Kang v. Credit Bureau Connection, Inc. ( 2023 )

1 2 UNITED STATES DISTRICT COURT 3 FOR THE EASTERN DISTRICT OF CALIFORNIA 4 5 6 SUNG GON KANG, individually and on No. 1:18-cv-01359-SKO 7 behalf of others similarly situated, ORDER VACATING HEARING 8 Plaintiff, ORDER GRANTING UNOPPOSED 9 v. MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT 10 CREDIT BUREAU CONNECTION, INC., ORDER GRANTING IN PART 11 Defendant. UNOPPOSED MOTION FOR ATTORNEY’S FEES AND COSTS AND 12 FOR APPROVAL OF SERVICE AWARD AND INDIVIDUAL SETTLEMENT 13 (Docs. 155 & 158) 14 15 16 Pending before the Court is Plaintiff Sung Gon Kang (“Kang”)’s unopposed motion for 17 final approval of a class action settlement and unopposed motion for attorney’s fees and costs and 18 for approval of service award and individual settlement. (Docs. 155 & 158.) No objections to the 19 proposed settlement terms were received by the settlement administrator (see Doc. 158-1 at 23; 20 Doc. 158-2 ¶ 4) or filed with the Court. Accordingly, the hearing for the motions, currently set for 21 October 25, 2023, will be vacated. 22 For the reasons explained below, the Court grants preliminary approval of the proposed 23 class action settlement and grants in part the motion for attorney’s fees and costs and for approval 24 of service award and individual settlement.1 25 I. BACKGROUND 26 The Court previously summarized Kang’s allegations in its June 1, 2023, order granting 27 28 1 On February 28, 2023, the parties consented to the jurisdiction of the U.S. Magistrate Judge. (See Docs. 141–143.) 1 Kang’s motion for preliminary approval of a class action settlement and conditional class 2 certification (Doc. 153), and will not repeat the factual and procedural background in this order. 3 Following the grant of preliminary approval in this action, on August 1, 2023, Kang filed the 4 pending motion for attorney’s fees and costs and for approval of service award and individual 5 settlement, and on September 20, 2023, Kang filed the pending motion for final approval of the 6 parties’ class action settlement. (Docs. 155 & 158.) In support of the motions, Kang has submitted 7 declarations from class counsel and the settlement administrator in this action. (Docs. 155-2, 155- 8 3, 158-2.) As of the date of this order, no objections to the settlement were received by the 9 settlement administrator or filed with this Court, and no class members have opted out of the 10 settlement. (Doc. 158-1 at 23; Doc. 158-2 ¶ 4.) Defendant Credit Bureau Connection, Inc. (“Credit 11 Bureau”) did not oppose either motion. 12 Under the settlement agreement, Credit Bureau will automatically pay $1,000 to each 13 member of the FCRA Class without the need for any claim form or other response.2 (Doc. 149 at 14 16; Doc. 149-1 at 10, 16.) This amount is “independent of [Credit Bureau’s] other financial 15 obligations under the proposed settlement. That is, if the proposed settlement is approved, each 16 FCRA Class member will receive a sum certain rather than a pro rata portion of a common fund 17 against which, for example, the costs of notice and administration or Class Counsel’s attorneys’ 18 fees and costs would be deducted.” (Doc. 149 at 16.) 19 II. FINAL CERTIFICATION OF SETTLEMENT CLASS 20 On March 4, 2022, the Court granted certification of the proposed classes under Rule 23 21 and found that Kang had satisfied Rule 23(a)’s requirements of numerosity, commonality, 22 typicality, and adequacy of representation and Rule 23(b)(3)’s requirements of predominance and 23 superiority. (See Doc. 121.) 24 The Court’s findings on these issues have not changed, and no objections to class 25 certification were raised. Accordingly, there is no need for the Court to repeat the analysis on these 26 issues here. See, e.g., Harris v. Vector Marketing, No. C–08–5198 EMC, 2012 WL 381202 at *3, 27 2 The “FRCA Class” is defined as “All individuals about whom [Credit Bureau] prepared a report that (1) included an OFAC ‘Hit;’ (2) was published to a third party from October 2, 2013 to March 4, 2022 and (3) included a U.S. address 28 (including U.S. Territories) for that individual.” (Doc. 149-1 at 5.) 1 at *7 (N.D. Cal. Feb. 6, 2012) (“As a preliminary matter, the court notes that it previously certified 2 . . . a Rule 23(b)(3) class . . . . [Thus, it] need not analyze whether the requirements for certification 3 have been met and may focus instead on whether the proposed settlement is fair, adequate, and 4 reasonable.”); In re Apollo Group Inc. Securities Litigation, No. CV 04-2147-PHX-JAT, 2012 WL 5 1378677 at *4 (D. Ariz. Apr. 20, 2012) (“The Court has previously certified, pursuant to Rule 23[,] 6 . . . and hereby reconfirms its order certifying a class”). 7 The Court hereby confirms its prior order and certifies the following settlement classes: “All individuals about whom [Credit Bureau] prepared a report that (1) included an 8 OFAC ‘Hit;’ (2) was published to a third party from October 2, 2013 to March 4, 9 2022 and (3) included a U.S. address (including U.S. Territories) for that individual” (the “FCRA Class”). 10 “All individuals about whom [Credit Bureau] prepared a report that (1) included an 11 OFAC ‘Hit;’ (2) was published to a third party from October 2, 2011 to March 4, 2022; and (3) included a U.S. address (including U.S. Territories) for that 12 individual” (the “CCRAA Class”). 13 (Doc. 153 at 3–4, 15.) For settlement purposes, the parties have defined the class period as the 14 period “from October 2, 2013 to March 4, 2022” for the FRCA Class and the period “from October 15 2, 2011 to March 4, 2022” for the CCRAA Class.3 (See Doc. 149-1 at 4, 5.) These classes are 16 comprised of an estimated 1,119 individuals (the “Settlement Class” or “Settlement Class 17 Members”), all of whom are members of the CCRAA Class, and 1,071 of whom are members of 18 the FCRA Class. (Doc. 158-1 at 16, 26; Doc. 149-1 at 4.) 19 In addition, for the reasons stated in the certification order and the order of preliminary 20 approval, Plaintiff Sung Gon Kang is confirmed as class representative; Caddell & Chapman, and 21 Francis Mailman Soumilas, P.C., are confirmed as co-class counsel; and Continental Datalogix 22 (“CDLx”) is confirmed as the settlement administrator. (Doc. 153 at 3, 15; Doc. 149-1 at 4, 6.) 23 III. FINAL APPROVAL OF CLASS ACTION SETTLEMENT 24 Class actions require the district court’s approval prior to settlement. Fed R. Civ. P 23(e). 25 To approve a settlement, a district court must: (i) ensure notice is sent to all class members; (ii) 26 hold a hearing and make a finding that the settlement is fair, reasonable, and adequate; (iii) confirm 27 3 The distinction between the two classes arises from the CCRAA’s 7-year statute of limitations, Cal. Civ. Code § 28 1785.33, which is longer than the FCRA’s 5-year statute of limitations, 15 U.S.C. § 1681p. 1 that the parties seeking approval file a statement identifying the settlement agreement; and (iv) be 2 shown that class members were given an opportunity to object. Fed. R. Civ. P. 23(e)(1)–(5). 3 The parties filed the settlement agreement on May 1, 2023 (Doc. 149-1), and class members 4 were given an opportunity to object on or before August 31, 2023. (Doc. 158-2 ¶ 3; see also Doc. 5 158-1 at 23.) Neither CDLx nor the Court received any objections, timely or otherwise, to the 6 settlement. (Doc. 158-2 ¶ 3; see also Doc. 158-1 at 23.) The Court now turns to the adequacy of 7 notice and its fairness review of the settlement. 8 A. Notice 9 Adequate notice of the class settlement must be provided under Rule 23(e). Hanlon v. 10 Chrysler Corp., 150 F.3d 1011, 1025 (9th Cir. 1998); see also Silber v. Mabon, 18 F.3d 1449, 1453- 11 54 (9th Cir. 1994) (noting that the court need not ensure all class members receive actual notice, 12 only that “best practicable notice” is given); Winans v. Emeritus Corp., No. 4:13-cv-03962-HSG, 13 2016 WL 107574, at *3 (N.D. Cal. Jan. 11, 2016) (“While Rule 23 requires that ‘reasonable effort’ 14 be made to reach all class members, it does not require that each individual actually receive 15 notice.”). “Notice is satisfactory if it ‘generally describes the terms of the settlement in sufficient 16 detail to alert those with adverse viewpoints to investigate and to come forward and be heard.’” 17 Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004) (quoting Mendoza v. Tucson 18 Sch. Dist. No. 1, 623 F.2d 1338, 1352 (9th Cir. 1980)). Any notice of the settlement sent to the 19 class should alert class members of “the opportunity to opt-out and individually pursue any state 20 law remedies that might provide a better opportunity for recovery.” Hanlon, 150 F.3d at 1025. 21 The Court previously reviewed the notice provided in this case at the preliminary approval 22 stage and found it to be satisfactory. (Doc. 153 at 13–14.) Class counsel filed the declaration of 23 Frank Barkan of CDLx in connection with the dissemination of the class notice. (Doc. 156.) 24 Following the grant of preliminary approval, CDLx sent the notice to the class members by both 25 First-Class Mail and email. (Id. ¶¶ 3–6.) For mail that was returned as undeliverable with no 26 forwarding address, CDLx used an address locator service to find updated addresses. (Id. ¶¶ 7– 27 10.) In the end, CDLx delivered notice to 99.4% of the FCRA Class and 100% of the CCRA Class. 28 (Id. ¶ 11.) The settlement administrator also maintained the website www.KangClassAction.com, 1 which made materials related to the settlement, class counsel’s motion for attorney’s fees and costs, 2 and relevant deadlines available to Class Members. (Id. ¶ 12; see also Doc. 157.) As of the filing 3 of the present motion, CDLx has received one telephone call from a class member and has received 4 and responded to seven email inquiries from class members. (Doc. 158-2 ¶ 5.) Additionally, Credit 5 Bureau prepared the notice required to be served under the Class Action Fairness Act of 2005 6 (“CAFA”), 28 U.S.C. § 1715. S.A. § 4.1.4, and CDLx mailed the CAFA Notice as required by the 7 settlement agreement. (See Doc. 152.) 8 Considering the foregoing, the Court accepts the reports of CDLx and finds that it provided 9 adequate notice, thereby satisfying Federal Rule of Civil Procedure 23(e)(1). Silber, 18 F.3d at 10 1453–54; Winans, 2016 WL 107574, at *3. 11 B. Final Fairness Determination 12 At the final approval stage, the primary inquiry is whether the proposed settlement “is 13 fundamentally fair, adequate, and reasonable.” Fed. R. Civ. P. 23(e)(2); Lane v. Facebook, Inc., 14 696 F.3d 811, 818 (9th Cir. 2012); Hanlon, 150 F.3d at 1026. “It is the settlement taken as a whole, 15 rather than the individual component parts, that must be examined for overall fairness.” Hanlon, 16 150 F.3d at 1026 (citing Officers for Justice v. Civil Serv. Comm’n of S.F., 688 F.2d 615, 628 (9th 17 Cir. 1982)); see also Lane, 696 F.3d at 818. Having already completed a preliminary examination 18 of the agreement, the Court reviews it again, mindful that the law favors the compromise and 19 settlement of class action suits. See, e.g., In re Syncor ERISA Litig., 516 F.3d 1095, 1101 (9th Cir. 20 2008); Churchill Vill., 361 F.3d at 576; Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th 21 Cir. 1992); Officers for Justice, 688 F.2d at 625. Ultimately, “the decision to approve or reject a 22 settlement is committed to the sound discretion of the trial judge because [they are] exposed to the 23 litigants and their strategies, positions, and proof.” Staton v. Boeing Co, 327 F.3d 938, 953 (9th 24 Cir. 2003) (quoting Hanlon, 150 F.3d at 1026). 25 In assessing the fairness of a class action settlement, courts balance the following factors: 26 (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 27 throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed and the stage of the proceedings; (6) the experience and 28 1 views of counsel; (7) the presence of a governmental participant; and (8) the reaction of the class members to the proposed settlement. 2 3 Churchill Vill., 361 F.3d at 575; see also In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 4 944 (9th Cir. 2015); Rodriguez v. West Publ’g Corp., 563 F.3d 948, 964-67 (9th Cir. 2009). These 5 settlement factors are non-exclusive, and each need not be discussed if they are irrelevant to a 6 particular case. Churchill Vill., 361 F.3d at 576 n.7. 7 Consideration of the Churchill factors alone is not sufficient to survive appellate review. 8 See Briseño v. Henderson, 998 F.3d 1014, 1022-26 (9th Cir. 2021) (holding that the revised Rule 9 23(e) requires district courts “to go beyond our precedent” and mandates consideration of “the 10 Bluetooth factors” to all class action settlements, regardless of whether settlement was achieved 11 before or after class certification); see also Fed. R. Civ. P. 23(e)(2)(C)-(D). Under the revised Rule 12 23(e), “district courts must apply the Bluetooth factors to scrutinize fee arrangements . . . to 13 determine if collusion may have led to class members being shortchanged.” Briseño, 998 F.3d at 14 1026. The so-called Bluetooth factors—also referred to as “subtle signs” of collusion—include: (i) 15 “when counsel receive a disproportionate distribution of the settlement, or when the class receives 16 no monetary distribution but class counsel are amply rewarded;” (ii) the existence of a “clear 17 sailing” arrangement, which provides “for the payment of attorneys’ fees separate and apart from 18 class funds,” or a provision under which defendant agrees not to object to the attorney’s fees sought; 19 and (iii) “when the parties arrange for fees not awarded to revert to defendants rather than be added 20 to the class fund.” In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 947 (9th Cir. 2011) 21 (internal quotations and citations omitted). “The presence of these three signs is not a death knell— 22 but when they exist, ‘they require[] the district court to examine them, . . . develop the record to 23 support its final approval decision,’ and thereby ‘assure itself that the fees awarded in the agreement 24 were not unreasonably high.’” Kim v. Allison, 8 F.4th 1170, 1180 (9th Cir. 2021) (quoting Allen v. 25 Bedolla, 787 F.3d 1218, 1224 (9th Cir. 2015)). Thus, while this Court has wide latitude to 26 determine whether a settlement is substantively fair, it is held to a higher procedural standard, and 27 in order “[t]o survive appellate review . . . [it] must show it has explored comprehensively all factors 28 1 and must give a reasoned response to all non-frivolous objections.” McKinney-Drobnis v. 2 Oreshack, 16 F.4th 594, 606 (9th Cir. 2021) (quoting Allen, 787 F.3d at 1223-24). 3 1. Strength of Plaintiff’s Case 4 When assessing the strength of a plaintiff’s case, the court does not reach “any ultimate 5 conclusions regarding the contested issues of fact and law that underlie the merits of th[e] 6 litigation.” In re Wash. Pub. Power Supply Sys. Sec. Litig., 720 F. Supp. 1379, 1388 (D. Ariz. 7 1989). The court cannot reach such a conclusion because evidence has not been fully presented. 8 Id. Instead, the court “evaluate[s] objectively the strengths and weaknesses inherent in the litigation 9 and the impact of those considerations on the parties’ decisions to reach these agreements.” Id. 10 As described in the motion for preliminary approval of the class settlement, Credit Bureau 11 has affirmative defenses to some class members’ claims and would argue that these defenses, and 12 what Credit Bureau claimed were differences in the ways its consumer reports affected different 13 class members, made the case unmanageable for trial. (See Doc. 153 at 12; See also Doc. 122 at 14 6–7.) Specifically, these liability defenses include “(1) Defendant is not a credit reporting agency 15 because it does not provide its OFAC reports ‘for monetary fees’ within the meaning of the FCRA, 16 (2) Defendant’s OFAC reports are accurate, and (3) Defendant acted reasonably and not willfully.” 17 (Id. at 5.) Although Kang believes that there are strong arguments against each of the above 18 positions, success on any one of Credit Bureau’s defenses would have disposed of the class 19 members’ claims and eliminate any possibility of statutory damages recovery for the class. 20 Accordingly, the Court finds that consideration of this factor weighs in favor of granting 21 final approval of the parties’ settlement in this action. 22 2. Risk, Expense, Complexity, and Likely Duration of Further Litigation, and Risk of Maintaining Class Action Status Throughout Trial 23 24 The second and third Churchill factors, the risk, expense, complexity, and likely duration 25 of further litigation, and the risk of maintaining class action status throughout trial, weigh in favor 26 of approval. See Fed. R. Civ. P. 23(e)(2)(C)(i). “[T]here is a strong judicial policy that favors 27 settlements, particularly where complex class action litigation is concerned.” In re Syncor ERISA 28 1 Litig., 516 F.3d at 1101 (citing Class Plaintiffs, 955 F.2d at 1276). As a result, “[a]pproval of 2 settlement is preferable to lengthy and expensive litigation with uncertain results.” Johnson v. 3 Shaffer, No. 2:12-cv-1059-KJM-AC, 2016 WL 3027744, at *4 (E.D. Cal. May 27, 2016) (citing 4 Morales v. Stevco, Inc., No. 1:09-cv-00704-AWI-JLT, 2011 WL 5511767, at *10 (E.D. Cal. Nov. 5 10, 2011)). 6 Because of the above-described risks, Kang contends that further litigation would increase 7 risk and delay. (Doc. 158-1 at 28.) The proposed settlement “creates a much faster and direct 8 means of providing relief to Class Members than would be the case if the parties proceeded with 9 litigation,” as the Scheduling Order contemplates completing merits and expert discovery, another 10 round of summary judgment briefing, and trial through October 24, 2023. (Id.; see also Doc. 125.) 11 The Court finds that consideration of this factor weighs in favor of granting final approval. 12 3. Amount Offered in Settlement 13 To evaluate the fairness of the settlement award, the court should “compare the terms of the 14 compromise with the likely rewards of litigation.” Protective Comm. for Indep. Stockholders of 15 TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424-25 (1968); see also Fed. R. Civ. P. 16 23(e)(2)(C)-(D). “It is well-settled law that a cash settlement amounting to only a fraction of the 17 potential recovery does not per se render the settlement inadequate or unfair.” In re Mego Fin. 18 Corp. Sec. Litig., 213 F.3d 454, 459 (9th Cir. 2000). To determine whether a settlement “falls 19 within the range of possible approval,” a court must focus on “substantive fairness and adequacy” 20 and “consider plaintiffs’ expected recovery balanced against the value of the settlement offer.” In 21 re Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 1080 (N.D. Cal. 2007). In addition, the court 22 must consider whether “the proposal treats class members equitably relative to each other” and 23 whether “the relief provided for the class is adequate.” Fed. R. Civ. P. 23(e)(2)(C)-(D). 24 Here, the settlement agreement provides that each of the 1,071-member FCRA Class will 25 receive a minimum of $1,000 without the need for any claim form or other response. (Doc. 158-1 26 at 28; Doc. 149-1 at 10, 16.) This amounts to 95.7% of consumers about whom Credit Bureau 27 prepared a consumer report with an OFAC “Hit” during the class period receiving cash payments 28 1 via the proposed settlement.4 2 Under the FCRA a prevailing plaintiff may obtain statutory damages of $100–$1,000. See 3 15 U.S.C. § 1681n(a)(1)(A). Thus, the automatic $1,000 payment is the maximum amount of 4 statutory damages available for a willful violation of the FCRA. Kang maintains that this is an 5 “excellent result” that “compares favorably to other FCRA section 1681e(b) class action 6 settlements for statutory damages.” (Doc. 158-1 at 28 (citing Patel v. Trans Union, LLC, No. 14- 7 CV-00522-LB, 2018 WL 1258194, at *8 (N.D. Cal. Mar. 11, 2018) (finally approving class action 8 settlement in which class members received an automatic $400 payment and could submit a claim 9 for an additional, pro rata share of a claims pool); Leo v. AppFolio, Inc., No. 3:17-cv-05771-RJB, 10 Doc. 62 at 7 (W.D. Wash. July 18, 2019) ($425 for successful claimants); McIntyre v. RealPage, 11 Inc., No. 18-CV-03934, 2023 WL 2643201, at *2 (E.D. Pa. Mar. 24, 2023) (finally approving 12 settlement in which class members received automatic payments of approximately $300)). In 13 addition, members of the largely overlapping CCRAA Class all benefit from Credit Bureau’s 14 practice changes that eliminate name-only matching for entities on the OFAC list. (See Doc. 158- 15 1 at 29.) 16 Based on the information presented, the Court concludes that the amount offered in 17 settlement of this action provides adequate relief for the class. 18 4. Extent of Discovery Completed and Stage of the Proceedings 19 “In the context of class action settlements, ‘formal discovery is not a necessary ticket to the 20 bargaining table’ where the parties have sufficient information to make an informed decision about 21 settlement.” Linney v. Cellular Alaska P’ship, 151 F.3d 1234, 1239 (9th Cir. 1998) (quoting In re 22 Chicken Antitrust Litig., 669 F.2d 228, 241 (5th Cir. 1982)). Approval of a class action settlement 23 “is proper as long as discovery allowed the parties to form a clear view of the strengths and 24 weaknesses of their cases.” Monterrubio v. Best Buy Stores, L.P., 291 F.R.D. 443, 454 (E.D. Cal. 25 2013). A settlement is presumed fair if it “follow[s] sufficient discovery and genuine arms-length 26 negotiation.” Adoma v. Univ. of Phx., Inc., 913 F. Supp. 2d 964, 977 (E.D. Cal. 2012) (quoting 27 28 4 The remaining consumers are members of the CCRAA Class, who are entitled to only injunctive relief. 1 Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 528 (C.D. Cal. 2004)). The 2 court must consider whether the process by which the parties arrived at their settlement is truly the 3 product of arm’s length bargaining and not collusion or fraud. Millan v. Cascade Water Servs., 4 Inc., 310 F.R.D. 593, 613 (E.D. Cal. 2015). These concerns are also reflected in Rule 23(e)(2)’s 5 focus on procedural fairness—whether “the class representatives and class counsel have adequately 6 represented the class” and whether “the proposal was negotiated at arm’s length.” Fed. R. Civ. P. 7 23(e)(2)(A)-(B). 8 As detailed in the Court’s order granting preliminary approval, the Court is satisfied that 9 the settlement was the result of “serious, informed, non-collusive negotiations.” (Doc. 153 at 9.) 10 The parties engaged in three mediation sessions prior to settlement. (Doc. 158-1 at 13, 15–16.) 11 The final mediation took place after motion practice, the completion of class certification discovery 12 and completion of “much of [the] merits discovery.” (Id. at 29.) Class Counsel had identified all 13 possible class members who met the definitions certified by the Court, had obtained the computer 14 code behind Credit Bureau’s “name-only matching logic,” and had already retained experts in 15 OFAC and computer programing and databases. (Id.) In the settlement agreement, the parties 16 recite that the settlement was reached after the parties “engaged in vigorous litigation, exchanged 17 voluminous discovery, documents, and information, and conducted multiple depositions, and it is 18 the product of sustained, arm’s length settlement negotiations and two (2) formal mediations.” 19 (Doc. 149-1 at 3.) 20 Accordingly, the Court concludes that consideration of this factor weighs in favor of 21 granting final approval. 22 5. Experience and Views of Counsel 23 Class counsel submitted declarations describing their experience in class action litigation. 24 (See Docs. 155-2 & 155-3.) They have “decades of experience in the area of consumer class actions 25 in general, especially those brought under the FCRA in particular, and have been commended by 26 federal courts throughout the country over many years for their litigation proficiency, expertise and 27 high caliber of work.” (Doc. 158-1 at 29. See also Docs. 155-2 & 155-3.) In their view, the 28 proposed settlement “provides adequate relief to Class Members, including the maximum amount 1 of statutory damages available under the FCRA for a 5-year class as well as valuable practice 2 changes.” (Id. at 29–30.) 3 The Court finds that class counsel’s experience and views weigh in favor of granting final 4 approval. 5 6. Presence of a Governmental Participant 6 As no government entity has participated in this matter, this factor is neutral. 7 7. Reaction of the Class Members 8 “It is established that the absence of a large number of objections to a proposed class action 9 settlement raises a strong presumption that the terms of a proposed class settlement action are 10 favorable to the class members.” Nat’l Rural Telecomms. Coop., 221 F.R.D. at 529 (citing cases). 11 The presumption that a settlement is fair, reasonable, and adequate is particularly strong when there 12 is an absence of a single objection to a proposed class action settlement. See id.; Barcia v. Contain- 13 A-Way, Inc., No. 3:07-cv-00938-IEG-JMA, 2009 WL 587844, at *4 (S.D. Cal. Mar. 6, 2009). 14 Nevertheless, “[a] court may appropriately infer that a class action settlement is fair, adequate, and 15 reasonable when few class members object to it.” Cruz v. Sky Chefs, Inc., No. 4:12-cv-02705- 16 DMR, 2014 WL 7247065, at *5 (N.D. Cal. Dec. 19, 2014) (citing Churchill Vill., 361 F.3d at 577). 17 According to Kang, no Class Member has filed an objection to the settlement pending final 18 approval. (Doc. 158-1 at 23; Doc. 158-2 ¶ 4.) As a result, currently 100% of the class members 19 will be participating in the settlement. (Id.) Accordingly, consideration of this factor weighs in 20 favor of granting final approval. 21 8. Subtle Signs of Collusion 22 The Court now turns to the Bluetooth factors to examine whether any “more subtle signs” 23 of collusion recognized by the Ninth Circuit are present here.5 See Bluetooth, 654 F.3d at 947. 24 For the first Bluetooth factor, the Court compares the payout to the class (actual and 25 expected) to class counsel’s unopposed claim for fees. See Harris v. Vector Mktg. Corp., No. C– 26 08–5198 EMC, 2011 WL 4831157, at *6 (N.D. Cal. Oct. 12, 2011). The gross settlement amount 27 is $2.75 million and class counsel seeks $1.62 million in attorney’s fees—58.9 percent of the 28 5 Plaintiff’s briefing does not address these factors. 1 settlement amount. This ratio alone can be a sign of collusion. See Bluetooth, 654 F.3d at 947. 2 However, given that the fees requested are less than class counsel’s lodestar, the Court finds that 3 while the high percentage is a red flag, it does not rise to the level of collusion. Moreover, any 4 concerns regarding collusion are mitigated by the Court’s reduction of the fees sought, as set forth 5 below. 6 As for the second Bluetooth factor, the fact that the proposed settlement contains a “clear 7 sailing” provision (see Doc. 149-1 at 15) is not ideal. See In re Toys R Us-Delaware, Inc.–Fair 8 and Accurate Credit Transactions Act (FACTA) Litig., 295 F.R.D. 438, 458 (C.D. Cal. 2014) (“a 9 clear sailing agreement is one where the party paying the fee agrees not to contest the amount to be 10 awarded by the fee-setting court so long as the award falls beneath a negotiated ceiling”). 11 Nevertheless, the existence of a such a provision is not necessarily fatal to final approval. See 12 Bluetooth, 654 F.3d at 948. The collusion concerns raised by the clear sailing provision are 13 minimized, in this case, however, because the settlement agreement provides that any unpaid 14 attorney’s fees and costs will remain in the settlement fund to be distributed to the class in a second 15 distribution following the initial round of automatic payments (Doc. 149-1 at 15–16). See, e.g., 16 Ferrell v. Buckingham Prop. Mgmt., No. 1:19-cv-00332-LJO-SAB, 2020 WL 291042, at *21 (E.D. 17 Cal. Jan. 21, 2020). Moreover, class counsel did assume substantial risk in litigating this action on 18 a contingency fee basis, and incurring costs without the guarantee of payment for its litigation 19 efforts. That risk is even more acute under the circumstances, as class members’ statutory recovery 20 under the FCRA is capped at $1,000 in statutory damages for each member of a class. See 15 21 U.S.C. § 1681n(a)(1)(A). The attorney’s fees and costs necessary to litigate an FCRA class action 22 thus may often exceed any possible recovery. See, e.g., Der-Hacopian v. Darktrace, Inc., No. 18- 23 CV-06726-HSG, 2020 WL 1904471, at *8 (N.D. Cal. Apr. 17, 2020). 24 The third Bluetooth factor—whether the parties have arranged for fees not awarded to the 25 class to revert to defendant rather than be added to the settlement fund, see Bluetooth, 654 F.3d at 26 948—is not present here. As set forth above, the settlement agreement is non-reversionary. All 27 funds that are not distributed to the class following the second distribution shall be paid to a cy pres 28 recipient. (Doc. 149-1 at 16.) 1 9. Conclusion 2 In sum, the Churchill fairness factors support approval, and the Bluetooth factors do not 3 indicate collusion. The Court is therefore satisfied that the settlement agreement was not the result 4 of collusion between the parties and instead is the product of arms-length negotiations between 5 experienced and professional counsel. There are no objections to address. For each of these 6 reasons, the Court finds that the settlement is fair, reasonable, and adequate under Rule 23(e) and 7 final approval is therefore appropriate. 8 IV. ATTORNEY’S FEES, COSTS, AND SERVICE AWARD 9 As noted above, Plaintiff has also submitted a motion seeking attorney’s fees, class 10 counsel’s litigation expenses, and a service award for Kang. 11 A. Attorney’s Fees 12 1. Legal Standard 13 Reasonable attorney’s fees are allowed under the FCRA, 15 U.S.C. § 1681n(a)(3), and 14 Federal Rule of Civil Procedure 23(h). However, “courts have an independent obligation to ensure 15 that the [fee] award, like the settlement itself, is reasonable, even if the parties have already agreed 16 to an amount.” Bluetooth, 654 F.3d at 941; see also Staton, 327 F.3d at 963 (“[A] district court 17 must carefully assess the reasonableness of a fee amount spelled out in a class action settlement 18 agreement.”). Use of the “lodestar” method is appropriate to calculate attorney’s fees under a 19 federal fee-shifting statute like the FCRA. See Tahara v. Matson Terminals, Inc., 511 F.3d 950, 20 955 (9th Cir. 2007); see also Staton, 327 F.3d at 965; Yeagley v. Wells Fargo & Co., 365 F. App’x 21 886, 887 (9th Cir. 2010) (“Under a fee shifting statute such as the FCRA . . . the lodestar method 22 is generally the correct method for calculating attorneys’ fees.”). 23 The lodestar method calculates attorney fees by “by multiplying the number of hours 24 reasonably expended by counsel on the particular matter times a reasonable hourly rate.” Florida 25 v. Dunne, 915 F.2d 542, 545 n.3 (9th Cir. 1990) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 26 (1983)). The product of this computation, the “lodestar” amount, yields a presumptively reasonable 27 fee. Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013); Camacho v. Bridgeport 28 Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008). Next, the Court may adjust the lodestar upward or 1 downward using a “multiplier” considering factors adopted by the Ninth Circuit: 2 (1) the time and labor required, (2) the novelty and difficulty of the questions 3 involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the 4 case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount 5 involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and 6 length of the professional relationship with the client, and (12) awards in similar cases.6 7 8 Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975); Quesada v. Thomason, 850 F.2d 9 537, 539 (9th Cir. 1988) (indicating the Court should “consider[] some or all twelve relevant criteria 10 set forth in Kerr” to determine whether to deviate from the lodestar). 11 2. Evaluation of the Fees Requested 12 Pursuant to the proposed settlement, class counsel may seek attorney’s fees and costs in the 13 amount of $1,620,000. (Doc. 149-1 at 15.) Class counsel assert this amount is “reasonable” because 14 it amounts to 91.3% of their total lodestar expended in prosecuting this matter, $1,690,145.50. (Doc. 15 155-1 at 17, 21.) For the reasons that follow, the Court finds that the lodestar in this case is 16 excessive, both with the time included and hourly rates applied, and necessitates a reduction in 17 attorney’s fees awarded. 18 a. Time expended 19 In general, the first step in determining the lodestar is to determine whether the number of 20 hours expended was reasonable. Fischer, 214 F.3d at 1119. The Court has the discretion to review 21 submitted time sheets to determine whether the time expended was reasonable. See In re 22 Washington Public Power Supply System Securities Litigation, 19 F.3d 1291, 1298 (9th Cir.1994) 23 (concluding the district court acted within its discretion in reducing the lodestar for unnecessary 24 and duplicative work). 25 The Court has reviewed the billing records provided by class counsel Francis Mailman 26 Soumilas, P.C. (“FMS”) and Caddell & Chapman (“C&C”). (Doc. 155-2 at 16–73; Doc. 155-3 at 27 6 The Ninth Circuit has since determined the “desirability” of a case is no longer a relevant factor. Resurrection Bay 28 Conservation Alliance v. City of Seward, 640 F.3d 1087, 1095, n.5 (9th Cir. 2011) (citation omitted). 1 22–109.) The reported combined 2,492.7 hours (1,480.8 by FMS + 1,011.9 by C&C) included: 2 pre-suit investigation of the case and claims; preparation of the pleadings and service; 3 communications with Kang and opposing counsel; discovery; motion practice; settlement 4 conferences; and class notices and administration. However, the Court’s review of the billing 5 records to determine the tasks undertaken by the law firms has also revealed the inclusion of clerical 6 tasks and a significant amount of time billed for internal communications. 7 i. Clerical tasks 8 The Supreme Court determined that “purely clerical or secretarial tasks should not be billed 9 at a paralegal or [lawyer’s] rate, regardless of who performs them.” Missouri v. Jenkins, 491 U.S. 10 274, 288 n.10 (1989). As a result, courts eliminate clerical tasks from lodestar calculations. See, 11 e.g., Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009); Marquez v. Harper Sch. Dist., 546 12 F. App’x 659, 660 (9th Cir. 2013) (“[t]he district court was within its discretion” when it declined 13 to award fees for clerical tasks); Harris v. L & L Wings, Inc., 132 F.3d 978, 985 (4th Cir. 1997) 14 (approving the deduction of hours spent on secretarial tasks from the lodestar calculation); see also 15 Weeks v. Kellogg Co., No. CV 09–08102(MMM)(RZx), 2013 WL 6531177, at *32 (C.D. Cal. Nov. 16 23, 2013) (“In calculating the lodestar, courts typically exclude time spent on clerical or ministerial 17 tasks because such tasks are properly considered part of an attorney’s overhead and are reflected in 18 his or her hourly rate.”). Such tasks may include, but are not limited to, “creating indexes for a 19 binder; filing emails, memoranda, and other correspondence; updating the case calendar with new 20 dates; copying, scanning, and faxing documents; and filing or serving documents.” Moore v. 21 Chase, Inc., Case No. 1:14-cv-01178-SKO, 2016 WL 3648949, at *3 (E.D. Cal. July 7, 2016), 22 citing Prison Legal News v. Schwarzenegger, 561 F.Supp.2d 1095, 1102 (N.D. Cal. 2008). 23 a) Calendaring and Document Retrieval/Compilation 24 This Court and others in the Ninth Circuit have determined that calendaring deadlines are 25 clerical tasks that should not being included in a fee award. See, e.g., Moore, 2016 WL 3648949, 26 at *3; Hill v. Comm’r of Soc. Sec., 428 F. Supp. 3d 253, 265 (E.D. Cal. 2019) (observing clerical 27 staff could “easily” complete “calendaring of court dates” and reducing the fee award); Campbell 28 v. AMTRAK, 718 F.Supp.2d 1093, 1105 (N.D. Cal. 2010) (deducting calendaring as clerical work 1 from the fee award); Doran v. Vicorp Rests., Inc., 407 F.Supp.2d 1120, 1125 (C.D. Cal. 2005) 2 (noting “calendaring court dates” is clerical and reducing the fee award). Likewise, tasks related 3 to scheduling are clerical, non-compensable tasks. See Soler v. County of San Diego, No. 4 14cv2470-MMA (RBB), 2021 WL 2515236, at *10 (S.D. Cal. June 18, 2021) (identifying “time 5 spent scheduling ... [as] clerical tasks non-compensable at any billing rate”). 6 Courts have also declined to award fees for “retrieving electronic court documents or 7 copying” due to the clerical nature of the tasks. Jones v. Metropolitan Life Ins. Co., 845 F. Supp. 8 2d 1016, 1027 (N.D. Cal. 2012); Schmidt v. City of Modesto, No. 1:17-cv-01411-DAD-MJS, 2018 9 WL 6593362, at *9 (E.D. Cal. Dec. 18, 2018) (indicating clerical work included downloading, 10 saving, and printing documents). Similarly, courts decline to award fees for staff emailing 11 documents. See Schmidt, 2018 WL 6593362, at *9 (declining to award fees for emailing 12 documents, noting emailing was a clerical task rather than a paralegal task); LaToya A. v. S.F. 13 Unified Sch. Dist., Case No. 3:15-cv-04311-LB, 2016 WL 344558, at *9 (N.D. Cal. Jan. 28, 2016) 14 (forwarding documents to attorneys is “purely clerical work”). Thus, to the extent the billing 15 records include such tasks, fees for such tasks should not be awarded. 16 Review of class counsel’s billing records shows that paralegals at FMS and C&C included 17 over 30 entries for calendaring, noting deadlines, and compiling and retrieving documents.7 (See 18 generally Doc. 155-2 at 16–73; Doc. 155-3 at 22–109.) For example, an unnamed FMS paralegal8 19 billed a total of 9.3 hours throughout the litigation, from October 4, 2018, to September 8, 2021, 20 for tasks such as “[d]ownload Court order[s], read and identify case deadlines contained therein, 21 [and] add and/or modify case deadlines on litigation calendar.” (See Doc. 155-2 at 22–24, 26–28, 22 30–31, 33, 35–36, 51.) Similarly, Kathy Kersh, senior paralegal at C&C, billed a total of 6.8 hours 23 from March 7, 2019, to April 10, 2023, for tasks such as reviewing Court orders, updating 24 calendars, creating calendar entries, updating the “case management notebook,” and downloading 25 documents to the firm’s “network.” (See Doc. 155-3 at 34, 35, 45, 53, 54, 65, 70–71, 80, 83, 93, 26 7 FMS appears to acknowledge the expenditure of administrative time on this matter, as they seek 18.7 hours 27 categorized as “File Admin.” (See Doc. 155-2 ¶ 24.) 8 Although identified only as “Paralegal” in its billing records, Mr. Francis’s declaration names Jeffrey Kabacinski as 28 the paralegal who worked on this matter at FMS. 1 96, 98, 105.) 2 Associate Jordan Sartell of FMS and Junior Partner Amy Tabor of C&C also billed for 3 administrative tasks related to calendaring, scheduling, and document compilation in this action. 4 For example, Mr. Sartell indicated that he spent 0.2 hour on May 8, 2020, to “review ECF 68 setting 5 discovery dispute teleconference, [and] calendar same”; 0.2 hour on April 8, 2020, to “review ECF 6 103, [and] calendar MCC-related deadlines”; 0.3 hour on September 6, 2022, to “review Def’s R 7 45 subpoena, [and] related calendar items”; and 0.4 hour on December 20, 2022, to “review ECF 8 134, setting forth court’s instructions and deadlines for 3/9/23 settlement conference; [and] calendar 9 interstitial deadlines.” (See Doc. 155-2 at 40, 46, 59, 63.) Similarly, Ms. Tabor billed 0.1 hour on 10 November 12, 2019, to “[r]eview order vacating hearing [and] calendar deadlines”; 1.5 hours on 11 December 2, 2020, to “[r]eview filings; assemble notebook for motion for summary judgment 12 hearing; [and] calendar deadlines”; and 0.2 hours on March 11, 2021, to “[r]eview notice of motion 13 to compel [and] calendar deadlines.” (See Doc. 155-3 at 56, 79, 81.) Such time will also be 14 deducted from the lodestar calculation as clerical work. See Henry v. Comm'r of Soc. Sec. Admin., 15 No. CV-20-00320-TUC-JGZ, 2023 WL 1434332, at *6 (D. Ariz. Feb. 1, 2023) (“Communications 16 such as emails and conferences may be considered clerical tasks when the discussion is about 17 deadlines, filings, and other non-substantive administrative work”); Mrkonjic v. Delta Family- 18 Care, No. CV 10-2087 GAF (JCx), 2014 WL 12967579 (C.D. Cal. July 18, 2014) (explaining 19 correspondence regarding deadlines is clerical and “not compensable” [citation omitted]). 20 Based upon the Court’s review of billing entries related to calendaring, scheduling, and the 21 assembly of documents, the Court finds 19.0 hours must be deducted from the lodestar, including 22 9.3 hours for Jeffrey Kabacinski, 6.8 hours for Kathy Kersh, 1.1 hour for Jordan Sartell, and 1.8 23 hours for Amy Tabor. 24 b) Communications with the Court 25 This Court and others have declined to award fees for communicating with the Court—such 26 as emailing or calling courtroom deputy—due to the clerical nature of the task. See, e.g., Miller v. 27 Schmidt, No. 1:12-cv-00137-LJO-SAB, 2017 WL 633892, at *7 (E.D. Cal. Feb. 15, 2017) (agreeing 28 with the party opposing the fee request that “communicating with the Court staff and court reporters 1 is purely clerical work” and excluding the time billed for communications with the courtroom 2 deputies from a fee award); Robinson v. Plourde, 717 F. Supp. 2d 1092, 1099-1100 (D. Haw. 2010) 3 (“communication with court staff, scheduling, and corresponding regarding deadlines, are clerical 4 and not compensable [tasks]”); Comcast of Illinois X v. Kwak, 03–00962 DAE–PAL, 2010 WL 5 3781768, at *6 (D. Nev. Sept. 20, 2010) (declining to award fees for “ministerial tasks such as 6 contacting court staff for scheduling reasons or noting due dates”). 7 Michael Caddell of C&C billed 0.2 hour to email the Court, and to review responses, on 8 June 12, 2019; 0.1 hour to review email correspondence from the Court on December 6, 2019; 0.6 9 hour to review correspondence to and from the Court on May 1, 2020; and 0.4 hour to email the 10 Court, and to review responses, on March 31, 2021. (Doc. 155-3 at 46, 58, 70, 82.) Similarly, 11 Jordan Sartell of FMS billed 0.6 hour to “confer with [co-counsel, opposing counsel,] and 12 courtroom deputy re tomorrow’s scheduling conference” on June 12, 2019; and 0.2 hour to 13 “[r]eview ECF 100 re logistics for upcoming scheduling conference [and]respond to deputy as 14 ordered” on March 31, 2021. (Doc. 155-2 at 33, 46.) This time shall be deducted from the lodestar, 15 for a total deduction of 2.1 hours. 16 ii. Unnecessary (unrelated) tasks 17 The Court takes judicial notice that a version of this case was originally filed on May 11, 18 2018, in the Central District of California against Experian Information Solutions, Inc. 19 (“Experian”)9 See Kang v. Experian Information Solutions, Inc., Case No. 8:18-cv-00830-CJC- 20 DFM (C.D. Cal.). The cases are similar, but the legal theories, facts, and claims differ. (Compare 21 Kang, Doc. 1, Case No. 8:18-cv-00830-CJC-DFM (C.D. Cal.) with Doc. 1.) On July 5, 2018, the 22 case was voluntarily dismissed without prejudice. (See Kang, Doc. 15, Case No. 8:18-cv-00830- 23 CJC-DFM (C.D. Cal.). From what the Court has gathered from class counsel’s billing records,10 24 Kang dismissed his case against Experian after it was discovered that he had named the wrong 25 9 A court “may take judicial notice of proceedings in other courts, both within and without the federal judicial system, 26 if those proceedings have a direct relation to the matters at issue.” United States ex rel. v. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992); St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 27 1172 (10th Cir. 1979). See also Fed. R. Evid. 201 10 Notably, Kang makes no mention of his prior case in his briefing. It does explain, however, why class counsel’s 28 billing records begin almost one year before the complaint in this case was filed. 1 defendant. (See generally Doc. 155-2 at 18–20; Doc. 155-3 at 22–26.) 2 While the Court acknowledges that time spent on preparing and litigating Kang’s case 3 against Experian may have saved some time on this case, it is not clear that all of the time spent 4 litigating against the wrong defendant based on a different legal theory and claims in another venue 5 was necessary to the prosecution of this case. See, e.g., Buchannon v. Associated Credit Servs., 6 Inc., No. 3:20-CV-02245-BEN-LL, 2021 WL 5360971, at *18–20 (S.D. Cal. Nov. 17, 2021) 7 (reducing attorney’s fees for time spent litigating lawsuit filed in wrong venue). See also Webb v. 8 Sloan, 330 F.3d 1158, 1168 (9th Cir. 2003) (“Hours expended on unrelated, unsuccessful claims 9 should not be included in an award of fees.”). Accordingly, the Court in its discretion will reduce 10 by 50% the time expended by FMS from November 21, 2017, through July 5, 2018, and time 11 expended by C&C from May 8, 2018, through July 5, 2018, as follows: 12 Legal Professional Deducted Hours Michael A. Caddell 5.85 (11.7 x .5) 13 Cynthia B. Chapman 4.0 (8.0 x .5) 14 James A. Francis 3.2 (6.4 x .5) John Soumilas 2.9 (5.8 x .5) 15 Amy E. Tabor 6.9 (13.8 x .5) Jordan M. Sartell 11.45 (22.9 x .5) 16 Lauren KW Brennan 6.0 (12.0 x .5) 17 Kathy Kersh 6.6. (13.2 x .5) Jeffrey Kabacinski (FMS Paralegal) 1.0 (2 x .5) 18 Felicia Labbe 1.15 (2.3 x .5) 19 In addition, the Court does not include the 28.5 hours billed by Mr. Francis for attendance 20 at a final approval hearing (see Doc. 155-2 at 73), as none was held in this case. 21 b. Hourly rates 22 The Court must also determine whether the hourly rates are reasonable to calculate the 23 lodestar. See Florida, 915 F.2d at 545 n.3. The Supreme Court has explained attorney fees are to 24 be calculated with “the prevailing market rates in the relevant community.” Blum v. Stenson, 465 25 U.S. 886, 895–96 and n.11 (1984). In general, the “relevant community” for purposes of 26 determining the prevailing market rate is the “forum in which the district court sits.” Camacho v. 27 Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008). Thus, when a case is filed in the Fresno 28 1 Division of the Eastern District of California, the Fresno Division of the District “is the appropriate 2 forum to establish the lodestar hourly rate . . .” See Jadwin v. County of Kern, 767 F.Supp.2d 1069, 3 1129 (E.D. Cal. 2011). See also Felix v. WM. Bolthouse Farms, Inc., No. 1:19-cv-00312-AWI- 4 JLT, 2020 WL 3819414, at *1 (E.D. Cal. July 8, 2020) (“This Court sits in the Fresno Division of 5 the Eastern District of California. The prevailing rates outside of the Fresno Division, including 6 the prevailing rates for the Sacramento Division, are generally irrelevant.”). 7 The fee applicant bears a burden of establishing that the requested rates are commensurate 8 “with those prevailing in the community for similar services by lawyers of reasonably comparable 9 skill, experience, and reputation.” Blum, 465 U.S. at 895 n.11. Applicants meet this burden by 10 producing “satisfactory evidence—in addition to the attorney’s own affidavits—that the requested 11 rates are in line with those prevailing in the community for similar services by lawyers of 12 reasonably comparable skill, experience and reputation.” Id.; see also Chaudhry v. City of Los 13 Angeles, 751 F.3d 1096, 1110–11 (9th Cir. 2014) (“Affidavits of the plaintiffs’ attorney[s] and other 14 attorneys regarding prevailing fees in the community . . . are satisfactory evidence of the prevailing 15 market rate”). The Court may apply “rates [from] outside the forum . . . ‘if local counsel was 16 unavailable, either because they are unwilling or unable to perform because they lack the degree of 17 experience, expertise, or specialization required to handle properly the case.’” Barjon v. Dalton, 18 132 F.3d 496, 500 (9th Cir. 1997) (quoting Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 19 1992)). 20 To calculate their lodestar, class counsel applied hourly rates ranging from $465 per hour 21 for associates to $1,075 per hour for a senior partner. (See Doc. 155-1 at 19.) Class counsel also 22 seek hourly rates for their paralegals ranging from $375 to $175 per hour . (Id.) Class counsel do 23 not assert the requested rates are aligned with the market rate in the Fresno Division or provide any 24 evidence concerning their hourly rates or those of other attorneys in the community. They do not 25 contend that counsel was unavailable in Fresno.11 They instead assert that the rates are “reasonable 26 and within the range of the appropriate market rates charged by attorneys with comparable 27 11 Class counsel assert that “most local legal communities do not have lawyers with the relevant experience” (Doc. 28 155-1 at 19) but do not go as far as to claim that Fresno is one of those communities. 1 experience levels for litigation of a similar nature, given their experience level, practice 2 concentration and background.” (Doc. 155-2 ¶ 26. See also Doc. 155-3 ¶ 36 (C&C’s hourly rates 3 are “consistent with market rates for complex class action litigation.”).) 4 In support of its rates, FMS cites an October 18, 2022, expert report from Abraham C. Reich 5 of Fox Rothschild, LLP recommending the hourly rates to be charged by FMS in each of the legal 6 markets in which the firm has an office, and asserts that “[c]ourts across the country have relied 7 upon Mr. Reich’s expert opinion to approve [FMS’s] hourly rates.” (Doc. 155-2 ¶ 26 (citing 8 cases).) As Fresno is not one the markets discussed in the report, and none of the cited court cases 9 that relied on the report are venued in the Fresno Division, the rates recommended therein are 10 “irrelevant.” Felix, 2020 WL 3819414, at *1. 11 C&C similarly relies on cases from other forums to support the assertion the Court should 12 adopt the hourly rates they identified. (See Doc. 155-3 ¶ 36 (citing Hooker v. Sirius SM Radio, 13 Inc., No. 4:13-cv-0003, Dkt. 215 (E.D. Va. May 11, 2017; Henderson v. Acxiom Risk Mitigation, 14 No. 3:12-cv-0589 (E.D. Va. 2015); Brown v. Lowe’s, No. 5:13-cv-0079, Dkt. 173 (W.D.N.C. 15 November 1, 2016); Berry v. LexisNexis Risk & Info Analytics Group, Inc., No. 3:11-cv-0754, Dkt. 16 129 (E.D. Va. Sept. 5, 2014); United States of America, ex rel. Ivey Woodard v. DaVita Inc., Civil 17 Case No. 1:05-cv-0227, Dkt. 195-1 ¶ 51 (E.D. La.)).) However, as the matter is pending in the 18 Fresno Division of the Eastern District, the identified actions from federal courts in Virginia, North 19 Carolina, and Louisiana do not assist this Court.12 Jadwin, 767 F. Supp. 2d at 1129. Plaintiff has 20 not provided adequate evidentiary support to demonstrate that the use of an attorney from outside 21 the relevant community was necessary for purposes of charging another community’s higher hourly 22 rates. See, e.g., Welch v. Metropolitan Life Ins. Co., 480 F.3d 942, 945–46 (9th Cir.2007) (the party 23 seeking fees “bears the burden of documenting the hours expended in the litigation and must submit 24 evidence supporting those hours and the rates claimed.”) (emphasis added) (citation omitted). 25 26 12 The Ninth Circuit’s decision in Prison Legal News v. Schwarzenegger, 608 F.3d 446, 455 (9th Cir. 2010), on which 27 class counsel rely, does not alter this analysis. Rather, it reinforces the principle that, when determining a reasonable hourly for an attorney fee award, the “scope of comparison,” while not limited to subject matter, is confined to 28 “attorneys in the relevant community.” Id. (emphasis added). 1 i. Attorneys 2 James Francis of FMS reports that he has practiced law for 28 years, and his partner, John 3 Soumilas, has 24 years of experience. (Doc. 155-2 ¶ 31.) FMS associates Jordan Sartell and Lauren 4 Brennan each have 11 years of experience. (Id.) C&C senior partner Michael Caddell reports that 5 he has practiced law for 44 years, and senior partner Cynthia Chapman has practiced for 33 years. 6 (Doc. 155-3 ¶ 34.) Amy Tabor, junior partner at C&C, has 20 years of experience. (Id.) The 7 hourly rates requested for these attorneys exceed those typically awarded in the local forum. 8 The Court has performed a comprehensive survey of attorney fees awarded in the Eastern 9 District and finds current hourly rates range from $200 to $750, with hourly rates exceeding $600 10 reserved for attorneys who have been practicing approximately 30 years. See, e.g., Cianchetta v. 11 BMW of N. Am., LLC, No. 2:20-cv-00241-KJM-JDP, 2022 WL 2160556, at *6 (E.D. Cal. June 13, 12 2022) (reducing the hourly rate for attorneys in their first year of practice to $200); Seebach v. 13 BMW of N. Am., LLC, No. 2:18-cv-00109-KJM AC, 2020 WL 4923664 at *3 (E.D. Cal. Aug. 21, 14 2020) (awarding the hourly rates of $200 for an attorney who had been admitted to practice less 15 than two years, and $505 for an attorney “with roughly 20 years of experience” in 2020); Siafarikas 16 v. Mercedez- Benz USA, LLC, No. 2:20-cv-01784-JAM-AC, 2022 WL 16926265, at *3 (E.D. Cal. 17 Nov. 10, 2022) (approving the hourly rate of $250 for an attorney “who has practiced law for three 18 years” and $500 for an attorney who had practiced law for 21 years); Garybo v. Leonardo Bros, 19 No. 1:15-cv-01487-DAD-JLT, 2021 WL 4493502, at *5 (E.D. Cal. Sept. 30, 2021) (adopting the 20 recommended hourly rate of $500 for attorneys who were admitted to practice for 20 years or more 21 to calculate a lodestar); Mostajo v. Nationwide Mut. Ins. Co., No. 2:17-cv-00350-DAD-AC, 2023 22 WL 2918657, at *11 (E.D. Cal. Apr. 12, 2023) (approving of “hourly rates ranging from $650 23 through $750” for “attorneys with over thirty years of experience” for purposes of calculating a 24 lodestar); Cooks v. TNG GP, No. 2:16-cv-01160-KJM-AC, 2021 WL 5139613, at *6 (E.D. Cal. 25 Nov. 4, 2021) (calculating the lodestar using the rate of $695 for attorneys with 30 years’ 26 experience). With these parameters in mind, the hourly rates for counsel must be adjusted to those 27 of the local forum. 28 1 The rates for attorneys practicing 30 years or more—including Michael Caddell and Cynthia 2 Chapman—will be calculated at the rate of $750 and $650 per hour, respectively. The rate for 3 attorneys practicing law for 20 years or more—including Amy Tabor, John Soumilas, and James 4 Francis—will be calculated at the rate of $525 per hour. The rate for Jordan Sartell and Lauren 5 Brennan, who have been practicing for 11 years, will be adjusted to $425 per hour. 6 ii. Paralegals 7 To calculate their lodestar, class counsel applied the following hourly rates for their 8 paralegals: $375 for Kathy Kersh of C&C, who has 33 years of experience; $305 for FMS paralegal 9 Jeffrey Kabacinski, who has 25 years of experience; and $175 for Felicia Labbe of C&C, who has 10 13 years of experience. (See Doc. 155-2 ¶ 31; Doc. 155-3 ¶ 34.) These amounts exceed the hourly 11 rates for comparably experienced paralegals in the Eastern District. 12 Paralegal rates within the Eastern District range from $75 to approximately $150.00 per 13 hour, depending on experience. See, e.g., Schmidt, 2018 WL 6593362, at *6 (“the reasonable rate 14 of compensation for a paralegal would be between $75.00 to $150.00 per hour depending on 15 experience”); Bernal v. Sacramento Cty. Sheriff Dep’t, No. 2:19-cv-00482-MCE-AC, 2023 WL 16 2504895, at *5 (E.D. Cal. Mar. 14, 2023) (rates of “approximately $100 per hour” were reasonable 17 for paralegals in this district); Gilbert v. Jabar Wireless Inc., No. 2:21-cv-02055 DAD AC, 2023 18 WL 3055108, at *9 (E.D. Cal. Apr. 24, 2023) (finding the hourly rate of $115 was reasonable for 19 “experienced paralegals”); Block v. Narwal, No. 1:22-cv-00597-ADA-EPG, 2022 WL 17455502, 20 at *9 (E.D. Cal. Dec. 6, 2022) (finding the requested rate of $115 was reasonable for paralegals 21 who had more than ten years of experience); Freshko Produce Servs. v. ILA Prods, No. 1:19-cv- 22 00017-DAD-BAM, 2021 WL 4033176, at *4 (E.D. Cal. Sept. 2, 2021) (finding $150 per hour was 23 reasonable “for a paralegal with more than 30 years of experience” for calculating a lodestar). 24 In accordance with the foregoing, the rate for paralegal with 20 years or more experience— 25 including Kathy Kersh and Jeffrey Kabacinski—will be calculated at the rate of $150 per hour. 26 The rate for Felicia Labbe, with 13 years of experience, will be adjusted to $115 per hour. 27 3. Amount of Fees to be Awarded 28 Based upon the survey of fees awarded in the Eastern District and the Court’s own 1 knowledge, the adjusted rates are reasonable and align with prevailing local market rates. See 2 Cianchetta, 2022 WL 2160556, at *6; Garybo, 2021 WL 449350, at *5; see also Ingram v. 3 Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011) (concluding “the district court did not abuse its 4 discretion either by relying, in part, on its own knowledge and experience” to determine reasonable 5 hourly rates). With the time and hourly adjustments set forth above, the lodestar totals 6 $1,113,560.50: 7 Legal Professional Time Rate Lodestar 8 Michael A. Caddell 313.45 $750 $235,087.50 Cynthia B. Chapman 137.6 $650 $89,440 9 James A. Francis 216.3 $525 $113,557.50 10 John Soumilas 228.7 $525 $120,067.50 Amy E. Tabor 354.1 $525 $185,902.50 11 Jordan M. Sartell 700.65 $425 $297,776.25 Lauren KW Brennan 20.9 $425 $8,882.50 12 Kathy Kersh 157.9 $150 $23,685 13 Jeffrey Kabacinski 250 $150 $37,500 Felicia Labbe 14.45 $115 $1,661.75 14 Total $1,113,560.50 15 Because the requested fees in the amount of $1,620,000 (less $77,613.38 in requested costs) 16 exceed the adjusted lodestar by almost $500,000, the lodestar does not support the reasonableness 17 of the request. Rather, in view of the presumptive reasonableness of the lodestar figure, Gonzalez, 18 729 F.3d at 1202, and in the absence of any strong justification for an upward adjustment under the 19 factors articulated in Kerr v. v. Screen Extras Guild, Inc., the Court finds the adjusted lodestar 20 amount is fair, reasonable, and adequate as required under Rule 23.13 Accordingly, the request for 21 fees will be granted in the modified amount of $1,113,560.50. 22 B. Litigation Costs 23 “[A]n attorney who has created a common fund for the benefit of the class is entitled to 24 25 13 The only Kerr factor discussed by Kang in his briefing is the “benefit obtained by the class.” (See Doc. 155-1 at 21.) While the Court agrees that the classes obtained a substantial benefit in having obtained the maximum amount of statutory damages and practice changes, it also observes that the fee award is still a substantial percentage (40.5%) of 26 the total amount Credit Bureau has agreed to pay to settle this case, and in fact exceeds the $1,071,000 automatic payment to the FRCA Class. In this way, the Court’s determination is in line with other district court decisions, cited 27 by Kang, approving fee requests in FCRA actions that comprise large percentage of the settlement amount in view of the “unique properties of FCRA actions.” Arnold v. DMG Mori USA, Inc., No. 18-CV-02373-JD, 2022 WL 18027883, 28 at *5 (N.D. Cal. Dec. 30, 2022) (collecting cases). See also Doc. 158-1 at 20 n.11. 1 reimbursement of reasonable litigation expenses from that fund.” Norris v. Mazzola, No. 15-cv- 2 04962-JSC, 2017 WL 6493091, at *14 (N.D. Cal. Dec. 19, 2017) (citation and internal quotation 3 marks omitted); Smith v. Am. Greetings Corp., No. 14-cv-02577-JST, 2016 WL 2909429, at *9 4 (N.D. Cal. May 19, 2016) (“An attorney is entitled to ‘recover as part of the award of attorney’s 5 fees those out-of-pocket expenses that would normally be charged to a fee paying client.’”) (quoting 6 Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994)). 7 Pursuant to the settlement agreement, class counsel was authorized to seek up to $1,620,000 8 in attorney’s fees and costs from the gross settlement fund. (See Doc. 149-1 at 10, 15.) Class 9 Counsel now seek litigation expenses in the amount of $77,613.38. (Doc. 155-1 at 21.) The 10 itemized costs include filing fees, copying and postage, mediation fees, expert costs, legal research 11 charges, document review, and travel expenses for depositions and mediations. (See Doc. 155-2 12 ¶¶ 35–36; id. at 75–76.; Doc. 155-3 ¶ 37; id. at 111.) Costs including “filing fees, mediator fees . . 13 . , ground transportation, copy charges, computer research, and database expert fees . . . are 14 routinely reimbursed” in class action cases. Alvarado v. Nederend, No. 1:08–cv–01099 OWW 15 DLB, 2011 WL 1883188, at *10 (E.D. Cal. Jan. May 17, 2011); Rodriguez v. Danell Custom 16 Harvesting, LLC, 327 F.R.D. 375, 394 (E.D. Cal. 2018) (“Reasonable expenses may be awarded 17 for travel, postage, telephone, fax, notice, online legal research fees, mediation fees, filing fees and 18 photocopies”); see also In re Immune Response Sec. Litig., 497 F. Supp. 2d 1166, 1177 (S.D. Cal. 19 2007) (“The reimbursement for travel expenses, both under 28 U.S.C. § 1920 and Rule 54(d), is 20 within the broad discretion of the Court” [citation omitted]). 21 Because the costs requested are reasonable and do not exceed the amount authorized, the 22 request for litigation costs will be granted in the amount of $77,613.38. 23 C. Service Award 24 A class representative may “receive a share of class recovery above and beyond [his] 25 individual claim” with a service payment, also known as an “incentive payment.” China Agritech, 26 Inc. v. Resh, 138 S. Ct. 1800, 1811 n.7 (2018); see also Staton, 327 F.3d at 977 (“named plaintiffs 27 … are eligible for reasonable incentive payments”). However, incentive payments for class 28 representatives are not to be given routinely. The Ninth Circuit observed: “[i]f class representatives 1 expect routinely to receive special awards in addition to their share of the recovery, they may be 2 tempted to accept suboptimal settlements at the expense of the class members whose interests they 3 are appointed to guard.” Staton, 327 F.3d at 975 (citations omitted). Further, “‘excessive payments 4 to named class members can be an indication that the agreement was reached through fraud or 5 collusion.’” Id. (citation omitted). 6 The Ninth Circuit has emphasized that “district courts must be vigilant in scrutinizing all 7 incentive awards.” Radcliffe v. Experian Info. Solutions, 715 F.3d 1157, 1165 (9th Cir. 2013). In 8 evaluating a request for a service payment to a class representative, the Court must consider: “‘the 9 actions the plaintiff has taken to protect the interests of the class, the degree to which the class has 10 benefitted from those actions, the amount of time and effort the plaintiff expended in pursuing the 11 litigation,’ and any financial or reputational risks the plaintiff faced.” Named Plaintiffs & 12 Settlement Class Members v. Feldman (In re Apple Inc. Device Performance Litig.), 50 F.4th 769, 13 786 (9th Cir. 2022) (quoting Roes, 1-2 v. SFBSC Mgmt., LLC, 944 F.3d 1035, 1057 (9th Cir. 2019)); 14 see also Staton 327 F.3d at 977. 15 The settlement agreement provides that Kang may apply for a service award “not to exceed 16 $15,000.” (Doc. 149-1 at 10.) Kang now requests that the Court approve a service payment in that 17 amount. (Doc. 155-1 at 21.) 18 1. Time Expended 19 The Eastern District has awarded service payments for “substantial efforts taken as a class 20 representative when the plaintiff has undertaken at least 30 to 40 hours of work.” Greer v. Dick’s 21 Sporting Goods, Inc., No. 2:15-CV-01063-KJM-CKD, 2020 WL 5535399, at *4 (E.D. Cal. Sept. 22 15, 2020) (internal quotation marks, citation omitted); see also Emmons v. Quest Diagnostics 23 Clinical Laboratories, Inc., No. 1:13-cv-00474-DAD-BAM, 2017 WL 749018, at *8 (E.D. Cal. 24 Feb. 27, 2017) (awarding payments when each plaintiff reported “approximately 30-40 hours 25 assisting their attorneys in the prosecution of this lawsuit” [modification adopted]). As Kang has 26 neither submitted a declaration to the Court nor provided any other evidence of the time he 27 expended on the matter, this factor does not support approval of a service payment.14 28 14 Previously, the Court indicated that it was Kang’s burden to “provide clear and specific evidence demonstrating 1 2. Actions Taken to Benefit the Class 2 According to the motion, Kang “made substantial contributions to this litigation, 3 “participating actively in discovery by providing documents to Class Counsel and preparing for 4 and sitting for a lengthy deposition for which he had to take time off from work.” (Doc. 155-1 at 5 22.) 6 Lack of substantiation notwithstanding, Kang likely would have taken many of these actions 7 even if proceeding with individual claims. For example, he would likely have submitted to a 8 deposition if he brought the claims on his own behalf only. In addition, he would have assisted 9 with discovery even if the action was not filed on behalf of a class. On the other hand, his actions— 10 including assisting with discovery, reviewing documents, and attending a deposition— 11 undoubtedly benefitted class members, most of whom will receive an automatic payment at the 12 statutory maximum amount. Kang’s actions also resulted in a change in practice by Credit Bureau. 13 Therefore, the identified actions support a service payment for Kang. 14 3. Workplace Retaliation 15 The Court may consider whether the named plaintiff has “reasonable fears of workplace 16 retaliation” in evaluating a request for a service payment. Staton, 327 F.3d at 977. Because Kang 17 is not an employee of Credit Bureau, and therefore cannot suffer workplace retaliation, this factor 18 does not support a service payment. 19 4. Reputational Risk 20 Class Counsel assert that Kang “did risk further reputation[al] harm arising from [Credit 21 Bureau’s] matching procedures, which went unchanged until the last days of this matter.” (Doc. 22 155-1 at 22.) Yet, this risk of reputational harm would exist regardless of whether Kang had elected 23 to file individual claims rather than a class action. Such alleged risk also lacks evidentiary support 24 and is speculative. The Ninth Circuit observed: “the trial court is not bound to, and should not, 25 accept conclusory statements about ‘potential stigma’ and ‘potential risk,’ in the absence of 26 supporting evidence.” See Wilson v. Telsa, Inc., 833 Fed. App’x 59, 62 (9th Cir. 2020) (quoting 27 significant contributions to the litigation of this case.” (Doc. 153 at 11 n.5.) Nevertheless, Kang did not submit any evidence of his time or work on the litigation. The Court declines to speculate as to the unidentified time or work Kang 28 may have expended on the action. 1 Clark v. Am. Residential Servs. LLC, 175 Cal. App. 4th 785, 805 (2009)). The Ninth Circuit 2 determined a court did not abuse its discretion in reducing a requested class representative payment 3 from $10,000 to $5,000 based on the speculative “risk of reputational injury.” Id. This factor does 4 not support the requested service payment for Kang. 5 5. Financial Risk 6 Class counsel provides no argument as to any financial risk to Kang. Thus, this factor does 7 not support the award of a service payment. 8 6. Amount of the Request 9 Considering the factors set forth above—in particular the actions taken by Kang that 10 resulted in substantial benefit to the classes and a change in practice by Credit Bureau—the Court 11 finds that an incentive award is appropriate. 12 In determining the amount to be awarded, the Court may consider the actions undertaken 13 by the class representative, the fairness of the hourly rate, and how large the incentive award is 14 compared to the average award class members expect to receive. See, e.g., Ontiveros v. Zamora, 15 303 F.R.D 356, 366 (E.D. Cal. Oct. 8, 2014) (evaluating the hourly rate the named plaintiff would 16 receive to determine whether the incentive award was appropriate); Rankin v. Am. Greetings, Inc., 17 No. 2:10-CV-01831-GGH, 2011 WL 13239039, at *2 (E.D. Cal. July 6, 2011) (noting the incentive 18 award requested was “reasonably close to the average per class member amount to be received); 19 Alvarado, 2011 WL 1883188 at *10-11 (considering the time and financial risk undertaken by the 20 plaintiff). Notably, a service payment of $5,000 for the class representative “is presumptively 21 reasonable” in the Ninth Circuit. Richardson v. THD At-Home Servs., No. 1:14-cv-0273-BAM, 22 2016 WL 1366952, at *13 (E.D. Cal. Apr. 6, 2016); see also see also Gonzalez v. NCI Group, Inc., 23 No. 1:18-cv-00948-AWI-SKO, 2023 WL 373252, at *9 (E.D. Cal. Jan. 24, 2023) (“Courts routinely 24 find rewards in the amount of $5,000 to be reasonable”); Bellignhausen v. Tractor Supply Co., 306 25 F.R.D. 245, 266 (N.D. Cal. 2015) (observing that in the Northern District, “a $5,000 payment is 26 presumptively reasonable”). 27 a. Actions of the class representative 28 In Alvarado, this Court noted the class representatives “(1) travelled from Bakersfield to 1 Sacramento for mediation sessions (2) assisted Counsel in investigating and substantiating the 2 claims alleged in this action; (3) assisted in the preparation of the complaint in this action; (4) 3 produced evidentiary documents to Counsel; and (5) assisted in the settlement of this litigation.” 4 2011 WL 1883188, at *11. The Court also noted the plaintiffs “undertook the financial risk that, 5 in the event of a judgment in favor of Defendant in this action, they could have been personally 6 responsible for the costs awarded in favor of the Defendant.” Id. In light of these facts, the Court 7 found an award of $7,500 for each plaintiff was appropriate for the time, efforts, and risks 8 undertaken. Id. Likewise, in Bond v. Ferguson Enters., Inc., the Court found approved payments 9 of $7,500 for the named plaintiffs who: “(1) provided significant assistance to Class Counsel; (2) 10 endured lengthy interviews; (3) provided written declarations; (4) searched for and produced 11 relevant documents; (5) and prepared and evaluated the case for mediation, which was a full day 12 session requiring very careful consideration, evaluation and approval of the terms of the Settlement 13 Agreement on behalf of the Class.” No. 1:09–cv–1662 OWW MJS, 2011 WL 2648879, at *15 14 (E.D. Cal. June 30, 2011). 15 Similarly, the Northern District determined class representatives failed to justify incentive 16 awards of $10,000 although the plaintiffs reported “they were involved with the case by interacting 17 with counsel, participating in conferences, reviewing documents, and attending the day-long 18 mediation that resulted in the settlement.” Wade v. Minatta Transport Co., No. C10–2796 BZ, 19 2012 U.S. Dist. LEXIS 12057, at *3 (N.D. Cal. Feb. 1, 2012). On the other hand, the Northern 20 District determined a service award of $10,000 was appropriate for a class representative who “sat 21 for depositions, met with attorneys and coworkers throughout the life of the case, withstood five 22 years of litigation, and was in the unique position of still being employed by Converse, Inc. at the 23 commencement of the lawsuit against his employer.” Chavez v. Converse, Inc., No. 15-cv-03746- 24 NC, 2020 WL 10575028, at *1, 7 (N.D. Cal. Nov. 25, 2020). 25 Although Kang did not attend the mediation sessions, it appears his remaining actions are 26 comparable to the plaintiffs in Alvarado, Bond, and Wade. However, he seeks a service payment 27 that is?? twice the service payments awarded to those class representatives. Further, Kang seeks 28 an award greater than what was approved for Chavez, who was in the “unique position” of being a 1 current employee of the defendant while a class representative. This factor does not support a 2 conclusion that the amount of service payment requested by Kang is fair or reasonable. 3 b. Comparison of the award to those of the class members 4 The Ninth Circuit indicated the Court may consider the “proportion of the [representative] 5 payment[s] relative to the settlement amount, and the size of each payment.” In re Online DVD- 6 Rental Antitrust Litig., 779 F.3d 934, 947 (9th Cir. 2015); see also Spann v. J.C. Penney Corp., 211 7 F. Supp. 3d 1244, 1265 (C.D. Cal. 2016); see also Emmons, 2017 WL 749018 at *9 (awarding class 8 representative payments of $8,000, 14.5 times the average award and 0.3% of the gross settlement 9 of $2.35 million); Patel v. Trans Union, LLC, No. 14-cv-00522-LB, 2018 WL 1258194, *3, 7–8 10 (N.D. Cal. Mar. 11, 2018) (awarding enhancement payment of $10,000, which was 25 times the 11 average award and 0.125 % of the gross settlement). For example, in Rankin, the Court found a 12 service award of $5,000 was reasonable, observing “the sum is reasonably close to the average per 13 class member amount to be received.” 2011 WL 13239039, at *2. 14 As previously noted, Kang’s requested service award is 15 times higher than the $1,000 15 payment to each FRCA Class Member and comprises over one percent of the total amount paid to 16 the FRCA Class. See Sandoval v. Tharaldson Employee Mgmt., No. EDCV 08-482-VAP (OPx), 17 2010 WL 2486346, at *9–10 (C.D. Cal. June 15, 2010) (collecting cases and concluding that 18 plaintiff’s request for an incentive award representing one percent of the settlement fund was 19 excessive). See also Sanchez v. Frito-Lay, Inc., No. 1:14-cv-00797-DAD-BAM, 2019 WL 20 4828775, at *20–21 (E.D. Cal. Sept. 30, 2019) (recommending $10,000 incentive award payment 21 to named plaintiff be reduced to $7,500), report and recommendation adopted, No. 1:14-CV-797- 22 AWI-MJS, 2015 WL 5138101 (E.D. Cal. Aug. 26, 2015). Given the significant disparity between 23 the award to the FRCA Class and Kang’s requested service payment—as well as the percentage of 24 the settlement fund— this factor does not support the amount requested, and instead favors a 25 reduction to the service award. 26 c. Reduction of the service award is warranted 27 A “substantial effort” by a plaintiff is necessary to support a service payment of $10,000 or 28 1 more. See Coburn v. City of Sacramento, No. 2:19-cv-00888-AC, 2020 WL 7425345, at *8 (E.D. 2 Cal. Dec. 17, 2020); see also Amaro v. Gerawan Farming Inc., No. 1:14-cv-00147-DAD-SAB, 3 2020 WL 6043936, at *10 (E.D. Cal. Oct. 12, 2020) (awarding a payment of $10,000 to plaintiffs 4 who spent over 370 hours each during the course of the litigation on tasks such as “talking to co- 5 workers, assisting class counsel, attending the mediation, and organizing class members to keep 6 them apprised of the status of [the] case”); Valentine v. Rehab. Ctr. of Santa Monica Holding Co. 7 GP, 2021 U.S. Dist. LEXIS 243660, at *13–14 (C.D. Cal. Dec. 20, 2021) (finding the class 8 representative failed to justify a service enhancement of $10,000, though the plaintiff reported 59.5 9 hours, during which she “was deposed, worked closely with [class] counsel, assisted in the 10 preparation of pleadings, provided factual information and assisted in identifying potential 11 witnesses”). 12 Because the factors discussed above support an incentive award—and the actions of Kang 13 clearly benefited class members—a service payment is appropriate. But Kang has offered no “clear 14 and specific evidence demonstrating significant contributions to the litigation of this case” as he 15 was instructed to do. (See Doc. 153 at 11 n.5.) On the other hand, Kang released individual claims 16 for which he did not seek class treatment and such a release may support an increase in the service 17 payment. See, e.g., Ontiveros, 303 F.R.D. at 366. 18 Considering the foregoing, a service payment of $5,000 for Kang is appropriate in light of 19 the actions taken, benefit to the class, and the sacrifice of his individual claims. See Gonzalez, 2023 20 WL 373252, at *9 (noting service awards of $5,000 are routinely found reasonable); see also 21 Vasquez v. Coast Valley Roofing, 266 F.R.D 482, 490–491 (E.D. Cal. 2010) (finding the requested 22 payment of $5,000 was “reasonable and appropriate”). Thus, the request for a service payment to 23 Kang as class representative will be granted in the modified amount of $5,000.00. 24 V. CONCLUSION AND ORDER 25 For the reasons stated above, IT IS HEREBY ORDERED THAT: 26 1. The hearing set for October 25, 2023, is VACATED; 27 2. The proposed classes identified in the settlement agreement (Doc. 149-1 at 4, 5) are 28 certified for settlement purposes; 1 3. Plaintiff Sung Gon Kang’s unopposed motion for final approval of a class action 2 settlement (Doc. 158) is GRANTED, and the Court approves the settlement as fair, 3 reasonable, and adequate; 4 4. Named plaintiff Sung Gon Kang is confirmed as class representative; Kang’s 5 counsel, Caddell & Chapman, and Francis Mailman Soumilas, P.C., are confirmed 6 as class counsel; and Continental Datalogix is confirmed as the settlement 7 administrator; 8 5. Kang’s unopposed motion for attorney’s fees and costs and for approval of service 9 award and individual settlement (Doc. 155) is GRANTED IN PART; 10 6. The Court awards the following sums: 11 a. Class counsel shall receive $1,113,560.50 in attorney’s fees and $77,613.38 12 in expenses. Class counsel shall not seek or obtain any other compensation 13 or reimbursement from Credit Bureau, Kang, or class members; 14 b. Kang shall receive $5,000 as a service award; and 15 c. Continental Datalogix shall receive $44,139 in settlement administration 16 costs (see Doc. 158-2 ¶6). 17 7. The parties are directed to effectuate all terms of the Settlement Agreement (Doc. 18 149-1) and any deadlines or procedures for distribution set forth therein; 19 8. This action is DISMISSED with prejudice, with the Court specifically retaining 20 jurisdiction over this action for the purpose of enforcing the parties’ settlement 21 agreement; and 22 9. The Clerk of the Court is directed to CLOSE this case. 23 IT IS SO ORDERED. 24 25 Dated: October 13, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 26 27 28