1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 STEVEN M. BAILEY, Case No. 18-cv-03424-TSH
8 Plaintiff, ORDER APPROVING CLASS ACTION 9 v. SETTLEMENT AND ATTORNEYS’ FEES 10 KINDER MORGAN G.P., INC., et al., Re: Dkt. Nos. 33, 34 11 Defendants.
12 13 Before the Court are Plaintiff’s Motion for Final Approval of Class Action Settlement and 14 Motion for Attorney Fees. ECF Nos. 33, 34. The Court finds this matter suitable for disposition 15 without oral argument and VACATES the October 1, 2020 hearing. See Civ. L.R. 7-1(b). 16 Having reviewed the Settlement Agreement, the moving papers and the record, the Court 17 GRANTS both motions. 18 I. BACKGROUND 19 A. Facts 20 The Complaint in this action alleges that Defendants (collectively, “KM”) are a large 21 energy infrastructure company in North America that owns and operates fossil fuel pipelines and 22 terminals. See Compl. ¶¶ 17-18, ECF No. 1-1. This includes approximately 84,000 miles of 23 pipelines and about 180 terminals. Id. ¶ 18. KM employed Plaintiff as a Pipeline Operator or 24 Pipeline Controller, a non-exempt and hourly position, at their Rocklin, California facility from 25 March 1982 to July 7, 2017. Id. ¶ 19. 26 KM required Plaintiff and class members to work 12-hour shifts and required class 27 members to stay at their stations at all times during those shifts. Id. ¶¶ 20-21. Its company-wide 1 breaks, and class members were not provided one-hour’s wages in lieu of missed breaks as is 2 required by California labor law, and as a result KM failed to timely pay class members all wages 3 owed to them and class members’ paychecks did not include these wages. Id. ¶¶ 22-29. KM 4 failed to correctly record class members’ meal periods as required by California labor law, id. ¶ 5 30, and it failed to provide class members with complete and accurate wage statements, including 6 failing to identify correctly total hours worked, gross wages, and correct hourly pay rates, id. ¶ 31. 7 Plaintiff asserts claims for unpaid meal period and rest break premiums, failure to pay 8 minimum wages, failure to timely pay final wages, and non-complaint wage statements, all in 9 violation of the California Labor Code, as well as claims under the California Private Attorneys 10 General Act (“PAGA”) and the California Business & Professions Code § 17200 et seq. 11 On April 9, 2020, Plaintiff filed a Motion for Preliminary Approval of Class Action 12 Settlement, ECF No. 29, which the Court granted on April 10, 2020, ECF No. 30. The Court set a 13 hearing on the motion for final approval for October 1, 2020. Three class members filed 14 objections to the Settlement Agreement (“SA”). ECF No. 31, 32. 15 B. Key Points of the Settlement Agreement 16 The settlement class comprises:
17 [A]ll of [KM’s] current and/or former nonexempt employees who worked for Defendants as Pipeline Operators and/or Pipeline 18 Controllers in the state of California between May 2, 2014 and the Preliminary Approval Date at the following California facilities of 19 Defendants: Barstow, Bradshaw (Sacramento), Brisbane, Carson, Chico, Colton, Concord, Fresno, Imperial, Industry, Los Angeles, 20 Mission Valley (San Diego), Orange, Richmond, Rocklin, San Jose, Stockton and Watson (Long Beach). 21 22 SA at 1-2, ECF No. 29-1. The class is divided into two subclasses:
23 The “Operator 12” subclass, which is “all members of the Class who were classified as ‘Operator 12s’ because they regularly worked 24 rotating 12-hour shifts, anytime between May 2, 2014 and the Preliminary Approval Date;” and 25 The “Remaining Class Members” subclass, which is “all members of 26 the Class who were not classified as Operator 12s, anytime between May 2, 2014 and the Preliminary Approval Date.” 27 1 The total settlement amount is $800,000. Id. at 6. One hundred percent of the settlement 2 fund was claimed by 245 participating class members. Decl. of Sang J. Park ISO Mot. for Final 3 Approval (“Appr. Decl.”) ¶ 30, ECF No. 33-1. Class counsel (“Counsel”) requests $240,000 4 (30%) of the total settlement amount in fees and $7,586.62 in litigation costs and expenses. SA at 5 13; Decl. of Sang J. Park ISO Mot. for Attorney Fees (“Fees Decl.”) ¶¶ 45, 50, ECF No. 34-1. 6 The settlement administrator will charge $14,000 in costs. Decl. of Daniel P. La (“La Decl.”) ¶ 1- 7 15, ECF No. 33-4. The SA contemplates a $10,000 service award for Plaintiff. SA at 13. 8 After deductions for fees and costs, 90% of the remaining settlement amount will be 9 allocated to workweeks worked in the Operator 12 subclass, and 10% will be allocated to 10 workweeks in the Remaining Class Member subclass. SA at 14-15. Amounts will be paid to class 11 members based on each member’s number of workweeks, with each member’s share of the 12 settlement amount being proportional to the number of workweeks he or she worked. Id. at 15. 13 Class members’ workweeks were determined based on KM’s records, and members had 14 opportunity to challenge those records. SA at 16-17. Class members will receive an estimated 15 average gross payment of $2,116.33, and an estimated highest gross payment of $5,647.01. 16 II. ANALYSIS 17 A. Final Settlement Approval 18 A court may grant final approval of a settlement once it determines that the proposed class 19 meets the requirements for certification under Federal Rule of Civil Procedure 23, and that the 20 Settlement reached on behalf of the class is fair, reasonable, and adequate. “Especially in the 21 context of a case in which the parties reach a settlement agreement prior to class certification, 22 courts must peruse the proposed compromise to ratify both the propriety of the certification and 23 the fairness of the settlement.” Staton v. Boeing Co., 327 F.3d 938, 952 (9th Cir. 2003); Amchem 24 Prods. v. Windsor, 521 U.S. 591, 620 (1997) (“[S]pecifications of the rule-- those designed to 25 protect absentees by blocking unwarranted or overbroad class definitions-- demand undiluted, 26 even heightened, attention in the settlement context.”). The Court must also find that adequate 27 notice has been given to the Class. 1 1. Class Certification 2 The Court previously certified for settlement purposes the settlement class and subclasses 3 in its Order Granting Motion for Preliminary Approval of Class Action Settlement. ECF No. 30. 4 2. Notice 5 Under Federal Rule of Civil Procedure 23(e), “claims, issues, or defenses of a certified 6 class may be settled . . . only with the court’s approval.” Adequate notice is critical to the Court’s 7 approval. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1025 (9th Cir. 1998). The Court approved 8 the class notice in its order granting preliminary approval of the SA. ECF No. 30. The Parties 9 engaged an administrator to provide notice of the settlement. La Decl. ¶¶ 1-2. On May 22, 2020, 10 notice packets were mailed to all 256 eligible class members, and after an error was detected in the 11 original notice, revised packets were sent out on June 10, 2020. Id. ¶¶ 6, 8. One notice packet 12 was returned. Id. ¶ 9. This was adequate notice to class members. 13 3. Whether the Settlement is Fundamentally Fair, Adequate, and Reasonable 14 A court may only approve a settlement if it finds that it is “fair, reasonable, and adequate.” 15 Rule 23(e)(2). The Ninth Circuit has long instructed district courts to consider and balance 16 multiple factors to assess whether a settlement is “fair, adequate, and free from collusion” under 17 Rule 23(e). Hanlon, 150 F.3d at 1027. These factors are:
18 the strength of the plaintiffs’ case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class 19 action status throughout the trial; the amount offered in settlement; the extent of discovery completed and the stage of the proceedings; 20 the experience and views of counsel; the presence of a governmental participant; and the reaction of the class members to the proposed 21 settlement. 22 Id. at 1026. “This list is not exclusive and different factors may predominate in different factual 23 contexts.” Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1376 (9th Cir. 1993) (citation 24 omitted). Also, recent amendments to Rule 23 established a uniform set of factors courts should 25 consider when determining whether a settlement is fair, reasonable, and adequate:
26 (A) the class representatives and class counsel have adequately represented the class; 27 (B) the proposal was negotiated at arm’s length; (C) the relief provided for the class is adequate, taking into account: 1 (i) the costs, risks, and delay of trial and appeal; 2 (ii) the effectiveness of any proposed method of distributing 3 relief to the class, including the method of processing class- member claims; 4 (iii) the terms of any proposed award of attorney’s fees, 5 including timing of payment; and
6 (iv) any agreement required to be identified under Rule 23(e)(3); and 7 (D) the proposal treats class members equitably relative to each other. 8 9 Fed. R. Civ. P. 23(e)(2). “The notes of the Advisory Committee explain that the enumerated, 10 specific factors added to Rule 23(e)(2) are not intended to ‘displace’ any factors currently used by 11 the courts, but instead aim to focus the court and attorneys on ‘the core concerns of procedure and 12 substance that should guide the decision whether to approve the proposal.’” In re Extreme 13 Networks, Inc. Sec. Litig., 2019 WL 3290770, at *6 (July 22, 2019) (quoting Advisory Committee 14 Notes to 2018 Amendments, Fed. R. Civ. P. 23(e)(2)). “Accordingly, the Court applies the 15 framework set forth in Rule 23 with guidance from the Ninth Circuit’s precedent, bearing in mind 16 the Advisory Committee’s instruction not to let ‘[t]he sheer number of factors’ distract the Court 17 and parties from the ‘central concerns’ underlying Rule 23(e)(2)”—the fairness, reasonableness, 18 and adequacy of the proposed settlement. In re Extreme Networks, 2019 WL 3290770, at *6 19 (again quoting the advisory notes). “[T]he underlying question remains this: Is the settlement 20 fair?” Partl v. Volkswagen, AG (In re Volkswagen “Clean Diesel” Mktg., Sales Practices, & 21 Prods. Liab. Litig), 895 F.3d 597, 611 (9th Cir. 2018). 22 a. The Adequacy of Representation 23 Throughout this litigation, Plaintiff as class representative provided documents to Counsel, 24 regularly conferred with Counsel on the case status and strategies for litigating the claims, assisted 25 in responding to discovery, attended a day-long medication, and reviewed the SA along with 26 Counsel. Decl. of Steven Bailey ¶¶ 3-7, ECF No. 34-3; Appr. Decl. ¶ 32. Counsel’s firm 27 represents plaintiffs in a range of employment disputes and has recovered millions of dollars on 1 Decl. ¶ 35. Sang J. Park has been practicing law since 2004 and has fifteen years’ experience 2 representing primarily plaintiffs in employment and wage and hour class action litigation. Id. ¶¶ 3 36-37. He has successfully litigated numerous class actions through certification and settlement 4 and has successfully litigated at both the trial and appellate level. See id. ¶¶ 38-43. Counsel have 5 determined Plaintiff’s suitability as a Class representative through interviews, background 6 investigations, and analyses of his employment files and related records; researched wage-and- 7 hour class actions involving similar claims; engaged in the discovery process; obtained and 8 analyzed Defendants’ wage-and-hour policies and procedures; obtained and analyzed time and 9 payroll records to determine violation rates and penalty payments; researched the latest case law 10 bearing on the theories of liability; researched settlements in similar cases; analyzed the value of 11 Plaintiff’s claims; drafted a mediation brief; successfully negotiated terms of a settlement; 12 finalized the SA and Release; finalized the Notice of Class Action Settlement; and drafted 13 preliminary approval papers. Appr. Decl. ¶ 13; see also Decl. of Justin Lo (“Lo Decl.”) ¶ 7, ECF 14 No. 33-2. Plaintiff and Counsel have adequately represented the class. 15 b. Arms-Length Negotiations 16 The second factor under Rule 23(e)(2) requires the Court to consider if the Settlement was 17 negotiated at arm’s length. Plaintiff and KM negotiated assisted by an experienced employment 18 class action mediator, and they reached the settlement at the mediation. Appr. Decl. ¶ 14. The 19 involvement of a neutral mediator is positive evidence that settlement negotiations were conducted 20 at arm’s length. See Fed. R. Civ. P. 23(e)(2)(B), Advisory Committee Notes (“[T]he involvement 21 of a neutral or court-affiliated mediator or facilitator in those negotiations may bear on whether 22 they were conducted in a manner that would protect and further the class interests.”); G.F. v. 23 Contra Costa Cty., 2015 WL 4606078, at *13 (N.D. Cal. July 30, 2015) (“‘[T]he assistance of an 24 experienced mediator in the settlement process confirms that the settlement is non-collusive.’”) 25 (quoting Satchell v. Fed. Exp. Corp., 2007 WL 1114010, at *4 (N.D. Cal. Apr. 13, 2007)). 26 Counsel affirms that at all times negotiations were adversarial and non-collusive, Appr. Decl. ¶ 14, 27 and there is no indication they were not. This is enough to demonstrate the parties engaged in 1 c. The Adequacy of the Relief 2 The SA commits KM to pay $800,000 out of an estimated maximum potential exposure of 3 approximately $7.2 million, or about 12% recovery of estimated maximum potential exposure. “It 4 is well-settled law that a cash settlement amounting to only a fraction of the potential recovery 5 does not per se render the settlement inadequate or unfair.” Dunleavy v. Nadler (In re Mego Fin. 6 Corp. Sec. Litig.), 213 F.3d 454, 459 (9th Cir. 2000) (citation omitted). Although a recovery of 7 12% is on the lower end, amounts similar to or even less than that amount have been found 8 adequate and fair by courts in this Circuit. Avila v. Cold Spring Granite Co., 2018 WL 400315, at 9 *6 (E.D. Cal. Jan. 12, 2018) (“Excluding the highly uncertain PAGA penalties, the net settlement 10 amount is roughly 16% of the more realistic maximum recovery amount. That settlement amount 11 is within the acceptable range, albeit at the low end.”); Jones v. Canon Bus. Sols., Inc., 2014 WL 12 12772083, at *8 (C.D. Cal. Sept. 2, 2014) (settlement amount representing a recovery of between 13 7 and 58% adequate); Villegas v. J.P. Morgan Chase & Co., 2012 WL 5878390, at *6 (N.D. Cal. 14 Nov. 21, 2012) (settlement of approximately 15% found to be preliminarily fair). 15 Additionally, continued litigation in this matter would be risky. Employment class actions 16 “are, by their nature, time-consuming and expensive to litigate.” Aguilar v. Wawona Frozen 17 Foods, 2017 WL 2214936, at *3 (E.D. Cal. May 19, 2017) (citing Hightower v. JPMorgan Chase 18 Bank, N.A., 2015 WL 9664959, at *6 (C.D. Cal. Aug. 4, 2015)). In this action, if litigation 19 continues Plaintiff faces an appreciable risk of class decertification. See, e.g., Jimenez v. Allstate 20 Ins. Co., 2012 WL 1366052, at *15 (C.D. Cal. Apr. 18, 2012) (denying plaintiff’s motion for class 21 certification vis-à-vis meal and rest break claims because the claims would “depend on 22 individualized questions, such as whether a particular adjuster took the legally mandated breaks, 23 and if breaks were missed, why the adjuster failed to take them”). Wage and hour trials are 24 complex and expensive. Also, if Plaintiffs prevailed at trial, Defendants might appeal. The 25 settlement amount is an immediate and guaranteed route to payment for class members that, when 26 weighed against the risks and costs of continued litigation, make the relief adequate for purposes 27 of Rule 23. 1 d. Equitable Treatment of Class Members 2 There were no objections to the settlement on the grounds of equitable treatment of class 3 members. The SA contemplates payments to class members based on each member’s number of 4 workweeks, with each member’s share of the settlement amount being proportional to the number 5 of workweeks he or she worked. This is a reasonable method of distribution for this agreement, 6 where Counsel estimate that nearly 80% of maximum potential exposure resulted from missed 7 meal and rest break periods, and with PAGA liability, partially derivative of the meal and rest 8 break claims, accounting for about another 10%. See Appr. Decl. ¶¶ 16, 29. Meal and rest break 9 periods bear a natural correlation to the number of hours class members worked. Additionally, 10 each class member would face a significant difficulty trying to prove with certainty the number of 11 meal and rest breaks missed; distributing based on workweeks is a reasonable way to determine 12 distributions in light of that uncertainty. 13 e. Objections 14 Three class members objected to the SA. Two objectors, Mike Bonifacio and Bill 15 Howden, object on the ground that they believe that KM is liable to each employee for meal and 16 rest break claims in the amount of approximately $35,000, and thus the settlement amount is not 17 large enough to be able to pay each employee that amount. ECF Nos. 31, 32. But that objection is 18 based on what the objectors approximate is the maximum liability for each employee for those 19 claims. The settlement is based on a compromise, reached by the Parties after weighing the 20 strength of the class’s claims, the risks involved in continued litigation (including the risk of 21 losing and not recovering anything at all), and the likelihood of recovering near that amount if 22 litigation proceeds (for one thing, those estimates assume all class members would be able to 23 prove all missed meal and rest breaks). The Court has determined that the recovery amount is 24 reasonable and adequate in light of the risks of continued litigation. Also, the amount the 25 objectors rely on would not be guaranteed even if this case went to trial, and even then, if the class 26 managed to obtain full recovery on the meal and rest break claims, there would be substantial 27 litigation costs which would come out of that recovery, which recovery class members would 1 based on reliable class data (they are based on those members’ wage statements alone) which 2 raises substantial doubts about the accuracy of their calculations. 3 The third objector’s objection amounted to, “I do not believe this is a fair compensation for 4 the rest periods missed.” Appr. Decl. ¶ 30. For the reasons already discussed, the Court finds the 5 settlement amount is a reasonable and adequate result in light of the risks of continued litigation. 6 The settlement satisfies the requirements of Rule 23(e) and is fair, reasonable, and 7 adequate. Therefore, the Court approves the Settlement in full. 8 B. Attorneys’ Fees 9 Counsel, as authorized by the settlement agreement, SA at 13, request approval for 10 payment of 30% from the settlement amount, or $240,000, for attorneys’ fees. Fees Decl. ¶ 45. 11 Counsel also request $7,586.62 in costs. Id. ¶ 50. 12 1. Legal Standard 13 “In a certified class action, the court may award reasonable attorney’s fees and nontaxable 14 costs that are authorized by law or by the parties’ agreement.” Fed. R. Civ. P. 23(h). But in 15 awarding attorneys’ fees under Federal Rule of Civil Procedure 23(h), “courts have an 16 independent obligation to ensure that the award, like the settlement itself, is reasonable, even if the 17 parties have already agreed to an amount.” Jones v. GN Netcom, Inc. (In re Bluetooth Headset 18 Prods. Liab. Litig.), 654 F.3d 935, 941, (9th Cir. 2011) (citations omitted). 19 In this Circuit, there are two primary methods used to calculate reasonable attorneys’ fees: 20 the lodestar method and the percentage-of-recovery method. Resnick v. Frank (In re Online DVD- 21 Rental Antitrust Litig.), 779 F.3d 934, 949 (9th Cir. 2015) (citing In re Bluetooth, 654 F.3d at 941- 22 42). The lodestar figure represents a reasonable hourly fee multiplied by the number of hours 23 reasonably expended on the litigation. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The 24 lodestar figure is a presumptively reasonable fee. Clark v. City of L.A., 803 F.2d 987, 990-91 (9th 25 Cir. 1986). But “[b]ecause the benefit to the class is easily quantified in common-fund 26 settlements” such as this one, courts may alternatively “award attorneys a percentage of the 27 common fund in lieu of the often more time-consuming task of calculating the lodestar.” In re 1 fund is a benchmark for a reasonable fee award, and courts should provide adequate explanation of 2 any special circumstances justifying a significant departure. Id. (citations omitted). In common 3 fund cases, however, 20-30% is a customary range. See Vizcaino v. Microsoft Corp., 290 F.3d 4 1043, 1047 (9th Cir. 2002) (citing Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 5 (9th Cir. 1989) (The answer to the question of what percentage of a common fund is reasonable 6 depends on the individual circumstances of this case . . . . Ordinarily, however, such fee awards 7 range from 20 percent to 30 percent of the fund created.) (citation omitted))). “The ultimate goal 8 under either method of determining fees is to reasonably compensate counsel for their efforts in 9 creating the common fund.” Knight v. Red Door Salons, Inc., 2009 WL 248367, at *5 (N.D. Cal. 10 Feb. 2, 2009). 11 Factors courts often consider in determining the reasonableness of a percentage-of- 12 recovery award include: (1) the results achieved; (2) the risk of continued litigation; (3) the skill 13 required and the quality of work; (4) the contingent nature of the fee and the financial burden 14 carried by the plaintiffs; (5) the reaction of the class; (6) awards made in similar cases; and (7) 15 comparison with the lodestar. Ross v. Bar None Enterprises, Inc., 2015 WL 1046117, at *8 (E.D. 16 Cal. Mar. 10, 2015) (citing Vizcaino, 290 F.3d at 1048-50); Lusby v. Gamestop Inc., 2015 U.S. 17 Dist. LEXIS 42637, *8-9 (citing Knight, 2009 WL 248367, at *4). “The overall result and benefit 18 to the class from the litigation is the most critical factor in granting a fee award.” Knight, 2009 19 WL 248367, at *5 (citing In re Heritage Bond Litig., 2005 WL 1594403, at *19 (C.D. Cal. June 20 10, 2005) (citing Hensley v. Eckerhart, 461 U.S. 424, 436 (1983) (holding that the “most critical 21 factor is the degree of success obtained”))). 22 2. Analysis 23 a. Results Achieved and Risks of Continued Litigation 24 Starting with the first two factors, the Court already discussed some of the risks of Plaintiff 25 continuing to litigate this matter, some of them significant, including the risk that Plaintiff would 26 be unable to overcome opposition to class certification. The settlement achieved is a reasonable 27 result when viewed against those risks, and thus Counsel achieved a favorable result for the class. 1 b. Skill Required and Quality of Work 2 Litigating this matter has required a high degree of skill and produced adequate results. 3 “Complex class actions require unique legal skills and abilities.” Zubia v. Shamrock Foods Co., 4 2017 WL 10541431, at *17 (C.D. Cal. Dec. 21, 2017) (quoting In re Omnivision Techs., 559 F. 5 Supp. 2d 1036, 1047 (N.D. Cal. 2007) (internal quotation marks omitted)). In this case, Plaintiff’s 6 Counsel have significant experience successfully litigating class and collective wage and hours 7 cases. Fees Decl. ¶¶ 36-43; Lo Decl. ¶¶ 2-5. Additionally, as discussed earlier, Counsel has 8 devoted a significant amount of time and attention to this matter. 9 c. Contingent Nature of the Fee 10 “The importance of assuring adequate representation for plaintiffs who could not otherwise 11 afford competent attorneys justifies providing those attorneys who do accept matters on a 12 contingent-fee basis a larger fee than if they were billing by the hour or on a flat fee.” In re 13 Omnivision Techs., 559 F. Supp. 2d at 1047 (citing In re: Wash. Pub. Power Supply Sys. Secs. 14 Litig., 19 F.3d 1291, 1299-1300 (9th Cir. 1994)). Counsel have spent 290 hours on this matter, 15 Fees Decl. ¶ 46, Lo Decl. ¶ 9, and operating on a contingency fee basis did not receive payment 16 for time spent or reimbursement for out-of-pocket costs incurred in litigation. “This substantial 17 outlay, when there is a risk that none of it will be recovered, further supports the award of the 18 requested fees.” In re Omnivision Techs., 559 F. Supp. 2d at 1047. 19 d. Reaction of the Class 20 The reaction of the class has been largely positive. Notice of the settlement was distributed 21 effectively to nearly all class members. Only 11 class members opted out of the settlement and 22 participation was at 95.70%. There were only three objections to the settlement, and none was 23 compelling. “[T]he absence of a large number of objections to a proposed class action settlement 24 raises a strong presumption that the terms of a proposed class settlement action are favorable to the 25 class members.” Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 529 (C.D. 26 Cal. 2004) (citations omitted). This factor weighs in favor of fee approval. See Castillo v. ADT, 27 LLC, 2017 WL 363108, at *6 (E.D. Cal. Jan. 25, 2017) (finding class reaction was positive where 1 members). 2 e. Awards in Similar Cases 3 Although 25% is the benchmark for a reasonable fee award, “in most common fund cases, 4 the award exceeds that benchmark.” In re Omnivision Techs., 559 F. Supp. 2d at 1047 (citing In 5 re Activision Sec. Litigation, 723 F. Supp. 1373, 1377 (N.D. Cal. 1989) (“The 25% was given [by 6 the Ninth Circuit] for guidance . . . . As documented by the lengthy list of cases below, this court 7 finds that in most recent cases the benchmark is closer to 30%. . . . [A] figure of approximately 8 30% is substantially justified.”)). Courts in several cases have approved awards near or exceeding 9 30%. See, e.g., Barbosa, 297 F.R.D. at 450 (award of 33%); Burden v. Selectquote Ins. Servs., 10 2013 U.S. Dist. LEXIS 109110, at *12-13 (N.D. Cal. Aug. 1, 2013) (same); Singer v. Becton 11 Dickinson & Co., 2010 U.S. Dist. LEXIS 53416, at *22-23 (S.D. Cal. June 1, 2010) (awarding 12 33.33%); In re Omnivision Techs., 559 F. Supp. 2d at 1048 (other cases supported an award of 13 28% of the settlement fund); In re Activision, 723 F. Supp. at 1379 (awarding fees and expenses 14 equaling 32.8%). This factor also supports awarding the fee sought. 15 f. Lodestar 16 “As a final check on the reasonableness of the requested fees, courts often compare the fee 17 counsel seeks as a percentage with what their hourly bills would amount to under the lodestar 18 analysis.” Knight, 2009 WL 248367, at *7 (citing Vizcaino, 290 F.3d at 1050-51 (“Calculation of 19 the lodestar, which measures the lawyers’ investment of time in the litigation, provides a check on 20 the reasonableness of the percentage award.”)). “Where a lodestar is merely being used as a cross- 21 check, the court ‘may use a rough calculation of the lodestar.’” Aguilar, 2017 WL 2214936, at *5 22 (quoting Bond v. Ferguson Enters., Inc., 2011 WL 2648879, at *12 (E.D. Cal. June 30, 2011)). 23 Sang J. Park’s firm billed 208 hours in this litigation at rates of $550 per hour and $690 per 24 hour, for a total billed of $115,800. Fees Decl. ¶¶ 46-47. Justin Lo’s firm billed 82 hours at a rate 25 of $495 for a total billed of $40,590. Lo Decl. ¶¶ 9-10. Together, the combined total billed was 26 $156,390. The requested fee amount is $240,000. This represents a multiplier of approximately 27 1 1.54 times the lodestar.1 This multiplier is on par with commonly accepted lodestar multipliers 2 and supports approval of the requested fee amount. See, e.g., Bellinghausen v. Tractor Supply 3 Co., 306 F.R.D. 245, 265 (N.D. Cal. 2015) (“In light of the results of this action, the contingent 4 nature of class counsel’s fee arrangement, and the skill required in conducting this litigation 5 properly and succeeding at settlement, the Court believes that the 1.49 multiplier—at the low end 6 of the Ninth Circuit’s scale—is appropriate.”); Bower v. Cycle Gear, Inc, 2016 WL 4439875, at *7 7 (N.D. Cal. Aug. 23, 2016) (approving 30% fees in wage and hour case resulting in multiplier of 8 1.37); Taylor v. FedEx Freight, Inc., 2016 WL 6038949, at *7 (E.D. Cal. Oct. 13, 2016) 9 (approving $1,125,000 in fees—30% of settlement amount—in wage and hour case resulting in 10 2.26 multiplier); Lazarin v. Pro Unlimited, Inc., 2013 WL 3541217, at *8 (N.D. Cal. July 11, 11 2013) (approving 25% benchmark fees in overtime case resulting in a multiplier of 3.36). Because 12 the multiplier is well within the accepted range, the lodestar confirms that the requested fee 13 amount is acceptable. 14 C. Litigation and Administration Costs 15 Counsel requests an award of litigation costs of $7,586.62 and the class administrator 16 claims $14,000 in costs. The SA provides for litigation costs but does not specify an amount or 17 cap, and while it expressly provides for administration costs, it estimates them to be $9,500. SA at 18 13. First, to the administration costs, the administrator billed $14,000, which is larger than the 19 estimate in the SA. However, that was an estimated amount, and the administrator explains that 20 “[t]he previous estimate of the administration costs [in the SA] did not account for a redistribution 21 of the funds from the uncashed checks.” La Decl. ¶ 15. The extra amount is not great. 22 Accordingly, the Court approves the $14,000 in administration costs. 23 Moving to Counsel’s expenses, they include costs related to filing fees, mediation fees, 24 1 The Court finds the number of hours billed and rates billed by Counsel to be reasonable. See, 25 e.g., Bisaccia v. Revel Systems Inc., 2019 WL 3220275, at *8 (N.D. Cal. July 17, 2019) (finding reasonable rates of $175 for clerks and paralegals, $425 for senior associates, and $625 to $675 for 26 partners) (citing Hefler v. Wells Fargo & Co., 2018 WL 6619983, at *14 (N.D. Cal. Dec. 18, 2018) (rates from $650 to $1,250 for partners or senior counsel, $400 to $650 for associates); In re 27 Volkswagen, 2017 WL 1047834, at *5 (billing rates ranging from $275 to $1600 for partners, 1 service-of-process fees, photocopying, minor transportation and lodging fees, and legal research 2 fees. Fees Decl. ¶ 50. The most significant expenses, $4,225, were for mediation fees. Id. 3 Having reviewed the categories of costs and amounts attributed to each category, and considering 4 the reasonableness of the fees and the fact that most of them are attributed to mediation costs, the 5 Court finds the expenses were reasonably incurred. The Court approves the litigation and 6 administration costs. 7 D. The Service Payments 8 Plaintiff also requests that the Court approve a $10,000 service award for him. 9 Service awards “are discretionary . . . and are intended to compensate class representatives 10 for work done on behalf of the class, to make up for financial or reputational risk undertaken in 11 bringing the action, and, sometimes, to recognize their willingness to act as a private attorney 12 general.” Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 958-59 (9th Cir. 2009) (citation omitted). 13 The awards “are particularly appropriate in wage-and-hour actions where plaintiffs undertake a 14 significant ‘reputational risk’ by bringing suit against their former employers.” Bellinghausen, 15 306 F.R.D. at 267. Courts evaluate service awards “using relevant factors including the actions 16 the plaintiff has taken to protect the interests of the class, the degree to which the class has 17 benefited from those actions, the amount of time and effort the plaintiff expended in pursuing the 18 litigation and reasonable fears of workplace retaliation.” Staton, 327 F.3d at 977 (citation and 19 internal quotations omitted). “[C]ourts must be vigilant in scrutinizing all incentive awards to 20 determine whether they destroy the adequacy of the class representatives.” Radcliffe v. Experian 21 Info. Sols., Inc., 715 F.3d 1157, 1164 (9th Cir. 2013). “Incentive awards typically range from 22 $2,000 to $10,000.” Bellinghausen, 306 F.R.D. at 26 (collecting cases). 23 As discussed earlier, Plaintiff has actively been involved in the litigation, providing 24 documents to Counsel, regularly conferring with Counsel on the case status and strategies for 25 litigating the claims, assisting in responding to discovery, and attending a day-long medication. 26 Additionally, Plaintiff is agreeing to a general release of claims, as opposed to the narrower wage 27 and hour release applicable to class members generally. See SA at 9-11. And since this is a wage- 1 support awarding the payment. See Noroma v. Home Point Financial Corp., 2019 WL 5788658, 2 at *10 (N.D. Cal. Nov. 6, 2019) (awarding $10,000 incentive award where plaintiff was “actively 3 involved” and “added substantial value” to case); Carter v. XPO Logistics, Inc., 2019 WL 4 5295125, at *4 (N.D. Cal. Oct. 18, 2019) (approving awards of $20,000 each for five named 5 plaintiffs); Taylor v. FedEx Freight, Inc., 2016 WL 6038949, at *8 (E.D. Cal. Oct. 13, 2016) 6 (approving a $15,000 service payment for a $3,750,000 total settlement, with an average award of 7 $2,616, in part because class representative had a broader release of liability). Also, while the 8 service payment falls above the range of settlement payments to class members, the 9 proportionality of the award is not unreasonable given that Plaintiff is the sole named plaintiff. 10 “Courts weigh the proportionality between the incentive payment and the range of class members’ 11 settlement awards[] when considering whether a requested incentive award is reasonable.” Wilson 12 v. Tesla, Inc., 2019 WL 2929988, at *15 (N.D. Cal. July 8, 2019) (citing Lopez v. Bank of Am., 13 N.A., 2015 WL 5064085, at *8 (N.D. Cal. Aug. 27, 2015) (collecting cases)). Finally, the $10,000 14 service award payment is 1.25% of the $800,000 settlement and considering there is only one 15 award it does not significantly reduce the amount of funds available to the rest of the class. See 16 Hightower, 2015 WL 9664959, at *13 (granting incentive awards and noting “the enhancement 17 awards, which constitute 1.5% of the maximum settlement amount, do not significantly reduce the 18 amount of settlement funds available to the rest of the class”) (citation omitted). The Court finds 19 that the $10,000 award payment is reasonable under these circumstances and will authorize it. 20 III. CONCLUSION 21 For the reasons stated above, the Court GRANTS final approval of the Settlement 22 Agreement and GRANTS the Motion for Attorneys’ Fees. The Court APPROVES payment of 23 $240,000 of the Settlement Account for attorneys’ fees; $7,586.62 for Counsel litigation costs; 24 $14,000 for Claims Administrator costs; and $10,000 as a Service Award for the named Plaintiff. 25 The Court ORDERS the following: 26 1. Defendant shall deliver the settlement amount to fund the Settlement Account in 27 accordance with the terms of the Settlement Agreement, and the Claims Administrator shall make 1 Settlement payments, approved attorneys’ fees and costs, and the approved award payment in 2 accordance with the terms of the Settlement Agreement. 3 2. Plaintiff and all Class Members are bound by the release provisions contained in 4 || the Settlement Agreement. 5 3. The Court retains continuing jurisdiction over: (a) implementation and enforcement 6 || of the Settlement Agreement pursuant to further orders of the Court, until such time as the final 7 || judgment contemplated hereby has become effective and each and every act agreed to be 8 || performed by the parties hereto shall have been performed pursuant to the Settlement Agreement, 9 || including the payments from the Settlement Fund; (b) any other action necessary to conclude this 10 settlement and implement the Settlement Agreement; (c) the enforcement, construction, and 11 interpretation of the Settlement Agreement, including but not limited to, any disputes concerning 12 || Class Members’ release of claims; and (d) the determination of validity of opt-outs, if called upon 5 13 to make that judicial determination. 14 4. The above-captioned action is DISMISSED on the merits and with prejudice, 3 15 subject to the Court retaining jurisdiction to administer and enforce the Settlement Agreement as 16 || described above. This dismissal is without cost to any party except as specifically provided in the 3 17 Settlement Agreement. IT IS SO ORDERED. 19 20 Dated: September 25, 2020 21 7 LU \ : | ji 7 THOMAS S. HIXSON United States Magistrate Judge 23 24 25 26 27 28