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

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ERIC FELIX, an individual, on behalf of ) Case No.: 1:19-cv-00312-AWI-JLT himself and others similarly situated, ) 12 ) ORDER ADOPTING THE FINDINGS AND Plaintiff, ) RECOMMENDATIONS, GRANTING 13 ) PLAINTIFF’S MOTION FOR FINAL APPROVAL v. ) OF THE CLASS SETTLEMENT, GRANTING IN 14 ) PART PLAINTIFF’S MOTION FOR 15 WM. BOLTHOUSE FARMS, INC., ) ATTORNEYS’ FEES, COSTS, AND CLASS ) REPRESENTATIVE INCENTIVE PAYMENT 16 Defendant. ) (Doc. 40) ) 17 ) ORDER DISMISSING THE ACTION AND ) 18 ) DIRECTING THE CLERK TO CLOSE THE CASE ) 19 20 Plaintiff Eric Felix seeks final approval of a class action settlement reached with Defendant 21 WM. Bolthouse Farms, Inc. (Doc. 36.) In addition, Plaintiff seeks an award of attorneys’ fees and 22 costs from the Settlement fund; a class representative enhancement; and costs for settlement 23 administration. (Doc. 36-1.) Defendant does not oppose these requests, and no objections were filed by 24 class members. 25 The Court granted preliminary approval of the settlement on January 7, 2020. (Doc. 29.) On 26 May 4, 2020, the Court issued a Findings and Recommendation (“F&R”) to grant Plaintiff’s motion 27 for final approval of the class settlement and to grant in part Plaintiff’s motion for attorneys’ fees and 28 costs and class representative incentive payment, providing the parties fourteen days to file any 1 objections to the recommendation. (Doc. 40.) In addition, the parties were “advised that their failure to 2 file objections within the specified time may waive the right to appeal the District Court’s order.” 3 (Doc. 40 at 31, citing Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991); Wilkerson v. Wheeler, 772 F.3d 4 834, 834 (9th Cir. 2014)). To date, no objections have been filed and the time period for doing so has 5 expired. 6 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Britt v. Simi Valley United 7 School Dist., 708 F.2d 452, 454 (9th Cir. 1983), this Court conducted a de novo review of the case. 8 Having carefully reviewed the file, the Court finds the F&R are generally supported by the record and 9 proper analysis. 10 However, there is one part of the F&R’s analysis that Court will respectfully decline to adopt. 11 The F&R relied on prevailing rates for attorneys in the Sacramento Division of the Eastern District of 12 California as part of the evaluation of an attorney’s fee award. This was improper. The applicable 13 hourly rates for an attorney’s fee award are the prevailing rates for the forum in which the court sits. 14 Chaudhry v. City of L.A., 751 F.3d 1095, 1110 (9th Cir. 2016). This Court sits in the Fresno Division 15 of the Eastern District of California. The prevailing rates outside of the Fresno Division, including the 16 prevailing rates for the Sacramento Division, are generally irrrelevant. Estate of Casillas v. City of 17 Fresno, 2020 U.S. Dist. LEXIS 31299, *23-*24 (E.D. Cal. Feb. 21, 2020); Jadwin v. County of Kern, 18 767 F.Supp.2d 1069, 1125 (E.D. Cal. 211). Subject to some exceptions, in the Fresno Division, 19 attorneys with twenty or more years of experience generally are awarded between $325 and $400 per 20 hour, attorneys with ten to twenty years of experience are awarded between $250 and $350, attorneys 21 with five to ten years of experience are generally awarded between $200 and $300 per hour, and 22 attorneys with less the five years of experience are generally awarded between $150 and $200 per 23 hour. See Christofferson v. All Pure Serv. of Central Cal., Inc., 2020 U.S. Dist. LEXIS 105133, *72- 24 *75 (E.D. Cal. June 16, 2020); Estate of Casillas, 2020 U.S. Dist. LEXIS 31299 at *28-*31. The 25 Court will apply this range to the attorneys’ fees requested. 26 As the F&R notes, the Plaintiff’s firm successfully specializes in labor and wage related class 27 actions and has been practicing in this area of law for twenty years. Eric Kingsley is the managing 28 partner of the Plaintiff’ firm and has been practicing law since 1996. Justin Aufderhar graduated from 1 law school in 2016 and is an associate attorney. Jessica L. Adlouni graduated from law school in 2019 2 and is an associate attorney at Plaintiff’s firm. Finally, Kelsey Szamet has been practicing law since 3 2008 and appears to be an associate at Plaintiff’s firm. Ms. Szamet has done the most work on this 4 case. After consideration, the Court finds that the following rates are appropriate and consistent with 5 the prevailing rates in Fresno: Eric Kingsley - $400 per hour, Kelsey Szamet - $300, Justin Aufderhar 6 - $190, Jessica Adlouni - $150. The Court will not adjust the hours claimed. So applying these rates, 7 the fees for Mr. Kingsley total $2,560 ($400 x 6.4), the fees for Ms. Szamet total $12,540 ($300 x 8 41.8), the fees for Mr. Aufderhar total $4,199 ($190 x 22.1), the fees for Ms. Adlouni total $2,565 9 ($150 x 17.1). The lodestar figure for attorneys’ fees is $21,864.00. 10 The F&R calculated a fee award of $26,395 using Sacramento hourly rates. However, the 11 F&R recognized that this amount is below the Ninth Circuit’s approved benchmark, 25% of the total 12 settlement. The F&R found that an appropriate fee award would be an award at the 25% benchmark 13 and recommended a total fee award of $29,568.75. The F&R’s recommendation of an award based on 14 the 25% benchmark is appropriate. Therefore, while the Court respectfully declines to adopt the 15 lodestar figure of the F&R, the Court will adopt the ultimate recommendation and award attorneys’ 16 fees in the amount of $29,568.75. 17 Otherwise, the Court adopts all other aspects of the F&R. 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. The Findings and Recommendations dated May 4, 2020 (Doc. 40) are ADOPTED 20 consistent with the above analysis; 21 2. Plaintiff’s motion for final approval of the Settlement Agreement is GRANTED; 22 3. Plaintiff’s request for certification of the Settlement Class is GRANTED and defined as: 23 All applicants in the United States who filled out WM. BOLTHOUSE FARMS, INC.’s standard ‘Consent to Request 24 Consumer Report & Investigative Consumer Report Information’ form as administered by Sterling Infosystems Inc. 25 during the Class Period. 26 4. Class Counsel’s motion for attorneys’ fees is GRANTED in the amount of $29,568.75, 27 which is 25% of the gross settlement amount; 28 LOO VR Sp POO □□ EIMOPEN OT ME tT 1 5. Class Counsel’s request for costs is GRANTED in the amount of $931.11; 2 6. The request for fees for the Settlement Administrator JND Legal Administration is 3 GRANTED in the amount of $18,500.00; 4 7. Plaintiff's request for class representative incentive payment is GRANTED in the 5 modified amount of $1,500.00; 6 8. The action is DISMISSED WITH PREJUDICE with each side to bear its own costs ar 7 attorneys’ fees, except as otherwise provided by the Settlement and ordered by the 8 Court; 9 9. The Clerk of Court shall CLOSE this case; and 10 10. The Court RETAINS jurisdiction to consider any further applications arising out of or 11 connection with the Settlement. 12 13 ||IT IS SO ORDERED. 2p 14 Dated: _ July 7, 2020 7 Sz, 7 Cb Lec 5 "SENIOR DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28