Griffin v. Consolidated Communications ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 TRICILLA GRIFFIN, individually, No. 2:21-cv-0885 WBS KJN and on behalf of other members 13 of the general public similarly situated and on behalf of other 14 aggrieved employees pursuant to ORDER RE: PLAINTIFF’S MOTION the California Private Attorneys FOR FINAL APPROVAL OF CLASS 15 General Act, ACTION SETTLEMENT AND MOTION FOR ATTORNEYS’ FEES, COSTS, 16 Plaintiff, AND REPRESENTATIVE SERVICE PAYMENT 17 v. 18 CONSOLIDATED COMMUNICATIONS, an unknown business entity; and 19 DOES 1 through 100, inclusive, 20 Defendants. 21 22 ----oo0oo---- 23 Plaintiff Tricilla Griffin, individually and on behalf 24 of all other similarly situated employees, brought this putative 25 class action against defendant Consolidated Communications 26 alleging wage and hour violations under California law. (See 27 First Am. Compl. (Docket No. 1-1).) Before the court are 28 plaintiff’s motion for final approval of a class action 1 settlement (See Mot. for Final Approval (“Mot.”) (Docket No. 33)) 2 and motion for attorneys’ fees, costs, and enhancement payment 3 (Docket No. 34), both of which are unopposed. 4 The Ninth Circuit has declared a strong judicial policy 5 favoring settlement of class actions. Class Plaintiffs v. City 6 of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992); see also 7 Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 965 (9th Cir. 2009) 8 (“We put a good deal of stock in the product of an arms-length, 9 non-collusive, negotiated resolution[.]”) (citation omitted). 10 Rule 23(e) provides that “[t]he claims, issues, or defenses of a 11 certified class may be settled . . . only with the court’s 12 approval.” Fed. R. Civ. P. 23(e). 13 “Approval under 23(e) involves a two-step process in 14 which the Court first determines whether a proposed class action 15 settlement deserves preliminary approval and then, after notice 16 is given to class members, whether final approval is warranted.” 17 Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 18 525 (C.D. Cal. 2004) (citing Manual for Complex Litig. (Third), 19 § 30.41 (1995)). This court satisfied step one by granting 20 plaintiff’s unopposed motion for preliminary approval of class 21 action settlement on November 9, 2022. (Order Granting Prelim. 22 Approval (Docket No. 32).) The Settlement Administrator 23 subsequently mailed notice of the settlement to the class 24 members. 25 A final fairness hearing was held on May 30, 2023. No 26 class members appeared at the hearing to object to the 27 settlement. The court will now consider whether final approval 28 is merited by evaluating: (1) the treatment of this litigation as 1 a class action and (2) the terms of the settlement. See Diaz v. 2 Tr. Territory of Pac. Islands, 876 F.2d 1401, 1408 (9th Cir. 3 1989). 4 I. Class Certification 5 The parties define the class as “[a]ll current and 6 former hourly-paid or non-exempt employees who worked for 7 Defendant within the State of California at any time during the 8 period from February 24, 2017 through March 23, 2022 [“Class 9 Period”].” (Settlement Agreement (Docket No. 27-1 at 24-53) at 10 2.) For purposes of the PAGA claim, the relevant time period is 11 February 19, 2020 to March 23, 2022 (“PAGA Period”). (Settlement 12 Agreement at 5.) 13 To be certified, the putative class must satisfy the 14 requirements of Federal Rules of Civil Procedure 23(a) and 23(b). 15 Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th Cir. 2013). 16 A. Rule 23(a) 17 Rule 23(a) restricts class actions to cases where: “(1) 18 the class is so numerous that joinder of all members is 19 impracticable [numerosity]; (2) there are questions of law or 20 fact common to the class [commonality]; (3) the claims or 21 defenses of the representative parties are typical of the claims 22 or defenses of the class [typicality]; and (4) the representative 23 parties will fairly and adequately protect the interests of the 24 class [adequacy of representation].” See Fed. R. Civ. P. 23(a). 25 In the court’s order granting preliminary approval of 26 the settlement, the court found that the putative class satisfied 27 the Rule 23(a) requirements. (See Order Granting Prelim. 28 Approval at 5-10.) The court is unaware of any changes that 1 would affect its conclusion that the putative class satisfies the 2 Rule 23(a) requirements, and the parties have not indicated that 3 they are aware of any such developments. The court therefore 4 finds that the class definition proposed by plaintiff meets the 5 requirements of Rule 23(a). 6 B. Rule 23(b) 7 After fulfilling the threshold requirements of Rule 8 23(a), the proposed class must satisfy the requirements of one of 9 the three subdivisions of Rule 23(b). Leyva, 716 F.3d at 512. 10 Plaintiff seeks certification under Rule 23(b)(3), which provides 11 that a class action may be maintained only if (1) “the court 12 finds that questions of law or fact common to class members 13 predominate over questions affecting only individual members” and 14 (2) “that a class action is superior to other available methods 15 for fairly and efficiently adjudicating the controversy.” Fed. 16 R. Civ. P. 23(b)(3). 17 In its order granting preliminary approval of the 18 settlement, the court found that both the predominance and 19 superiority prerequisites of Rule 23(b)(3) were satisfied. 20 (Order Granting Prelim. Approval at 10-12.) The court is unaware 21 of any changes that would affect its conclusion that Rule 22 23(b)(3) is satisfied. Because the settlement class satisfies 23 both Rule 23(a) and 23(b)(3), the court will grant final class 24 certification of this action. 25 C. Rule 23(c)(2) Notice Requirements 26 If the court certifies a class under Rule 23(b)(3), it 27 “must direct to class members the best notice that is practicable 28 under the circumstances, including individual notice to all 1 members who can be identified through reasonable effort.” Fed. 2 R. Civ. P. 23(c)(2)(B). Rule 23(c)(2) governs both the form and 3 content of a proposed notice. See Ravens v. Iftikar, 174 F.R.D. 4 651, 658 (N.D. Cal. 1997) (citing Eisen v. Carlisle & Jacquelin, 5 417 U.S. 156, 172–77 (1974)). Although that notice must be 6 “reasonably certain to inform the absent members of the plaintiff 7 class,” actual notice is not required. Silber v. Mabon, 18 F.3d 8 1449, 1454 (9th Cir. 1994) (citation omitted). 9 The notice explains the proceedings, defines the scope 10 of the class, and explains what the settlement provides and how 11 much each class member can expect to receive in compensation. 12 (Settlement Notice (Docket No. 33-3 at 6-11) at 1-3.) The notice 13 further explains the opt-out procedure, the procedure for 14 objecting to the settlement, and the date and location of the 15 final approval hearing. (See id. at 4-5.) The content of the 16 notice therefore satisfies Rule 23(c)(2)(B). See Fed. R. Civ. P. 17 23(c)(2)(B); Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 18 575 (9th Cir. 2004) (“Notice is satisfactory if it ‘generally 19 describes the terms of the settlement in sufficient detail to 20 alert those with adverse viewpoints to investigate and to come 21 forward and be heard.’”) (quoting Mendoza v. Tucson Sch. Dist. 22 No. 1, 623 F.2d 1338, 1352 (9th Cir. 1980)). 23 The parties selected ILYM Group (“ILYM”) to serve as 24 the Settlement Administrator. (Settlement Agreement at 13.) 25 Defendant timely provided ILYM with the class contact information 26 and data, which included the class members’ full names, social 27 security numbers, last known mailing addresses, and the total 28 number of applicable workweeks. (See Decl. of Madely Nava 1 (Docket No. 33-3) ¶ 5.) The class list contained 279 members. 2 (Id.) The Settlement Administrator delivered notice of the 3 settlement via mail. (Id. ¶ 7.) Of the twenty notices returned 4 as undeliverable, the Settlement Administrator acquired sixteen 5 new mailing addresses via computerized skip trace, leaving four 6 of the 279 notices undelivered. (Id. ¶¶ 8-10.) The Settlement 7 Administrator did not receive any objections or requests for 8 exclusion. (Id. ¶¶ 11-12.) 9 Although the court maintains the belief that counsel 10 could have been more thorough in devising procedures for 11 providing notice to class members, following oral argument the 12 court is satisfied by the Settlement Administrator’s efforts. 13 II. Final Settlement Approval 14 Having determined that class treatment is warranted, 15 the court must now address whether the terms of the parties’ 16 settlement appear fair, adequate, and reasonable. See Fed. R. 17 Civ. P. 23(e)(2). To determine the fairness, adequacy, and 18 reasonableness of the agreement, Rule 23(e) requires the court to 19 consider four factors: “(1) the class representatives and class 20 counsel have adequately represented the class; (2) the proposal 21 was negotiated at arm’s length; (3) the relief provided for the 22 class is adequate; and (4) the proposal treats class members 23 equitably relative to each other.” Id. The Ninth Circuit has 24 also identified eight additional factors the court may consider, 25 many of which overlap substantially with Rule 23(e)’s four 26 factors: 27 The strength of the plaintiff’s case; the risk, expense, complexity, and likely duration of 28 further litigation; the risk of maintaining class 1 action status throughout the trial; the amount offered in settlement; the extent of discovery 2 completed and the stage of the proceedings; the experience and views of counsel; the presence of 3 a governmental participant; and the reaction of the class members to the proposed settlement. 4 5 Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998).1 6 A. Adequate Representation 7 The court must first consider whether “the class 8 representatives and class counsel have adequately represented the 9 class.” Fed. R. Civ. P. 23(e)(2)(A). This analysis is 10 “redundant of the requirements of Rule 23(a)(4) . . . .” Hudson 11 v. Libre Tech., Inc., No. 3:18-cv-1371 GPC KSC, 2020 WL 2467060, 12 at *5 (S.D. Cal. May 13, 2020) (quoting 4 Newberg on Class 13 Actions § 13:48 (5th ed.)); see also In re GSE Bonds Antitr. 14 Litig., 414 F. Supp. 3d 686, 701 (S.D.N.Y. 2019) (noting 15 similarity of inquiries under Rule 23(a)(4) and Rule 16 1 Because claims under PAGA are “a type of qui tam action” in which an employee brings a claim as an agent or proxy 17 of the state’s labor law enforcement agencies, the court must 18 also “review and approve” settlement of plaintiff’s and other class members’ PAGA claims along with their class claims. See 19 Cal. Lab. Code § 2669(k)(2); Sakkab v. Luxottica Retail N. Am., Inc., 803 F.3d 425, 435-36 (9th Cir. 2015). 20 Though “PAGA does not establish a standard for evaluating PAGA settlements,” Rodriguez v. RCO Reforesting, Inc., No. 2:16- 21 CV-2523 WBS DMC, 2019 WL 331159, at *4 (E.D. Cal. Jan. 25, 2019) 22 (citing Smith v. H.F.D. No. 55, Inc., No. 2:15-cv-01293 KJM KJN, 2018 WL 1899912, at *2 (E.D. Cal. Apr. 20, 2018)), a number of 23 district courts have applied the eight Hanlon factors, listed above, to evaluate PAGA settlements. See, e.g., Smith, 2018 WL 24 1899912, at *2; Ramirez v. Benito Valley Farms, LLC, No. 16-cv- 04708 LHK, 2017 WL 3670794, at *3 (N.D. Cal. Aug. 25, 2017); 25 O’Connor v. Uber Techs., 201 F. Supp. 3d 1110, 1134 (N.D. Cal. 2016). “Many of these factors are not unique to class action 26 lawsuits and bear on whether a settlement is fair and has been 27 reached through an adequate adversarial process.” See Ramirez, 2017 WL 3670794, at *3. Thus, the court finds that these factors 28 will also govern its review of the PAGA settlement. See id. 1 23(e)(2)(A)). 2 Because the Court has found that the proposed class 3 satisfies Rule 23(a)(4) for purposes of class certification, the 4 adequacy factor under Rule 23(e)(2)(A) is also met. See Hudson, 5 2020 WL 2467060, at *5. 6 B. Negotiation of the Settlement Agreement 7 Following substantial investigations and informal 8 discovery, the parties engaged in a full-day mediation with a 9 mediator experienced in complex labor and employment matters. 10 (See Decl. of Edwin Aiwazian (“Aiwazian Decl.”) (Docket No. 33-1) 11 ¶ 8.) Plaintiff’s counsel represents that the parties analyzed 12 “a large volume of information, documents, and data” obtained 13 from plaintiff and defendant, and that settlement negotiations 14 involved “discussion of all aspects of the case, including but 15 not limited to, the risks and delays of further litigation, the 16 risks to the parties of proceeding with class certification and 17 trial, the law [applicable to the claims] . . ., the evidence 18 produced and analyzed, and the possibility of appeals . . . .” 19 (See id.) Plaintiff’s counsel further represents that the 20 settlement was the result of arms-length bargaining. (See id.) 21 Given counsel’s representation that the settlement 22 reached was the product of arms-length bargaining following 23 extensive informal discovery and with the help of an experienced 24 mediator, this factor weighs in favor of final approval. See La 25 Fleur v. Med. Mgmt. Int’l, Inc., No. 5:13-cv-00398, 2014 WL 26 2967475, at *4 (N.D. Cal. June 25, 2014) (“Settlements reached 27 with the help of a mediator are likely non-collusive.”). 28 C. Adequate Relief 1 In determining whether a settlement agreement provides 2 adequate relief for the class, the court must “take into account 3 (i) the costs, risks, and delay of trial and appeal; (ii) the 4 effectiveness of any proposed method of distributing relief to 5 the class, including the method of processing class-member 6 claims; (iii) the terms of any proposed award of attorney’s fees, 7 including timing of payment; and (iv) any [other] agreement[s]” 8 made in connection with the proposal. See Fed. R. Civ. P. 9 23(e)(2)(C); Baker v. SeaWorld Entm’t, Inc., No. 14-cv-02129-MMA- 10 AGS, 2020 WL 4260712, at *6-8 (S.D. Cal. Jul. 24, 2020). 11 The court notes that, in evaluating whether the 12 settlement provides adequate relief, it must consider several of 13 the same factors as outlined in Hanlon, including the strength of 14 the plaintiff’s case, the risk, expense, complexity, and likely 15 duration of further litigation, the risk of maintaining class 16 action status throughout the trial, and the amount offered in 17 settlement. See Hanlon, 150 F.3d at 1026. 18 In determining whether a settlement agreement is 19 substantively fair to class members, the court must balance the 20 value of expected recovery against the value of the settlement 21 offer. See In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 22 1080 (N.D. Cal. 2007). When a settlement was reached prior to 23 class certification, it is subject to heightened scrutiny for 24 purposes of final approval. See In re Apple Inc. Device 25 Performance Litig., 50 F.4th 769, 782 (9th Cir. 2022). The 26 recommendations of plaintiff’s counsel will not be given a 27 presumption of reasonableness, but rather will be subject to 28 close review. See id. at 782-83. The court will particularly 1 scrutinize “any subtle signs that class counsel have allowed 2 pursuit of their own self-interests to infect the negotiations.” 3 See id. at 782 (quoting Roes, 1-2 v. SFBSC Mgmt., LLC, 944 F.3d 4 1035, 1043 (9th Cir. 2019)). 5 The parties propose a gross settlement amount of 6 $800,000, which includes the following: (1) a $7,500 incentive 7 award to plaintiff; (2) attorneys’ fees of 35% of the gross 8 settlement amount, or $280,000, and reimbursement of litigation 9 costs and expenses of $8,863; (3) settlement administration costs 10 of $15,000; and (4) $200,000 for PAGA penalties, of which 75% 11 will be distributed to the Labor and Workforce Development Agency 12 (“LWDA”) and 25% will be distributed to individual aggrieved 13 employees based on their number of workweeks during the PAGA 14 period. (See Mot. at 4; Settlement Agreement.) This leaves a 15 net settlement amount of $288,636.27 to be distributed to class 16 members based on their number of workweeks. (See id.) 17 Based on these figures, the average payment per class 18 member will be $1,065.08. Plaintiff estimates that the claims 19 are worth up to $9,663,057.16. (See Suppl. Decl. of Edwin 20 Aiwazian (Docket No. 36).) The gross settlement amount 21 constitutes approximately 8.3% of that maximum valuation. While 22 this percentage is on the lower end of the range of typical 23 approval, plaintiff has adequately justified this figure. 24 Plaintiff faced numerous risks in the litigation, 25 including proving all elements of the claims, obtaining and 26 maintaining class certification, establishing liability, and the 27 costliness of litigation on these issues. (See id. at 4.) 28 Defendant “vigorously challenged” the likelihood of plaintiff 1 succeeding on any of her claims and contended that its employment 2 practices were fully compliant with California law. (See id. at 3 14.) Defendant also argued, inter alia, that individual issues 4 predominated such that class certification would be inappropriate 5 on certain claims; that plaintiff lacked standing and was an 6 inadequate class representative; that many class members executed 7 valid meal period waivers, which defendant produced; that 8 defendant did not “willfully” fail to pay wages such that 9 waiting-time penalties were due; that class members were not 10 injured by any recordkeeping violations; and that unreimbursed 11 business expenses were not “necessary” such that it was required 12 to pay them. (See id. at 5-13.) Defendant also represented that 13 approximately 36.13% of the class members were covered by 14 arbitration agreements. (See id. at 4.) 15 Investigation uncovered specific factual weaknesses in 16 plaintiff’s case. For instance, with respect to the claim for 17 failure to pay wages, plaintiff’s investigation revealed that 18 95.09% of the shifts analyzed gave no indication of unpaid work 19 time. (Id. at 3.) With respect to the claim for noncompliant 20 meal periods, plaintiff’s investigation revealed that 97.83% of 21 shifts analyzed had a meal period (whether fully compliant or 22 not), and 84.14% of shifts had no recorded meal period 23 violations. (Id.) The UCL and PAGA claims are derivative of the 24 underlying wage and hour violations, and thus are subject to the 25 same risks and weaknesses discussed above. 26 In light of the risks associated with further litigation 27 and the relative strength of defendants’ arguments, the court finds 28 that the value of the settlement counsels in favor of granting 1 final approval. The court further finds the method of processing 2 class member claims to be adequate. Each class member’s individual 3 share of the settlement is proportional to the number of weeks 4 worked for defendant during the time period covered by the 5 Settlement Agreement. The court is also satisfied that counsel’s 6 requested fees are reasonable and support approval of the 7 settlement, which it will address in greater detail below. 8 D. Equitable Treatment of Class Members 9 Finally, the court must consider whether the Settlement 10 Agreement “treats class members equitably relative to each 11 other.” See Fed. R. Civ. P. 23(e)(2)(D). In doing so, the court 12 determines whether the settlement “improperly grant[s] 13 preferential treatment to class representatives or segments of 14 the class.” Hudson, 2020 WL 2467060, at *9 (quoting Tableware, 15 484 F. Supp. at 1079. 16 Here, the Settlement Agreement does not improperly 17 discriminate between any segments of the class, as all class 18 members are entitled to monetary relief based on the number of 19 compensable workweeks they spent working for defendants. (See 20 Settlement Agreement at 5-6.) 21 While the Settlement Agreement allows plaintiff to seek 22 an incentive award of $7,500, plaintiff has submitted evidence 23 documenting her time and effort spent on this case, which, as 24 discussed further below, has satisfied the court that her 25 additional compensation above other class members is justified. 26 See Hudson, 2020 WL 2467060, at *9. The court therefore finds 27 that the settlement treats class members equitably. See Fed. R. 28 Civ. P. 23(e)(D). 1 E. Remaining Staton Factors 2 In addition to the Staton factors already considered as 3 part of the court’s analysis under Rule 23(e)(A)-(D), the court 4 must also examine “the extent of the discovery completed . . ., 5 the presence of government participation, and the reaction of 6 class members to the proposed settlement.” Staton, 327 F.3d at 7 959. 8 Through investigation and informal discovery, 9 plaintiffs obtained “a large volume of information, documents, 10 and data,” including employment records, payroll records, 11 employee handbooks, job descriptions, internal memoranda and 12 policies, arbitration agreements, meal period waivers, wage 13 statements, and reimbursement forms, that appear to have allowed 14 the parties to adequately assess the value of the claims. (See 15 Aiwazian Decl. ¶ 6.) This factor thus weighs in favor of final 16 approval of the settlement. 17 The seventh Staton factor, pertaining to government 18 participation, also weighs in favor of approval. See Staton, 327 19 F.3d at 959. Under PAGA, “[t]he proposed settlement [must be] 20 submitted to the [LWDA] at the same time that it is submitted to 21 the court.” Cal. Lab. Code § 2669(k)(2). As of the date of this 22 order, the LWDA has not sought to intervene or otherwise objected 23 to the PAGA settlement. This factor therefore weights in favor 24 of final approval of the settlement. 25 The eighth Staton factor, the reaction of the class 26 members to the proposed settlement, also weighs in favor of final 27 approval, as there have been no objections or requests for 28 exclusion from class members. See Staton, 327 F.3d at 959. 1 In sum, the four factors that the court must evaluate 2 under Rule 23(e) and the eight Staton factors, taken as a whole, 3 weigh in favor of approving the settlement. The court will 4 therefore grant final approval of the Settlement Agreement. 5 III. Attorneys’ Fees 6 Federal Rule of Civil Procedure 23(h) provides, “[i]n a 7 certified class action, the court may award reasonable attorney’s 8 fees and nontaxable costs that are authorized by law or by the 9 parties’ agreement.” Fed. R. Civ. P. 23(h). If a negotiated 10 class action settlement includes an award of attorneys’ fees, 11 that fee award must be evaluated in the overall context of the 12 settlement. Knisley v. Network Assocs., 312 F.3d 1123, 1126 (9th 13 Cir. 2002); Monterrubio v. Best Buy Stores, L.P., 291 F.R.D. 443, 14 455 (E.D. Cal. 2013) (England, J.). The court “ha[s] an 15 independent obligation to ensure that the award, like the 16 settlement itself, is reasonable, even if the parties have 17 already agreed to an amount.” Bluetooth Headset, 654 F.3d at 18 941. 19 “Under the ‘common fund’ doctrine, ‘a litigant or a 20 lawyer who recovers a common fund for the benefit of persons 21 other than himself or his client is entitled to a reasonable 22 [attorneys’] fee from the fund as a whole.’” Staton v. Boeing 23 Co., 327 F.3d 938, 969 (9th Cir. 2003) (quoting Boeing Co. v. Van 24 Gemert, 444 U.S. 472, 478 (1980)). In common fund cases, the 25 district court has discretion to determine the amount of 26 attorneys’ fees to be drawn from the fund by employing either the 27 percentage method or the lodestar method. Id. The court may 28 also use one method as a “cross-check[ ]” upon the other method. 1 See Bluetooth Headset, 654 F.3d at 944. 2 Counsel represents that the settlement amount, which 3 averages $1,065.08 per class member, represents a favorable 4 result for the class that will bring meaningful relief. A review 5 of wage and hour class action settlements in this district 6 confirms that this appears to be a favorable recovery for class 7 members that will be available without further delay. See, e.g., 8 Cooley v. Indian River Transp. Co., No. 1:18-cv-00491 WBS, 2019 9 WL 2077029 (E.D. Cal. May 10, 2019) (finding that $450.14 10 recovery per truck driver class member was a “favorable” result); 11 Ontiveros v. Zamora, No. 2:08-cv-00567 WBS DAD, 2014 WL 3057506 12 (E.D. Cal. July 7, 2014) (observing that an average recovery of 13 $6,000 was “a generous amount” and citing cases approving lower 14 per-class-member averages between $601.91 and $1,000.00). 15 Like other complex employment class actions, this case 16 presented both counsel and the class with a risk of no recovery 17 at all, as already discussed above. Plaintiff’s counsel took on 18 this matter on a contingency basis. (See Aiwazian Decl. ¶ 9.) 19 The nature of contingency work inherently carries risks that 20 counsel will sometimes recovers very little to nothing at all, 21 even for cases that may be meritorious. See Kimbo v. MXD Group, 22 Inc., No. 2:19-cv-00166 WBS KNJ, 2021 WL 492493, at *7 (E.D. Cal. 23 Feb. 10, 2021). Where counsel do succeed in vindicating 24 statutory and employment rights on behalf of a class of 25 employees, they depend on recovering a reasonable percentage-of- 26 the-fund fee award to enable them to take on similar risks in 27 future cases. See id. Plaintiff’s counsel argues that, in light 28 of the strong result and substantial risk taken in this case, a 1 35% fee, as requested here, is reasonable. 2 The Ninth Circuit has established 25% of the fund as 3 the “benchmark” award that should be given in common fund cases. 4 Six (6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 5 1311 (9th Cir. 1990). As this court has explained, “a review of 6 California cases . . . reveals that courts usually award 7 attorneys’ fees in the 30-40% range in wage and hour class 8 actions that result in recovery of a common fun[d] under $10 9 million.” Watson v. Tennant Co., No. 2:18-cv-02462 WBS DB, 2020 10 WL 5502318, at *7 (E.D. Cal. Sep. 11, 2020) (awarding 33.33% of 11 settlement fund); see also Osegueda v. N. Cal. Inalliance, No. 12 18-cv-00835 WBS EFB, 2020 WL 4194055, at *16 (E.D. Cal. July 21, 13 2020) (same); Cooley, 2019 WL 2077029, at *20 (fee award of 33% 14 of the common fund in class action alleging missed meal and rest 15 breaks for class of truck drivers). Given that the requested fee 16 is in line with the typical practice in the Ninth Circuit and in 17 this district, the court agrees that plaintiff’s counsel’s 18 requested percentage of the common fund is reasonable, especially 19 when viewed in light of the recovery obtained on behalf of the 20 class and the risks undertaken by plaintiff’s counsel in this 21 case. 22 “Calculation of the lodestar, which measures the 23 lawyers’ investment of time in the litigation, provides a check 24 on the reasonableness of the percentage award.” Vizcaino v. 25 Microsoft Corp., 290 F.3d 1043, 1050 (9th Cir. 2002). 26 Here, a lodestar cross-check confirms the 27 reasonableness of the requested award. Plaintiff’s counsel 28 maintained contemporaneous billing logs which reflect time billed 1 in one-tenth of an hour increments. (See Ex. A to Aiwazian 2 Decl.) Counsel represents that attorneys at Lawyers for Justice, 3 PC have dedicated 391.3 hours of work to this case. (See 4 Aiwazian Decl. ¶ 11.) Counsel applies a blended rate of $725 per 5 hour to arrive at the lodestar figure. (See id. ¶ 12.) The firm 6 specializes in wage and hour matters and class action cases, and 7 counsel represents that comparable hourly rates have been 8 approved by multiple federal and state courts in California. 9 (See id. ¶ 12.) Based on 391.3 hours billed at an hourly rate of 10 $725, the lodestar figure is $283,692.50. (See Mot. at 16; 11 Aiwazian Decl. ¶ 11-12.) This figure is nearly identical to the 12 requested percentage-of-the-fund fees without the application of 13 a multiplier, confirming the reasonableness of the requested 14 award. Cf. Vizcaino, 290 F.3d at 1051 (affirming fee award with 15 lodestar cross-check multiplier of 3.65). 16 Accordingly, the court finds the requested fees to be 17 reasonable and will grant counsel’s motion for attorneys’ fees. 18 D. Costs 19 “There is no doubt that an attorney who has created a 20 common fund for the benefit of the class is entitled to 21 reimbursement of reasonable litigation expenses from that fund.” 22 In re Heritage Bond Litig., No. 02-cv-1475, 2005 WL 1594403, at 23 *23 (C.D. Cal. June 10, 2005). Here, the parties agreed that 24 plaintiff’s counsel shall be entitled to recover reasonable 25 litigation costs, not to exceed $24,000. (Settlement Agreement 26 at 23.) Counsel’s litigation expenses and costs are $8,863.75. 27 (Aiwazian Decl. ¶ 19.) These expenses include mailing and 28 postage, filing fees, and document service. (See Ex. B to 1 Aiwazian Decl.) The court finds these are reasonable litigation 2 expenses. Therefore, the court will grant class counsel’s 3 request for costs in the amount of $8,863.75. 4 E. Representative Service Award 5 “Incentive awards are fairly typical in class action 6 cases.” Rodriguez, 563 F.3d at 958. “[They] are intended to 7 compensate class representatives for work done on behalf of the 8 class, to make up for financial or reputational risk undertaken 9 in bringing the action, and, sometimes, to recognize their 10 willingness to act as a private attorney general.” Id. at 958- 11 59. 12 Nevertheless, the Ninth Circuit has cautioned that 13 “district courts must be vigilant in scrutinizing all incentive 14 awards to determine whether they destroy the adequacy of the 15 class representatives . . . .” Radcliffe v. Experian Info. 16 Solutions, Inc., 715 F.3d 1157, 1164 (9th Cir. 2013). In 17 assessing the reasonableness of incentive payments, the court 18 should consider “the actions the plaintiff has taken to protect 19 the interests of the class, the degree to which the class has 20 benefitted from those actions” and “the amount of time and effort 21 the plaintiff expended in pursuing the litigation.” Staton, 327 22 F.3d at 977 (citation omitted). The court must balance “the 23 number of named plaintiffs receiving incentive payments, the 24 proportion of the payments relative to the settlement amount, and 25 the size of each payment.” Id. 26 In the Ninth Circuit, an incentive award of $5,000 is 27 presumptively reasonable. Davis v. Brown Shoe Co., Inc., No. 28 1:13-cv-01211 LJO BAM, 2015 WL 6697929, at *11 (E.D. Cal. Nov. 3, 1 2015) (citing Harris v. Vector Marketing Corp., No. 08-cv-5198 2 EMC, 2012 WL 381202, at *7 (N.D. Cal. Feb. 6, 2012) (collecting 3 cases)). The single named plaintiff seeks an incentive payment 4 of $7,500. 5 Plaintiff represents that she has expended 6 approximately 50 hours of her time in bringing this action and 7 seeing it through to settlement. (See Decl. of Tricilla Griffin 8 (Docket No. 33-2).) In light of plaintiff’s efforts and the 9 risks incurred in bringing this action, the court finds her 10 requested incentive award of $7,500 to be reasonable and will 11 approve the award. 12 II. Conclusion 13 Based on the foregoing, the court will grant final 14 certification of the settlement class and will approve the 15 settlement set forth in the Settlement Agreement as fair, 16 reasonable, and adequate. The Settlement Agreement shall be 17 binding upon all participating class members who did not exclude 18 themselves. 19 IT IS THEREFORE ORDERED that plaintiff’s unopposed 20 motion for final approval of the parties’ class action settlement 21 (Docket No. 33) and motion for attorneys’ fees, costs, and class 22 representative service payment (Docket No. 34) be, and the same 23 hereby are, GRANTED. 24 IT IS FURTHER ORDERED THAT: 25 (1) Solely for the purpose of this settlement, and 26 pursuant to Federal Rule of Civil Procedure 23, the court hereby 27 certifies the following class: all current and former hourly-paid 28 or non-exempt employees who worked for defendant within the state 1 of California at any time during the period from February 24, 2 2017 through March 23, 2022. 3 (2) The court appoints the named plaintiff Tricilla 4 Griffin as class representative and finds that she meets the 5 requirements of Rule 23; 6 (3) The court appoints the law firm of Lawyers for 7 Justice, PC as class counsel and finds that it meets the 8 requirements of Rule 23; 9 (4) The settlement agreement’s plan for class notice 10 satisfies the requirements of due process and Rule 23. The plan 11 is approved and adopted. The notice to the class complies with 12 Rule 23(c)(2) and Rule 23(e) and is approved and adopted; 13 (5) The court finds that the parties and their counsel 14 took appropriate efforts to locate and inform all class members 15 of the settlement. No employees have requested to be excluded 16 from the class. Given that no class member filed an objection to 17 the settlement, the court finds that no additional notice to the 18 class is necessary; 19 (6) As of the date of the entry of this order, 20 plaintiff and all class members who have not timely opted out of 21 this settlement hereby do and shall be deemed to have fully, 22 finally, and forever released, settled, compromised, 23 relinquished, and discharged defendants of and from any and all 24 settled claims, pursuant to the release provisions stated in the 25 parties’ settlement agreement; 26 (7) Plaintiff’s counsel is entitled to fees in the 27 amount of $280,000, and litigation costs in the amount of 28 $8,863.75; —ee—— em REI IN OE REIRSON IE IN REI EI NEEDS Ome 1 (8) ILYM Group is entitled to administration costs in 2 | the amount of $15,000; 3 (9) Plaintiff Tricilla Griffin is entitled to an 4 incentive award in the amount of $7,500; 5 (10) $150,000 from the gross settlement amount shall be 6 | paid to the California Labor and Workforce Development Agency in 7 satisfaction of defendant’s alleged penalties under the Private 8 Attorneys General Act; 9 (11) The remaining settlement funds shall be paid to 10 participating class members and aggrieved employees in accordance 11 with the terms of the Settlement Agreement; and 12 (12) This action is dismissed with prejudice. However, 13 without affecting the finality of this Order, the court shall 14 retain continuing jurisdiction over the interpretation, 15 implementation, and enforcement of the Settlement Agreement with 16 respect to all parties to this action and their counsel of 17 record. . 18 | Dated: June 5, 2023 atin Ah. 2b. beE— WILLIAM B. SHUBB 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 21