Aldapa v. Fowler Packing Company Inc.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BEATRIZ ALDAPA, et al., No. 1:15-cv-00420-ADA-SAB 12 Plaintiffs, ORDER GRANTING MOTION FOR FINAL APPROVAL OF CLASS ACTION 13 v. SETTLEMENT AND GRANTING MOTION 14 FOR ATTORNEYS’ FEES, COSTS, AND FOWLER PACKING COMPANY INC., INCENTIVE AWARD 15 Defendants. (ECF Nos. 288, 291) 16 17 This matter came before the Court on June 5, 2023, for a hearing on Plaintiffs’ unopposed 18 motions for final approval of a class action settlement and for an award of attorneys’ fees, costs, 19 and incentive awards for Plaintiffs. (ECF Nos. 288, 291.)1 Attorneys Mario Martinez, Brenda 20 Rizo, and Erica Deutsch appeared by video on behalf of Plaintiffs and the putative class. Attorney 21 Bradley Joseph Hamburger appeared by video on behalf of Defendants. For the reasons set forth 22 below, the Court will grant final approval of the class action settlement and will grant the motion 23 for attorneys’ fees, costs, and incentive awards to Plaintiffs. 24 /// 25 26 27

28 1 All references to ECF page numbers refer to the page number at the top of each document. 1 I. BACKGROUND 2 The Court previously summarized Plaintiffs’ allegations in its January 12, 2023, order 3 granting Plaintiffs’ motion for preliminary approval of a class action settlement. (ECF No. 283.) 4 As such, the Court will not repeat the factual background in this order. Following the grant of 5 preliminary approval in this action, on February 24, 2023, Plaintiffs filed the pending unopposed 6 motion for attorneys’ fees, costs, and an incentive award for Plaintiffs, and on April 14, 2023, 7 Plaintiffs filed the pending unopposed motion for final approval of the parties’ class action 8 settlement. (ECF Nos. 288, 291.) In support of their pending motions, Plaintiffs have submitted 9 declarations from Plaintiffs, class counsel, and the Settlement Administrator in this action. (ECF 10 Nos. 288-1, 288-2, 288-3, 288-4, 291-1, 291-2.) As of the date of the hearing on June 5, 2023, no 11 objections to the settlement were received nor filed with this Court, and no class members have 12 opted out of the settlement. 13 The settlement agreement provides for Defendants to pay a total of $7,875,000. (ECF No. 14 291 at 16.) Assuming the parties’ proposed allocations are awarded in full, approximately 15 $4,672,107.28 will be available for distribution to participating class members. (Id.) 16 II. FINAL APPROVAL OF CLASS ACTION SETTLEMENT 17 Class actions require the district court’s approval prior to settlement. Fed R. Civ. P. 23(e). 18 To approve a settlement, a district court must: (i) ensure notice is sent to all class members; (ii) 19 hold a hearing and make a finding that the settlement is fair, reasonable, and adequate; (iii) confirm 20 that the parties seeking approval file a statement identifying the settlement agreement; and (iv) be 21 shown that class members were given an opportunity to object. Fed. R. Civ. P. 23(e)(1)-(5). The 22 parties filed the settlement agreement on June 23, 2022, (ECF No. 275-1 at 26-52), and class 23 members were given an opportunity to object on or before April 11, 2023. (ECF No. 291-2 at 3.) 24 The Court did not receive any objections, timely or otherwise, to the settlement agreement. (Id.) 25 The Court now turns to the adequacy of notice and its review of the settlement following the final 26 fairness hearing. 27 /// 28 /// 1 A. Notice 2 Adequate notice of the class settlement must be provided under Rule 23(e). See Hanlon v. 3 Chrysler Corp., 150 F.3d 1011, 1025 (9th Cir. 1998) (Hanlon), overruled on other grounds by 4 Castillo v. Bank of Am., N.A., 930 F.3d 723 (9th Cir. 2020); see also Silber v. Mabon, 18 F.3d 1449, 5 1453-54 (9th Cir. 1994) (Silber) (noting that the court need not ensure all class members receive 6 actual notice, only that “best practicable notice” is given); Winans v. Emeritus Corp., No. 4:13-cv- 7 03962-HSG, 2016 WL 107574, at *3 (N.D. Cal. Jan. 11, 2016) (Winans) (“While Rule 23 requires 8 that ‘reasonable effort’ be made to reach all class members, it does not require that each individual 9 actually receive notice.”). “Notice is satisfactory if it ‘generally describes the terms of the 10 settlement in sufficient detail to alert those with adverse viewpoints to investigate and to come 11 forward and be heard.’” Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004) 12 (Churchill Vill., L.L.C.) (quoting Mendoza v. Tucson Sch. Dist. No. 1, 623 F.2d 1338, 1352 (9th 13 Cir. 1980)). Any notice of the settlement sent to the class should alert class members of “the 14 opportunity to opt-out and individually pursue any state law remedies that might provide a better 15 opportunity for recovery.”2 Hanlon, 150 F.3d at 1025. 16 The Court previously reviewed the notice provided in this case at the preliminary approval 17 stage and found it to be satisfactory. (ECF No. 283 at 16.) Class counsel filed the declaration of 18 Jeremy Romero for CPT Group, Inc. (“CPT Group”) in support of the motion for final approval. 19 (ECF No. 291-2.) CPT Group, the Court-approved class action Settlement Administrator for this 20 action, employed Jeremy Romero as a Case Manager. (Id. at ¶ 1.) Following the grant of 21 preliminary approval, on January 17, 2023, CPT Group received the text for the Notice Packet from 22 counsel, and CPT Group prepared a draft of the Notice Packet in both English and Spanish language 23 versions for mailing to class members. (Id. at ¶ 4.) A copy of the notice packet was attached to the 24 declaration of Jeremy Romero as an exhibit. (See id. at 5-17.) Between January 20, 2023, and 25 January 26, 2023, CPT Group received the data file from counsel containing the mailing list of

26 2 The parties do not include a request for a deadline to opt out of the settlement because class 27 members have already been provided the opportunity. (ECF No. 278 at 17 (citing Low v. Trump Univ., LLC, 881 F.3d 1111, 1121 (9th Cir. 2018).) The Magistrate Judge approved the opt-out 28 notice on March 18, 2016. (ECF No. 62.) 1 20,862 class members, of which 340 did not have an address listed. (Id. at ¶ 5.) In preparation for 2 mailing, CPT Group ran a National Change of Address (NCOA) search in attempt to update the 3 addresses on the class list and confirming the mailing addresses of the class members before 4 mailing the notice packets. (Id.) A search of the NCOA database provided updated addresses for 5 any individual who had moved in the previous four years and notified the U.S. Postal Service of 6 their change of address. (Id.) 7 On February 10, 2023, CPT Group mailed the notice packets via U.S. First Class Mail to 8 20,522 class members who had an address. (Id. at ¶ 7.) The notice packet describes the claims 9 involved, what the settlement provides, what class members are giving up in exchange for the 10 settlement payment, how each class member’s estimated payment from the settlement will be 11 calculated, and how the class member will receive the payment. (Id. at 5-17.) As of April 13, 2023, 12 1,982 notice packets have been returned to CPT Group’s office by the U.S. Postal Service, of which 13 32 were provided a new address by the Post Office. For the remaining 1,950 notice packets, CPT 14 Group performed a skip trace to locate an address using Accurint, which utilizes hundreds of 15 different databases supplied by credit reporting agencies, public records, and a variety of other 16 national databases. (Id. at ¶ 9.) As a result of the skip trace effort, CPT Group mailed a total of 17 1,146 notice packets, and as of April 13, 2023, 867 notice packets have been deemed undeliverable. 18 (Id. at ¶ 10.) 19 For objections, the notice provides that if a class member wishes to object to all or part of 20 the proposed settlement, they must mail a timely and valid notice of objection to the Settlement 21 Administrator at the address listed in the notice. (Id. at 7.) The notice instructs the class member 22 to provide a written statement of the grounds for objection and whether they intend to appear at the 23 final approval hearing. (Id.) As required by the settlement agreement, the Settlement Administrator 24 also established and maintained a toll-free case hotline through which class members could speak 25 to case representatives regarding case specific questions. (Id. at ¶ 8.) As of April 13, 2023, the 26 Settlement Administrator has received 117 calls to the toll-free hotline established for the case from 27 class members with various questions about the settlement. (Id.) As of the same date, there are no 28 outstanding inquiries. (Id.) 1 As of April 13, 2023, CPT Group has received zero requests for exclusion, zero objections, 2 and zero disputes regarding workweeks. (Id. at ¶ 11.) Therefore, all class members are 3 participating in the settlement. 4 Given the above, the Court accepts the reports of the Settlement Administrator and finds 5 that CPT Group provided adequate notice, thereby satisfying Federal Rule of Civil Procedure 6 23(e)(1). Silber, 18 F.3d at 1453-54; Winans, 2016 WL 107574, at *3. 7 B. Final Fairness Determination 8 On June 5, 2023, the Court held a final fairness hearing, at which class counsel and defense 9 counsel appeared by video in Courtroom 1. At the final approval stage, the primary inquiry is 10 whether the proposed settlement “is fundamentally fair, adequate, and reasonable.” Fed. R. Civ. P. 11 23(e)(2); Lane v. Facebook, Inc., 696 F.3d 811, 818 (9th Cir. 2012) (Lane); Hanlon, 150 F.3d at 12 1026. “It is the settlement taken as a whole, rather than the individual component parts, that must 13 be examined for overall fairness.” Hanlon, 150 F.3d at 1026 (citing Officers for Justice v. Civil 14 Serv. Comm’n of S.F., 688 F.2d 615, 628 (9th Cir. 1982) (Officers for Justice)); see also Lane, 696 15 F.3d at 818. Having already completed a preliminary examination of the agreement, the Court 16 reviews it again, mindful that the law favors the compromise and settlement of class action suits. 17 See, e.g., In re Syncor ERISA Litig., 516 F.3d 1095, 1101 (9th Cir. 2008); Churchill Vill., L.L.C., 18 361 F.3d at 576; Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992) (Class 19 Plaintiffs); Officers for Justice, 688 F.2d at 625. Ultimately, “the decision to approve or reject a 20 settlement is committed to the sound discretion of the trial judge because he [or she] is exposed to 21 the litigants and their strategies, positions, and proof.” Staton v. Boeing Co., 327 F.3d 938, 953 22 (9th Cir. 2003) (Staton) (quoting Hanlon, 150 F.3d at 1026). 23 In assessing the fairness of a class action settlement, courts balance the following factors: 24 (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 25 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 26 views of counsel; (7) the presence of a governmental participant; and (8) the reaction of the class members to the proposed settlement. 27 28 1 Churchill Vill., L.L.C., 361 F.3d at 575; see also In re Online DVD-Rental Antitrust Litig., 779 F.3d 2 934, 944 (9th Cir. 2015); Rodriguez v. West Publ’g Corp., 563 F.3d 948, 964-67 (9th Cir. 2009) 3 (West Publ’g Corp.). These settlement factors are non-exclusive, and each need not be discussed 4 if they are irrelevant to a particular case. See Churchill Vill., L.L.C., 361 F.3d at 576 n.7. 5 However, consideration of the Churchill factors alone is not sufficient to survive appellate 6 review. See Briseño v. Henderson, 998 F.3d 1014, 1022-26 (9th Cir. 2021) (Briseño) (holding that 7 the revised Rule 23(e) requires district courts “to go beyond our precedent” and mandates 8 consideration of “the Bluetooth factors” to all class action settlements, regardless of whether 9 settlement was achieved before or after class certification); see also Fed. R. Civ. P. 23(e)(2)(C)- 10 (D). Under the revised Rule 23(e), “district courts must apply the Bluetooth factors to scrutinize 11 fee arrangements . . . to determine if collusion may have led to class members being shortchanged.” 12 Briseño, 998 F.3d at 1026. The so-called Bluetooth factors—also referred to as “subtle signs” of 13 collusion—include: (i) “when counsel receive a disproportionate distribution of the settlement, or 14 when the class receives no monetary distribution but class counsel are amply rewarded”; (ii) the 15 existence of a “clear sailing” arrangement, which provides “for the payment of attorneys’ fees 16 separate and apart from class funds,” or a provision under which defendant agrees not to object to 17 the attorneys’ fees sought; and (iii) “when the parties arrange for fees not awarded to revert to 18 defendants rather than be added to the class fund.” In re Bluetooth Headset Prods. Liab. Litig., 654 19 F.3d 935, 947 (9th Cir. 2011) (Bluetooth) (internal quotations and citations omitted). “The presence 20 of these three signs is not a death knell—but when they exist, ‘they require[] the district court to 21 examine them, . . . develop the record to support its final approval decision,’ and thereby ‘assure 22 itself that the fees awarded in the agreement were not unreasonably high.’” Kim v. Allison, 8 F.4th 23 1170, 1180 (9th Cir. 2021) (quoting Allen v. Bedolla, 787 F.3d 1218, 1224 (9th Cir. 2015) (Allen)). 24 Thus, while this Court has wide latitude to determine whether a settlement is substantively fair, it 25 is held to a higher procedural standard, and in order “[t]o survive appellate review . . . [it] must 26 show it has explored comprehensively all factors and must give a reasoned response to all non- 27 frivolous objections.” McKinney-Drobnis v. Oreshack, 16 F.4th 594, 606 (9th Cir. 2021) (quoting 28 Allen, 787 F.3d at 1223-24). 1 1. Strength of Plaintiffs’ Case 2 When assessing the strength of a plaintiff’s case, the court does not reach “any ultimate 3 conclusions regarding the contested issues of fact and law that underlie the merits of th[e] 4 litigation.” In re Wash. Pub. Power Supply Sys. Sec. Litig., 720 F. Supp. 1379, 1388 (D. Ariz. 5 1989). The court cannot reach such a conclusion because evidence has not been fully presented. 6 Id. Instead, the court “evaluate[s] objectively the strengths and weaknesses inherent in the litigation 7 and the impact of those considerations on the parties’ decisions to reach these agreements.” Id. 8 In the order granting the motion for preliminary approval of the class settlement, the Court 9 found it appropriate to assess the proposed class recovery of $4,610,000, the net settlement amount, 10 as representing between 20% and 28% of the estimated wages and interest recovery amount. (ECF 11 No. 283 at 10.) The Court found that it was not out of line with other class action settlements. (Id. 12 (citations omitted).) Risks of proof issues, varying expert opinions, and possible defenses indicate 13 that full recovery in this action is far from certain. (Id.) Furthermore, this action is almost seven 14 years old, and the parties have engaged in extensive discovery and settlement negotiations. (Id.) 15 Further litigation will likely be complex, expensive, and time consuming. (Id.) Therefore, the 16 Court concluded that the proposed settlement amount is substantively fair, reasonable, and 17 adequate. (Id.) 18 Now, Plaintiffs represent that the class is anticipated to receive $4,672,107.28, which is 19 approximately $62,107 more to the class than anticipated. (ECF No. 291 at 22.) Based on 20 Plaintiffs’ expert’s survey, Plaintiffs allege that the class is entitled to wages and interest in the 21 approximate amount of $16,541,382 to $22,915,231, plus attorneys’ fees and costs. (Id.) Although 22 Plaintiffs agree with the Court’s analysis in the order granting preliminary approval, Plaintiffs wish 23 to highlight that the gross settlement amount of $7,875,000, including class counsel fees of 24 $2,625,000, represents 34% to 47% of the amount Plaintiffs believed is owed to the class. (Id. at 25 22 n.8. (citing Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980) (Boeing Co))) As previously 26 discussed, even excluding attorneys’ fees and costs, the proposed class recovery represents between 27 20% and 28% of estimated wages and interest recovery among the class members, which the Court 28 finds is in line with other class action settlements. 1 Due to the litigation risks of this case, Plaintiffs argue that the settlement amount is 2 reasonable. (ECF No. 291 at 23.) “Defendants have consistently maintained that they have ample 3 legal and factual grounds for defending this action.” (Id.) If this action goes to trial, “there is 4 certainly risk associated with litigating to trial a random sample survey conducted by Plaintiffs’ 5 expert, and whether a trier of fact would accept the survey and the conclusions drawn from the 6 survey as reliable evidence of damages.” (Id.) Plaintiffs further explain the risks under two 7 categories of their claims: (1) records-based claims and (2) survey-based claims. (Id. at 23-34.) 8 The records-based claims encompass the rest period claim, the meal period claim, and the 9 unpaid travel time claim. (Id. at 23.) As mentioned in the order granting preliminary approval, the 10 Court finds that the alleged complicated collateral issues, particularly in the pending case of Fowler 11 Packing Company, Inc. v. Lanier, et al., No. 1:16-cv-001060-DAD-SAB, warrants the rest period 12 claims to significant risk. (Id. at 24.) In Lanier, Defendants and another employer filed suit against 13 California state officials, alleging that “carve-outs” in the safe harbor provision of piece-rate wage 14 law, which precluded Defendants from using the provision as an affirmative defense against wage 15 and hour claims, violated the Equal Protection Clause of the United States and California 16 Constitutions. (Id.) Upon ruling that the district court improperly dismissed the employers’ Equal 17 Protection Claim, the Ninth Circuit has remanded the case for further proceedings. (Id. (citing 18 Fowler Packing Company, Inc. v. Lanier, 844 F.3d 809, 819 (9th Cir. 2016)).) In addition to the 19 proof issues, varying expert opinions, and possible defenses, the Court finds significant risks to 20 Plaintiffs’ records-based claims, warranting approval of the settlement. 21 The survey-based claims include the unpaid non-productive time claim, the unpaid off-the- 22 clock work claim, the vehicle mileage reimbursement claim, and the tool reimbursement claim. 23 (ECF No. 291 at 26.) Plaintiffs rely on their expert Dr. Jeffrey S. Petersen’s statistical surveys of 24 class members, but Defendants contend that depositions of the class members show allegedly 25 significant discrepancies from the survey. (Id. at 29.) Furthermore, the area of statistical random 26 surveys continues to be highly litigated. (Id. at 31 (citations omitted).) Moreover, Defendants’ 27 expert Dr. Joseph Krock challenges virtually every aspect of Dr. Petersen’s surveys. (Id. at 31.) 28 Thus, there is no certainty that a trier of fact would agree with Plaintiffs. (Id.) The parties also 1 disagree considerably as to the value of the claim for waiting time penalties and other penalties. 2 (Id. at 32.) Overall, Plaintiffs largely reiterate the risk of proof issues, varying expert opinions, and 3 possible defenses to the survey-based claims, which warrant this Court’s approval of the settlement. 4 Accordingly, the Court finds that consideration of this factor weighs in favor of granting 5 final approval of the parties’ settlement in this action. 6 2. Risk, Expense, Complexity, and Likely Duration of Further Litigation, and 7 Risk of Maintaining Class Action Status Throughout Trial 8 Churchill factors two and three, the risk, expense, complexity, and likely duration of further 9 litigation, and the risk of maintaining class action status throughout trial, weigh in favor of approval. 10 See Fed. R. Civ. P. 23(e)(2)(C)(i). “[T]here is a strong judicial policy that favors settlements, 11 particularly where complex class action litigation is concerned.” In re Syncor ERISA Litig., 516 12 F.3d at 1101 (citing Class Plaintiffs, 955 F.2d at 1276). As a result, “[a]pproval of settlement is 13 preferable to lengthy and expensive litigation with uncertain results.” Johnson v. Shaffer, No. 2:12- 14 cv-1059-KJM-AC, 2016 WL 3027744, at *4 (E.D. Cal. May 27, 2016) (citing Morales v. Stevco, 15 Inc., No. 1:09-cv-00704-AWI-JLT, 2011 WL 5511767, at *10 (E.D. Cal. Nov. 10, 2011) 16 (Morales)). 17 Plaintiffs represent that the issues in this action are complex and there is a high risk of 18 delaying resolution of the case if the settlement is not approved. (ECF No. 291 at 33.) Although, 19 class counsel is confident that class certification would be maintained throughout trial, Plaintiffs 20 note that this case involves over 20,800 class members, which inherently puts class certification at 21 risk. (Id.) Plaintiffs further explain that preparing the case for trial would be “incredibly costly,” 22 and that any outcome at trial would result in a lengthy and costly appeal. (Id.) Such an appeal 23 would further delay resolution of the case, and this case has been pending resolution for more than 24 eight years. (Id.) Therefore, the Court finds that consideration of this factor weighs in favor of 25 granting final approval. 26 3. Amount Offered in Settlement 27 To evaluate the fairness of the settlement award, the court should “compare the terms of the 28 compromise with the likely rewards of litigation.” Protective Comm. for Indep. Stockholders of 1 TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424-25 (1968); see also Fed. R. Civ. P. 2 23(e)(2)(C)-(D). “It is well-settled law that a cash settlement amounting to only a fraction of the 3 potential recovery does not per se render the settlement inadequate or unfair.” In re Mego Fin. 4 Corp. Sec. Litig., 213 F.3d 454, 459 (9th Cir. 2000). To determine whether a settlement “falls 5 within the range of possible approval,” a court must focus on “substantive fairness and adequacy” 6 and “consider plaintiffs’ expected recovery balanced against the value of the settlement offer.” In 7 re Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 1080 (N.D. Cal. 2007). In addition, the court 8 must consider whether “the proposal treats class members equitably relative to each other” and 9 whether “the relief provided for the class is adequate.” Fed. R. Civ. P. 23(e)(2)(C)-(D). 10 Here, the parties have agreed to a $7,875,000 gross settlement, allocated as follows: (1) 11 $2,625,000.00 for class counsel fees; (2) $465,392.72 for class counsels’ costs; (3) $92,500.00 for 12 claims administration fees; (4) $10,000 incentive awards for each Plaintiff ($20,000 in total); and 13 (5) $4,672,107.28 for distribution to the class members. (ECF No. 291 at 16.) Plaintiffs’ maximum 14 potential damages is approximately $16,541,382 to $22,915,231 in wages and interest, plus 15 attorneys’ fees and costs. (Id. at 34.) The gross settlement fund of $7,875,000 is approximately 16 34% to 47% recovery of Plaintiffs’ maximum potential damages. (See id. at 22 n.8.) As analyzed 17 above, the significant litigation risks indicate that the gross settlement amount is adequate and fair. 18 The proposed settlement amount is within the general range of percentage recoveries that 19 California courts—including this one—have found to be reasonable. See, e.g., Singh v. Roadrunner 20 Intermodal Services, LLC, No. 1:15-cv-01497-DAD-BAM, 2018 WL 2412325, at *7 (E.D. Cal. 21 May 29, 2018) (approving a settlement of about 12% of the estimated maximum damages); Glass 22 v. UBS Fin. Servs., Inc., No. 3:06-cv-04068-MMC, 2007 WL 221862, at *4 (N.D. Cal. Jan. 26, 23 2007) (approving a settlement of about 25-35% of the estimated maximum). 24 The settlement provides that class members will receive a pro rata payment from the net 25 settlement amount depending on how many weeks the class members worked during the class 26 period, giving more damages to those employees that worked more weeks during the class period. 27 (ECF No. 291 at 17.) To determine the amount of each individual settlement payment, the claims 28 administrator will calculate the total compensable work weeks for all settlement class members by 1 adding the number of compensable work weeks worked by each settlement class member during 2 the class period. (Id.) The compensable work weeks for each settlement class member will be 3 divided by the total compensable work weeks for all settlement class members, resulting in the 4 payment ratio for each settlement class member. (Id.) Each settlement class member’s payment 5 ratio will then be multiplied by the net settlement amount to calculate each settlement class 6 member’s estimated individual settlement payments. (Id.) The average gross payment to each 7 settlement class member is $223.95 and the highest is $4,767.70. (Id.) 8 Any checks issued to settlement class members shall remain valid and negotiable for ninety 9 calendar days from the date of their issuance. (Id.) After that date, any unclaimed funds shall be 10 re-distributed to class members who cashed their checks during the ninety-day period. (Id.) If 11 there is enough money in uncashed checks to cover the cost of a second re-distribution after the 12 expiration of the checks in the first re-distribution, the administrator shall conduct a second re- 13 distribution. (Id.) If there is not enough money to reasonably conduct a second re-distribution, the 14 money shall be allocated as cy pres and 50% of the remaining funds shall be sent to Central 15 California Food Bank (4010 E. Amendola Dr., Fresno, CA 93625) for food distribution to 16 farmworker communities and 50% shall be sent to the Binational Center for the Development of 17 Oaxacan Indigenous Communities (2911 Tulare St., Fresno, CA 93721) for services in the Fresno 18 and Madera area. (Id.) 19 As noted above, as of April 13, 2023, the Settlement Administrator has received 117 calls 20 to the toll-free hotline established for the case, from class members with various questions about 21 the settlement. (Id. at 37.) There are no outstanding inquiries. (Id.) Furthermore, the Settlement 22 Administrator has received zero requests for exclusion, zero objections, and zero disputes regarding 23 workweeks. (Id.) Therefore, all class members are participating in the settlement. 24 Based on the information presented to the Court, the Court concludes that the amount 25 offered in settlement of this action provides adequate relief for the class. 26 /// 27 /// 28 /// 1 4. Extent of Discovery Completed and Stage of the Proceedings 2 “In the context of class action settlements, ‘formal discovery is not a necessary ticket to the 3 bargaining table’ where the parties have sufficient information to make an informed decision about 4 settlement.” Linney v. Cellular Alaska P’ship, 151 F.3d 1234, 1239 (9th Cir. 1998) (quoting In re 5 Chicken Antitrust Litig., 669 F.2d 228, 241 (5th Cir. 1982)). Approval of a class action settlement 6 “is proper as long as discovery allowed the parties to form a clear view of the strengths and 7 weaknesses of their cases.” Monterrubio v. Best Buy Stores, L.P., 291 F.R.D. 443, 454 (E.D. Cal. 8 2013). A settlement is presumed fair if it “follow[s] sufficient discovery and genuine arms-length 9 negotiation.” Adoma v. Univ. of Phx., Inc., 913 F. Supp. 2d 964, 977 (E.D. Cal. 2012) (Adoma) 10 (quoting Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 528 (C.D. Cal. 2004) 11 (Nat’l Rural Telecomms. Coop.)). The court must consider whether the process by which the parties 12 arrived at their settlement is truly the product of arm’s length bargaining and not collusion or fraud. 13 Millan v. Cascade Water Servs., Inc., 310 F.R.D. 593, 613 (E.D. Cal. 2015). These concerns are 14 also reflected in Rule 23(e)(2)’s focus on procedural fairness—whether “the class representatives 15 and class counsel have adequately represented the class” and whether “the proposal was negotiated 16 at arm’s length.” Fed. R. Civ. P. 23(e)(2)(A)-(B). 17 From August 2015 to December 2021, the parties engaged in extensive expert and non- 18 expert fact discovery. (ECF No. 291 at 34.) Defendants produced approximately 530,000 pages 19 of documents, 4,191,536 rows of electronic data covering 2,229,118 workdays and over 479,600 20 paychecks issued to workers during the class period. (Id.) The parties conducted Plaintiffs’ 21 depositions, 15 class member depositions, Defendants’ 30(b)(6) witnesses, and five expert 22 depositions. (Id. at 35.) The parties also litigated several discovery issues related to class members’ 23 depositions. (Id. at 35.) Class counsel reviewed the data and retained expert Aaron Woolfson to 24 review, consider, and analyze the class data for each class member in advance of settlement 25 negotiations. (Id.) “The [p]arties engaged in arm’s-length, informed negotiations during the course 26 of this litigation in order to reach the proposed Settlement, using three different experienced and 27 well-respected mediators in the area of wage and hour class action law.” (Id. at 36.) 28 /// 1 Accordingly, the Court concludes that consideration of this factor weighs in favor of 2 granting final approval. 3 5. Experience and Views of Counsel 4 Class counsel Mario Martinez submitted a declaration describing his experience in class 5 and representative action litigation. (See ECF No. 278-1 at ¶¶ 57-61.) Mr. Martinez graduated 6 from UC Berkeley School of Law and formed Martinez Aguilasocho & Lynch, a Professional Law 7 Corporation, now Martinez Aguilasocho Law, Inc. (MAL). (Id. at ¶ 57.) The lawyers at MAL 8 have substantial experience representing employees in class actions and representational lawsuits 9 to enforce statutory rights under both federal and state wage and hour laws, fair employment 10 practice laws such as Title VII of the Civil Rights Act of 1964, and the Migrant and Seasonal 11 Agricultural Worker Protection Act. (Id. at ¶ 59.) Class counsel Ira Gottlieb also submitted a 12 declaration describing her experience in class and representative class litigation. (See ECF No. 13 278-2 at ¶¶ 8-12.) Ms. Gottlieb graduated from Rutgers University School of Law and has served 14 as counsel on a wide range of class action and wage and hour litigation. (Id. at ¶¶ 8-9.) Therefore, 15 the Court finds that class counsel’s experience and views weigh in favor of granting final approval. 16 6. Presence of a Governmental Participant 17 In assessing the fairness of a class action settlement, courts balance the following factor 18 against seven other factors: the presence of a governmental participant. Churchill Vill., L.L.C., 361 19 F.3d at 575. For example, civil Private Attorneys General Act (PAGA) penalties factor into 20 settlement approval, where a government participant’s involvement in a class action settlement 21 supports its approval by the Court. See Adoma, 913 F. Supp. 2d at 977 (factoring civil PAGA 22 penalties in favor of settlement approval); Zamora v. Ryder Integrated Logistics, Inc., No. 3:13-cv- 23 02679-CAB-BGS, 2014 WL 9872803, at *10 (S.D. Cal. Dec. 23, 2014) (same). 24 Here, there are no direct governmental participants in this action. (ECF No. 291 at 37.) 25 Therefore, the Court finds that this factor neither weighs in favor nor against granting final 26 approval. 27 /// 28 /// 1 7. Reaction of the Class Members 2 “It is established that the absence of a large number of objections to a proposed class action 3 settlement raises a strong presumption that the terms of a proposed class settlement action are 4 favorable to the class members.” Nat’l Rural Telecomms. Coop., 221 F.R.D. at 529 (citing cases). 5 The presumption that a settlement is fair, reasonable, and adequate is particularly strong when there 6 is an absence of a single objection to a proposed class action settlement. See id.; Barcia v. Contain- 7 A-Way, Inc., No. 3:07-cv-00938-IEG-JMA, 2009 WL 587844, at *4 (S.D. Cal. Mar. 6, 2009). 8 Nevertheless, “[a] court may appropriately infer that a class action settlement is fair, adequate, and 9 reasonable when few class members object to it.” Cruz v. Sky Chefs, Inc., No. 4:12-cv-02705- 10 DMR, 2014 WL 7247065, at *5 (N.D. Cal. Dec. 19, 2014) (citing Churchill Vill., L.C.C., 361 F.3d 11 at 577). 12 As of April 13, 2023, the Settlement Administrator has received 117 calls to the toll-free 13 hotline established for the case, from class members with various questions about the settlement. 14 (ECF No. 291 at 37.) “The farmworkers who called Class Counsel’s offices overwhelmingly 15 expressed support for the settlement, often expressing relief because the case took so long.” (ECF 16 No. 291-1 at ¶ 7.) There are no outstanding inquiries. (Id.) Furthermore, the Settlement 17 Administrator has received zero requests for exclusion, zero objections, and zero disputes regarding 18 workweeks. (Id.) Therefore, all class members are participating in the settlement. Accordingly, 19 consideration of this factor weighs in favor of granting final approval. 20 8. Subtle Signs of Collusion 21 The Court now turns to the Bluetooth factors to examine whether any “more subtle signs” 22 of collusion recognized by the Ninth Circuit are present here. See Bluetooth, 654 F.3d at 947. 23 First, the Court finds that class counsel is not seeking a disproportionate distribution of the 24 settlement. With an average estimated class member recovery of between $223.95 to $4,767.70 25 and a requested award of attorneys’ fees of $2,625,000, it does not appear that counsel seeks to 26 receive a disproportionate distribution of the settlement. See, e.g., Morales, 2011 WL 5511767, at 27 *12 (“The typical range of acceptable attorneys’ fees in the Ninth Circuit is 20% to 33 1/3% of the 28 total settlement value, with 25% considered the benchmark.”) (quoting Powers v. Eichen, 229 F.3d 1 1249, 1256 (9th Cir. 2000)); Castro v. Paragon Indus., Inc., No. 1:19-cv-00755-DAD-SKO, 2021 2 WL 20242333, at *5, *12 (E.D. Cal. May 21, 2021) (Castro) (granting final approval of a class and 3 collective action settlement with an average individual class member recovery of $1,070.62 and an 4 award of $1,031,250.00 in attorneys’ fees). Here, class counsel’s request of $2,625,000 is 5 approximately 33 and 1/3% of the total settlement value, placing it well within the range that the 6 Ninth Circuit has found acceptable. 7 Second, the proposed settlement appears to include a “clear sailing” provision. (See ECF 8 No. 278-1 at 42.) A “clear sailing” provision is one where the defendant agrees not to challenge 9 the agreed-upon fees for class counsel. See Briseño, 998 F.3d at 1026. The Ninth Circuit is 10 concerned that such a provision “signals the potential that a defendant agreed to pay class counsel 11 excessive fees in exchange for counsel accepting a lower amount for the class members.” Id. at 12 1027 (quoting Bluetooth, 654 F.3d at 949). The Court further warned that the “very existence of a 13 clear sailing provision increases the likelihood that class counsel will have bargained away 14 something of value to the class.” Id. at 1027 (quoting Weinberger v. Great N. Nekoosa Corp., 925 15 F.2d 518, 525 (1st Cir. 1991)). Lower courts are warned that “[w]hen faced with a clear sailing 16 provision, courts thus have a ‘heightened duty to peer into the provision and scrutinize closely the 17 relationship between attorney’s fees and benefit to the class, being careful to avoid awarding 18 “unreasonably high” fees simply because they are uncontested.’” Id. 19 In the settlement agreement, the parties agreed that “Defendants shall not oppose a 20 reasonable request for Plaintiffs’ Counsel’s fees or litigation costs.” (ECF No. 278-1 at 42.) This 21 raises the same concerns the Ninth Circuit outlined in Bluetooth as it appears to be a clear sailing 22 provision. After thoroughly scrutinizing the relationship between the attorneys’ fees and benefit to 23 the class, the Court is satisfied that the fees that Plaintiffs’ counsel requested are not excessive and 24 do not unjustly enrich counsel at the expense of class members. Specifically, the Court notes that 25 if class counsel’s request for 33 and 1/3% of the settlement fund is not approved and/or is reduced 26 by the Court, the amount not approved and/or reduced by the Court will be returned to the net 27 settlement amount to be distributed to the class members. (Id.) In other words, the settlement 28 prohibits class counsel to cancel the settlement agreement should this Court award less than the 1 attorneys’ fees amount set forth in the settlement agreement, and the parties did not arrange for an 2 unawarded amount of fees to revert to Defendants. (Id.) Rather, any unapproved amount is 3 distributed to the class members. (Id.) 4 In light of all of the above, the Court is satisfied that the more subtle signs of collusion noted 5 in Bluetooth are not present here and finds that the settlement is fair, reasonable, and adequate. See 6 Fed. R. Civ. P. 23(e). Therefore, the Court will grant Plaintiffs’ motion for final approval of the 7 parties’ class action settlement. 8 III. ATTORNEYS’ FEES, COSTS, AND INCENTIVE PAYMENTS 9 As noted above, Plaintiffs have also submitted a motion seeking their attorneys’ fees, class 10 counsel’s litigation expenses, and an incentive award for Plaintiffs. 11 A. Attorneys’ Fees 12 This Court has an “independent obligation to ensure that the award [of attorneys’ fees], like 13 the settlement itself, is reasonable, even if the parties have already agreed to an amount.” Bluetooth, 14 654 F.3d at 941. This is because, when fees are to be paid from a common fund, the relationship 15 between the class members and class counsel “turns adversarial.” In re Mercury Interactive Corp. 16 Secs. Litig., 618 F.3d 988, 994 (9th Cir. 2010); In re Wash. Pub. Power Supply Sys. Secs. Litig., 19 17 F.3d 1291, 1302 (9th Cir. 1994). As such, the district court assumes a fiduciary role for the class 18 members in evaluating a request for an award of attorneys’ fees from the common fund. In re 19 Mercury, 618 F.3d at 994; see also Rodriguez v. Disner, 688 F.3d 645, 655 (9th Cir. 2012); West 20 Publ’g Corp., 563 F.3d at 968. 21 The Ninth Circuit has approved two methods for determining attorneys’ fees in such cases 22 where the attorneys’ fee award is taken from the common fund set aside for the entire settlement: 23 the “percentage of the fund” method and the “lodestar” method. Vizcaino v. Microsoft Corp., 290 24 F.3d 1043, 1047 (9th Cir. 2002) (Vizcaino) (citation omitted). The district court retains discretion 25 in common fund cases to choose either method. Id.; Vu v. Fashion Inst. of Design & Merch., No. 26 2:14-cv-08822-SJO-EX, 2016 WL 6211308, at *5 (C.D. Cal. Mar. 22, 2016). Under either 27 approach, “[r]easonableness is the goal, and mechanical or formulaic application of method, where 28 1 it yields an unreasonable result, can be an abuse of discretion.” Fischel v. Equitable Life Assurance 2 Soc’y of U.S., 307 F.3d 997, 1007 (9th Cir. 2002). As noted above, the Ninth Circuit has generally 3 set a 25% benchmark for the award of attorneys’ fees in common fund cases. Id. at 1047-48; see 4 also Bluetooth, 654 F.3d at 942 (“[C]ourts typically calculate 25% of the fund as the ‘benchmark’ 5 for a reasonable fee award, providing adequate explanation in the record of any ‘special 6 circumstances’ justifying a departure.”). 7 Reasons to vary from the benchmark award may be found when counsel achieves 8 exceptional results for the class, undertakes “extremely risky” litigation, generates benefits for the 9 class beyond simply the cash settlement fund, or handles the case on a contingency basis. Vizcaino, 10 290 F.3d at 1048-50; see also In re Online DVD-Rental, 779 F.3d at 954-55. Ultimately, however, 11 “[s]election of the benchmark or any other rate must be supported by findings that take into account 12 all of the circumstances of the case.” Vizcaino, 290 F.3d at 1048. The Ninth Circuit has approved 13 the use of the lodestar cross-check as a way of determining the reasonableness of a particular 14 percentage recovery of a common fund. Id. at 1050 (“Where such investment is minimal, as in the 15 case of an early settlement, the lodestar calculation may convince a court that a lower percentage 16 is reasonable. Similarly, the lodestar calculation can be helpful in suggesting a higher percentage 17 when litigation has been protracted.”); see also In re Online DVD-Rental, 779 F.3d at 955. 18 Here, the parties’ settlement provides that class counsel will seek an award of 33 and 1/3% 19 of the gross settlement fund, equivalent to $2,625,000. (ECF No. 278-1 at 42.) The Court approved 20 Plaintiffs’ request for attorneys’ fees on a preliminary basis, given the length of time this case has 21 been pending, the extensive discovery and use of experts, the numerous mediations, and the fact 22 that the maximum request for attorneys’ fees falls within the typical range of awards in the Ninth 23 Circuit. (ECF No. 283 at 12.) Class counsel contend that a fee award of 1/3 of the gross settlement 24 fund is reasonable here for several reasons. (ECF No. 288 at 9-16.) 25 First, class counsel provided adequate notice to the class of the attorneys’ fees request. (Id. 26 at 9.) In the Court-approved notice mailed to the class, class members are informed of class 27 counsel’s intention to request attorneys’ fees in the amount of $2,625,000, which is 1/3 of the 28 settlement fund, and reimbursement of reasonable costs expended in the litigation of up to 1 $500,000. (Id.) Class counsel now requests $465,392.72 for reasonable costs expended in the 2 litigation of this action. (Id.) No class member objected to the requested amount of attorneys’ fees 3 and reasonable costs expended in litigation. (Id.) Because there are no objections to the settlement 4 agreement, this weighs in favor of the requested award. 5 Second, class counsel assert that they are entitled to fees and costs under the common fund 6 doctrine. (Id. at 10.) An attorney who recovers a common fund for the benefit of persons other 7 than themselves or their client is entitled to a reasonable attorney’s fee from the fund as a whole. 8 Boeing Co., 444 U.S. at 478; Vincent v. Hughes AirWest, Inc., 557 F.2d 759, 769 (9th Cir. 1977). 9 The common fund doctrine rationalizes that clients should pay their attorneys’ fees, and if 10 attorneys’ fees are not a portion of the common fund, those clients may be unjustly enriched from 11 the fund. Boeing Co., 444 U.S. at 478. To prevent an unfair result, the Court may exercise its 12 discretion to assess attorneys’ fees against the common fund and spread fees proportionately among 13 those benefited by the suit. Id. Here, the litigation resulted in the common fund of $7,875,000, and 14 none of the class members have paid fees to class counsel during the eight years of litigation. 15 Plaintiffs argue that equity requires that class counsel be paid a fair and reasonable fee as if they 16 had been hired as private counsel. The application of the common fund doctrine supports the 17 Court’s award of class counsel’s requested award. 18 Third, Plaintiffs argue that a fee award above the Ninth Circuit’s 25% benchmark, 19 particularly a 1/3 fee award, is warranted because of the complicated and novel appellate issues 20 litigated for almost eight years by the parties and the extensive time and experience provided by 21 counsel. (ECF No. 288 at 12.) As expected in contingency fee litigation, Plaintiffs explain that 22 class counsel invested a significant amount of time and money on behalf of their clients even though 23 there was a high risk of non-payment due to constantly evolving law and other risks. (Id.) Class 24 counsel defended three mediations and conducted substantial discovery and investigation regarding 25 class certification and the merits of the claim, including taking and defending twenty depositions. 26 (Id. at 14.) Plaintiffs assert that $7,875,000 is the largest gross settlement fund for a class of 27 farmworkers ever achieved on a wage and hour class action in California. (Id. at 13.) Therefore, 28 this weighs in favor of the Court’s approval of class counsel’s requested award. 1 Lastly, Plaintiffs argue that courts routinely award attorneys’ fees in the 30% to 40% range 2 in wage and hour class actions, where class counsel’s request of 1/3 or 33% is within that range. 3 See Fernandez v. Victoria Secret Stores, LLC, No. 2:06-cv-04149-MMM-SHX, 2008 WL 8150856, 4 at *16 (C.D. Cal. July 21, 2008) (Fernandez) (awarding a 34% class counsel award because it was 5 taken on a contingency basis and litigated the case with diligence and skill); Hightower v. 6 JPMorgan Chase Bank, N.A., No. CV 11-1802 PSG (PLAx), 2015 WL 9664959, at *10 (C.D. Cal. 7 August 4, 2015) (awarding a 30% class counsel award because of the results achieved, the risk of 8 further litigation, and the skills required and the quality of work performed). Overall, all the 9 relevant factors support this Court’s finding that class counsel’s requested amount is reasonable 10 under the percentage of the fund method. 11 The Court next turns to the lodestar method to cross-check the reasonableness of the 12 requested attorneys’ fee award. Where a lodestar is merely being used as a cross-check, the court 13 “may use a ‘rough calculation of the lodestar.’” Bond v. Ferguson Enters., Inc., No. 1:09-cv-1662- 14 OWW-MJS, 2011 WL 2648879, at *12 (E.D. Cal. June 30, 2011) (quoting Fernandez, 2008 WL 15 8150856). The Court is aware that in certain situations, a multiplier added to the lodestar amount 16 may be appropriate. “Multipliers in the 3-4 range are common in lodestar awards for lengthy and 17 complex class action litigation.” Van Vranken v. Atl. Richfield Co., 901 F. Supp. 294, 298 (N.D. 18 Cal. 1995) (citing Behrens v. Wometco Enters., Inc., 118 F.R.D. 534, 549 (S.D. Fla. 1988)); see 19 also 5 Newberg on Class Actions § 15:87 (stating courts typically approve percentage awards based 20 on lodestar cross-checks of 1.9 to 5.1 or even higher, and “the multiplier of 1.9 is comparable to 21 multipliers used by the courts”); In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 22 148 F.3d 283, 341 (3d Cir. 1988) (“[M]ultiples ranging from one to four are frequently awarded in 23 common fund cases when the lodestar method is applied.”). 24 According to class counsel, the total lodestar amount is $7,383,843.05 ($5,718,405.55 for 25 Martinez Aguilasocho Law and $1,665,437.50 for Bush Gottlieb). (ECF No. 288 at 12.) The 26 lodestar exceeds the requested 33% of the gross settlement amount by $4,758,843.05. As such, 27 class counsel has incurred substantially more in fees than the actual amount they are requesting. In 28 support of this lodestar calculation, class counsel submitted an accounting of the hours billed by 1 various firm employees, tasks completed by those employees, and applicable billing rates. (ECF 2 Nos. 288-1 at 14, 297; 288-1 at 8.) 3 Class counsel’s employees who have worked on this matter include partner attorneys with 4 hourly rates from $600 to $900, associate attorneys with hourly rates from $400 to $550, and 5 paralegals with hourly rates from $225 to $250. (ECF Nos. 288-1 at 14; 288-2 at 8.) The Court 6 finds that these rates are fair and reasonable in this case. See Mathien v. Pier 1 Imports (U.S.), Inc., 7 No: 1:16-cv-00087-DAD-SAB, 2018 WL 1993727, at *11 (E.D. Cal. Apr. 27, 2018) (accepting 8 hourly rates of between $475 and $575 for associates, and $675 and $750 for senior counsel and 9 partners); Emmons v. Quest Diagnostics Clinical Labs., Inc., 1:13-cv-00474-DAD-BAM, at *8 10 (E.D. Cal. Feb. 27, 2017) (accepting hourly rates between $330 and $550 for associates, and $500 11 and $720 for partners); Zest IP Holdings, LLC v. Implant Direct Mfg., LLC, No. 10-cv-0541-GPC- 12 WVG, 2014 WL 67494 (S.D. Cal. Jan. 8, 2014) (accepting an hourly rate of $775 for partners and 13 $543 for associates in the Southern District of California). 14 For the reasons set forth above, the Court concludes that the lodestar cross-check supports 15 the requested award of $2,625,000 in attorneys’ fees, an amount equal to one-third of the gross 16 settlement fund in this case. 17 B. Costs and Expenses of Class Counsel 18 Additionally, class counsel seeks to recover the costs and expenses advanced while 19 prosecuting this litigation. Such awards “should be limited to typical out-of-pocket expenses that 20 are charged to a fee-paying client and should be reasonable and necessary.” In re Immune Response 21 Secs. Litig¸ 497 F. Supp. 2d 1166, 1177 (S.D. Cal. 2007). These can include reimbursements for: 22 “(1) meals, hotels, and transportation; (2) photocopies; (3) postage, telephone, and fax; (4) filing 23 fees; (5) messenger and overnight delivery; (6) online legal research; (7) class action notices; (8) 24 experts, consultants, and investigators; and (9) mediation fees.” Id. 25 Here, class counsel requests reimbursement in the amount of $465,392.72. (ECF No. 288- 26 1 at 16.) This amount is less than the $500,000.00 estimate provided in the motion for preliminary 27 approval, increasing the amount of actual distributions to class members. (Id.) The Court 28 preliminarily approved the requested amount for costs and requested class counsel to file a formal 1 motion for attorneys’ fees and costs, including declarations, detailed billing records, and an 2 itemized list of costs. (ECF No. 283 at 12.) In the motion for attorneys’ fees, class counsel explains 3 that the costs incurred include filing fees, research, depositions, travels, meals and lodging for 4 meetings with class members, and mediations. (ECF Nos. 288-1 at 259-297; 288-2 at 49-59.) The 5 Court has reviewed class counsel’s declarations and finds all the charges incurred to be reasonable. 6 (See ECF Nos. 288-1, 288-2.) Accordingly, the Court will approve the reimbursement of costs and 7 expenses in the amount requested. 8 C. Incentive Award 9 Courts frequently approve “service” or “incentive” awards in class action cases. West 10 Publ’g Corp., 563 F.3d at 958-59. Incentive awards recognize the effort of class representatives 11 “for work done on behalf of the class, to make up for financial or reputational risk undertaken in 12 bringing the action, and, sometimes, to recognize their willingness to act as a private attorney 13 general.” Id. at 958. The district court evaluates each award individually, using “relevant factors 14 includ[ing] the actions the plaintiff has taken to protect the interests of the class, the degree to which 15 the class has benefitted from those actions, . . . the amount of time and effort the plaintiff expended 16 in pursuing the litigation . . . and reasonabl[e] fear[s of] workplace retaliation.” Staton, 327 F.3d 17 at 977 (quoting Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998)). 18 Courts typically find an award of $5,000 to be presumptively reasonable. See, e.g., In re 19 Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 457, 463 (9th Cir. 2000) (endorsing $5,000 service 20 awards to named representatives); Bellinghausen v. Tractor Supply Co., 306 F.R.D. 245, 246 (N.D. 21 Cal. 2015) (collecting cases); In re Toys R. Us-Del., Inc. FACTA Litig., 295 F.R.D. 438, 470-72 22 (C.D. Cal. 2014) (awarding plaintiffs $5,000 each “consistent with the amount courts typically 23 award as incentive payments”). Higher amounts can be appropriate, such as in employment actions, 24 where a plaintiff risks retaliation or blacklisting as a result of suing her employer. See, e.g., 25 Buccellato v. AT&T Operations, Inc., No. 5:10-cv-00463-LHK, 2011 WL 4526673, at *4 (N.D. 26 Cal. June 30, 2011). 27 Here, Plaintiffs Beatriz Aldapa and Elmer Avalos each seek an incentive award of $10,000 28 for their services in this action. (ECF No. 288 at 17.) Plaintiffs contend that this amount is fair and 1 reasonable compensation because they expended significant effort and great personal hardship to 2 prosecute this case. (Id. at 18.) Plaintiff Aldapa spent approximately 402 hours in the past eight 3 years meeting with counsel, reviewing pay and time records, submitting a declaration, preparing 4 for and sitting for deposition, talking to co-workers, reviewing the complaint and other documents, 5 reviewing and responding to discovery, traveling to and attending three mediations, conducting 6 door-to-door visits to coworkers, helping to organize meetings, organizing the class members and 7 keeping them apprised of the status of the case, and reviewing the settlement. (See ECF No. 288- 8 3.) Plaintiff Aldapa also suffered reputational harm, struggling to secure employment, because of 9 her involvement in this case and lost many days of work due to her participation in this case. (Id. 10 at 4.) Plaintiff Avalos also spent approximately 431 hours in the past eight years supporting the 11 prosecution of this case. (See ECF No. 288-4.) His involvement in the case has also resulted in 12 both reputational harm and harm in finding other employment. (Id. at 4.) 13 The incentive award sought—$20,000, in total or about 0.25% of the gross settlement 14 amount—is on the lower end, particularly for the relatively high number of hours expended by 15 Plaintiffs on this case. It is not unreasonable or beyond the norm for this district, particularly given 16 the average individual settlement payment is $223.95 and the highest is $4,767.70. (ECF No. 291 17 at 17.) See, e.g., Castro, 2021 WL 20242333, at *13 (granting $10,000 award for 70 hours of work 18 over three years, reflecting 0.025% of the gross settlement amount); Acosta v. Evergreen 19 Moneysource Mortg. Co., No. 2:17-cv-00466-KJM-DB, 2019 WL 6051117, at *18 (E.D. Cal. Nov. 20 15, 2019) (granting $10,000 award for 40 hours of work, reflecting 2.85% of the gross settlement 21 amount); Aguilar v. Wawona Frozen Foods, No. 1:15-cv-00093-DAD-EPG, 2017 WL 2214936, at 22 *8 (E.D. Cal. May 19, 2017) (Aguilar) (approving an incentive award of $7,500 to each class 23 representative where average class recovery was approximately $500). Considering Plaintiffs 24 supporting declarations detailing their assistance with this case, the Court finds that the requested 25 incentive payment of $10,000 for each Plaintiff is fair and reasonable. Accordingly, the Court will 26 award the incentive payment as requested. 27 /// 28 /// 1 D. Settlement Administrator Costs 2 The Court previously approved the appointment of CPT Group as the Settlement 3 Administrator for this action. (ECF No. 283 at 17.) The estimated cost of administering the 4 settlement is $90,000, which will be deducted from the gross settlement fund, but the parties agreed 5 to set aside $120,000 of the total settlement amount to account for any unforeseen costs. (ECF No. 6 278-1 at 19.) If any part of the amount is unused, CPT Group will redistribute it to the class 7 members. (Id. at 17.) The Court previously found that the parties had prudently set aside extra 8 money for unforeseen expenses and had set up a reasonable redistribution plan for any unused 9 funds. (ECF No. 283 at 17.) According to the motion for final approval, the total cost for the 10 administration of this settlement, including fees incurred and future costs for completion, is 11 $92,500. (ECF Nos. 291 at 16 n.4.) The additional $2,500 requested by CPT Group is due to the 12 slight increase in class size (from the anticipated class of 20,500) and postage costs. (Id.) This 13 amount is consistent with other settlements submitted to this Court. See, e.g., Dakota Med., Inc. v. 14 RehabCare Grp., Inc., No. 1:14-cv-02081-DAD-BAM, 2017 WL 1398816, at *5 (E.D. Cal. Apr. 15 19, 2017) (administration costs of $94,000 for a $25 million settlement); Aguilar, 2017 WL 117789, 16 at *7 (administration costs of $45,000 for a $4.5 million settlement). The Court finds these 17 administration costs reasonable and will direct payment in the requested amount of $92,500. 18 IV. Conclusion 19 Accordingly, 20 1. Plaintiffs’ motion for final approval of class action settlement, (ECF No. 291), is 21 GRANTED, and the Court approves the settlement as fair, reasonable, and adequate; 22 2. Beatriz Aldapa and Elmer Avalos are confirmed as class representatives; Plaintiffs’ counsel, 23 Martinez Aguilasocho Law, Inc., and Bush Gottlieb, A Law Corporation, are confirmed as 24 class counsel; and CPT Group, Inc. is confirmed as the Settlement Administrator; 25 3. Plaintiffs’ motion for an award of attorneys’ fees and costs and incentive awards, (ECF No. 26 288), is GRANTED; 27 4. The Court awards the following sums: 28 1 a. Class counsel shall receive $2,625,000.00 in attorneys’ fees and $465,392.72 in 2 costs. Class counsel shall not seek or obtain any other compensation or 3 reimbursement from Defendant, Plaintiffs, or class members; 4 b. Plaintiffs Aldapa and Avalos shall each receive $10,000 as an incentive payment; 5 c. CPT Group, Inc. shall receive $92,500 in settlement administration costs; 6 5. The parties are directed to effectuate all terms of the settlement agreement, (ECF No. 278- 7 1 at 26-52), and any deadlines or procedures for distribution set forth therein; 8 6. This action is dismissed with prejudice, with the Court retaining jurisdiction over this action 9 for the purpose of enforcing the parties’ settlement agreement; and 10 7. The Clerk of the Court is directed to close this case. 11 12 13 | □□ □□ SO ORDERED. 14 Dated: _ June 5, 2023 5 UNITED fTATES DISTRICT JUDGE

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