Denham v. Global Distribution Services, Inc. ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 RYAN GARY DENHAM, et al., CASE NO. 18cv1495-LAB (MDD) 10 Plaintiffs, 11 ORDER VACATING HEARING AND vs. DIRECTING FURTHER BRIEFING 12 GLOBAL DISTRIBUTION SERVICES, 13 INC. d/b/a AMERICA’S ALLIANCE d/b/a AMERICA’S CHOICE GARAGE DOOR 14 SERVICE, et al., 15 Defendants. 16 Plaintiffs’ Motion for Final Approval of the Collective Action Settlement in this Fair 17 Labor Standards Act case is set for a hearing on October 26, 2020. While the Court needs 18 additional information to decide the Motion, Plaintiffs can best provide that information 19 through additional briefing. Accordingly, that hearing is VACATED. 20 Plaintiffs argue, and the Court agrees, that attorneys’ fees in common fund cases are 21 often calculated as a percentage of the recovery. On that basis, Plaintiffs seek fees 22 amounting to 40% of the gross settlement amount and expenses amounting to another 23 27.6%. But Plaintiffs don’t identify any authority supporting such an award. See Dkt. 100-1 24 at 19-20. No cited case approved a fee award greater than 34%, with one such case noting 25 that “nearly all common fund awards range around 30%.” Knight v. Red Door Salons, Inc., 26 No. 08-01520 SC, 2009 WL 248367, at *3 (N.D. Cal. Feb. 2, 2009) (awarding 30% and 27 quoting In Re Activision Securities Litigation, 723 F. Supp. 1373 (N.D. Cal. 1989); see also, 28 e.g., Vandervort v. Balboa Capital Corp., 8 F. Supp. 3d 1200, 1209 (awarding 33%); 1 || Rodriguez v. SGLC Inc., No. 2:08-cv-19710-MCE-KJN, 2014 WL 229221, at *2 (E.D. Cal. 2 || 2014) (awarding 34%). Second, the fee percentage in a common fund case is often 3 || considered alongside expenses and the amount left for the claimants. See, e.g., State oi 4 || Fla. v. Dunne, 915 F.2d 542, 546 (9th Cir. 1990) (finding fees and costs amounting to 72% 5 || of recovery “disturbing”); In re Bluetooth Headset Prods. Liability, 654 F.3d 935, 945 (9th 6 || Cir. 2011) (presumptively calculating fee percentage from recovery net of notice costs); 7 || Powers v. Eichen, 229 F.3d 1249, 1258 (9th Cir. 2000) (under Private Securities Litigation 8 || Reform Act, “fees and expenses ultimately rewarded [must] be reasonable in relation to 9 || what the plaintiffs recovered”). 10 Plaintiffs’ broad references to the lack of payment or reimbursement during the 11 || litigation and to the financial risk of unsuccessful litigation aren’t enough to make this an 12 || exceptional case warranting exceptional fees. See Dkt. 100-1 at 19. These general 13 || concerns are common features of any collective or class action litigated on a contingency 14 || basis. Without more, they don’t justify departing from the range of fees typically found 15 || reasonable in such cases. 16 Accordingly, the Court directs Plaintiffs to brief the reasonableness of their requested 17 || fees and expenses in no more than 10 pages on or before November 20, 2020. The briefing 18 || should address specific circumstances that justify awarding an atypically large proportion of 19 || the total recovery to counsel for fees and expenses. Plaintiffs may include, as exhibits not 20 || counted toward the ten-page limit, their lodestar calculation and any supporting documents 21 || necessary to establish the reasonableness of that calculation. 22 IT IS SO ORDERED. 23 || Dated: October 21, 2020 (ym / A (by WY 24 HONORABLE LARRY ALAN BURNS 35 Chief United States District Judge 26 27 28