Garcia v. Schlumberger Lift Solutions, LLC ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CRISTOBAL GARCIA, an individual, on ) Case No.: 1:18-cv-01261-DAD JLT behalf of himself and all others similarly ) 12 situated, ) FINDINGS AND RECOMMENDATIONS ) GRANTING PLAINTIFF’S MOTION FOR FINAL 13 Plaintiff, ) APPROVAL OF CLASS SETTLEMENT 14 v. ) (Doc. 53) ) 15 SCHLUMBERGER LIFT SOLUTIONS, et al. ) ) 16 Defendants. ) ) 17 18 Cristobal Garcia asserts that he and others employed by Defendants Schlumberger suffered 19 wage and hour violations, including lost wages. Plaintiff now seeks final approval of a class 20 settlement related only the claim for “payment of safety bonuses by the Defendants which were not 21 used in calculating overtime.” (Doc. 41-1 at 6; see also Doc. 53 at 4) In addition, Plaintiff seeks an 22 award of attorneys’ fees and costs from the settlement fund, fees for claims administration, and a class 23 representative enhancement payment. (See generally Doc. 53) 24 Because Plaintiff carries his burden to demonstrate the Settlement is fair, reasonable, and 25 adequate, the Court recommends final approval be GRANTED. In addition, the Court recommends 26 the request for attorney fees in the amount of $175,000 and costs in the amount of $14,670.01 be 27 GRANTED; Plaintiff’s class representative award be GRANTED in the modified amount of $1,500; 28 and a claims administration costs be GRANTED in the modified amount of $6,000. 1 BACKGROUND 2 Plaintiff asserts that he was “employed in Kern County by Defendants as a non-exempt 3 employee.” (Doc. 1-3 at 5, ¶ 1) According to Plaintiff, “Defendants failed to pay [employees] for all 4 hours worked.” (Id. at 12, ¶ 32) For example, he reports the employees were “instructed … to arrive at 5 their base office to perform work and to then board company vehicles that would transport them to a 6 second job location away from their base office,” and if employees failed to arrive early enough, they 7 generally would not be permitted to work that day. (Id. at 9, ¶ 20) He alleges employees were not 8 permitted to clock in “until they reached their assigned field locations,” approximately 45 minutes to 1 9 hour after they arrived at the base camp, although there was a clock at the base office, and were not 10 paid for that time. (Id. at 9-10, ¶¶ 21, 23) In addition, Plaintiff contends the employees were not paid 11 for time at the base office waiting for training courses. (Id. at 11, ¶ 30) 12 He alleges Defendants also failed to provide “duty-free meal periods in a timely manner.” 13 (Doc. 1-3 at 15, ¶ 46) He contends Defendants “failed to provide… meal periods within the first five 14 hours of their work” and “frequently failed to provide Plaintiff and other[s] …with required meal 15 periods of not less than 30 minutes in duration.” (Id., ¶¶ 47-48) Plaintiff reports the employers were 16 not permitted “to leave the workplace during purported meal breaks and did not count their time 17 worked through breaks for regular and overtime wage purposes.” (Id., ¶ 50) He also reports that when 18 employees worked in excess of ten-hour shifts to attend classes after the shift, Defendants provided 19 food during the class but failed to provide a second meal break. (Id., ¶¶ 51-52) Similarly, Plaintiff 20 asserts employees were not provided “with the required duty-free rest periods… to which they were 21 entitled.” (Id. at 17, ¶¶ 58, 60) 22 According to Plaintiff, Defendants “failed to maintain and furnish Plaintiff and Class members 23 with accurate and complete wage statements regarding their gross wages earned, total hours worked, 24 total net wages earned, the name and address of the entity that is the legal employer, and all applicable 25 hourly rates in effect…” (Doc. 1-3 at 20, ¶ 67) He contends this failure to provide accurate wage 26 statements resulted in “the non-payment of all their regular and overtime wages and deprived them of 27 the information necessary to identify the discrepancies in Defendants’ reported data.” (Id., ¶ 68) 28 Furthermore, Plaintiff asserts Defendants had unlawful policies related to their uniforms, and 1 “failed to indemnify Plaintiff and other Class members for necessary expenditures and bosses incurred 2 by the employees in the direct discharge of their duties.” (Doc. 1-3 at 23, ¶ 83) He alleges employees 3 were “required to wear uniforms and were required to pay for costs associated with the laundering and 4 upkeep of those uniforms.” (Id. at 22, ¶ 81) He asserts employees were also “liable for costs 5 associated with damage of the uniforms,” and the “damage liability was broadly described to include 6 normal wear and tear or other accidental, incidental or inadvertent damage that may have occurred 7 during the execution of… duties.” (Id.) Plaintiff reports he and other employees were required to sign 8 a document that acknowledged he was “just using the jacket” but was “responsible for the maintenance 9 of the jacket, including laundering,” and “agree[d] to follow the laundry instructions included with the 10 garment.” (Id. at 23, ¶ 81) 11 On June 5, 2018, Plaintiff initiated this action by filing a complaint in Kern County Superior 12 Court, Case No. BCV-18-101388. (Doc. 1 at 2, ¶ 1) He filed a First Amended Complaint on August 7, 13 2018, in which Plaintiff asserted the following claims: (1) failure to pay compensation due, (2) meal 14 period violations, (3) rest break violations, (4) failure to furnish itemized wage statements, (5) failure to 15 pay wages timely upon termination, (6) failure to indemnify business expenses, (7) violation of 16 California Business and Professions Code § 17203, and (8) civil penalties pursuant to the California 17 Private Attorney General Act. (See generally Doc. 1-3 at 4-5, 8-25) He asserted the first seven cause of 18 action were brought “for himself and on behalf of a class and sub-class initially defined as follows: 19 Class: All non-exempt employees of any of the Defendants who, at any time within the period beginning four years prior to the filing of this action through the date of class 20 certification, worked in California. 21 Termination Pay Sub-Class: All members of the Class whose employment terminated at any time within the period three years prior to the filing of this action through the 22 date of certification. 23 (Id. at 6-7, ¶ 8) After Defendants were served with the First Amended Complaint, they filed a Notice of 24 Removal on September 13, 2018, thereby initiating the action in this Court. (Doc. 1) 25 The Court issued its Scheduling Order governing the action on November 29, 2018. (Doc. 12) 26 The parties engaged in discovery, including the production of “extensive payroll and time-keeping 27 data.” (Doc. 41-1 at 16) Plaintiff was deposed and took the deposition of Defendants’ Rule 30(b)(6) 28 designee. (Id. at 17) 1 On March 25, 2020, the parties engaged in mediation with Jeffrey Krivis. (Doc. 41-1 at 7) 2 Plaintiff reports that “[a]s a result of a mediator’s proposal, the Parties were able to partially resolve the 3 action with respect to the claim for unpaid overtime on safety bonuses and related derivative claims.” 4 (Id.) Specifically, the parties agreed: 5 Plaintiff’s first and seventh causes of action survive as to Settlement Class Members insofar as they rely upon any theory of recovery other than miscalculation of regular 6 rate/unpaid overtime on safety bonuses. The fifth cause of action shall be resolved, settled and released in full, for the Settlement Class Members only. The fourth cause of 7 action shall be resolved, settled and released in full, for the Settlement Class Members only, as to any claims arising prior to January 19, 2019. 8 9 (Doc. 41-2 at 38-39, Settlement § 10, ¶ 51) Further, the parties agreed the PAGA penalties of $30,000 10 “satisfies in full all PAGA penalties … attributable to the first and fourth causes of action or claims 11 alleged therein limited to the time period prior to January 19, 2019, and all penalties attributable to the 12 fifth cause of action or claims alleged therein through the date of Final Approval.” (Id.) 13 The Court granted preliminary approval of the proposed settlement agreement on July 16, 2020. 14 (Doc. 44) The Court granted conditional certification of the Settlement Class, which was defined as: 15 All non-exempt employees of Schlumberger Lift Solutions LLC or Schlumberger Rod Lift, Inc. who do not opt out of the settlement and who, at any time within the 16 period beginning June 5, 2014 and ending on January 19, 2019 (“Class Period”), worked in California and received a safety bonus by Schlumberger Lift Solutions LLC or 17 Schlumberger Rod Lift, Inc. pursuant to a safety bonus program of Schlumberger Lift Solutions LLC or Schlumberger Rod Lift, Inc. at any time within the Class Period. 18 19 (Id. at 20; see also Doc. 41-2 at 20, Settlement ¶ 6) Plaintiff Cristobal Garcia was appointed as the 20 Class Representative, and authorized to seek enhancement payments up to $7,500 for his representation 21 of the class. (Doc. 44 at 20) Lonnie Blanchard III and Peter Dion-Kindem were appointed as Class 22 Counsel, and authorized to seek fees that did not “exceed 33 1/3% of the gross settlement amount and 23 costs up to $20,000.” (Id.) Finally, Simpluris, Inc. (“Simpluris”) was appointed the Settlement 24 Administrator and with administration costs authorized up to $6,000. (Id.) The Court approved a Class 25 Notice Packet that conveyed this information to class members on July 20, 2020. (Doc. 46) 26 On September 6, 2020, Simpluris mailed the Class Notice Packet to 250 class members. (Doc. 27 53-4 at 3, Cita Decl. ¶ 7) Simpluris reported only one Notice Packet remained undeliverable. (Id. at 4, ¶ 28 8) No exclusion requests were received from Class Members. (Doc. 53-4 at 4, Cita Decl. ¶ 4) In 1 addition, the Settlement Administrator did not receive any objections to the proposed settlement terms 2 from Class Members. (Id., ¶ 11) On November 2, 2020, Plaintiff filed the motion for final approval 3 now pending before the Court. Defendants have not opposed the motion, and the Court did not receive 4 any objections from Class Members. 5 SETTLEMENT TERMS 6 Pursuant to the proposed settlement (“the Settlement”), the parties agree to a gross settlement 7 amount of $525,000.00 for the class defined as follows: 8 All non-exempt employees of Schlumberger Lift Solutions LLC or Schlumberger Rod Lift, Inc. who do not opt out of the settlement and who, at any time within the 9 period beginning June 5, 2014 and ending on January 19, 2019 (“Class Period”), worked in California and received a safety bonus by Schlumberger Lift Solutions LLC or 10 Schlumberger Rod Lift, Inc. pursuant to a safety bonus program of Schlumberger Lift Solutions LLC or Schlumberger Rod Lift, Inc. at any time within the Class Period. 11 12 (Doc. 41-2 at 20, Settlement ¶ 6) Defendants agree to deposit the funds necessary “to make all 13 payments approved by the Court” following the final approval and fairness hearing date. (See id. at 21- 14 22, 29, Settlement ¶¶ 15, 40) 15 I. Payment Terms 16 The settlement fund will cover payments to class members with additional compensation to the 17 Class Representative. (Doc. 41-2, Settlement ¶ 18) In addition, the Settlement provides for payments to 18 Class Counsel for attorneys’ fees and costs, to the Settlement Administrator, and the California Labor 19 & Workforce Development Agency. (Id.) Specifically, the settlement provides for the following 20 payments from the gross settlement amount: 21 • The Class Representative will receive an incentive award up to $7,500; 22 • Class counsel will receive $175,000 for attorneys’ fees, which equals 33.33% of the gross settlement amount, and $20,000 for costs; 23 • The California Labor and Workforce Development Agency shall receive $22,500 24 from the total PAGA payment of $30,000; and • The Settlement Administrator will receive up to $6,000 for fees and expenses. 25 26 (Id. at 7, Settlement ¶¶ 21-26) After these payments are issued, the remaining money (“Net Settlement 27 Amount”) will be distributed as settlement shares to Class Members. (Id. at 22, ¶ 18) 28 Payments from the gross settlement fund “will be divided among three gross Sub-funds: the 1 Overtime Sub-fund, the Wage Statement Sub-fund, and the 203 Sub-fund,” and calculated as follows: 2 Overtime Sub-fund: The gross Overtime Sub-fund amount will be calculated by multiplying the total number of safety bonuses received by the Class Members during 3 the Class Period by $4.00. Defendants’ records show that between June 5, 2014 and January 19, 2019, approximately 1,337 safety bonus payments were issued to Class 4 Members. Based on pay records produced by Defendants in this action, Plaintiff’s counsel estimates that the average amount of unpaid overtime on the average bonus 5 payment is approximately $10.59. The gross Overtime Sub-fund will be calculated by multiplying the total number of safety bonus payments made during the Class Period by 6 $4.00, which totals approximately $5,348. The net Overtime Sub-fund will be calculated by reducing the gross Overtime Sub-fund by the same percentage that the 7 Net Settlement Amount bears to the Total Settlement Amount. The net Overtime Sub- fund will be distributed to the Settlement Class Members on a pro rata basis based on 8 the number of safety bonuses they received during the Class Period, as reflected in Defendants’ records. 9 Wage Statement Sub-fund: The gross Wage Statement Sub-fund will be calculated by 10 multiplying the total number of safety bonuses received by the Class Members during the period from June 5, 2015 to January 19, 2019 by $50.00, which calculation is based 11 on the assumption that there was one wage statement for each safety bonus paid. Defendants’ records show that between June 5, 2015 and January 19, 2019, 12 approximately 1,240 safety bonus payments were issued to Class Members. The gross Wage Statement Sub-fund will be calculated by multiplying the total number of safety 13 bonus payments made between June 5, 2015 and January 19, 2019 by $50.00, which totals $62,000. The net Wage Statement Sub-fund will be calculated by reducing the 14 gross Wage Statement Sub-fund by the same percentage that the Net Settlement Amount bears to the Total Settlement Amount. The Wage Statement Sub-fund will be 15 distributed to Settlement Class Members based on the number of safety bonuses they received during the period from June 5, 2015 to January 19, 2019. 16 203 Sub-fund: The gross 203 Sub-fund will be calculated by subtracting the gross 17 Overtime Sub-fund and the gross Wage Statement Sub-fund from $525,000. The net 203 Sub-fund will be calculated by reducing the gross 203 Sub-fund by the same 18 percentage that the Net Settlement Amount bears to the Total Settlement Amount. The net 203 Sub-fund will be distributed on a pro rata basis to Settlement Class Members 19 terminated between June 5, 2014 and June 25, 2020. According to counsel for Defendants, there are approximately 174 class members in Overtime Sub-fund class 20 who have been terminated between June 5, 2014 and May 22, 2020. 21 (Doc. 41-1 at 9-10; see also Doc. 41-2 at 32-34, Settlement § 6, ¶ 46) Thus, the exact amount each 22 Class Member will receive depends on which, and how many, sub-funds they are entitled to, as well as 23 the number of individuals receiving the funds. 24 II. Releases 25 The Settlement provides that Plaintiffs and Class Members, other than those who elect not to 26 participate in the Settlement, at the time final judgment is entered, shall release Defendants from 27 several claims in the First Amended Complaint. Specifically, the release for class members provides: 28 “Class Released Claims” are the claims of the Class Members only for unpaid 1 overtime on safety bonuses (related to first cause of action and seventh cause of action), all claims for waiting time penalties under 203 (fifth cause of action) in full as to Class 2 Members who are terminated on or prior to June 25, 2020 and all claims for wage statement penalties under Section 226 (fourth cause of action) between June 5, 2015 3 and January 19, 2019. 4 (Doc. 41-2 at 38, Settlement ¶ 51) With these releases, the parties also agree: 5 Plaintiff’s first and seventh causes of action survive as to Settlement Class Members insofar as they rely upon any theory of recovery other than miscalculation of regular 6 rate/unpaid overtime on safety bonuses. The fifth cause of action shall be resolved, settled and released in full, for the Settlement Class Members only. The fourth cause 7 of action shall be resolved, settled and released in full, for the Settlement Class Members only, as to any claims arising prior to January 19, 2019. 8 9 (Id.) 10 III. Objections and Exclusion Procedure 11 Any class member who wished had an opportunity object to the Settlement terms or request 12 exclusion from the Settlement. (Doc. 41-2 at 50, Settlement § 12, ¶ 53) The Notice of Proposed 13 Settlement (“the Notice”) explained the procedures to object to the settlement, request exclusion from 14 the settlement, or dispute the employment information. (See Doc. 45 at 3, 9-11) The Notice also 15 explained the claims that are released as part of the Settlement. (Id. at 8) Because the Notice also 16 informed Class Members of the nature of the action, settlement class, claims to be resolved, and the 17 binding effects, the Notice complied with the requirements of Rule 23. (See Doc. 46 at 1) 18 IV. Service of the Notice Packets and Responses Received 19 The Court ordered the Settlement Administrator, Simpluris, to mail the Class Notice—which 20 was revised and approved on July 20, 2020— to class members no later than September 1, 2020. (Doc. 21 44 at 21; Doc. 46 at 1) 22 According to Cassandra Cita, a case manager for Simpluris, the Settlement Administrator 23 received the class information from Defendants on August 17, 2020. (Doc. 53-4 at 3, ¶ 5) She reports 24 Defendants identified 250 individuals as Class Members, and “Simpluris processed each of the mailing 25 addresses contained in the Class Information utilizing the National Change of Address Database 26 (“NCOA”) maintained by the U.S. Postal Service.” (Id., ¶¶ 5-6) Ms. Cita notes Simpluris identified 27 updated addresses for 46 Class Members, after which it mailed the Notice via the U.S. Postal Service 28 First Class Mail on September 6, 2020. (Id., ¶¶ 6-7) The Postal Service returned 16 packets as 1 undeliverable. (Id., ¶ 8) Simpluris located updated addresses for 13 individuals, and two Class 2 Members notified Simpluris of their current addresses. (Id. at 3-4, ¶ 8) Thus, only one Notice 3 remained undeliverable. (Id.) 4 Ms. Cita notes that the expected Net Settlement Amount is approximately $293,200.00 after 5 deducting the requested attorneys’ fees and costs, settlement administration costs, and class 6 representative enhancement from the Gross Settlement. (Doc. 53-4 at 4, ¶ 14) She reports “the average 7 gross Class Payment is expected to be approximately $1,172.80.” (Id. at 5, ¶ 15) (emphasis omitted) In 8 addition, Ms. Cita indicates: “The highest gross Class Payment is estimated to be approximately 9 $2,089.99, the lowest gross Class Payment is estimated to be approximately $5.27.” (Id.) (emphasis 10 omitted). Ms. Cita reports that no objections or requests for exclusion were received from Class 11 Members as of November 2, 2020. (Id. at 4, ¶¶ 10-11) 12 FINAL APPROVAL OF THE CLASS SETTLEMENT 13 Class actions require the approval of the district court prior to settlement. Fed. R. Civ. P. 23(e) 14 (“claims, issues, or defenses of a certified class—or a class proposed to be certified for purposes of 15 settlement—may be settled, voluntarily dismissed, or compromised only with the court’s approval”). 16 The Court “must peruse the proposed compromise to ratify both the propriety of the certification and 17 the fairness of the settlement.” Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003). 18 Approval under Rule 23(e) involves a two-step process: “the Court first determines whether a 19 proposed class action settlement deserves preliminary approval and then, after notice is given to class 20 members, whether final approval is warranted.” Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 21 F.R.D. 523, 525 (C.D. Cal. 2004). In addition, Rule 23 requires that: (i) notice be sent to all class 22 members; (ii) the court hold a hearing and make a finding that the settlement is fair, reasonable, and 23 adequate; (iii) the parties seeking approval file a statement identifying the settlement agreement; and 24 (iv) class members be given an opportunity to object. Fed. R. Civ. P. 23(e)(1)-(5). The decision to 25 approve or reject a settlement is within the Court’s discretion. Hanlon v. Chrysler Corp., 150 F.3d 26 1011, 1026 (9th Cir. 2998). 27 /// 28 /// 1 I. Certification of the Settlement Class1 2 Class certification is governed by Rule 23 of the Federal Rules of Civil Procedure, which 3 provides that “[o]ne or more members of a class may sue or be sued as representative parties on behalf 4 of all.” Fed. R. Civ. P. 23(a). Under the terms of the Settlement, the class is comprised of: 5 All non-exempt employees of Schlumberger Lift Solutions LLC or Schlumberger Rod Lift, Inc. who do not opt out of the settlement and who, at any time within the period 6 beginning June 5, 2014 and ending on January 19, 2019 (“Class Period”), worked in California and received a safety bonus by Schlumberger Lift Solutions LLC or 7 Schlumberger Rod Lift, Inc. pursuant to a safety bonus program of Schlumberger Lift Solutions LLC or Schlumberger Rod Lift, Inc. at any time within the Class Period. 8 9 (Doc. 41-2 at 20, Settlement § 1, ¶ 6) The “Class Period” is defined as the period from June 5, 2014 to 10 January 19, 2019. (Id. at 31, ¶ 9) The parties agreed no other non-exempt employees of Defendants 11 shall be considered class members. (Id. at 20-21, ¶ 6) Previously, Plaintiff sought certification of this 12 settlement class pursuant to Fed. R. Civ. P. 23(c)(1), under which the Court may “make a conditional 13 determination of whether an action should be maintained as a class action, subject to final approval at a 14 later date.” See Fry v. Hayt, Hayt & Landau, 198 F.R.D. 461, 466 (E.D. Pa. 2000)). 15 Parties seeking class certification bear the burden of demonstrating the elements of Rule 23(a) 16 are satisfied, and “must affirmatively demonstrate … compliance with the Rule.” Wal-Mart Stores, 17 Inc. v. Dukes, 564 U.S. 338, 350 (2011); Doninger v. Pacific Northwest Bell, Inc., 563 F.2d 1304, 1308 18 (9th Cir. 1977). If an action meets the prerequisites of Rule 23(a), the Court must consider whether the 19 class is maintainable under one or more of the three alternatives set forth in Rule 23(b). Narouz v. 20 Charter Communs., LLC, 591 F.3d 1261, 1266 (9th Cir. 2010). 21 A. Rule 23(a) Requirements 22 The prerequisites of Rule 23(a) “effectively limit the class claims to those fairly encompassed 23 by the named plaintiff’s claims.” General Telephone Co. of the Southwest. v. Falcon, 457 U.S. 147, 24 155-56 (1982). Certification of a class is proper if: “(1) the class is so numerous that joinder of all 25 members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or 26 defenses of the representative parties are typical of the claims or defenses of the class; and (4) the 27 28 1 Because the class was only conditionally certified upon preliminary approval of the Settlement, final certification 1 representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). 2 These prerequisites are generally referred to as numerosity, commonality, typicality, and adequacy of 3 representation. Falcon, 457 U.S. at 156. 4 1. Numerosity 5 A class must be “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 6 23(a)(1). This requires the Court to consider “specific facts of each case and imposes no absolute 7 limitations.” General Telephone Co. v. EEOC, 446 U.S. 318, 330 (1980). Courts have found the 8 requirement satisfied when the class comprised as few as thirty-nine members or where joining all class 9 members would serve only to impose financial burdens and clog the court’s docket. See Murillo v. 10 Pac. Gas & Elec. Co., 266 F.R.D. 468, 474 (E.D. Cal. 2010) (citation omitted) (discussing Ninth 11 Circuit thresholds for numerosity); In re Itel Securities Litig., 89 F.R.D. 104, 112 (N.D. Cal. 1981). 12 Here, Plaintiff reports 250 Class Members were identified in the information provided by 13 Defendants to Simpluris. (Doc. 53 at 8) Therefore, the Court finds the numerosity requirement is 14 satisfied. See Immigrant Assistance Project of Los Angeles Cnt. Fed’n of Labor v. INS, 306 F.3d 842, 15 869 (9th Cir. 2002) (finding the numerosity requirement was “satisfied solely on the basis of the 16 number of ascertained class members”). 17 2. Commonality 18 Rule 23(a) requires “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). 19 To satisfy the commonality requirement, the class representatives must demonstrate common points of 20 facts and law. See Wal-Mart Stores, 564 U.S. at 350. Thus, “commonality requires that the class 21 members’ claims depend upon a common contention such that determination of its truth or falsity will 22 resolve an issue that is central to the validity of each claim in one stroke,” and the “plaintiff must 23 demonstrate the capacity of classwide proceedings to generate common answers to common questions 24 of law or fact that are apt to drive the resolution of the litigation.” Mazza v. Am. Honda Motor Co., 25 666 F.3d 581, 588 (9th Cir. 2012) (internal quotation marks and citations omitted); see also Parsons v. 26 Ryan, 754 F.3d 657, 684 (9th Cir. 2014) (finding commonality satisfied where “[t]he factual and legal 27 questions that [plaintiffs] present can be answered ‘yes’ or ‘no’ in one stroke as to the entire class, 28 dissimilarities among class members do not impede the generation of common answers to those 1 questions, and the capacity of classwide proceedings to drive the resolution of this litigation cannot be 2 doubted”). 3 Previously, Plaintiff reported there are common questions of law and facts in this case, because 4 the class members were subjected to the same payment policies as employees of Defendants. (See 5 Doc. 41-1 at 12) Specifically, Plaintiff contends common questions of law and fact to the Settlement 6 Class include: 7 • Whether Defendants’ failure to include safety bonuses in the calculation of overtime due employees resulted in an underpayment of compensation due such employees. 8 • Whether Defendants failure to include safety bonuses in the calculation of overtime 9 due employees resulted in the provision of inaccurate wage statements. 10 • Whether Defendants’ failure to pay overtime due was willful for purposes of Section 203. 11 12 (Id.) Because resolution of these issues would apply to the claims of each of the Class Members, the 13 Court finds the commonality requirement is satisfied for purposes of settlement. See Wal-Mart Stores, 14 564 U.S. at 350; Parsons, 754 F.3d at 684. 15 3. Typicality 16 This requirement demands that the “claims or defenses of the representative parties are typical 17 of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). Typicality is satisfied “when each 18 class member’s claim arises from the same course of events, and each class member makes similar 19 legal arguments to prove the defendant’s liability.” Armstrong v. Davis, 275 F.3d 849, 868 (2001); see 20 also Kayes v. Pac. Lumber Co., 51 F.3d 1449, 1463 (9th Cir. 1995) (the typicality requirement is 21 satisfied when the named plaintiffs have the same claims as other members of the class and are not 22 subject to unique defenses). While representative claims must be “reasonably co-extensive with those 23 of absent class members,” the claims “need not be substantially identical.” Hanlon v. Chrysler Corp., 24 150 F.3d 1011, 1020 (9th Cir. 1998); see also Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th 25 Cir. 1992). 26 Plaintiff reports that he was “employed in Kern County by Defendants as a non-exempt 27 employee.” (Doc. 1-3 at 5, ¶ 1) Plaintiff asserts he “received non-discretionary bonus payments for 28 periods during which [he] worked overtime but was not paid overtime on such payments.” (Doc. 41-4 1 at 2, Garcia Decl. ¶ 4) Because Plaintiff was subjected to the same polices and payment procedure as 2 the Settlement Class Members, the typicality requirement is satisfied. 3 4. Adequacy of Representation 4 Absentee class members must be adequately represented for judgment to be binding upon 5 them. Hansberry v. Lee, 311 U.S. 32, 42-43 (1940). Accordingly, this prerequisite is satisfied if the 6 representative party “will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 7 23(a)(4). “[R]esolution of this issue requires that two questions be addressed: (a) do the named 8 plaintiffs and their counsel have any conflicts of interest with other class members and (b) will the 9 named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” In re Mego 10 Fin. Corp. Sec. Litig., 213 F.3d 454, 462 (9th Cir. 2000) (citing Hanlon, 150 F.3d at 1020); see also 11 Pierce v. County of Orange, 526 F.3d 1190, 1202 (9th Cir. 2008). 12 a. Proposed class representative 13 Plaintiff seeks appointment as the Class Representative of the Settlement Class. (See Doc. 41-1 14 at 13-14) Plaintiff asserts that he does not have any conflicts of interest with other class members. (Id. 15 at 13, citing Doc. 41-4 at 2, Garcia Decl. ¶ 6) In addition, Plaintiff asserts: “I have and will consider 16 the interests of the other Class Members just as I would my own interests and understand that I may 17 need to put the interests of the other Class Members before my own.” (Doc. 41-4 at 2, Garcia Decl. ¶ 5) 18 Thus, the Court finds Plaintiff will fairly and adequately represent the interests of the Settlement Class. 19 b. Proposed class counsel 20 Lonnie C. Blanchard, III and Peter R. Dion-Kindem sought appointment as counsel for the 21 settlement class. (Doc. 41-2 at 20, Settlement § 1, ¶ 5) Counsel reported they do not have any 22 conflicts of interest with the class members and “are experienced in handling class action lawsuits.” 23 (Doc. 41-1 at 13-14, citing Doc. 41-2 at 2-5, Dion-Kindem Decl., ¶ 5-10; Doc. 41-3 at 2-5, Blanchard 24 Decl., ¶¶ 4-6) In addition, Mr. Blanchard reported “[t]he focus of [his] practice is almost exclusively 25 civil litigation,” including “extensive experience in wage and hour litigation, including class actions.” 26 (Doc. 41-3 at 2, ¶ 4) Similarly, Mr. Dion-Kindem asserted he has “extensive experience litigating 27 wage and hour and FCRA class actions, employee rights’ claims, and other claims in federal and state 28 court.” (Doc. 41-2 at 2, ¶ 8) Both attorneys identified numerous class action cases in which they were 1 counsel of record. (See Doc. 41-2 at 2-5; Doc. 41-3 at 2-3) Defendants have not oppose their 2 appointment or asserted they are inadequate to represent the interest of the class. Therefore, the Court 3 finds Mr. Blanchard and Mr. Dion-Kindem satisfy the adequacy requirement. 4 B. Certification of a Class under Rule 23(b)(3) 5 As noted above, once the requirements of Rule 23(a) are satisfied, a class may only be certified 6 if it is maintainable under Rule 23(b). Fed. R. Civ. P. 23(b); see also Narouz, 591 F.3d at 1266. 7 Plaintiff asserts certification of the settlement class is appropriate under Rule 23(b)(3), which requires a 8 finding that (1) “the questions of law or fact common to class members predominate over any questions 9 affecting only individual members,” and (2) “a class action is superior to other available methods for 10 fairly and efficiently adjudicating the controversy.” These two requirements are generally called the 11 “predominance” and “superiority” requirements. See Hanlon, 150 F.3d at 1022-23; see also Wal-Mart 12 Stores, 564 U.S. at 363 (“(b)(3) requires the judge to make findings about predominance and 13 superiority before allowing the class”). 14 Plaintiff argued the predominance requirement is satisfied because “[t]he elements of Plaintiff’s 15 substantive claims are subject to proof by generalized, common evidence” given the policies of 16 Defendants related to calculation of overtime. (Doc. 41-1 at 14) In addition, he asserted the superiority 17 requirement was met “because individual litigation is not feasible and the claims are manageable.” (Id. 18 at 15, emphasis omitted) Plaintiff also reported there has been “no interest by class members to 19 individually litigate” and “absent a class action, most class members simply could not otherwise 20 enforce their rights.” (Id. at 16) Indeed, no Class Member has expressed a desire to litigate his or her 21 own claims, and no requests for exclusion were submitted. (See Doc. 53 at 10) Therefore, the Court 22 finds certification of the Settlement Class is proper under Rule 23(b)(3). 23 II. Evaluation of the Settlement Terms 24 At the final approval stage, the Court must determine whether the proposed settlement “is 25 fundamentally fair, adequate, and reasonable.” Lane v. Facebook, Inc., 696 F.3d 811, 818 (9th Cir. 26 2012); see also Fed. R. Civ. P. 23(e)(2). Approval is required to ensure settlement is consistent with 27 Plaintiff’s fiduciary obligations to the class. See Ficalora v. Lockheed Cal. Co., 751 F.2d 995, 996 (9th 28 Cir. 1985). “It is the settlement taken as a whole, rather than the individual component parts, that must 1 be examined for overall fairness.” Hanlon, 150 F.3d at 1026 (citing Officers for Justice v. Civil Serv. 2 Comm’n of S.F., 688 F.2d 615, 628 (9th Cir. 1982)); see also Lane, 696 F.3d at 818-19. 3 The Ninth Circuit identified several factors to evaluate the fairness of a class action settlement, 4 including: 5 (1) the strength of the plaintiffs’ case; (2) the risk, expense, complexity, and likely duration of further litigation; (3) the risk of maintaining class action status throughout 6 the trial; (4) the amount offered in settlement; (5) the extent of discovery completed and the stage of the proceedings; (6) the experience and views of counsel; (7) the presence 7 of a governmental participant; and (8) the reaction of the class members to the proposed settlement. 8 9 Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004) (citing Hanlon, 150 F.3d at 10 1026). A court should also consider whether the settlement agreement is “the product of collusion 11 among the negotiating parties.” In re Mego Fin. Corp. Sec. Litig., 213 F.3d at 458 (citing Class 12 Plaintiffs v. Seattle, 955 F.2d 1268, 1290 (9th Cir. 1992)). The Ninth Circuit explained, “the decision to 13 approve or reject a settlement is committed to the sound discretion of the trial judge because he [or she] 14 is exposed to the litigants and their strategies, positions, and proof.” Staton, 327 F.3d at 953. 15 A. Strength of Plaintiff’s Case 16 When evaluating the strength of a case, the Court should “evaluate objectively the strengths 17 and weaknesses inherent in the litigation and the impact of those considerations on the parties’ 18 decisions to reach these agreements.” Adoma v. Univ. of Phoenix, Inc., 913 F. Supp. 2d 964, 975 19 (E.D. Cal. 2012) (quoting In re Wash. Pub. Power Supply Sys. Sec. Litig., 720 F.Supp 1379, 1388 (D. 20 Az. 1989)). Notably, “[t]he court need not reach any ultimate conclusions on the contested issues of 21 fact and law which underlie the merits of the dispute.” Class Plaintiffs, 955 F.2d at 1291(internal 22 quotations and citation omitted). 23 Plaintiff raised eight causes of action that the factfinder would be required to evaluate on the 24 merits. (See generally Doc. 1-3) The proposed settlement of many of these claims was reached 25 following the exchange of written discovery and taking depositions, which allowed the parties to 26 assess the strengths and weaknesses of the action. (See Doc. 41-1 at 16-17) Accordingly, this factor 27 weights in favor of final approval of the Settlement. 28 /// 1 B. Risks, Expense, Complexity, and Likely Duration of Further Litigation 2 “[T]here is a strong judicial policy that favors settlements, particularly where complex class 3 action litigation is concerned.” In re Syncor ERISA Litig., 516 F.3d at 1101 (citing Class Plaintiffs, 4 955 F.2d at 1276). Approval of settlement is “preferable to lengthy and expensive litigation with 5 uncertain results.” Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 529 (C.D. Cal. 6 2004). 7 Notably, employment law class actions are, by their nature, time-consuming and expensive to 8 litigate. Hightower v. JPMorgan Chase Bank, N.A., 2015 WL 9664959 at *6 (C.D. Cal. Aug. 4, 2015). 9 If the settlement were to be rejected, the parties would have to engage in further litigation related to 10 the resolved claims, including seeking class certification and discovery on the issue of damages. 11 Plaintiff contends that the partial settlement—including “significant settlement payments to the Class 12 now”— is favorable “to risking (i) the Court’s denial of certification; and (ii) an unfavorable result on 13 the merits on summary judgment or at trial and/or on an appeal, a process that can take several more 14 years to litigate.” (Doc. 41-1 at 19) Further, Plaintiff notes the proposed settlement “avoids the risk of 15 non-recovery and the additional accompanying expense associated with an appeal if the case was not 16 certified.” (Doc. 53 at 5) 17 With regard to the claims resolved through this partial settlement, Plaintiff identified the 18 following risks related to each of the settled claims: 19 • Subclass 1 - Overtime Sub-class: Defendants contend that the safety bonuses were “discretionary” and therefore not includable in calculating the regular rate of pay. (29 20 U.S.C. § 207(e)(1).) (Dion-Kindem Decl., ¶ 44.) 21 • Subclass 2 – Wage Statement Sub-class: Defendants contend that because there was no substantive violation with respect to the payment of overtime on the safety 22 bonuses, there are no derivative wage statement violations and that any violation, if proven, was not “knowing and intentional” as required by Section 226(e). (Dion- 23 Kindem Decl., ¶ 44.) 24 • Subclass 3 – 203 Sub-class: Defendants contend that any violation is subject to a good-faith defense. “A willful failure to pay wages within the meaning of Labor Code 25 Section 203 occurs when an employer intentionally fails to pay wages to an employee when those wages are due. However, a good faith dispute that any wages are due will 26 preclude imposition of waiting time penalties under Section 203.” (Cal. Code Regs., tit. 8, § 13520). (Dion-Kindem Decl., ¶ 44.) 27 28 (Doc. 41-1 at 19) 1 As Plaintiff observes, the time and expense of continued litigation related to these claims could 2 outweigh any additional recovery. On the other hand, the proposed settlement provides for immediate 3 recovery on claims presented by Plaintiff on behalf of the class. Due to the acknowledged risk of the 4 claims of class members, this factor weighs in favor of final approval of the Settlement. 5 C. Maintenance of Class Status throughout the Trial 6 Plaintiff observes, “Absent settlement, there was a risk that there would not be a certified class 7 at the time of trial.” (Doc. 53 at 5) Plaintiff has moved to certify other classes following the partial 8 settlement, and Defendants intend to oppose the motion. (See Docs. 43, 51) If the classes were not 9 maintained, the Class Members would not be guaranteed to recover. Thus, this factor supports final 10 approval of the Settlement. 11 D. Amount Offered in Settlement 12 To evaluate the fairness of the settlement award, the court should “compare the terms of the 13 compromise with the likely rewards of litigation.” See Protective Comm. for Indep. Stockholders of 14 TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424–25 (1968). “It is well-settled law that a cash 15 settlement amounting to only a fraction of the potential recovery does not per se render the settlement 16 inadequate or unfair.” In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 459 (9th Cir. 2000). Thus, 17 when analyzing the amount offered in settlement, the Court should examine “the complete package 18 taken as a whole,” and the amount is “not to be judged against a hypothetical or speculative measure 19 of what might have been achieved by the negotiators.” Officers for Justice v. Civil Serv. Commission, 20 688 F.2d 615, 625, 628 (9th Cir. 1982) 21 The proposed gross settlement amount is $525,000.00. (Doc. 41-2 at 24, Settlement, ¶ 30) 22 Though, generally, orders approving class settlements compare the settlement amount to the estimated 23 total maximum liability, the parties have not identified the total maximum liability for the settled 24 claims. (See Doc. 53 at 6-7) Nevertheless, given the time expended by parties with discovery and 25 mediation, it appears the parties agree this amount reflects a fair compromise as to the resolved causes 26 of action. Indeed, in the Settlement Agreement, the parties indicate terms “are the result of lengthy, 27 intensive arms-length negotiations.” (Doc. 41-2 at 44, ¶ 58) In addition, as noted above, on average, 28 class members will receive $1,200 each, though some will receive as much two thousand dollars. Based 1 upon the claims at issue, the Court finds these amounts to be fair and reasonable. Accordingly, the 2 Court finds the amount offered supports final approval of the Settlement. 3 E. Extent of Discovery Completed and Stage of the Proceedings 4 “In the context of class action settlement, ‘formal discovery is not a necessary ticket to the 5 bargaining table’ where the parties have sufficient information to make an informed decision about 6 settlement.” Linney v. Cellular Alaska P’ship, 151 F.3d 1234, 1239 (9th Cir. 1998) (quoting In re 7 Chicken Antitrust Litig., 669 F.2d 228, 241 (5th Cir. 1982)). Approval of a class action settlement thus 8 “is proper as long as discovery allowed the parties to form a clear view of the strength and weaknesses 9 of their case.” Monterrubio v. Best Buy Stores, L.P., 291 F.R.D. 443, 454 (E.D. Cal. 2013). The Court 10 is “more likely to approve a settlement if most of the discovery is completed because it suggests that 11 the parties arrived at a compromise based on a full understanding of the legal and factual issues 12 surrounding the case.” Adoma, 913 F. Supp. 2d at 977 (quoting DIRECTV, Inc., 221 F.R.D. at 528). 13 Further, a settlement agreement is presumed fair if it “follow[s] sufficient discovery and genuine arms- 14 length negotiation.” Id. 15 Plaintiff reports that prior to reaching the partial settlement, the parties “conducted sufficient 16 informal and formal discovery to be sufficiently familiar with the facts, merits, and risks of Plaintiff’s 17 claims.” (Doc. 41-1 at 7) According to Plaintiff, he received “extensive payroll and time-keeping 18 data” from Defendants. (Id. at 16) In addition, Plaintiff was deposed and took the deposition of 19 Defendants’ Rule 30(b)(6) designee. (Id. at 17; see also Doc. 53 at 6) Based upon the information 20 provided, the parties made informed decisions, which lead to partial resolution of the matter following 21 the mediator’ proposal. Consequently, this factor supports final approval of the Settlement. 22 F. Experience and Views of Counsel 23 As addressed above, Plaintiff’s counsel are experienced in class action litigation. In addition, 24 “Class Counsel believe that the [Settlement] is fair, reasonable, adequate, and is in the best interest of 25 the Class in light of all known facts and circumstances.” (Doc. 41-2 at 25, Settlement ¶ 32) In addition, 26 Defendants indicated they “desire fully, finally, and forever to settle, compromise, and discharge all 27 Claims.” (Id. at 26, ¶ 34) These opinions of counsel are entitled to significant weight and support final 28 approval of the settlement agreement. See Nat’l Rural Telecomms., 221 F.R.D. at 528 (“Great weight is 1 accorded to the recommendation of counsel, who are most closely acquainted with the facts of the 2 underlying litigation”). 3 G. Presence of a Government Participant 4 Because the government is not a party in the action, this factor does not weigh for or against 5 final approval of the Settlement. 6 H. Reactions of Class Members to the Proposed Settlement 7 Plaintiff agreed to the terms of Settlement Agreement. (Doc. 41-2 at 48) Cassandra Cita, a case 8 manager for Simpluris, reports that no Class Member objected to the settlement terms or requested 9 exclusion. (Doc. 53-4 at 4, Cita Decl. ¶¶ 10-11) Significantly, “[t]he absence of a single objection to 10 the Proposed Settlement provides further support for final approval of the Proposed Settlement.” Nat’l 11 Rural Telecomms., 221 F.R.D. at 529 (citations omitted); see also Barcia v. Contain-A-Way, Inc., 2009 12 WL 587844 at *4 (S.D. Cal. Mar. 6, 2009). Accordingly, this factor weighs significantly in favor of 13 granting final approval. 14 I. Collusion between Negotiating Parties 15 The inquiry of collusion addresses the possibility that the settlement agreement is the result of 16 either “overt misconduct by the negotiators” or improper incentives of class members at the expense of 17 others. Staton, 327 F.3d at 960. The Ninth Circuit observed that “settlement class actions present 18 unique due process concerns for absent class members” because the “inherent risk is that class counsel 19 may collude with the defendants, tacitly reducing the overall settlement in return for a higher 20 attorney’s fee.” See In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 946 (9th Cir. 2011) 21 (internal quotation marks, citations omitted). Thus, the Court must consider whether the process by 22 which the parties arrived at their settlement is truly the product of arm’s length bargaining, rather than 23 collusion or fraud. Millan v. Cascade Water Servs., Inc., 310 F.R.D. 593, 613 (E.D. Cal. 2015). 24 The Court notes that the settlement was achieved after a mediation. Moreover, the parties 25 chose to accept the mediator's proposal, meaning this settlement was one that the third-party mediator 26 proposed, rather than an amount determined through the negotiations of the parties. Thus, neither 27 party agreed to settle on the terms proposed by the mediator at the mediation session but accepted the 28 1 settlement terms the mediator believed were fair and reasonable. This suggests the lack of collusion 2 between the negotiating parties. 3 Nevertheless, where a class action settlement agreement is reached prior to a class being 4 certified, district courts must be watchful “not only for explicit collusion, but also for more subtle 5 signs that class counsel have allowed pursuit of their own self-interests and that of certain class 6 members to infect the negotiations.” In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d at 947. 7 These “more subtle signs” include: (1) “when counsel receive a disproportionate distribution of the 8 settlement, or when the class receives no monetary distribution but class counsel are amply rewarded”; 9 (2) the existence of a “clear sailing” arrangement, which provides “for the payment of attorneys’ fees 10 separate and apart from class funds” and “carries the potential of enabling a defendant to pay class 11 counsel excessive fees and costs in exchange for counsel accepting an unfair settlement on behalf of 12 the class”; and (3) “when the parties arrange for fees not awarded to revert to defendants rather than be 13 added to the class fund.” Id. (internal quotations, citations omitted). 14 1. Whether there is a disproportionate distribution 15 The typical range of acceptable attorneys’ fees in the Ninth Circuit is 20% to 33 1/3% of the 16 total settlement value, with 25% considered the benchmark. Powers v. Eichen, 229 F.3d 1249, 1256 17 (9th Cir. 2000). Because the fees requested are within the range awarded by the Ninth Circuit from the 18 gross settlement fund, the Court finds the Settlement Agreement does not provide a disproportionate 19 distribution to Class Counsel. See Millan v. Casvade Water Servs., 310 F.R.D. 593, 612 (E.D. Cal. 20 2015) (finding no disproportionate distribution where class counsel was to receive a third of the 21 settlement fund “although significantly above the benchmark for this Circuit,” because it was “not 22 unreasonable as an upper bound” of fees awarded in the Circuit). 23 2. Existence of a “clear sailing” agreement 24 In general, a “clear sailing” provision is one in which the parties agree to the “payment of 25 attorneys’ fees separate and apart from class funds.” In re Bluetooth Headset Prods. Liab. Litig., 654 26 F.3d at 947. However, the Ninth Circuit recognized also a “clear sailing” arrangement exists when a 27 defendant expressly agrees not to oppose an award of attorneys’ fees up to an agreed upon amount. 28 Lane, 696 F.3d at 832; In re Bluetooth Headset Prods., 654 F.3d at 947. 1 Here, the Settlement Agreement indicates “Defendants agree not to oppose a request by Class 2 Counsel of attorney’s fees of up to $175,000 and costs of up to $20,000.” (Doc. 41-2 at 37, ¶ 49) 3 Thus, the Settlement includes a version of a “clear sailing agreement.” Nevertheless, the existence of a 4 clear sailing provision is not necessarily fatal to final approval. See In re Bluetooth Headset Prods. 5 Liab. Litig., 654 F.3d at 948; see also In re Toys R Us-Delaware, Inc.–Fair and Accurate Credit 6 Transactions Act (FACTA) Litig., 295 F.R.D. 438, 458 (C.D. Cal. 2014) (“a clear sailing agreement is 7 one where the party paying the fee agrees not to contest the amount to be awarded by the fee-setting 8 court so long as the award falls beneath a negotiated ceiling”). Rather, “when confronted with a clear 9 sailing provision, the district court has a heightened duty to peer into the provision and scrutinize 10 closely the relationship between attorneys' fees and benefit to the class.” Id. (citing Staton, 327 F.3d at 11 954). As discussed below, the Court finds that an award from the common fund is appropriate and the 12 recommended award is reasonable in light of the work completed. Thus, the Court finds this factor 13 does not mandate a finding of collusion. See Singh v. Roadrunner Intermodal Servs. LLC, 2019 WL 14 316814 at *7-8 (E.D. Cal. Jan 24, 2019) (not finding collusion between the parties, despite a clear 15 sailing agreement, where the fee award was analyzed and determined to be reasonable). 16 3. Whether there is a reversion to Defendants 17 Finally, the parties did not arrange for any unawarded fees to revert to Defendants. Instead, the 18 parties acknowledge in the Settlement Agreement that the Court may approve less than the requested 19 amount, in which case “the Net Settlement Amount will be adjusted.” (Doc. 41-2 at 38, ¶ 49) Because 20 unawarded fees return to the Net Settlement Amount for distribution to the class, this factor does not 21 support a finding of collusion between the parties. 22 III. Conclusion 23 The factors set forth by the Ninth Circuit weigh in favor of final approval of the Settlement, 24 which appears to be is fair, reasonable, and adequate as required by Rule 23. Therefore, the Court 25 recommends final approval of the Settlement Agreement be GRANTED. 26 REQUEST FOR ATTORNEYS’ FEES 27 Attorneys’ fees and nontaxable costs “authorized by law or by agreement of the parties” may be 28 awarded pursuant to Rule 23(h). As noted above, under the Settlement, Class Counsel may request 1 “attorney’s fees of up to $175,000 and costs of up to $20,000.” (Doc. 41-2 at 37, Settlement 9, ¶ 49) 2 Here, Class Counsel request the maximum fees permitted under the Settlement Agreement. (Doc. 53-1 3 at 6) In support of these requests, Class Counsel filed declarations setting forth the hours worked and 4 hourly rates, as well as the firms’ expenses. (Docs. 53-2 at 8-10, Dion-Kindem Decl. ¶¶ 25, 31-32; 5 Doc. 53-3 at 2-3, Blachard Decl. ¶¶ 6-7) 6 I. Legal Standards 7 The Court has an “independent obligation to ensure that the award [of attorneys’ fees], like the 8 settlement itself, is reasonable, even if the parties have already agreed to an amount.” In re Bluetooth, 9 654 F.3d at 941. The Ninth Circuit explained that “fees provisions included in proposed class action 10 settlement agreements are, like every other aspect of such agreements, subject to the determination 11 whether the settlement is ‘fundamentally fair, adequate, and reasonable.’” Staton, 327 F.3d at 963 12 (quoting Fed.R.Civ.P. 23(e)) Thus, the Court must “carefully assess the reasonableness of a fee amount 13 spelled out in a class action settlement agreement.” Id. 14 The party seeking fees bears the burden of establishing that the fees and costs were reasonably 15 necessary to achieve the results obtained. See Fischer v. SJB-P.D., Inc., 214 F.3d 1115, 1119 (9th Cir. 16 2000); see also McGrath v. County of Nevada, 67 F.3d 248, 254 n.5 (9th Cir. 1995) (noting a court may 17 not adopt representations regarding the reasonableness of time expended without independently 18 reviewing the record). Therefore, a fee applicant must document the tasks completed and the amount of 19 time spent. Hensley v. Eckerhart, 461 U.S. 424, 424 (1983); Welch v. Metropolitan Life Ins. Co., 480 20 F.3d 942, 945-46 (9th Cir. 2007). “Where the documentation of hours in inadequate, the district court 21 may reduce hours accordingly.” Hensley, 461 U.S. at 433. 22 Significantly, when fees are to be paid from a common fund, as here, the relationship between 23 the class members and class counsel is “turns adversarial.” In re Washington Pub. Power Supply Sys. 24 Sec. Litig., 19 F.3d 1291, 1302 (9th Cir. 1994). The Ninth Circuit observed: 25 [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, 26 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. 27 28 Id. at 1302 (internal quotation marks, citation omitted). As a result the district court must assume a 1 fiduciary role for the class members in evaluating a request for an award of attorney fees from the 2 common fund. Id.; Rodriguez v. West Publ’g Corp., 563 F.3d 948, 968 (9th Cir. 2009) (“when fees 3 are to come out of the settlement fund, the district court has a fiduciary role for the class”). 4 The Ninth Circuit determined both a lodestar and percentage of the common fund calculation 5 “have [a] place in determining what would be reasonable compensation for creating a common fund.” 6 Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir. 1989). Whether the Court 7 applies the lodestar or percentage method, the Ninth Circuit requires “fee awards in common fund 8 cases be reasonable under the circumstances.” Florida v. Dunne, 915 F.2d 542, 545 (9th Cir. 1990); 9 see also Staton, 327 F.3d at 964 (fees must be “fundamentally fair, adequate, and reasonable”). 10 A. Lodestar Method 11 The lodestar method calculates attorney fees by “by multiplying the number of hours reasonably 12 expended by counsel on the particular matter times a reasonable hourly rate.” Florida, 915 F.2d at 545 13 n. 3 (citing Hensley, 461 U.S. at 433). The product of this computation, the “lodestar” amount, yields a 14 presumptively reasonable fee. Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013); 15 Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008). Next, the court may adjust the 16 lodestar upward or downward using a “multiplier” considering the following factors adopted by the 17 Ninth Circuit in a determination of the reasonable fees: 18 (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 19 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 20 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 21 nature and length of the professional relationship with the client, and (12) awards in similar cases. 22 23 Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975). However, the Court has since 24 determined that the “desirability” of a case is no longer relevant. Resurrection Bay Conservation 25 Alliance v. City of Seward, 640 F.3d 1087, 1095, n.5 (9th Cir. 2011) (citation omitted). 26 B. Percentage from the Common Fund 27 As the name suggests, under this method, attorneys who create a common fund for a class may 28 be awarded a percentage of fees from the fund. Hanlon, 150 F.3d at 1029; Boeing Co. v. Van Gemert, 1 444 U.S. 472, 478 (1980) (“a lawyer who recovers a common fund for the benefit of persons other than 2 himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole”). An award 3 from the common fund “rests on the perception that persons who obtain the benefit of a lawsuit without 4 contributing to its cost are unjustly enriched at the successful litigant’s expense,” and as such 5 application of the doctrine is appropriate “when each member of a certified class has an undisputed and 6 mathematically ascertainable claim to part of a lump-sum judgment recovered on his behalf.” Boeing 7 Co., 444 U.S. at 478. 8 In the Ninth Circuit, the typical range of acceptable attorneys’ fees is 20% to 30% of the total 9 settlement value, with 25% considered the benchmark. See Vizcaino v. Microsoft Corp., 290 F.3d 10 1043, 1047 (9th Cir. 2002); Hanlon, 150 F.3d at 1029 (observing “[t]his circuit has established 25 % 11 of the common fund as a benchmark award for attorney fees”); In re Pacific Enterprises Securities 12 Litigation, 47 F.3d 373, 379 (9th Cir. 1995) (“Twenty-five percent is the ‘benchmark’ that district 13 courts should award in common fund cases”). The percentage may be adjusted below or above the 14 benchmark, but the Court’s reasons for adjustment must be clear. Paul, Johnson, Alston & Hunt v. 15 Graulty, 886 F.2d 268, 272 (9th Cir. 1989). 16 To assess whether the percentage requested is reasonable, courts may consider a number of 17 factors, including “(1) the results obtained for the class; (2) the risk undertaken by counsel; (3) the 18 complexity of the legal and factual issues; (4) the length of the professional relationship with the 19 client; (5) the market rate; and (6) awards in similar cases.” Romero v. Produces Dairy Foods, Inc., 20 2007 U.S. Dist. LEXIS 86270, at *8-9 (E.D. Cal. Nov. 14, 2007) (citing Vizcaino, 290 F.3d at 1048- 21 1050; Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1311 (9th Cir. 1990)). 22 II. Evaluation of the Fees Requested 23 “The district court has discretion to use the lodestar method or the percentage of the fund 24 method in common fund cases.” Powers v. Eichen, 229 F.3d 1249, 1256 (9th Cir. 2000) (quoting In re 25 Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig., 109 F.3d 602, 607 (9th Cir. 26 1997)). Notably, the Court must consider similar factors under either method. See Kerr, 526 F.2d at 27 70; Vizcaino, 290 F.3d at 1048-1050. Further, the Court may “appl[y] the lodestar method as a 28 crosscheck” to determine whether the amount requested is reasonable. Vizcaino, 290 F.3d at 1050, n.5. 1 Because the Settlement applies formulas to determine the amount paid to class members, the 2 Court finds application of the common fund doctrine—with a lodestar crosscheck— is appropriate. 3 See Boeing Co., 444 U.S. at 478. Thus, the Court must determine whether the requested percentage of 4 the common fund is reasonable. 5 A. Results Obtained for the Class 6 Courts have recognized consistently that the result achieved is a major factor to be considered 7 with a fee award. Hensley, 461 U.S. at 436; Wilcox v. City of Reno, 42 F.3d 550, 554 (9th Cir. 1994). 8 Here, Class Counsel assert they “obtained a substantial recovery for the settlement class.” (Doc. 53-1 9 at 9) According to Ms. Cita, the expected recovery for class members ranges from $5.27 to $2,089.99, 10 with an average award of $1,172.80. (Doc. 53-4 at 4-5, Cita Decl. ¶¶ 14-15) Though these are fair 11 results, there is no showing that the results are exceptional, such that an increase above the benchmark 12 is warranted. Compare with 13 B. Risks Undertaken by Counsel 14 The risk of costly litigation and trial is an important factor in determining the fee award. 15 Chemical Bank v. City of Seattle, 19 F.3d 1297, 1299-1301 (9th Cir. 1994). The Supreme Court 16 explained, “the risk of loss in a particular case is a product of two factors: (1) the legal and factual 17 merits of the claim, and (2) the difficulty of establishing those merits.” City of Burlington v. Dague, 18 505 U.S. 557, 562 (1992). As a result, the Ninth Circuit approved an award slightly above the 19 benchmark in Vizcaino where the case was “extremely risky for class counsel” and the “plaintiffs lost in 20 the district court – once on the merits, once on the class definition – and twice counsel succeeded in 21 reviving their case on appeal.” Id., 290 F.3d at 1048. 22 Class Counsel asserts, “this litigation presented significant risks given the legal uncertainties, 23 nuances, and other complexities of the law governing the claims at issue herein.” (Doc. 53-1 at 11) 24 Previously, Class Counsel argued, 25 Based upon Defendants’ defenses and objections in this case, just some of the specific risks related to each of the claims related to each of these subclasses are as follows: 26 • Subclass 1 - Overtime Sub-class: Defendants contend that the safety bonuses were “discretionary” and therefore not includable in calculating the regular rate of pay. (29 27 U.S.C. § 207(e)(1).) 28 • Subclass 2 – Wage Statement Sub-class: Defendants contend that because there was no substantive violation with respect to the payment of overtime on the safety bonuses, 1 there are no derivative wage statement violations and that any violation, if proven, was not “knowing and intentional” as required by Section 226(e). 2 • Subclass 3 – 203 Sub-class: Defendants contend that any violation is subject to a 3 good faith defense. “A willful failure to pay wages within the meaning of Labor Code Section 203 occurs when an employer intentionally fails to pay wages to an employee 4 when those wages are due. However, a good faith dispute that any wages are due will preclude imposition of waiting time penalties under Section 203.” (Cal. Code Regs., tit. 5 8, § 13520). 6 (Doc. 41-2 at 12, Dion-Kindem Decl. ¶ 44) In addition, Class Counsel assert that assuming Plaintiff 7 prevailed on a motion for class certification, there would be “a substantial risk that a certified class 8 might have been decertified at a later point in the litigation based on changes in the law or other future 9 developments.” (Doc. 53-1 at 11) Finally, Class Counsel argue the fees requested are supported by the 10 contingent nature of the action and “it is an established practice to reward attorneys who take on the 11 added risk of a contingency case.” (Doc. 53-1 at 9-10, citing In re Washington Public Power Supply 12 System Securities Litigation,19 F.3d 1291, 1299 (9th Cir. 1994)) 13 Significantly, the legal risks identified by counsel are not specific to this action, but rather apply 14 to class action litigation in general. Class Counsel fail to show the case was factually complex or 15 demonstrate extreme risks in pursuing the claims addressed in the partial settlement. For example, in 16 Vizcaino, the plaintiffs “lost in the district court—once on the merits, once on the class definition” and 17 the class counsel twice “succeeded in reviving their case on appeal.” Id., 290 F.3d at 1048. The court 18 found the pursuit of the case was “extremely risky” given the absence of supporting precedent and the 19 challenges faced in the appeals. Id. As such, the risks supported an award of fees slightly above the 20 benchmark. Id. at 1048-49. In contrast, Class Counsel did not face such challenges to the merits of the 21 claims that have been settled. 22 Finally, the Ninth Circuit has suggested the distinction between a contingency arrangement and 23 a fixed fee arrangement alone does not merit an enhancement from the benchmark. See In re Bluetooth 24 Headset Prods. Liab. Litig., 654 F.3d at 942 n.7. (observing “whether the fee was fixed or contingent” 25 is “no longer valid” as a factor in evaluating reasonable fees); but see In re Online DVD-Rental 26 Antitrust Litig., 779 F.3d at 954-55 (finding the contingent nature of litigation remains a relevant factor 27 to evaluate a request from the common fund). Consequently, the risks undertaken by counsel do not 28 weigh in favor of an upward departure from the benchmark. 1 C. Complexity of Issues and Skill Required 2 The complexity of issues and skills required may weigh in favor of a departure from the 3 benchmark fee award. See, e.g., Lopez v. Youngblood, 2011 U.S. Dist. LEXIS 99289, at *14-15 (E.D. 4 Cal. Sept. 2, 2011) (in determining whether to award the requested fees totaling 28% of the class fund, 5 the Court observed the case involved “complex issues of constitutional law”); see also Couser v. 6 Comenity Bank, 125 F.Supp.3d 1034, 1049 (S.D. Cal. 2015) (considering "the complexity of the issues 7 litigated" as a factor in the reduction of the fees to 15% of the common fund). 8 Class Counsel have not identified any complex issues related to the settled claims. Though 9 Class Counsel assert they “have extensive experience in employment litigation generally and wage and 10 hour class action litigation specifically” (Doc. 53 at 12), they do not address the level of skill that was 11 required to reach this partial settlement. (See generally Doc. 53-1 at 9-12) Nevertheless, Class Counsel 12 argue their level of experience may support an upward departure from the benchmark. (See Doc. 53-1 at 13 12, citing In re Heritage Bond Litig., 2005 WL 1594403, at *20 (C.D. Cal. June 10, 2005) [(“the 14 novelty, difficulty and complexity of the issues involved are significant factors in determining a fee 15 award”]); In re Gen. Instrument Securities Litig., 209 F.Supp.2d 423, 432–433 (E.D. Pa. 2001). 16 Indeed, the experience of counsel is a factor in the lodestar crosschecks performed by courts, which 17 must determine the reasonableness of hourly rates for attorneys with similar experience. See Blum v. 18 Stenson, 465 U.S. 886, 895-96 and n.11 (1984). 19 Class Counsel have not identified any recent changes to wage and hour law that complicated the 20 issues or created novel issues in this action. Class Counsel do not present any evidence that their 21 investigation—or the prosecution of the settled claims—was hampered by reluctant putative class 22 members. Because Class Counsel do not identify any evidence to support a finding that the factual and 23 legal issues presented were complex or required significant skill, the Court is unable to find this factor 24 supports an award of fees above the benchmark. 25 D. Length of Professional Relationship 26 Class Counsel do not address the length of the professional relationships between Plaintiff and 27 his attorneys. Nevertheless, the Court notes counsel initiated the action by filing a complaint in Kern 28 County Superior Court on June 5, 2018. (Doc. 1 at 2, ¶ 1) Though counsel have spent two years on this 1 action to date, this factor does not weigh in favor of departure from the benchmark. See Six Mexican 2 Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1311 (finding “the 25 percent standard award” was 3 appropriate although “the litigation lasted more than 13 years”). 4 E. Awards in Similar Cases 5 Class Counsel observe, “Courts in the Ninth Circuit have also found that a request for fees of 6 one-third of the entire common fund is fair and reasonable.” (Doc. 53-1 at 8, emphasis omitted). 7 Counsel acknowledge that the “benchmark” award is 25%, but also assert: 8 A number of Ninth Circuit courts have indicated that the benchmark may be one-third or higher, however. (See, e.g., In re Mego Financial Corp. Securities Litigation (9th 9 Cir. 2000) 213 F.3d 454, 460, as amended (June 19, 2000) (affirming award of fees equal to one-third of total recovery); In re Pacific Enterprises Securities Litigation (9th 10 Cir. 1995) 47 F.3d 373, 379 (awarding 33% of $12 million common settlement fund); Syed v. M-I, L.L.C. (E.D. Cal., July 27, 2017, No. 112CV01718DADMJS) 2017 WL 11 3190341, at *7 (attorney’s fees of $2,333,333.33 equal to one-third of gross settlement approved by Judge Drozd); Romero v. Producers Dairy Foods, Inc. (E.D. Cal., Nov. 12 14, 2007, No. 1:05CV0484 DLB) 2007 WL 3492841 (33% fee awarded); Singer v. Becton Dickinson and Co. (S.D. Cal., June 1, 2010, No. 08-CV-821-IEG (BLM)) 2010 13 WL 2196104, at *8 (approving attorney fee award of 33.33% of the common fund and holding that the award was similar to awards in three other wage and hour class actions 14 where fees ranged from 30.3% to 40%); In re Heritage Bond Litigation (C.D. Cal., June 10, 2005, No. 02-ML-1475 DT) 2005 WL 1594403 (33.33% percentage of common 15 fund fee award approved); Chin v. Wachovia Financial Services Inc. et al., No. 08- 00684 (N.D. Cal.) (33% award); Burrows v. Combined Ins. Co. of Am., No. 08-01752 16 (E.D. Cal.) (33% award); Bejarano v. Amerisave Mortgage Corp., No. CV 08-00599 (E.D. Cal.) (33% award); Weisbarth and List v. H R Block Financial Advisors, Inc., No. 17 07-00236 (C.D. Cal.) (33% award); Winzelberg v. Liberty Mutual Ins. Co., No. CV 07- 460 (C.D. Cal) (33% award); Perry v. SunAmerica, No. CV 07-1193 (C. D. Cal.) (33% 18 award); Simpson v. e*Trade, No. CV 06-156 (C. D. Cal.) (33% award); Chavez, et al. v. Petrissans, et al., No. 08-00122 (E.D. Cal.) (33% award).) 19 20 (Doc. 53-1 at 8) Class Counsel do not explain how these cases are similar to the matter now pending 21 before the Court. They offer no analysis as to whether the claims prosecuted were similar to those 22 settled here, whether the results achieved on behalf of the class were similar, the complexities of the 23 issues, or the skill of counsel. Consequently, the citations of Class Counsel offer limited support to 24 their request for fees and an upward departure from the benchmark. On the other hand, the Court 25 notes the typical range of acceptable attorneys’ fees in the Ninth Circuit is 20 percent to 33.3 percent 26 of the total settlement value.” Barbosa v. Cargill Meat Solutions Corp., 297 F.R.D. 431, 448 (E.D. 27 Cal. 2013). Because the percentage requested is within this range—though at the highest end— the 28 cases identified by Class Counsel support a conclusion the percentage requested is reasonable. 1 F. Lodestar Crosscheck and Market Rate 2 Class counsel has requested attorneys’ fees up to $175,000.00, which is one third of the 3 settlement fund. (Doc. 41-2 at 37, Settlement § 9, ¶ 49) The parties agree that “[i]f less than these 4 amounts are approved by the Court, then the Net Settlement Amount will be adjusted accordingly.” 5 (Id.) In preliminarily approving the amount of fees requested, the Court noted the exact amount of the 6 fee award would be determined upon the application of Class Counsel and that “a fee applicant must 7 provide time records documenting the tasks completed and the amount of time spent on the 8 action.” (Doc. 44 at 14-15, citing Hensley v. Eckerhart, 461 U.S. 424, 424 (1983); Welch v. 9 Metropolitan Life Ins. Co., 480 F.3d 942, 945-46 (9th Cir. 2007) (emphasis in original). Despite this 10 explicit instruction, Class Counsel have not provided any time records for the Court’s review. Instead, 11 Class Counsel provided only declarations from Peter Dion-Kindem and Lonnie Blanchard III to support 12 the request for fees, reporting they have worked a total of 444 hours on the action and their total 13 lodestar is $388,500.00. (Doc. 53-2; Doc. 53-3; see also Doc. 53-1 at 14) 14 Nevertheless, when the lodestar is used as a cross-check for a fee award, the Court “may use a 15 ‘rough calculation of the lodestar.’” Bond v. Ferguson Enters., Inc., 2011 WL 2648879, at *12 (E.D. 16 Cal. June 30, 2011) (quoting Fernandez v. Victoria Secret Stores, LLC, 2008 WL 8150856 (C.D. Cal. 17 July 21, 2008)). Thus, the Court will accept the limited information provided by Class Counsel for 18 purposes of performing the lodestar crosscheck. See Schiller, 2012 WL 2117001 at *20 (the Court is 19 not required to perform an “exhaustive cataloguing and review of counsel’s hours” for the crosscheck) 20 (citing In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 306 (3d Cir. 2005); In re Immune Response Sec. 21 Litig., 497 F.Supp.2d 1166 (S.D. Cal. 2007)). 22 1. Hours expended 23 Previously, Class Counsel reported they “engaged in extensive documentary discovery and 24 Defendants provided extensive payroll and time-keeping data, which Plaintiff’s counsel reviewed and 25 analyzed.” (Doc. 41-1 at 16) In addition, “Plaintiff was deposed and Plaintiff deposed Defendants’ 26 Rule 30(b)(6) designee.” (Id. at 16-17) 27 Mr. Dion-Kindem reports that he has “incurred at least 241 hours in pursuing this litigation up 28 to the date of the mediation, and, after the partial settlement case was reached in principle, in 1 connection the drafting and finalizing of the settlement agreement, obtaining preliminary approval, and 2 seeking final approval.” (Doc. 53-2 at 8, ¶ 25) In addition, Mr. Blanchard reports he “incurred at least 3 203 hours in pursuing this litigation up to the date of the mediation, and, after the partial settlement 4 case was reached in principle, in connection the drafting and finalizing of the settlement agreement, 5 obtaining preliminary approval, and seeking final approval.” (Doc. 53-3 at 3, ¶ 7) 6 Because no records have been provided, the Court is unable to determine whether the time 7 reported includes any clerical tasks or duplicative work by counsel. Nevertheless, the Court will 8 accept the report that the identified tasks required a total of 444 hours of work for purposes of the 9 lodestar crosscheck. See Syed, 2019 WL 3564467 at *8 (noting that Mr. Dion-Kindem and Mr. 10 Blanchard reported “invested 4333.25 hours in [the] litigation” and accepting that total for calculating 11 the lodestar). 12 2. Hourly rate 13 Lonnie Blanchard and Peter Dion-Kindem each report they have 40 years of experience and 14 seek an hourly rate of $875, reporting the rate is supported by the Laffey Matrix and is appropriate “for 15 attorneys with 20+ years practicing in Los Angeles.” (Doc. 53-2 at 10, ¶¶ 25-27; see also Doc. 53-3 at 16 2, ¶2) 17 Importantly, the Supreme Court explained that attorney fees are to be calculated with “the 18 prevailing market rates in the relevant community.” Blum v. Stenson, 465 U.S. 886, 895-96 and n.11 19 (1984). In general, the “relevant community” for purposes of determining the prevailing market rate is 20 the “forum in which the district court sits.” Camacho, 523 F.3d at 979. Thus, the Eastern District of 21 California is the appropriate forum to establish the lodestar hourly rate. See Jadwin v. County of Kern, 22 767 F.Supp.2d 1069, 1129 (E.D. Cal. 2011). 23 The fee applicant bears a burden to establish that the requested rates are commensurate “with 24 those prevailing in the community for similar services by lawyers of reasonably comparable skill, 25 experience, and reputation.” Blum, 465 U.S. at 895 n.11. The applicant meets this burden by 26 “produc[ing] satisfactory evidence—in addition to the attorney’s own affidavits—that the requested 27 rates are in line with those prevailing in the community for similar services by lawyers of reasonably 28 comparable skill, experience and reputation.” Id.; see also Chaudhry v. City of Los Angeles, 751 F.3d 1 1096, 1110-11 (9th Cir. 2014) (“Affidavits of the plaintiffs’ attorney[s] and other attorneys regarding 2 prevailing fees in the community . . . are satisfactory evidence of the prevailing market rate.”) 3 However, “rates, other than those of the forum, may be employed if local counsel was unavailable, 4 either because they are unwilling or unable to perform because they lack the degree of experience, 5 expertise, or specialization required to handle properly the case.” Gates v. Deukmejian, 987 F.2d 1392, 6 1405 (9th Cir. 1992). Although such outside rates may be used, Class Counsel do not assert local 7 counsel was unavailable. Thus, they fail to meet their burden to show that hourly rates other than those 8 this District should be used for purposes of calculating the lodestar. See Camacho, 523 F.3d at 979; 9 Barjon v. Dalton, 132 F.3d 496, 500-02 (9th Cir. 1997) (affirming the court’s decision to decline an 10 award of out-of-district billing rates where the fee applicants failed “to prove the unavailability of local 11 counsel,” and the court instead calculated the award with hourly rates in the relevant community). 12 Significantly, the hourly rates sought by counsel are not in accord with the market rate for this 13 District and have been rejected by this Court. In Syed v. M-I LLC, this Court observed that the rate 14 requested by Mr. Blanchard and Mr. Dion-Kindem—who were also Class Counsel in that action—was 15 “unreasonably high.” Id., 2019 WL 3564467 at *7 (E.D. Cal Aug. 6, 2019). The hourly rates generally 16 accepted in the Fresno Division for attorneys is between $250 and $400, with the highest rates reserved 17 for those with more than 20 years of experience. See Willis v. City of Fresno, 2018 WL 1071184, at *7 18 (E.D. Cal.2018); Silvester v. Harris, 2014 WL 7239371 at *4 (E.D. Cal. Dec. 2014). In Syed, the Court 19 rejected the hourly rate of $875, finding “a more appropriate hourly rate for an attorney with 20 approximately 40 years of experience is approximately $400 per hour.” Id., 2019 WL 3564467 at *7 21 (citing Willis, 2018 WL 1071184, at *7 [awarding rate of $400 to attorney with more than forty years of 22 experience]; Verduzco v. Ford Motor Co., 2015 WL 4131384, at *4 (E.D. Cal. July 9, 2015), report 23 and recommendation adopted, 2015 WL 4557419 (E.D. Cal. July 28, 2015) [awarding an hourly rate of 24 $380 to an attorney with more than forty years of experience]). 25 For purposes of the lodestar calculation, the hourly rate for Mr. Blanchard and Mr. Dion- 26 Kindem will be reduced to $400. See Syed, 2019 WL 3564467 at *7. Based upon the prior survey of 27 the attorney fees in the Fresno Division and the Court’s own knowledge, these hourly rates are 28 reasonable. See Silvester, 2014 WL 7239371 at *4; see also Ingram v. Oroudjian, 647 F.3d 925, 928 1 (9th Cir. 2011) (concluding “the district court did not abuse its discretion either by relying, in part, on 2 its own knowledge and experience” to determine reasonable hourly rates). 3 3. Lodestar Calculation 4 With the hourly rate adjustments set forth above to $400, the lodestar for the 444 hours 5 expended in this action by Class Counsel totals $177,600.00. Significantly, there is a strong 6 presumption that the lodestar is a reasonable fee. Gonzalez, 729 F.3d at 1202; Camacho, 523 F.3d at 7 978. This lodestar calculation is more than $40,000 greater than the benchmark, and slightly higher 8 than the amount of fees requested. Thus, the lodestar crosscheck supports an award above the 9 benchmark, to the requested third of the common fund. 10 Based upon the foregoing, the Court RECOMMENDS Class Counsel’s request for attorney 11 fees be GRANTED in the modified amount of 1/3 of the gross settlement fund, or $175,000.00. The 12 Court finds this amount is fair and reasonable in light of the tasks completed and hours expended by 13 Class Counsel in this action. 14 REQUESTS FOR COSTS 15 I. Litigation Expenses 16 Reimbursement of taxable costs is governed by 28 U.S.C. § 1920 and Federal Rule of Civil 17 Procedure 54. Attorneys may recover reasonable expenses that would typically be billed to paying 18 clients in non-contingency matters. See Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994). 19 Previously, this Court noted costs “including filing fees, mediator fees …, ground transportation, copy 20 charges, computer research, and database expert fees… are routinely reimbursed in these types of 21 cases.” Alvarado v. Nederend, 2011 WL 1883188 at *10 (E.D. Cal. Jan. May 17, 2011); see also In re 22 Immune Response Secs. Litig., 497 F. Supp. 2d 1166, 1177 (S.D. Cal. 2007) (expenses awarded may 23 include: “(1) meals, hotels, and transportation; (2) photocopies; (3) postage, telephone, and fax; (4) 24 filing fees; (5) messenger and overnight delivery; (6) online legal research; (7) class action notices; (8) 25 experts, consultants, and investigators; and (9) mediation fees”). 26 The Court preliminarily approved costs up to $20,000 for Class Counsel. (Doc. 44 at 20) 27 Class Counsel now requests reimbursement of their expenses in the amount of $14,670.01. (Doc. 53-1 28 at 16) The Court has reviewed Class Counsel’s declarations, which attest to the costs they incurred for 1 filing, copying, postage, transcripts, travel, and mediation. (See Doc. 53-2 at 10; Doc. 53-3 at 2) The 2 Court finds all the expenses incurred to be reasonable, and RECOMMENDS the request for litigation 3 costs be GRANTED in the requested amount of $14,670.01. 4 II. Costs of Claims Administration 5 Pursuant to the agreement of the parties, the Court appointed Simpluris to serve as the 6 Settlement Administrator. (See Doc. 44 at 16-17, citing Doc. 41-2, Settlement ¶ 28) Under the terms 7 of the Settlement: 8 The duties of the Settlement Administrator shall include, without limitation: the printing and mailing of court-approved Notice Form to Class Members; taking all steps 9 as are reasonably necessary to ensure Class Members timely receive a Notice including conducting a National Change of Address search before mailing the Notice Form; 10 communicating with Class Members and others regarding any reasons as deemed reasonably necessary by the Settlement Administrator in order to ensure that the highest 11 percentage of Class Members receive notice of this Joint Stipulation; the utilization of agreed methods to ensure the most up-to-date and accurate addresses for Class 12 Members; conducting address searches on all returned, undelivered mail and remailing Notices Forms to Class Members for whom addresses are found; the providing of toll- 13 free, live operator telephone support to receive telephone calls from Class Members or others regarding the claims process; the maintenance of appropriate databases to fulfill 14 its duties; the receipt and control of all returned Notices Forms, requests for opt-out, and objections; the calculation of the Settlement Shares; the preparation of all necessary 15 reports listing the Settlement Shares; periodic reporting to Class Counsel and Defendants’ Counsel; the timely issuance and, if necessary, re-issuance of Settlement 16 Share checks to Settlement Class Members; conducting address searches for all Settlement Share checks that are returned as undeliverable… 17 18 (Doc. 41-2 at 28, Settlement ¶ 39) The Settlement indicated that $6,000.00 from the gross settlement 19 fund was designated for the Settlement Administrator in anticipation of the administration expenses, 20 (Id. at 34, ¶ 46(e)). Thus, the Court ordered the “[c]osts of settlement administration shall not exceed 21 $6,000” and the Class Members were notified of these estimated administration costs. (Doc. 44 at 20; 22 Doc. 53-4 at 9, § 7) 23 Mr. Dion-Kindem now reports in his declaration in support of final approval that “Simpluris’ 24 original not-to-exceed bid was $6,800.” (Doc. 53 at 11, ¶ 38) According to Mr. Dion-Kindem, 25 “Through an inadvertent error, Plaintiff’s counsel thought that the bid was $6,000, which was reflected 26 in the preliminary approval motion.” (Id.) Thus, he “believes and requests that Simpluris should be 27 awarded the $6,800.” (Id.) 28 Notably, the increased costs request is not supported by any evidence, because Simpluris only 1 provided its original estimate from April 9, 2020 that the costs incurred would total $6,796. (Doc. 53- 2 4 at 16) This estimate was based upon a class size of 260 individuals and anticipated 15% of the 3 mailed notices would be undeliverable, which would require additional expenses. (See id.) Further, 4 Simpluris indicated that it anticipated the costs to “Mail Notice Packet” to be $1.25 per Class Member 5 and “postage” to be $0.74 per Class Member, although it is unclear why there are separate entries 6 “mail” “postage.” (See id.) Simpluris has not provided any information regarding its actual costs 7 incurred in mailing the Notice to the 250 Class Members or administration costs. 8 Furthermore, in the motion for final approval, Class Counsel do not address the issue of the 9 amount requested exceeding the amount preliminarily approved by the Court or why awarding an 10 amount exceeding the total for which the Class Members received notice is appropriate. (See 11 generally Doc. 53, Doc. 53-1) Indeed, now seeking an award greater than the amount for which notice 12 was given deprives the class members of their opportunity to make any objections to the increase of 13 approximately 13% to the administration costs. Accordingly, the Court recommends the costs be 14 GRANTED in the modified amount of $6,000.00. 15 PLAINTIFF’S REQUEST FOR AN INCENTIVE AWARD 16 The Settlement provides that “Plaintiff may seek a payment of $7,500 as an enhancement for 17 the Representative Plaintiff’s services.” (Doc. 41-2 at 36, Settlement § 7, ¶ 48) Incentive awards, or 18 enhancements, for class representatives are not to be given routinely by the Court. In Staton, 327 F.3d 19 at 975, the Ninth Circuit explained: 20 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 21 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 22 Women’s 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 23 separate peace with defendants, grave problems of collusion are raised.”). 24 In fact, “‘excessive payments to named class members can be an indication that the agreement was 25 reached through fraud or collusion.’” Id. (citation omitted). In evaluating the enhancement award to a 26 class representative, a court should consider all “relevant factors including the actions the plaintiff has 27 taken to protect the interests of the class, the degree to which the class has benefitted from those 28 actions, . . . the amount of time and effort the plaintiff expended in pursuing the litigation . . . and 1 reasonable fears of workplace retaliation.” Staton, 327 F.3d at 977. 2 I. Awarding an Incentive Payment 3 The Settlement explains the enhancement is to be given to Plaintiff for “his service on behalf 4 of the Class, including filing the Complaint, participating in discovery, gathering and/or providing 5 information, responding to other discovery, meeting with Class Counsel, assisting in preparing 6 litigation strategy, submitting to deposition, and assuming the risks of costs and hardships that were 7 not agreed to or experienced by other Class Members.” (Doc. 41-2 at 36, ¶ 48) Plaintiff reported: 8 I have spent many hours of my time in connection with this case to date. The activities I have performed have included, but have not been limited to: obtaining legal counsel, 9 speaking with my legal counsel on countless occasions, both in person and over the phone, assisting them in gathering information, reviewing documents, giving 10 information for pleadings filed by my lawyers, assisting my lawyers in locating witnesses and talking to witnesses, giving information for and reviewing damage 11 calculations, submitting to two days of deposition by Defendants, signing documents and making myself available to communicate with my lawyers during a full day of 12 mediation. I have also spent time carefully reviewing the Settlement and other case- related documents on my own and with my counsel to make sure that the Settlement and 13 other work my attorneys performed are in the best interest of the Settlement Class. Further, I anticipate I will incur additional time even after the Court grants preliminary 14 approval of the Settlement. I believe I have been diligent and acted above and beyond that of which is expected of a Class Representative throughout all stages of litigation. 15 16 (Doc. 41-4 at 3, Garcia Decl. ¶ 9) 17 In granting preliminary approval of “an award up to $7,500,” the Court expressed concern that 18 there was “no evidence related to the actual number of hours Plaintiff spent working with Class 19 Counsel on this action, or even an estimate of the number of meetings Plaintiff had with Class 20 Counsel.” (Doc. 44 at 16) The Court observed: “It is unlikely that there have been so many meetings 21 with counsel that they can properly be described as “countless.” Indeed, the Court would be surprised 22 if counsel have not documented every conversation in their billing records such that they can, in fact, 23 be counted.” (Id., n. 2) The Court explained, “Without additional information the Court is unable to 24 evaluate the reasonableness of this requested award.” (Id. at 16) Thus, the Court ordered: “In seeking 25 final approval, Plaintiff must provide specific and unambiguous evidence supporting the 26 requested enhancement.” (Id., emphasis in original) 27 Seeking final approval of the Settlement, Plaintiff asserts “asserts the Court “should award an 28 incentive payment to Plaintiff “to compensate [the] class representatives for work done on behalf of the 1 class, to make up for financial or reputational risk undertaken in bringing the action, and, sometimes, to 2 recognize their willingness to act as a private attorney general.” (Doc. 53-1 at 16) Notably, however, 3 Plaintiff has not provided a declaration to support the request despite the Court’s explicit instruction 4 that Plaintiff must file evidence to support his request for an incentive payment of $7,500.00, Plaintiff 5 has not provided a declaration to support the request. (See generally Doc. 53) Instead, Plaintiff 6 provides only general information regarding the tasks undertaken in the action, stating: 7 Plaintiff filed this class action to enforce California’s labor law through private enforcement. Plaintiff spent many hours assisting Class Counsel in prosecuting this 8 case. Plaintiff’s efforts included gathering documents for use in this lawsuit, communicating with Class Counsel on numerous occasions, strategizing with Class 9 Counsel, and communicating with Class Counsel regarding settlement issues. Plaintiff also bore the substantial financial risk associated with class action litigation, potentially 10 being personally responsible for substantial costs if the claims did not succeed. 11 (Doc. 53-1 at 16, citing Dion-Kindem Decl. ¶ 36) 12 Notably, Plaintiff would have likely submitted to a deposition and assisted with discovery 13 whether the action was brought on behalf of the class. On the other hand, by gathering documents and 14 assisting with discovery, Plaintiff’s actions undoubtedly benefitted the class such that they weigh in 15 favor of class representative incentive payments. Thus, the Court finds an incentive award is 16 appropriate. 17 II. Amount to be Awarded 18 In determining the amount of an incentive payment, the Court may consider the time expended 19 by the class representative, the fairness of the hourly rate, and how large the incentive award is 20 compared to the average award class members expect to receive. See, e.g., Ontiveros, 303 F.R.D. at 21 373-74 (E.D. Cal. 2014) (evaluating the hourly rate the named plaintiff would receive to determine 22 whether the incentive award was appropriate); Rankin v. Am. Greetings, Inc., 2011 U.S. Dist. LEXIS 23 72250, at *5 (E.D. Cal. July 6, 2011) (noting the incentive award requested was “reasonably close to 24 the average per class member amount to be received); Alvarado, 2011 WL 1883188 at *10-11 25 (considering the time and financial risk undertaken by the plaintiff). 26 For example, in Alvarado, the Court noted the class representatives “(1) travelled from 27 Bakersfield to Sacramento for mediation sessions (2) assisted Counsel in investigating and 28 substantiating the claims alleged in this action; (3) assisted in the preparation of the complaint in this 1 action; (4) produced evidentiary documents to Counsel; and (5) assisted in the settlement of this 2 litigation.” Id., 2011 WL 1883188 at *11. Further, the Court noted the plaintiffs “undertook the 3 financial risk that, in the event of a judgment in favor of Defendant in this action, they could have been 4 personally responsible for the costs awarded in favor of the Defendant.” Id. In light of these facts, the 5 Court found an award of $7,500 for each plaintiff was appropriate for the time, efforts, and risks 6 undertaken. Although Plaintiff seeks an award equal to the Alvarado class representatives, he was not 7 required to attend the mediation and merely made himself available to be contacted by counsel, and 8 there is no information regarding the extent to which he assisted with this partial settlement of the 9 claims. (See Doc. 41-4 at 3, Garcia Decl. ¶ 9) 10 In addition, the requested amount of $7,500 greatly exceeds the anticipated average of 11 $1,172.80 for Class Members’ payments. See, e.g., Rankin., 2011 U.S. Dist. LEXIS 72250, at *5. In 12 Rankin, this Court approved an incentive award of $5,000, where the “[p]laintiff retained counsel, 13 assisted in the litigation, and was an active participant in the full-day mediation.” Id., 2011 U.S. Dist. 14 LEXIS 72250, at *5. The Court found the amount reasonable, in part because “the sum is reasonably 15 close to the average per class member amount to be received.” Id. In contrast, here, Plaintiff’s 16 requested enhancement is more than $6,000 above the average expected. Thus, the expected average 17 payment supports an award significantly lower than what Plaintiff has requested. 18 Finally, as discussed above, Plaintiff has not provided any information regarding the time 19 expended. Without this information, the Court is unable to determine whether Plaintiff would be 20 compensated at a reasonable hourly rate for the tasks undertaken on behalf of the class. For example, 21 this Court criticized a requested award of $20,000 where the plaintiff estimated “he spent 271 hours on 22 his duties as class representative over a period of six years,” because the award would have 23 compensated the class representative “at a rate of $73.80 per hour.” Ontiveros, 303 F.R.D. at 366. The 24 Court explained that “[i]ncentive awards should be sufficient to compensate class representatives to 25 make up for financial risk . . . for example, for time they could have spent at their jobs.” Id. (citing 26 Rodriguez v. West Publ’g Corp., 563 F.3d 948, 958-59 (9th Cir. 2009). The Court found an award of 27 “$50 per hour fairly compensate[] the named plaintiff for his time and incorporates an extra incentive to 28 participate in litigation,” considering that the plaintiff’s hourly flat rate while employed by the 1 defendant was $15 per hour. Id.; n.3. Plaintiff’s failure to provide information regarding the time he 2 spent on the tasks identified above—and failure comply with the Court’s order to do so—supports a 3 reduction in the enhancement payment. 4 Based upon the limited information provided regarding the tasks undertaken by Plaintiff on 5 behalf of the class, and in recognition of his financial risks, the Court finds an incentive payment of 6 $2,500.00 is appropriate for Plaintiff. This amount is close to the average per class member amount to 7 be received, and adequately compensates Plaintiff for the actions that may have assisted Class Members 8 in this partial settlement. Accordingly, the Court RECOMMENDS an incentive payment be awarded 9 in the modified amount of $2,500. 10 FINDINGS AND RECOMMENDATIONS 11 Based upon the foregoing, the Court RECOMMENDS: 12 1. Plaintiff’s motion for final approval of the Settlement Agreement (Doc. 53) be 13 GRANTED; 14 2. Approval of the Settlement Class be GRANTED and defined as: 15 All non-exempt employees of Schlumberger Lift Solutions LLC or Schlumberger Rod Lift, Inc. who do not opt out of the settlement and 16 who, at any time within the period beginning June 5, 2014 and ending on January 19, 2019 (“Class Period”), worked in California and 17 received a safety bonus by Schlumberger Lift Solutions LLC or Schlumberger Rod Lift, Inc. pursuant to a safety bonus program of 18 Schlumberger Lift Solutions LLC or Schlumberger Rod Lift, Inc. at any time within the Class Period. 19 20 3. Plaintiff’s’ request for a class representative incentive payment be GRANTED in the 21 modified amount of $2,500.00; 22 5. Class Counsel’s motion for attorneys’ fees be GRANTED in the amount of 23 $175,000.00, which is 1/3 of the gross settlement amount; 24 6. Class Counsel’s request for costs GRANTED in the modified amount of $14,670.01; 25 7. The request for fees for the Settlement Administrator, Simpluris, be GRANTED in the 26 modified amount of $6,000.00; and 27 8. The Court retain jurisdiction to consider any further applications arising out of or in 28 connection with the Settlement. 1 These Findings and Recommendations are submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local 3 Rules of Practice for the United States District Court, Eastern District of California. Within 14 days 4 after being served with these Findings and Recommendations, any party may file written objections 5 with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 6 Recommendations.” The parties are advised that failure to file objections within the specified time may 7 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991); 8 Wilkerson v. Wheeler, 772 F.3d 834, 834 (9th Cir. 2014). 9 10 IT IS SO ORDERED. 11 Dated: November 23, 2020 /s/ Jennifer L. Thurston 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28