. § 1681 b(b)(2)(A)(i); and (2) violation of the Fair Credit Reporting Act for 16 failure to obtain proper authorization, 15 U.S.C. § 1681 b(b)(2)(A)(ii). 17 The parties exchanged initial discovery disclosures, and engaged in extensive discussions 18 about their respective positions and the information and data needed to properly evaluate the merits of 19 the claims alleged. The parties reached a proposed class action settlement on September 6, 2019 20 through arms-length, direct negotiations, which was submitted to this Court for preliminary 21 approval. 22 The Court granted preliminary approval of the settlement on January 7, 2020. (Doc. 29.) 23 Following preliminary approval, Class Counsel coordinated with the Settlement Administrator to 24 ensure the proper dissemination of the Class Notice and closely monitored the notice process. (Doc. 36 25 at 10.) 26 SETTLEMENT TERMS 27 Pursuant to the proposed settlement (the “Settlement”), the parties agree to a gross settlement 28 amount not to exceed $118,275.00. (Doc. 36 at 11; Doc. 36-3 at 6, Settlement ¶ 14.) The Settlement 1 Class is defined as follows: 2 [A]ll applicants in the United States who filled out WM. BOLTHOUSE FARMS, INC.’s standard ‘Consent to Request Consumer Report & Investigative Consumer 3 Report Information’ form as administered by Sterling Infosystems Inc. during the Class Period. 4 5 (Doc. 36 at 11, Doc. 36-3 at 10, Settlement ¶ 32.) 6 I. Payment Terms 7 The Settlement provides a maximum recovery of $118,275.00. (Doc. 36 at 11; Doc. 36-3 at 6, 8 Settlement ¶ 14.) The following estimates the breakdown of payments from this amount: 9 • $54,350.00 for estimated settlement funds to the Settlement Class (the “Net Settlement 10 Amount”); 11 • $18,500 for administration costs regarding the Settlement; 12 • $5,000 for a service award to Plaintiff; and 13 • $39,425.00 for attorneys’ fees and $931.11 in litigation costs. 14 (Doc. 36 at 11.) 15 Plaintiff describes that the amount each Class Member receives from the Net Settlement 16 Amount is contingent on the number of consumer reports obtained on individuals who remain in the 17 Settlement Class. (Id. at 11-12.) The number of consumer reports obtained for each Class Member 18 may differ, and thus Class Members may be entitled to more, or less, than others, based on the number 19 of consumer reports obtained for each of them. (Id. at 12.) As of the date of filing of the instant 20 motion, Plaintiff states there are 1,225 Class Members (1,227 total individuals, with two exclusions). 21 (Id.) 22 Based on this data and the anticipated Net Settlement Amount, the estimated approximate 23 payment per Class Member, who completed Defendant’s standardized form, is $37.38 if one consumer 24 report was obtained and $74.76 if two consumer reports were obtained (Id.) 25 As this is a non-reversionary, total payout Settlement, any funds remaining in the gross 26 settlement amount due to uncashed Settlement checks (after a 180-day negotiability period) will be 27 remitted to California Legal Aid Fund. (Id.) 28 /// 1 II. Releases 2 The release applies only to Settlement Class Members who do not request exclusion. (Doc. 36 3 at 12.) As of the date of filing of the instant motion, two individuals have requested exclusion. (Id.) As 4 such, the release applies to 1,225 Settlement Class Members. (Id.) The Settlement provides that Class 5 Members will release Defendant and others: 6 from any and all claims of any kind whatsoever, whether known or unknown, whether based on common law, regulations, statute, or a constitutional provision, 7 under state, federal or local law, arising out of the allegations made in the First Amended Complaint and that reasonably arise, or could have arisen, out of the facts 8 alleged in the First Amended Complaint as to the Class Members, including, but not 9 limited to, claims arising from the procurement of a consumer report on them by any of the Released Parties, and any other claims for violations of the Fair Credit 10 Reporting Act, 15 U.S.C. §1681b, et seq., whether willful, or otherwise, for declaratory relief, statutory damages, punitive damages, costs, and attorneys’ fees. 11 Notwithstanding the foregoing, nothing in the Settlement releases any claims that 12 cannot be released as a matter of law. 13 (Doc. 36 at 12-13, Doc. 36-3 at 21-22, ¶ 13.) According to Plaintiff, the release is narrowed to the 14 facts and claims arising out of the operative first amended complaint. (Doc. 36 at 13.) 15 III. Objections and Opt-Out Procedure 16 Any class member who wished could file objections or elect not to participate in the 17 Settlement. (Doc. 36-3 at 24-26, Settlement ¶¶ 5-7.) The Notice of Class Action Settlement explained 18 the claims that are released as part of the Settlement. (Doc. 25-2 at 43; Doc. 36-3 at 43.) In addition, it 19 explained the procedures to claim a share of the settlement, object to the settlement, or elect not to 20 participate in the Settlement. (Doc. 25-2 at 40-46; Doc. 36-3 at 40-46.) 21 IV. Service of the Notice Packets and Responses Received 22 On January 7, 2020, the Court ordered the Settlement Administrator, JND Legal 23 Administration, to “mail the approved Notice Packet no later than January 28, 2020.” (Doc. 29 at 17, 24 emphasis omitted.) The Court approved the proposed Class Notice on February 12, 2020. (Doc. 35.) 25 According to Jennifer Keough, the chief executive officer of JND Legal Administration, the 26 Notice was mailed on February 14, 2020 via first-class U.S. Mail to 1,227 Class Members identified 27 by Defendant. (Doc. 36-8 at 1-2, Keough Decl. ¶¶ 1, 4-5.) JND tracked 181 Notices that were returned 28 as undeliverable. (Id. at 3, ¶ 7.) Ms. Keough reports that, of these, six were returned as undeliverable 1 with a forwarding address and were promptly re-mailed, and for the remaining undeliverable Notices, 2 JND conducted advanced address research and received updated address information for 89 Class 3 Members. (Id.) JND re-mailed the Notice to the 89 Class Members, and eight re-mailed Notices were 4 returned as undeliverable. (Id.) Ms. Keough reports that as of April 5, 2020, 1,133 Class Members 5 were mailed a Notice and they were not returned as undeliverable, representing 92% of total Class 6 Members from the Settlement. (Id., ¶ 8.) 7 Ms. Keough reports that JND did not receive any objections to the Settlement and two requests 8 for exclusion from the class. (Id. at 4, ¶¶ 14, 16.) Likewise, the Court did not receive any objections to 9 the Settlement. 10 APPROVAL OF A CLASS SETTLEMENT 11 When parties settle the action prior to class certification, the Court has an obligation to “peruse 12 the proposed compromise to ratify both the propriety of the certification and the fairness of the 13 settlement.” Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). Approval of a class settlement is 14 generally a two-step process. First, the Court must assess whether a class exists. Id. (citing Amchem 15 Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997)). Second, the Court must “determine whether the 16 proposed settlement is fundamentally fair, adequate, and reasonable.” Id. (citing Hanlon v. Chrysler 17 Corp., 150 F.3d 1011, 1026 (9th Cir. 2998)). The decision to approve or reject a settlement is within 18 the Court’s discretion. Hanlon, 150 F.3d at 1026. 19 I. Class Certification 20 Class certification is governed by the Federal Rules of Civil Procedure, which provide that 21 “[o]ne or more members of a class may sue or be sued as representative parties on behalf of all.” Fed. 22 R. Civ. P. 23(a). Under the terms of the Settlement, the proposed class is defined as: 23 [A]ll applicants in the United States who filled out WM. BOLTHOUSE FARMS, INC.’s standard ‘Consent to Request Consumer Report & Investigative Consumer 24 Report Information’ form as administered by Sterling Infosystems Inc. during the Class Period. 25 26 (Doc. 36 at 11, Doc. 36-3 at 10, Settlement ¶ 32.) 27 Parties seeking class certification bear the burden of demonstrating the elements of Rule 23(a) 28 are satisfied, and “must affirmatively demonstrate . . . compliance with the Rule.” Wal-Mart Stores, 1 Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011); Doninger v. Pacific Northwest Bell, Inc., 563 F.2d 1304, 2 1308 (9th Cir. 1977). If an action meets the prerequisites of Rule 23(a), the Court must consider 3 whether the class is maintainable under one or more of the three alternatives set forth in Rule 23(b). 4 Narouz v. Charter Communs., LLC, 591 F.3d 1261, 1266 (9th Cir. 2010). Here, the parties agree, for 5 purposes of the Settlement, the criteria for certifying a settlement class are satisfied. (Doc. 36 at 24.) 6 A. Rule 23(a) Requirements 7 The prerequisites of Rule 23(a) “effectively limit the class claims to those fairly encompassed 8 by the named plaintiff’s claims.” General Telephone Co. of the Southwest. v. Falcon, 457 U.S. 147, 9 155-56 (1982). Certification of a class is proper if: 10 (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the 11 representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. 12 Fed. R. Civ. P. 23(a). These prerequisites are generally referred to as numerosity, commonality, 13 typicality, and adequacy of representation. Falcon, 457 U.S. at 156. 14 1. Numerosity 15 A class must be “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 16 23(a)(1). This requires the Court to consider “specific facts of each case and imposes no absolute 17 limitations.” General Telephone Co. v. EEOC, 446 U.S. 318, 330 (1980). Although there is not a 18 specific numerical threshold, joining more than one hundred plaintiffs is impracticable. See 19 Immigrant Assistance Project of Los Angeles Cnt. Fed’n of Labor v. INS, 306 F.3d 842, 869 (9th Cir. 20 2002) (“find[ing] the numerosity requirement . . . satisfied solely on the basis of the number of 21 ascertained class members . . . and listing thirteen cases in which courts certified classes with fewer 22 than 100 members”). Here, “1,225 individuals comprise the Settlement Class.” (Doc. 36 at 24, Doc. 23 36-8 at 2, Keough Decl. ¶¶ 4-16.) Therefore, the numerosity requirement is satisfied. 24 2. Commonality 25 Rule 23(a) requires “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). 26 Commonality “does not mean merely that [class members] have all suffered a violation of the same 27 pro-vision of law,” but “claims must depend upon a common contention.” Wal-Mart Stores, 131 S. Ct. 28 1 at 2551. 2 In this case, Plaintiff contends that under the FCRA, an employer, or prospective employer, 3 cannot "procure, or cause a consumer report to be procured, for employment purposes with respect to 4 any consumer unless . . . a clear and conspicuous disclosure has been made in writing to the consumer 5 at any time before the report is procured or caused to be procured, in a document that consists solely of 6 the disclosure, that a consumer report may be obtained for employment purposes." (Doc. 25 at 16, 7 citing 15 U.S.C. § 1681 b(b)(2)(A)(i)). Plaintiff previously asserted that the question of law and fact 8 common to the proposed class that predominate over questions that may affect individual class 9 members are: (a) whether Defendant's standard FCRA disclosure meets 15 U.S.C. § 19 § 1681 10 b(b)(2)(A)(i)' s "clear and conspicuous disclosure" requirement; (b) whether Defendant's standard 11 FCRA disclosure is "in a document that consists solely of the disclosure"; (c) whether Defendant 12 acquires applicants' consumer reports without authorization in violation of 15 U.S.C. § 1681 13 b(b)(2)(A)(ii); and (d) whether Defendant "willfully" violated the FCRA pursuant to 15 U.S.C. § 14 1681n. (Doc. 25 at 16.) Plaintiff also previously asserted that all members of the class executed the 15 same FCRA disclosure form and suffer from the same types of injury arising from the same conduct 16 committed by Defendant in regard to the claims alleged. (Id.) Accordingly, the Court finds the 17 commonality requirement is satisfied for purposes of settlement. 18 3. Typicality 19 This requirement requires a finding that the “claims or defenses of the representative parties 20 are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The standards under this 21 rule are permissive, and a claim or defense is not required to be identical, but rather “reasonably 22 coextensive” with those of the absent class members. Hanlon, 150 F.3d at 1020. “The test of 23 typicality is whether other members have the same or similar injury, whether the action is based on 24 conduct which is not unique to the named plaintiffs, and whether other class members have been 25 injured by the same course of conduct.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 26 1992) (internal quotation marks and citation omitted); see also Kayes v. Pac. Lumber Co., 51 F.3d 27 1449, 1463 (9th Cir. 1995) (the typicality requirement is satisfied when the named plaintiffs have the 28 same claims as other members of the class and are not subject to unique defenses). 1 Plaintiff alleges that in or about May 2017, he was required to sign a standardized form labeled 2 "Consent to Request Consumer Report & Investigative Consumer Report Information" provided by 3 Sterling Infosystems Inc., a company hired by Defendant to obtain a consumer report verifying 4 employees' background and experience. (Doc. 36 at 25.) According to Plaintiff, Defendant required all 5 applicants to complete the same form, which violated the FCRA's prohibition against including 6 extraneous information in a required disclosure. (Id. at 25-26.) Plaintiff therefore contends that the 7 claims of Plaintiff and the class arise from the same alleged course of conduct by Defendant and are 8 based on the same legal theories. (Id. at 26.) Although Defendant does not admit these allegations, for 9 purposes of approving this Settlement, Defendant does not oppose Plaintiff's assertion that sufficient 10 typicality exists. (Id.) Accordingly, the Court finds the typicality requirement is satisfied. 11 4. Fair and Adequate Representation 12 Absentee class members must be adequately represented for judgment to be binding upon 13 them. Hansberry v. Lee, 311 U.S. 32, 42-43 (1940). This prerequisite is satisfied if the representative 14 party “will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). 15 “[R]esolution of this issue requires that two questions be addressed: (a) do the named plaintiffs and 16 their counsel have any conflicts of interest with other class members and (b) will the named plaintiffs 17 and their counsel prosecute the action vigorously on behalf of the class?” In re Mego Fin. Corp. Sec. 18 Litig., 213 F.3d 454, 462 (9th Cir. 2000) (citing Hanlon, 150 F.3d at 1020). 19 a. Class counsel 20 Plaintiff states that Plaintiff and Class Counsel do not have interests antagonistic to those of the 21 Settlement Class. (Doc. 36 at 26.) Plaintiff contends that, to the contrary, Plaintiff shares the same 22 interest-i.e., recovering damages resulting from alleged violations of Defendant's FCRA obligations. 23 (Id.) Plaintiff also reports that Class Counsel have extensive experience prosecuting similar such class 24 actions. (Id.) Additionally, Plaintiff reports that Kingsley & Kingsley is experienced in prosecuting 25 and defending employment and consumer matters, and the firm has focused its practice since 2000 on 26 complex litigation including wage and hour and consumer class actions. (Id.) Kingsley & Kingsley 27 currently serves as class counsel for dozens of pending class action lawsuits in Northern, Eastern, 28 Central, and Southern California, and a list of representative cases that Kingsley & Kingsley has 1 handled is included in the accompanying declaration of Kelsey Szamet. (Id.; Doc. 36-2 at 8-14, 2 Szamet Decl. ¶¶ 53-55.) Thus, Plaintiff contends that Plaintiff and Class Counsel are adequate 3 representatives for the class. (Doc. 36 at 26.) Plaintiff also reports that the firm has diligently and 4 aggressively pursued this action. (Id.) Therefore, the Court finds Class Counsel satisfies the adequacy 5 requirement. 6 b. Class representative 7 Plaintiff sought appointment as the class representative, and asserted that he believes that he is 8 able to represent the other employees well and that he has “always maintained the best interest of the 9 Class while performing [his] Class Representative duties.” (Doc. 36-9 at 2-3, Felix Decl. ¶¶ 3, 9.) 10 Further, the parties do not identify any conflicts between Plaintiff and the other class members. Thus, 11 it appears Plaintiff will fairly and adequately represent the interests of the class. 12 B. Certification of a Class under Rule 23(b)(3) 13 As noted above, once the requirements of Rule 23(a) are satisfied, a class may only be certified 14 if it is maintainable under Rule 23(b). Fed. R. Civ. P. 23(b); see also Narouz, 591 F.3d at 1266. 15 Plaintiff asserts certification is appropriate under Rule 23(b)(3), which requires finding that (1) “the 16 questions of law or fact common to class members predominate over any questions affecting only 17 individual members,” and (2) “a class action is superior to other available methods for fairly and 18 efficiently adjudicating the controversy.” 19 1. Predominance 20 The predominance inquiry focuses on “the relationship between the common and individual 21 issues” and “tests whether proposed classes are sufficiently cohesive to warrant adjudication by 22 representation.” Hanlon, 150 F.3d at 1022 (citing Amchem Prods., 521 U.S. at 623). The Ninth Circuit 23 explained, “a central concern of the Rule 23(b)(3) predominance test is whether ‘adjudication of 24 common issues will help achieve judicial economy.’” Vinole v. Countrywide Home Loans, Inc., 571 25 F.3d 935, 944 (9th Cir. 2009) (quoting Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1189 (9th 26 Cir. 2001)). In this case, as Plaintiff asserts, the predominance requirement is satisfied because 27 “Plaintiff's claim is based on factual and legal questions about Defendant's policy that are not only 28 common to the Settlement Class, but predominate under FRCP 23 (e),” given the allegation that 1 Defendant maintained a uniform policy of providing the Settlement Class with a standardized FCRA 2 form facially violating the FCRA. (Doc. 36 at 27.) 3 2. Superiority 4 The superiority inquiry requires a determination of “whether objectives of the particular class 5 action procedure will be achieved in the particular case.” Hanlon, 150 F.3d at 1023 (citation omitted). 6 This tests whether “class litigation of common issues will reduce litigation costs and promote greater 7 efficiency.” Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996). Pursuant to Rule 8 23(b)(3), the Court must consider four non-exclusive factors to determine whether a class is a superior 9 method of adjudication, including (1) the class members’ interest in individual litigation, (2) other 10 pending litigation, (3) the desirability of concentrating the litigation in one forum, and (4) difficulties 11 with the management of the class action. 12 a. Class members’ interest in individual litigation and other cases 13 This factor is relevant when class members have suffered sizeable damages or have an 14 emotional stake in the litigation. See In re N. Dist. of Cal., Dalkon Shield, Etc., 693 F.2d 847, 856 (9th 15 Cir. 1982)). Here, there is no evidence that the Class Members have an interest in pursuing or 16 controlling separate cases. Plaintiff previously asserted that “given that there are over 1,000 putative 17 class members, each of whom, on their own, can only recover a small amount of damages for the 18 alleged violations, a class action is the superior method for adjudicating their claims as it will reduce 19 litigation costs and promote greater efficiency.” (Doc. 25 at 19.) Moreover, the parties have not 20 identified any other pending litigation related to Plaintiff’s claims. Therefore, these factors weigh in 21 favor of class certification. 22 b. Desirability of concentrating litigation in one forum 23 Because common issues predominate on Plaintiff’s class claims, “presentation of the evidence 24 in one consolidated action will reduce unnecessarily duplicative litigation and promote judicial 25 economy.” Galvan v. KDI Distrib., 2011 U.S. Dist. LEXIS 127602, at *37 (C.D. Cal. Oct. 25, 2011). 26 Moreover, because the parties have resolved the claims through the Settlement, this factor does not 27 weigh against class certification. 28 /// 1 c. Difficulties in managing a class action 2 The Supreme Court explained that, in general, this factor “encompasses the whole range of 3 practical problems that may render the class format inappropriate for a particular suit.” Eisen v. Carlisle 4 & Jacquelin, 417 U.S. 156, 164 (1974). However, because the parties have reached a settlement 5 agreement, it does not appear there are any problems with managing the action. Therefore, this factor 6 weighs in favor of class certification. 7 3. Conclusion 8 Because the predominance and superiority requirements are satisfied, the Settlement Class is 9 maintainable under Rule 23(b)(3). Accordingly, the Court recommends that Plaintiff’s request to 10 certify the Settlement Class be GRANTED. 11 II. Evaluation of the Settlement Terms 12 Settlement of a class action requires approval of the Court, which may be granted after a 13 “finding that [the settlement] is fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). Approval is 14 required to ensure settlement is consistent with plaintiffs’ fiduciary obligations to the class. See 15 Ficalora v. Lockheed Cal. Co., 751 F.2d 995, 996 (9th Cir. 1985). The Ninth Circuit has set forth 16 several factors to determine whether a settlement agreement meets these standards, including: 17 the strength of plaintiff’s case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status throughout the trial; the 18 amount offered in settlement; the extent of discovery completed, and the stage of the proceedings; the experience and views of counsel; the presence of a governmental 19 participant; and the reaction of the class members to the proposed settlement. 20 Staton, 327 F.3d at 959 (citation omitted). Further, a court should consider whether settlement is “the 21 product of collusion among the negotiating parties.” In re Mego Fin. Corp. Sec. Litig., 213 F.3d at 458 22 (citing Class Plaintiffs v. Seattle, 955 F.2d 1268, 1290 (9th Cir. 1992)). Reviewing the settlement 23 terms, “[t]he court need not reach any ultimate conclusions on the contested issues of fact and law 24 which underlie the merits of the dispute.” Class Plaintiffs, 955 F.2d at 1291 (internal quotation marks 25 and citation omitted). 26 A. Strength of Plaintiff’s Case 27 When evaluating the strength of a case, the Court should “evaluate objectively the strengths 28 and weaknesses inherent in the litigation and the impact of those considerations on the parties’ 1 decisions to reach these agreements.” Adoma v. Univ. of Phoenix, Inc., 913 F. Supp. 2d 964, 975 2 (E.D. Cal. 2012) (quoting In re Wash. Pub. Power Supply Sys. Sec. Litig., 720 F.Supp 1379, 1388 (D. 3 Az. 1989)). 4 “Plaintiff and his Counsel recognize that there are risks associated with Plaintiff's claims, 5 especially Plaintiff's ability to establish Article III standing.” (Doc. 36 at 15.) For example, Plaintiff 6 reports that Defendants contended that Plaintiff cannot prove Article III standing to assert his FCRA 7 claims. (Id. at 15-17.) In addition, “Defendant also assert[ed] that Plaintiff cannot show that 8 Defendant's alleged violation of the FCRA was ‘willful’ as required for recovery.” (Id. at 17.) 9 “Defendant also argue[d] that Plaintiff's claim for violating the FCRA's authorization requirement is 10 duplicative of his first FCRA claim involving improper disclosure.” (Id.) Further, Plaintiff reports that 11 Defendant raised a statute of limitations issue. (Id. at 18-19.) 12 Given the challenges identified by Plaintiff, as well as the fact that the parties have conducted 13 investigations and pertinent discovery allowing them to assess the strengths and weaknesses of the 14 case, this factor weighs in favor of final approval of the Settlement. 15 B. Risks, Expenses, Complexity, and Likely Duration of Further Litigation 16 Approval of settlement is “preferable to lengthy and expensive litigation with uncertain 17 results.” Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 529 (C.D. Cal. 2004). If 18 the settlement were to be rejected, the parties would have to engage in further litigation. Plaintiff 19 asserts: 20 Given the risks outlined [], the issues in this case were complex and the risk for Plaintiff and the Class Members was high, given the uncertainty. There is significant 21 expense associated with the class certification process, which the Parties can avoid by entering into the contemplated settlement. If the Court did eventually certify the 22 class (other than for purposes of settlement as requested []), a class trial involving 23 over 1,200 individuals would require the retention of expensive expert witnesses, the accrual of extensive litigation costs, and a significant time commitment by the 24 parties. Finally, given the complexity and unsettled nature of the issues in this case, it is likely that any outcome at trial would have resulted in a lengthy and costly 25 appeal. An appeal would result in further delay for the Class Members, who are 26 waiting for a resolution. 27 (Doc. 36 at 19-20.) On the other hand, the proposed settlement provides for immediate recovery. The 28 time and expense of continued litigation could outweigh any additional recovery. Given the risks and 1 uncertainties faced by Plaintiff, this factor weighs in favor of approval of the Settlement. 2 C. Risk of Maintaining Class Status throughout the Trial 3 Plaintiff contends that Class Counsel is reasonably confident that the Court would certify the 4 proposed classes in this case, however, Class Counsel acknowledged the risks posed by Defendant's 5 arguments. (Doc. 36 at 20.) Further, Plaintiff notes that decertification is always a possibility. (Id.) Due 6 to the risk to the claims of Class Members, this factor supports final approval of the Settlement. 7 D. Amount Offered in Settlement 8 The Ninth Circuit observed “the very essence of a settlement is compromise, ‘a yielding of 9 absolutes and an abandoning of highest hopes.’” Officers for Justice v. Civil Serv. Commission, 688 10 F.2d 615, 624 (9th Cir. 1982) (citation omitted). Thus, when analyzing the amount offered in 11 settlement, the Court should examine “the complete package taken as a whole,” and the amount is “not 12 to be judged against a hypothetical or speculative measure of what might have been achieved by the 13 negotiators.” Id., 688 F.2d at 625, 628. 14 The maximum recovery is $118,275.00. (Doc. 36 at 11; Doc. 36-3 at 6, Settlement ¶ 14.) 15 Plaintiff believes that this settlement amount is adequate, reasonable, and in the best interests of the 16 Settlement Class. (Doc. 36 at 20.) Plaintiff contends that there are risks and uncertainties with respect 17 to damages. (Id. at 20-21.) In addition, Plaintiff argues that “the Settlement provides for payment [] 18 now, rather than a payment many years down the road, if ever.” (Id. at 21.) Plaintiff asserts that the 19 Settlement is fair because the basis for recovery is the same for each Class Member, with all 20 individuals comprising the Settlement Class eligible to receive individual payments from the Net 21 Settlement Amount based upon the number of Class Members, and each Class Member will be bound 22 by the same release. (Id. at 21-22.) Accordingly, the Court finds the amount offered supports final 23 approval of the Settlement. 24 E. Extent of Discovery Completed and Stage of the Proceedings 25 Plaintiff reports that discussions between counsel for the parties, informal discovery, as well as 26 the diligent investigation and evaluation of the claims by the parties, have permitted each side to assess 27 the relative merits of the claims and the defenses to those claims. (Doc. 36 at 22.) In addition, 28 according to Plaintiff, Defendant provided estimates of the number of proposed class members. (Id.) 1 Thus, it appears that the parties made informed decisions, which lead to resolution of the matter, and 2 this factor supports final approval of the Settlement. 3 F. Experience and Views of Counsel 4 In general, “[g]reat weight is accorded to the recommendation of counsel, who are most closely 5 acquainted with the facts of the underlying litigation.” See Nat’l Rural Telecomms., 221 F.R.D. at 528. 6 Class Counsel reports that the Settlement was negotiated by experienced counsel, who believe that it is 7 fair and reasonable, and in the Settlement Class’s best interests. (Doc. 36 at 22.) The opinion of Class 8 Counsel that the Settlement is “fair and reasonable” is entitled to significant weight and supports 9 approval of the settlement agreement. See Nat’l Rural Telecomms., 221 F.R.D. at 528. Additionally, 10 Plaintiff reports that the firms of Kingsley & Kingsley APC and Davtyan Professional Law Corporation 11 are well versed in class action litigation and have diligently and aggressively pursued this action. (Doc. 12 36 at 23.) Plaintiff states that Kingsley & Kingsley has focused its practice since the year 2000 on 13 prosecuting complex wage, hour, and working condition violations, and currently serves as class 14 counsel for dozens of pending class action actions in Northern, Central, and Southern California. (Id.; 15 Doc. 36-2 at 8-14, Szamet Decl. ¶¶ 53-55.) Thus, the views of counsel support final approval of the 16 Settlement. 17 G. Reaction of Class Members to the Proposed Settlement 18 No objections were filed by Class Members following service of the Class Notice. (Doc. 36-8 19 at 4, Keough Decl. ¶ 14.) The Class Representative has indicated that based on his involvement in this 20 case, he “believe[s] that the proposed settlement is a good settlement for the Class,” and he “support[s] 21 this settlement.” (Doc. 36-9 at 3, Felix Decl. ¶ 8.) Although 1,133 Class Members received the Class 22 Notice,1 only two exclusions were returned to the Settlement Administrator. (Doc. 36-8 at 2-4, Keough 23 Decl. ¶¶ 5, 7-8, 16.) 24 “[T]he absence of a large number of objections to a proposed class action settlement raises a 25 strong presumption that the terms of a proposed class action settlement are favorable to the class 26 members.” Nat’l Rural Telecomms., 221 F.R.D. at 529. Because no Class Members objected to the 27 28 1 Ms. Keough reported that JND Legal Administration sent the Class Notice to 1,227 Class Members, but 94 remained 1 Settlement and the requests for exclusion are vastly outweighed by the number of Class Members who 2 have indicated their consent to the terms of settlement, this factor weighs in favor of final approval of 3 the Settlement. 4 H. Collusion between Negotiating Parties 5 The inquiry of collusion addresses the possibility that the settlement agreement is the result of 6 either “overt misconduct by the negotiators” or improper incentives of class members at the expense of 7 others. Staton, 327 F.3d at 960. Plaintiff reports that “the Settlement Agreement was reached after an 8 informal exchange of pertinent discovery, as well as an estimate of the number of FCRA class 9 members.” (Doc. 36 at 23; Doc. 36-2 at 7, Szamet Decl. ¶ 42.) In addition, Plaintiff asserts that 10 “[f]ollowing informal discovery, the parties engaged in extensive arm's length negotiations.” (Doc. 36 11 at 23; Doc. 36-2 at 7, Szamet Decl. ¶ 43.) Because there is no indication the agreement was the product 12 of collusive conduct, this factor weighs in favor of approval of the Settlement. 13 III. Conclusion 14 The factors set forth by the Ninth Circuit weigh in favor of final approval of the Settlement, 15 which is fair, reasonable, and adequate as required by Rule 23. Therefore, the Court recommends final 16 approval of the Settlement Agreement be GRANTED. 17 REQUEST FOR ATTORNEYS’ FEES AND COSTS 18 Attorneys’ fees and nontaxable costs “authorized by law or by agreement of the parties” may be 19 awarded pursuant to Rule 23(h). The Settlement authorizes Class Counsel to seek attorneys’ fees up to 20 33 1/3% of the Global Settlement Fund, for a total of $39,425.00. (Doc. 36-3 at 21, Settlement ¶ 12.) 21 Here, Class Counsel seeks fees totaling $39,425.00 and $931.11 in costs. (Doc. 36-1 at 7.) 22 Under the “common fund” doctrine, attorneys who create a common fund for a class may be 23 awarded their fees and costs from the fund. Hanlon, 150 F.3d at 1029; Boeing Co. v. Van Gemert, 444 24 U.S. 472, 478 (1980) (“a lawyer who recovers a common fund for the benefit of persons other than 25 himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole”). An award 26 from the common fund “rests on the perception that persons who obtain the benefit of a lawsuit without 27 contributing to its cost are unjustly enriched at the successful litigant’s expense,” and as such 28 application of the doctrine is appropriate “when each member of a certified class has an undisputed and 1 mathematically ascertainable claim to part of a lump-sum judgment recovered on his behalf.” Boeing 2 Co., 444 U.S. at 478. Here, the Settlement applies a distribution formula to determine the amount paid 3 to Class Members (Doc. 36-3 at 17-18, Settlement ¶ 4), and application of the common fund doctrine is 4 appropriate. 5 I. Legal Standards 6 “[A] district court must carefully assess the reasonableness of a fee amount spelled out in a class 7 action settlement agreement” to determine whether it is “‘fundamentally fair, adequate, and reasonable’ 8 Fed.R.Civ.P. 23(e).” Staton v. Boeing Co., 327 F.3d 938, 963 (9th Cir. 2003). To do so, the Court 9 must “carefully assess the reasonableness of a fee amount spelled out in a class action settlement 10 agreement.” Id. 11 A court “may not uncritically accept a fee request,” but must review the time billed and assess 12 whether it is reasonable in light of the work performed and the context of the case. See Common Cause 13 v. Jones, 235 F. Supp. 2d 1076, 1079 (C.D. Cal. 2002); see also McGrath v. County of Nevada, 67 F.3d 14 248, 254 n.5 (9th Cir. 1995) (noting a court may not adopt representations regarding the reasonableness 15 of time expended without independently reviewing the record); Sealy, Inc. v. Easy Living, Inc., 743 16 F.2d 1378, 1385 (9th Cir. 1984) (remanding an action for a thorough inquiry on the fee request where 17 “the district court engaged in the ‘regrettable practice’ of adopting the findings drafted by the prevailing 18 party wholesale” and explaining a court should not “accept[] uncritically [the] representations 19 concerning the time expended”). 20 The party seeking fees bears the burden of establishing that the fees and costs were reasonably 21 necessary to achieve the results obtained. See Fischer v. SJB-P.D., Inc., 214 F.3d 1115, 1119 (9th 22 2000). Therefore, a fee applicant must provide records documenting the tasks completed and the 23 amount of time spent. Hensley v. Eckerhart, 461 U.S. 424, 424 (1983); Welch v. Metropolitan Life Ins. 24 Co., 480 F.3d 942, 945-46 (9th Cir. 2007). “Where the documentation of hours in inadequate, the 25 district court may reduce hours accordingly.” Hensley, 461 U.S. at 433. 26 When fees are to be paid from a common fund, as here, the relationship between the class 27 members and class counsel “turns adversarial.” In re Washington Pub. Power Supply Sys. Sec. Litig., 28 19 F.3d 1291, 1302 (9th Cir. 1994). The Ninth Circuit observed: 1 [A]t the fee-setting stage, plaintiff’s counsel, otherwise a fiduciary for the class, has become a claimant against the fund created for the benefit of the class. It is obligatory, 2 therefore, for the trial judge to act with a jealous regard to the rights of those who are interested in the fund in determining what a proper fee award is. 3 4 Id. at 1302 (internal quotation marks, citation omitted). As a result, the district court must assume a 5 fiduciary role for the class members in evaluating the reasonableness of a request for fees from the 6 common fund. Id.; Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 968 (9th Cir. 2009) (“when fees are 7 to come out of the settlement fund, the district court has a fiduciary role for the class”). 8 The Court may use either a lodestar or percentage calculation to evaluate a fee request. See 9 Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir. 1989) (holding both a lodestar 10 and percentage calculations “have [a] place in determining what would be reasonable compensation”); 11 Lafitte v. Robert Half Int’l Inc., 1 Cal.5th 480, 504 (2016) (“The choice of a fee calculation method is 12 generally one within the discretion of the trial court, the goal under either the percentage or lodestar 13 approach being the award of a reasonable fee to compensate counsel for their efforts.”). 14 A. Lodestar method 15 The lodestar method calculates attorney fees by “by multiplying the number of hours reasonably 16 expended by counsel on the particular matter times a reasonable hourly rate.” Florida , 915 F.2d at 545 17 n. 3 (citing Hensley, 461 U.S. at 433); see also Lafitte, 1 Cal. 5th at 489. The product of this 18 computation, the “lodestar” amount, yields a presumptively reasonable fee. Gonzalez v. City of 19 Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013). Next, the Court may adjust the lodestar upward or 20 downward using a “multiplier” considering the following factors adopted by the Ninth Circuit in a 21 determination of the reasonable fees: 22 (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other 23 employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the 24 circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the 25 nature and length of the professional relationship with the client, and (12) awards in similar cases. 26 27 Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975). However, the Court has since 28 suggested that the fixed or contingent nature of a fee and the “desirability” of a case are no longer 1 relevant factors. Resurrection Bay Conservation Alliance v. City of Seward, 640 F.3d 1087, 1095, n.5 2 (9th Cir. 2011) (citing Davis v. City of San Francisco, 976 F.2d 1536, 1546 n.4 (9th Cir. 1992)). 3 B. Percentage from the common fund 4 As the name suggests, under this method, “the court makes a fee award on the basis of some 5 percentage of the common fund.” Florida, 915 F.2d at 545 n. 3. In the Ninth Circuit, the typical range 6 of acceptable attorneys’ fees is 20% to 30% of the total settlement value, with 25% considered the 7 benchmark. See Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 2002); Hanlon, 150 F.3d 8 at 1029 (observing “[t]his circuit has established 25 % of the common fund as a benchmark award for 9 attorney fees”). The percentage may be adjusted below or above the benchmark, but the Court’s 10 reasons for adjustment must be clear. Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th 11 Cir. 1989). 12 When assessing whether the percentage requested is reasonable, courts may consider a number 13 of factors, including “(1) the results obtained for the class; (2) the risk undertaken by counsel; (3) the 14 complexity of the legal and factual issues; (4) the length of the professional relationship with the 15 client; (5) the market rate; and (6) awards in similar cases.” Romero v. Produces Dairy Foods, Inc., 16 2007 U.S. Dist. LEXIS 86270, at *8-9 (E.D. Cal. Nov. 14, 2007) (citing Vizcaino, 290 F.3d at 1048- 17 1050; Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1311 (9th Cir. 1990)); see also 18 Lafitte, 1 Cal. 5th 480 (determining the reasonableness of percentage fee through considering “the 19 risks and potential value of the litigation;” the “contingency, novelty and difficulty” of the case; and 20 “the skill shown by counsel, the number of hours worked, and the asserted hourly rates”). 21 II. Evaluation of the Fees Requested 22 “The district court has discretion to use the lodestar method or the percentage of the fund 23 method in common fund cases.” Powers v. Eichen, 229 F.3d 1249, 1256 (9th Cir. 2000) (quoting In re 24 Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig., 109 F.3d 602, 607 (9th Cir. 25 1997)). Notably, the Court must consider similar factors under either method. See Kerr, 526 F.2d at 70; 26 Vizcaino, 290 F.3d at 1048-1050. Further, the Court may “appl[y] the lodestar method as a crosscheck” 27 to determine whether the amount requested is reasonable. Vizcaino, 290 F.3d at 1050, n.5. 28 /// 1 A. Time and labor required 2 Class Counsel report they have worked 87.4 hours on this case. (Doc. 36-1 at 11, Doc. 36-2 at 3 15, Szamet Decl. ¶ 61.) There is no evidence that Class Counsel were precluded from other work 4 because of the pendency of this litigation. Nevertheless, the time expended by Class Counsel supports 5 an award of the fees requested. 6 B. Results obtained for the class 7 Courts have recognized consistently that the result achieved is a major factor to be considered in 8 making a fee award. Hensley, 461 U.S. at 436; Wilcox v. City of Reno, 42 F.3d 550, 554 (9th Cir. 9 1994). Class Counsel asserts that they “recovered $118,275.00 on behalf of the Settlement Class, that 10 the class members would likely not have recovered independent of this action.” (Doc. 36-1 at 10.) 11 According to Ms. Keough, the recovery for Class Members will be approximately between $37.38 and 12 $74.76. (Doc. 36-1 at 10; Doc. 36-8 at 5, Keough Decl. ¶ 18.) Though this is a fairly insignificant 13 amount, the fact that the members would likely have not received anything absent this litigation, this 14 factor supports an award of the fees requested. 15 C. Risk undertaken by counsel 16 The risk of costly litigation and trial is an important factor in determining the fee award. 17 Chemical Bank v. City of Seattle, 19 F.3d 1297, 1299-1301 (9th Cir. 1994). The Supreme Court 18 explained, “the risk of loss in a particular case is a product of two factors: (1) the legal and factual 19 merits of the claim, and (2) the difficulty of establishing those merits.” City of Burlington v. Dague, 20 505 U.S. 557, 562 (1992). 21 There is no evidence that Class Counsel faced extreme risks in pursuing this litigation. For 22 example, in Vizcaino, the plaintiffs “lost in the district court—once on the merits, once on the class 23 definition” and the class counsel twice “succeeded in reviving their case on appeal.” Id., 290 F.3d at 24 1303. The court found the pursuit of the case was “extremely risky” given the “absence of supporting 25 precedents” and the challenges faced in the appeals. Id. As such, the risks supported an award of fees 26 slightly above the benchmark. Id. at 1048-49. In contrast, here, though Defendant denied liability, Class 27 Counsel were not faced with a challenge to merits of the claims or the propriety of class certification. 28 On the other hand, Class Counsel discusses that “the changing and uncertain legal environment for 1 Article III standing for claims under the FCRA made the ultimate outcome of this litigation uncertain.” 2 (Doc. 36-1 at 10.) Class Counsel further contends that “there is uncertainty surrounding Plaintiff’s 3 ability to prove his claims given the unpredictability associated with class certification as well as 4 complex jury trials.” (Id.) Additionally, Class Counsel asserts that “Class Counsel has borne the entire 5 risk and costs of this litigation, all on a pure contingency basis.” (Id. at 11; Doc. 36-2 at 15, Szamet 6 Decl. ¶ 60.) Based upon these facts, this factor supports the requested fees. 7 D. Complexity of issues and skill required 8 The complexity of issues and skills required may weigh in favor of a departure from the 9 benchmark fee award. See, e.g., Lopez v. Youngblood, 2011 U.S. Dist. LEXIS 99289, at *14-15 (E.D. 10 Cal. Sept. 2, 2011) (in determining whether to award the requested fees totaling 28% of the class fund, 11 the Court observed the case involved “complex issues of constitutional law in an area where 12 considerable deference is given to jail officials,” and the action “encompassed two categories of class 13 members”); see also In re Heritage Bond Litig., 2005 U.S. Dist. LEXIS 13555, at *66 (C.D. Cal. June 14 10, 2005) (“Courts have recognized that the novelty, difficulty and complexity of the issues involved 15 are significant factors in determining a fee award.”). 16 Class Counsel asserts that they “showed great skill, thoroughness, and diligence in investigating 17 and developing the claims, liability theories, and estimated possible recoveries in this litigation.” (Doc. 18 36-1 at 10-11; Doc. 36-2 at 15, Szamet Decl. ¶ 58.) In addition, Class Counsel states they “have many 19 years of experience litigating complex class action cases in the employment and consumer context.” 20 (Doc. 36-1 at 11.) Class Counsel further contends that “the legal issue of Article III standing is cutting- 21 edge [and] complex.” (Id.) Indeed, the Court finds Class Counsel displayed skills consistent of those 22 that would be expected of attorneys of comparable experience. Therefore, this factor supports the 23 requested fee award. 24 E. Length of professional relationship 25 Class Counsel does not address the length of the professional relationships. Class Counsel 26 initiated this action on behalf of Plaintiff on March 7, 2019. (Doc. 1.) The parties reached a proposed 27 class action settlement on September 6, 2019 through arms-length, direct negotiations. (Doc. 36 at 10, 28 Doc. 36-2 at 3, Szamet Decl. ¶ 8.) The short duration of the professional relationship may warrant an 1 award below the benchmark. See Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1311 2 (9th Cir. 1990) (finding “the 25 percent standard award” was appropriate although “the litigation lasted 3 more than 13 years”). 4 F. Awards in similar cases 5 Previously, this Court observed that “[t]he typical range of acceptable attorneys’ fees in the 6 Ninth Circuit is 20% to 33 1/3% of the total settlement value, with 25% considered the benchmark.” 7 Powers v. Eichen, 229 F.3d 1249, 1256 (9th Cir. 2000); Barbosa v. Cargill Meat Solutions Corp., 297 8 F.R.D. 431, 448 (E.D. Cal. 2013). Thus, the amount requested by Class Counsel is at the highest range 9 of percentages from the common fund. See id. 10 Class Counsel has not identified similar cases demonstrating the fees requested are comparable 11 to those awarded previously by this Court. As examples, the results obtained in the Rodriguez and 12 Morales settlements were much more beneficial to the class members than the estimated awards for 13 class members in this action. In Morales, the average award for class members was “over $4,300” for 14 each class member. Morales, 2013 WL 1222058 at *2 (E.D. Cal. Mar. 25, 2013). The Court found this 15 was “a significant recovery” that weighed in favor of a higher award. Id. Similarly, in Rodriguez, the 16 average award was approximately $2,200 award per worker, and “the highest award [was] estimated to 17 be approximately $17,300.” Rodriguez, 2013 WL 2146927 at *13 (E.D. Cal. May 15, 2013). The Court 18 determined such results were significant and weighed in favor of an award higher than the benchmark. 19 See Morales, 2013 WL 1222058 at *2; Rodriguez, 2013 WL 2146927 at *13. In contrast, here, the 20 recovery for class members will be approximately between $37.38 and $74.76. (Doc. 36-1 at 10; Doc. 21 36-8 at 5, Keough Decl. ¶ 18.) Given the disparity in the results achieved, the Court does not find this 22 compares favorably to these cases to support the reward requested. 23 G. Lodestar crosscheck and market rate 24 In general, the first step in determining the lodestar is to determine whether the number of hours 25 expended was reasonable. Fischer, 214 F.3d at 1119; Lafitte, 1 Cal. 5th 480. However, when the 26 lodestar is used as a cross-check for a fee award, the Court is not required to perform an “exhaustive 27 cataloguing and review of counsel’s hours.” See Schiller, 2012 WL 2117001 at *20 (citing In re Rite 28 Aid Corp. Sec. Litig., 396 F.3d 294, 306 (3d Cir.2005); In re Immune Response Sec. Litig., 497 1 F.Supp.2d 1166 (S.D. Cal. 2007)). With the hours reported, Class Counsel reports its lodestar is 2 $42,900.50. (Doc. 36-1 at 12, Doc. 36-2 at 16, Szamet Decl. ¶ 64.) 3 Significantly, however, the hourly fees used to calculate this amount—ranging from $325 to 4 $825 per hour— must be reduced to reflect the market rate within this community. The Supreme Court 5 explained that attorney fees are to be calculated with “the prevailing market rates in the relevant 6 community.” Blum v. Stenson, 465 U.S. 886, 895-96 and n.11 (1984). In general, the “relevant 7 community” for purposes of determining the prevailing market rate is the “forum in which the district 8 court sits.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008). Thus, when a case is 9 filed in the Fresno Division of the Eastern District of California, “[t]he Eastern District of California, 10 Fresno Division, is the appropriate forum to establish the lodestar hourly rate . . .” See Jadwin v. 11 County of Kern, 767 F.Supp.2d 1069, 1129 (E.D. Cal. 2011). 12 The fee applicant bears a burden to establish that the requested rates are commensurate “with 13 those prevailing in the community for similar services by lawyers of reasonably comparable skill, 14 experience, and reputation.” Blum, 465 U.S. at 895 n.11. The applicant meets this burden by 15 “produc[ing] satisfactory evidence—in addition to the attorney’s own affidavits—that the requested 16 rates are in line with those prevailing in the community for similar services by lawyers of reasonably 17 comparable skill, experience and reputation.” Blum, 465 U.S. at 896 n.11; see also Chaudhry v. City of 18 Los Angeles, 751 F.3d 1096, 1110-11 (9th Cir. 2014) (“Affidavits of the plaintiffs’ attorney[s] and 19 other attorneys regarding prevailing fees in the community . . . are satisfactory evidence of the 20 prevailing market rate.”) Though Class Counsel asserts their hourly rates “are fair and reasonable 21 and are comparable to or less than those charged by [their] colleagues in California and the national 22 market for prosecuting or defending class actions” (Doc. 36-2 at 19, Szamet Decl. ¶ 73), they fail to 23 identify any case within the Eastern District approving their hourly rates. 24 The hourly rates sought by attorneys on this action range from $325 to $825 per hour. (Doc. 36- 25 2 at 22, Szamet Decl. ¶ 88.) Class Counsel asserts that these “hourly rates are fully supported by their 26 experience and reputation in handling complex employment litigation, including wage and hour class 27 actions.” (Id., ¶ 89.) Class Counsel also contends that their rates “are commensurate with the prevailing 28 market rates in Los Angeles County for attorneys of comparable experience and skill handling complex 1 litigation” and “are in line with the Laffey Matrix.” (Id., ¶¶ 90, 93.) The Laffey Matrix is “a widely 2 recognized compilation of attorney and paralegal rates used in the District of Columbia, and frequently 3 used in determining fee awards.” Schiller, 2012 WL 2117001 at *21. Nevertheless, this Court has 4 rejected rates based upon the Laffey Matrix, finding that “the hourly rate[] generally accepted in the 5 Fresno Division for competent experienced attorneys is between $250 and $380, with the highest rates 6 generally reserved for those attorneys who are regarded as competent and reputable and who possess in 7 excess of 20 years of experience.” Silvester v. Harris, 2014 U.S. Dist. LEXIS 174366, 2014 WL 8 7239371 at *4 (E.D. Cal. Dec. 17, 2014) (citing Willis v. City of Fresno, 2014 U.S. Dist. LEXIS 97564 9 (E.D. Cal. July 17, 2014); Gordillo v. Ford Motor Co., 2014 U.S. Dist. LEXIS 84359 (E.D. Cal. June 10 19, 2014)). Likewise, this Court found the Laffey Matrix is “‘irrelevant to determining reasonable 11 hourly rates for’ counsel in the Eastern District of California[.] The Laffey Matrix also fails to account 12 for differences in hourly rates depending on the area of practice.” Johnson v. Wayside Property, Inc., 13 2014 WL 6634325 at * 7 (E.D. Cal. Nov. 21, 2014). 14 The requested rates exceed those generally found reasonable in the Eastern District. See 15 Fitzgerald, 2013 WL 1627740, n.5. The Sacramento Division has awarded hourly rates ranging from 16 $150 for new and inexperienced lawyers to $450 per hour to the most experienced.2 See, e.g., 17 Ontiveros v. Zamora, 303 F.R.D. 356, 373-374 (E.D. Cal. 2014) (“[a] reasonable rate for associates 18 working in this community is typically between $150 and $175 per hour,” and awarding $400 for 19 partners and $175 to associates); AT&T Mobility LLC v. Yeager, 2018 WL 1567819 at *4-5 (E.D. Cal. 20 Mar. 30, 2018) (observing that “[i]n the Sacramento division, the average rate for junior associates is 21 between $150 and $175,” and the requested rate of $600 by an attorney who had experience exceeding 22 twenty years was “unreasonably high for this forum,” and reducing the award to $300 per hour due to 23 the simplicity of the work required); Eagle Sys. & Servs. v. Int'l Assoc. of Machinists, 2017 WL 24 25 2 As noted, these hourly rates are comparable to those awarded in the Fresno Division. This Court previously reviewed the billing rates for the Fresno Division of the Eastern District and determined that for attorneys with “less than ten 26 years of experience . . . the accepted range is between $175 and $300 per hour.” Silvester v. Harris, 2014 WL 7239371 at *4 (E.D. Cal. Dec. 2014). In addition, “hourly rates generally accepted in the Fresno Division for competent experienced 27 attorneys [are] between $250 and $380, with the highest rates generally reserved for those attorneys who are regarded as competent and reputable and who possess in excess of 20 years of experience.” Id.; see also Roach v. Tate Publ’g & Enter., 28 2017 WL 5070264 at *9 (E.D. Cal. Nov. 3, 2017) (“attorneys with experience of twenty or more years of experience are 1 1213373 at *3 (E.D. Cal. Mar. 31, 2017) (“judges in this district accept rates between $400 and $450 2 for partners with 20 to 35 years of experience”) (collecting cases). With these parameters in mind, the 3 hourly rates for counsel must be adjusted to calculate the lodestar.3 4 The hours for Eric Kingsley, who has been practicing for more than twenty years, will be 5 calculated at a rate of $450 per hour. For Kelsey Szamet, who has been practicing since 2008, the 6 hourly rate is adjusted to $375 per hour. Finally, the hourly rate for Justin Aufderhar and Jessica 7 Adlouni, who have been practicing for less than five years, is adjusted to $200 per hour. With the rate 8 adjustments to prevailing market rates, the lodestar amount is reduced to a total of $26,395.00. 9 LEGAL PROFESSIONAL HOURS RATE LODESTAR Eric B. Kingsley 6.40 $450 $2,880.00 10 Kelsey M. Szamet 41.80 $375 $15,675.00 11 Justin Aufderhar 22.10 $200 $4,420.00 Jessica Adlouni 17.10 $200 $3,420.00 12 $26,395.00 13 III. Amount of Fees to be Awarded 14 There is a strong presumption that the lodestar is a reasonable fee. Gonzalez, 729 F.3d at 1202; 15 Camacho, 523 F.3d at 978. As a result, “a multiplier may be used to adjust the lodestar amount upward 16 or downward only in rare and exceptional cases, supported by both specific evidence on the record and 17 detailed findings . . . that the lodestar amount is unreasonably low or unreasonably high.” Van Gerwen 18 v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000) (internal punctuation and citations 19 omitted). Nevertheless, the Ninth Circuit observed that the lodestar is “routinely enhanced . . . to reflect 20 the risk of non-payment in common fund cases.” In re Washington Pub. Power Supply Sys. Sec. Litig., 21 19 F.3d at 1300. The Court does not find that the issues involved in this case or the fact that it is a 22 common fund case, justifies a multiplier. 23 Accordingly, because the lodestar crosscheck results in an amount below the 25% benchmark 24 25 26 3 Although rates outside of the relevant forum may be employed if local counsel is unavailable, Plaintiff’s counsel do not assert that local counsel was unavailable. Thus, they fail to meet their burden to show that hourly rates other than those of 27 the Fresno Division should be used for purposes of calculating the lodestar. See Camacho, 523 F.3d at 979; Barjon v. Dalton, 132 F.3d 496, 500-02 (9th Cir. 1997) (affirming the district court’s decision to decline an award of out-of-district 28 billing rates where the fee applicants failed “to prove the unavailability of local counsel,” and instead reduced the award to 1 and due to the fairly insignificant recovery for the class, the Court recommends the benchmark of 25% 2 of the fund in the amount of $29,568.75 be GRANTED. 3 REQUESTS FOR COSTS 4 I. Litigation Costs 5 Reimbursement of taxable costs is governed by 28 U.S.C. § 1920 and Federal Rule of Civil 6 Procedure 54. Attorneys may recover reasonable expenses that would typically be billed to paying 7 clients in non-contingency matters. See Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994). Here, 8 Plaintiff’s counsel seeks a total reimbursement of $931.11 for costs incurred in the course of this 9 action. (Doc. 36-1 at 13; Doc. 36-2 at 22-23, Szamet Decl. ¶ 94.) Class Counsel reports they have 10 “incurred costs for filing fees, postage and legal research.” (Doc. 36-1 at 13; Doc. 36-2 at 23, Szamet 11 Decl. ¶ 96.) 12 Previously, this Court noted costs “includ[ing] filing fees, mediator fees . . . , ground 13 transportation, copy charges, computer research, and database expert fees . . . are routinely reimbursed 14 in these types of cases.” Alvarado v. Nederend, 2011 WL 1883188 at *10 (E.D. Cal. Jan. May 17, 15 2011). Accordingly, the Court recommends Class Counsel’s request for litigation costs in the amount 16 of $931.11 be GRANTED. 17 II. Costs of Settlement Administration 18 Previously, the Court ordered that “[c]osts of settlement administration shall not exceed 19 $18,500.” (Doc. 29 at 17.) Under the terms of the Settlement, the Settlement Administrator was 20 “responsible for establishing the Settlement Fund and issuing (a) all funds by way of negotiable 21 instrument from the Global Settlement Fund, (b) W-9 Forms (if required), (c) 1099 forms; and (d) all 22 required notices under the Class Action Fairness Act 2005, 28 U.S.C. § 1711, et seq.” (Doc. 36-3 at 21, 23 Settlement ¶ 11.) The Settlement authorizes that “[t]he Settlement Administrator’s fees shall be paid 24 from the Global Settlement Fund.” (Id.) 25 The administrative expenses requested are within the range of previous costs for claims 26 administration awarded in this District. See, e.g., Bond v. Ferguson Enterprises, Inc., 2011 WL 27 2648879, at *8 (E.D. Cal. June 30, 2011) ($18,000 settlement administration fee awarded in wage an 28 hour case involving approximately 550 class members); Vasquez v. Coast Valley Roofing, 266 F.R.D. 1 482, 483-84 (E.D. Cal. 2010) ($25,000 settlement administration fee awarded in wage and hour case 2 involving approximately 170 potential class members). Accordingly, the Court recommends that the 3 request for $18,500 in expenses for the settlement administration by JND Legal Administration be 4 GRANTED. 5 PLAINTIFF’S REQUEST FOR AN INCENTIVE AWARD 6 Plaintiff seeks an incentive award of $5,000 for his actions as the class representative. (Doc. 36- 7 1 at 13-14.) In the Ninth Circuit, a court has discretion to award a class representative a reasonable 8 incentive payment. Staton, 327 F.3d at 977; In re Mego Fin. Corp. Sec. Litig., 213 F.3d at 463. 9 Incentive payments for class representatives are not to be given routinely. In Staton, the Ninth Circuit 10 observed: 11 Indeed, ‘[i]f class representatives expect routinely to receive special awards in addition to their share of the recovery, they may be tempted to accept suboptimal settlements at 12 the expense of the class members whose interests they are appointed to guard.” Weseley v. Spear, Leeds & Kellogg, 711 F. Supp. 713, 720 (E.D.N.Y. 1989); see also Women’s 13 Comm. for Equal Employment Opportunity v. Nat’l Broad. Co., 76 F.R.D. 173, 180 (S.D.N.Y. 1977) (“[W]hen representative plaintiffs make what amounts to a separate 14 peace with defendants, grave problems of collusion are raised.”). 15 Id. at 975. In evaluating a request for an enhanced award to a class representative, the Court should 16 consider all “relevant factors including the actions the plaintiff has taken to protect the interests of the 17 class, the degree to which the class has benefitted from those actions, . . . the amount of time and effort 18 the plaintiff expended in pursuing the litigation . . . and reasonable fears of workplace retaliation.” Id. 19 at 977. Further, incentive awards may recognize a plaintiff’s “willingness to act as a private attorney 20 general.” Rodriguez v. West Publ’g Corp., 563 F.3d 948, 958-59 (9th Cir. 2009). 21 I. Actions taken to benefit the class and time expended 22 Plaintiff reports that he spent significant time throughout this class action working with Class 23 Counsel. (Doc. 36-9 at 2, Felix Decl. ¶ 4.) Specifically, Plaintiff reports that “before filing this action, 24 in early 2019, [he] spent a lot of time researching competent counsel that [he] believed could best 25 represent the interests of the Class Members.” (Id.) Plaintiff states that he then “spent time assisting and 26 working with [counsel] by investigating and gathering information, including discussing [his] work 27 experience and the experience of others that [he] observed while working for Bolthouse and providing 28 all relevant employment documents in [his] possession.” (Id.) In addition, Plaintiff reports that after the 1 lawsuit was filed, he “maintained regular contact with [his] attorneys to discuss the status of the case 2 and regularly check in about the case’s progress,” and he made himself available as needed. (Id., ¶ 5.) 3 Plaintiff further reports that after the settlement was reached, he reviewed the final settlement 4 agreement and discussed the settlement and next steps with his attorneys. (Id. at 3, ¶ 7.) 5 Notably, Plaintiff would have taken many of these same actions if prosecuting this action on 6 behalf of himself as an individual, rather than as a class representative. Nevertheless, undoubtedly, his 7 actions benefitted the class such that they weigh in favor of an incentive payment. 8 II. Fears of workplace retaliation 9 Plaintiff does not contend he feared retaliation for their connections to this action, and because 10 Plaintiff is a former employee of Defendant, retaliation is not possible. (See Doc. 36-9 at 2, Felix Decl. 11 ¶ 2.) Further, there is no support for Plaintiff’s speculation that it is possible that his involvement in this 12 matter could make it more difficult for him to obtain employment in the field. (Id. at 2-3, ¶ 6.) Thus, 13 this factor does not support an incentive payment to Plaintiff. 14 III. Reasonableness of Plaintiff’s request 15 Considering the actions taken by Plaintiff and the time expended, an incentive award is 16 appropriate. In determining the amount to be awarded, the Court may consider the time expended by 17 the class representative, the fairness of the hourly rate, and how large the incentive award is compared 18 to the average award class members expect to receive. See, e.g., Ontiveros v. Zamora, 2014 WL 19 5035935 (E.D. Cal. Oct. 8, 2014) (evaluating the hourly rate the named plaintiff would receive to 20 determine whether the incentive award was appropriate); Rankin v. Am. Greetings, Inc., 2011 U.S. Dist. 21 LEXIS 72250, at *5 (E.D. Cal. July 6, 2011) (noting the incentive award requested was “reasonably 22 close to the average per class member amount to be received); Alvarado, 2011 WL 1883188 at *10-11 23 (considering the time and financial risk undertaken by the plaintiff). 24 A. Time expended 25 In Alvarado, the Court noted the class representatives “(1) travelled from Bakersfield to 26 Sacramento for mediation sessions; (2) assisted Counsel in investigating and substantiating the claims 27 alleged in this action; (3) assisted in the preparation of the complaint in this action; (4) produced 28 evidentiary documents to Counsel; and (5) assisted in the settlement of this litigation.” Id., 2011 WL 1 1883188 at *11. Further, the Court noted the plaintiffs “undertook the financial risk that, in the event 2 of a judgment in favor of Defendant in this action, they could have been personally responsible for the 3 costs awarded in favor of the Defendant.” Id. In light of these facts, the Court found an award of 4 $7,500 for each plaintiff was appropriate for the time, efforts, and risks undertaken. 5 Likewise, in Bond, the Court found incentive payments of $7,500 were appropriate for the two 6 named plaintiffs who: “(1) provided significant assistance to Class Counsel; (2) endured lengthy 7 interviews; (3) provided written declarations; (4) searched for and produced relevant documents; (5) 8 and prepared and evaluated the case for mediation, which was a full day session requiring very careful 9 consideration, evaluation and approval of the terms of the Settlement Agreement on behalf of the 10 Class.” Bond, 2011 WL 2648879, at *15. On the other hand, the Northern District determined class 11 representatives failed to justify incentive awards of $10,000 although the plaintiffs reported “they were 12 involved with the case by interacting with counsel, participating in conferences, reviewing documents, 13 and attending the day-long mediation that resulted in the settlement.” Wade v. Minatta Transport Co., 14 2012 U.S. Dist. LEXIS 12057, at *3 (N.D. Cal. Feb. 1, 2012). 15 In this case, Plaintiff seeks an award that is less than the amount of the incentive awards 16 approved in the cases discussed above. However, Plaintiff did not suffer the inconvenience of traveling 17 for and participating in mediation. Furthermore, though Plaintiff assisted with the investigation and 18 gathering of information, he did not “endure lengthy interviews” and was not required to submit to a 19 deposition. Consequently, an award of $5,000 is excessive. 20 B. Fairness of the hourly rate 21 Previously, this Court criticized a requested award of $20,000 where the plaintiff estimated “he 22 spent 271 hours on his duties as class representative over a period of six years,” because the award 23 would have compensated the class representative “at a rate of $73.80 per hour.” Ontiveros, 2014 WL 24 5035935 at *5-6. The Court explained that “[i]ncentive awards should be sufficient to compensate class 25 representatives to make up for financial risk . . . for example, for time they could have spent at their 26 jobs.” Id. at *6 (citing Rodriguez v. West Publ’g Corp., 563 F.3d 948, 958-59 (9th Cir. 2009)). The 27 Court found an award of “$50 per hour fairly compensate[] the named plaintiff for his time and 28 incorporates an extra incentive to participate in litigation,” considering that the plaintiff’s hourly flat 1 rate while employed by the defendant was $15 per hour. Id. at *6; n.3. Nevertheless, the Court 2 increased the award from $13,550 (calculated with $50 per hour for the 271 hours) to $15,000 because 3 “Mr. Ontiveros relinquished the opportunity to bring several of his own claims.” Id. at *6. 4 With an estimated 30 hours of tasks taken by Plaintiff, the requested award of $5,000 would 5 compensate Plaintiff at a rate of $166.67 per hour. If the Court were to adopt the $50 per hour rate 6 approved in Ontiveros, Plaintiff’s incentive award would be reduced to $1,500. 7 C. Comparison of the award to those of the Class Members 8 In Rankin, the Court approved an incentive award of $5,000, where the “[p]laintiff retained 9 counsel, assisted in the litigation, and was an active participant in the full-day mediation.” Id., 2011 10 U.S. Dist. LEXIS 72250, at *5. The Court found the amount reasonable, in part because “the sum is 11 reasonably close to the average per class member amount to be received.” Id. In contrast, here Plaintiff 12 seeks an award of $5,000, while the recovery for Class Members will be approximately between $37.38 13 and $74.76. (Doc. 36-1 at 10; Doc. 36-8 at 5, Keough Decl. ¶ 18.) Thus, the requested incentive award 14 is disproportionate to the awards Class Members expect to receive. 15 IV. Amount to be awarded 16 Plaintiff clearly expended efforts on behalf of the class, he researched competent counsel, 17 assisted attorneys by investigating and gathering information, and made himself available as needed. 18 (Doc. 36-9 at 2-3, Felix Decl. ¶¶ 4-5, 7.) However, expending 30 hours is not such a great burden and 19 is clearly much less than he would have had to have expended had he prosecuted the action for himself 20 alone. Thus, the Court finds $1,500 is an appropriate incentive award. This represents more than 20 21 times what the highest paid class member will receive. Thus, the Court recommends that Plaintiff’s 22 request for an incentive payment be GRANTED in the modified amount of $1,500. 23 FINDINGS AND RECOMMENDATIONS 24 Based upon the foregoing, the Court finds the proposed class settlement is fair, adequate, and 25 reasonable, and the factors set forth by the Ninth Circuit weigh in favor of final approval of the 26 settlement agreement. See Fed. R. Civ. P. 23(e)(2); Staton, 327 F.3d at 959. 27 Accordingly, the Court RECOMMENDS: 28 1. Plaintiff’s motion for final approval of the Settlement Agreement be GRANTED; 1 2. Plaintiff’s request for certification of the Settlement Class be GRANTED and defined 2 as: 3 All applicants in the United States who filled out WM. BOLTHOUSE FARMS, INC.’s standard ‘Consent to Request 4 Consumer Report & Investigative Consumer Report Information’ form as administered by Sterling Infosystems Inc. 5 during the Class Period. 6 7 3. Class Counsel’s motion for attorneys’ fees be GRANTED in the amount of $29,568.75, 8 which is 25% of the gross settlement amount; 9 4. Class Counsel’s request for costs be GRANTED in the amount of $931.11; 10 5. The request for fees for the Settlement Administrator JND Legal Administration be 11 GRANTED in the amount of $18,500.00; 12 6. Plaintiff’s request for class representative incentive payment be GRANTED in the 13 modified amount of $1,500.00; 14 7. The action be dismissed with prejudice, with each side to bear its own costs and 15 attorneys’ fees except as otherwise provided by the Settlement and ordered by the Court; 16 and 17 8. The Court retain jurisdiction to consider any further applications arising out of or in 18 connection with the Settlement. 19 These Findings and Recommendations are submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local 21 Rules of Practice for the United States District Court, Eastern District of California. Within 14 days 22 after being served with these Findings and Recommendations, any party may file written objections 23 with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 24 Recommendations.” 25 /// 26 /// 27 /// 28 /// 1 The parties are advised that their failure to file objections within the specified time may waive 2 the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991); 3 Wilkerson v. Wheeler, 772 F.3d 834, 834 (9th Cir. 2014). 4 5 IT IS SO ORDERED. 6 Dated: May 3, 2020 /s/ Jennifer L. Thurston 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28