1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 KATINA DAVIS, et al., 7 Case No. 21-cv-04603-JCS Plaintiffs, 8 v. ORDER GRANTING MOTION FOR 9 APPROVAL OF SETTLEMENT COUNTY OF NAPA, 10 Re: Dkt. No. 78 Defendant. 11
12 13 I. INTRODUCTION 14 This case was brought under the Fair Labor Standards Act (“FLSA”) against the County of 15 Napa by correctional officers who asserted claims for wages and overtime pay related to 16 uncompensated pre-shift activities. Plaintiffs Katina Davis, Jae Steward, opt-in plaintiffs, and 17 Defendant County of Napa (“the “County”) have entered into a settlement agreement (“Settlement 18 Agreement”) and now bring a Joint Motion for Approval of Settlement Agreement (“Motion”). A 19 hearing on the Motion was held on August 25, 2023. For the reasons set forth below, the Motion 20 is GRANTED.1 21 II. BACKGROUND 22 A. Procedural Background 23 Plaintiffs are correctional officers employed by the County. They filed the Complaint on 24 June 15, 2021, alleging that they spent approximately thirty minutes per shift engaging in pre-shift 25 activities for which they were not compensated and that the County owed them overtime pay at 26 1.5 times their regular rate of pay for any time spent on those activities that exceeded the overtime 27 1 threshold. Dkt. No. 1. 2 On July 28, 2021, the County filed an Answer denying Plaintiffs’ allegations and asserting, 3 inter alia, that the alleged pre-shift activities were non-compensable preliminary activities; that the 4 County never suffered or permitted the officers to perform such work; that the officers did not 5 arrive thirty minutes early to each shift; and that the time spent on pre-shift activities was de 6 minimis. Dkt. No. 11. The County further asserted that any overtime owed for these activities 7 was offset by the overtime premiums paid by the County under the collective bargaining 8 agreement covering Plaintiffs’ employment, which provided Plaintiffs with overtime payments in 9 excess of what the FLSA required. Id. 10 Plaintiffs elected to file opt-in forms on behalf of similarly situated correctional offices 11 rather than moving for conditional collective action certification pursuant to 29 U.S.C. § 216(b). 12 Sixty-six correctional officers, including the two named plaintiffs, opted in to the lawsuit, dkt. nos. 13 22, 26. However, five opt-ins were dismissed pursuant to the stipulation of the parties because the 14 claims of four of them were untimely and one had signed a waiver of claims at the time of 15 separation from employment. Dkt. No. 49. 16 On September 30, 2022, the Court approved the parties’ proposed joint discovery plan, 17 which permitted the County to depose the two named Plaintiffs, a random sample of ten opt-ins, 18 and two more opt-ins selected by the County. Dkt. No. 52. The discovery plan also permitted the 19 County to propound formal discovery on the named Plaintiffs, the random sample of opt-ins, and 20 the two opt-ins selected by the County, as well as informal discovery (not including depositions) 21 on the remaining opt-ins. Id. 22 The County propounded interrogatories and requests for production of documents on 23 named Plaintiffs, to which Plaintiffs responded, producing hundreds of pages of documents. Gray 24 Decl. ¶ 4. The County also propounded interrogatories and requests for production of documents 25 on the twelve sample opt-ins, to which ten opt-ins responded and produced documents. Id. 26 Plaintiffs also propounded discovery on the County and the County responded by producing 27 thousands of pages of documents, including records related to hours worked by Plaintiffs and opt- 1 of video surveillance data of the pre-shift activities of Plaintiffs and opt-ins. Id. 2 Both parties retained damages experts who created damages models using payroll data 3 provided by the County. Gray Decl. ¶ 5. The experts and counsel met informally to “share[ ] 4 models, answer[ ] questions, and refine[ ] their methodologies.” Id. According to Plaintiffs’ 5 counsel, “[t]hese damages models . . . were fairly consistent with each other [and] provided further 6 support for the Parties’ assessment of the range of potential recovery in this case.” Id.; see 7 generally Don Decl. Plaintiffs’ expert concluded that “[a]t 27.3 minutes of uncompensated time 8 every shift, the model showed $54,120.94 in wages owed, or $108,241.88 with liquidated 9 damages included”; she noted, however, that “the actual testimony in this case showed a lower 10 average in the amount of time spent from the time workers retrieved their duty belt in the locker 11 room to the time that workers started their scheduled shift” and with this lower amount of 12 uncompensated time every shift (24.4 minutes), “the model showed $40,659.56 in wages owed, or 13 $81,319.12 with liquidated damages included.” Don Decl. ¶¶ 7-8. Finally, she found that “if 14 workers could only recover for the unpaid time from the time they reported to operations until the 15 start of their shift -- an average of 21.8 minutes -- there would only be $29,057.33 in wages owed, 16 or $58,114.66 with liquidated damages.” Id. ¶ 9. All of these estimates factored in the offsets 17 related to the premium rates paid under the collective bargaining agreement. Id. ¶ 5. 18 The parties engaged in informal settlement negotiations and participated in three settlement 19 conferences with Magistrate Judge Hixson, ultimately entering into a settlement agreement. Id. at 20 ¶¶ 9-10. At the time of the Settlement Agreement the parties were arranging for depositions but 21 no depositions had yet occurred. Motion at 10. All 61 opt-ins signed the agreement. Gray Decl., 22 Ex. 1. After the Settlement Agreement had been finalized and most of the opt-in signatures had 23 been collected, however, the parties discovered a corrections officer who had been overlooked, 24 Terrence Thomas. Id. ¶¶ 30-32. Thus, the parties agreed to an addendum to the Settlement 25 Agreement allowing Thomas to opt in to the action and participate in the settlement. Id. All 61 26 Plaintiffs and opt-ins have signed the Settlement Agreement and Thomas has signed both an opt-in 27 form joining this action and the addendum to the Settlement Agreement. Id., Exs. 1, 3, 4. 1 B. The Settlement Agreement 2 In the Settlement Agreement, the Parties agreed to a total settlement amount of $115,000. 3 Gray Decl., Ex. 1 (Settlement Agreement). Of this amount, Plaintiffs and opt-ins will receive a 4 total of $73,200, with each individual’s share based on the number of pay periods that individual 5 worked during the covered period. Settlement Agreement ¶ 2(a). The amounts they will receive 6 range from $323.79 to $1,364.55, with an average payout of $1,200 per opt-in. Settlement 7 Agreement, Attachment A. The remaining $41,800 will be allocated for Plaintiffs’ reasonable 8 attorneys’ fees ($38,737.39) and costs ($3,062.61) incurred in this action. Settlement Agreement ¶ 9 2(b). In return, Plaintiffs and opt-ins agree to a release of all overtime claims against the County 10 under any legal theory relating to or arising from this Action and agree to dismiss the lawsuit with 11 prejudice. Id. ¶ 5. 12 C. The Addendum 13 Under the addendum to the Settlement Agreement, Terrence Thomas will be bound by all 14 terms of the Settlement Agreement, including the Release of Claims and will receive 15 $671.56, which will be paid at the same time and on the same terms as the payments to the opt-ins 16 outlined in Exhibit A to the Settlement Agreement. Thomas’s recovery will come from the 17 $38,737.39 in Plaintiffs’ attorney’s fees referenced in the Agreement, bringing the total fee 18 amount down to $38,065.83. 19 III. ANALYSIS 20 A.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 KATINA DAVIS, et al., 7 Case No. 21-cv-04603-JCS Plaintiffs, 8 v. ORDER GRANTING MOTION FOR 9 APPROVAL OF SETTLEMENT COUNTY OF NAPA, 10 Re: Dkt. No. 78 Defendant. 11
12 13 I. INTRODUCTION 14 This case was brought under the Fair Labor Standards Act (“FLSA”) against the County of 15 Napa by correctional officers who asserted claims for wages and overtime pay related to 16 uncompensated pre-shift activities. Plaintiffs Katina Davis, Jae Steward, opt-in plaintiffs, and 17 Defendant County of Napa (“the “County”) have entered into a settlement agreement (“Settlement 18 Agreement”) and now bring a Joint Motion for Approval of Settlement Agreement (“Motion”). A 19 hearing on the Motion was held on August 25, 2023. For the reasons set forth below, the Motion 20 is GRANTED.1 21 II. BACKGROUND 22 A. Procedural Background 23 Plaintiffs are correctional officers employed by the County. They filed the Complaint on 24 June 15, 2021, alleging that they spent approximately thirty minutes per shift engaging in pre-shift 25 activities for which they were not compensated and that the County owed them overtime pay at 26 1.5 times their regular rate of pay for any time spent on those activities that exceeded the overtime 27 1 threshold. Dkt. No. 1. 2 On July 28, 2021, the County filed an Answer denying Plaintiffs’ allegations and asserting, 3 inter alia, that the alleged pre-shift activities were non-compensable preliminary activities; that the 4 County never suffered or permitted the officers to perform such work; that the officers did not 5 arrive thirty minutes early to each shift; and that the time spent on pre-shift activities was de 6 minimis. Dkt. No. 11. The County further asserted that any overtime owed for these activities 7 was offset by the overtime premiums paid by the County under the collective bargaining 8 agreement covering Plaintiffs’ employment, which provided Plaintiffs with overtime payments in 9 excess of what the FLSA required. Id. 10 Plaintiffs elected to file opt-in forms on behalf of similarly situated correctional offices 11 rather than moving for conditional collective action certification pursuant to 29 U.S.C. § 216(b). 12 Sixty-six correctional officers, including the two named plaintiffs, opted in to the lawsuit, dkt. nos. 13 22, 26. However, five opt-ins were dismissed pursuant to the stipulation of the parties because the 14 claims of four of them were untimely and one had signed a waiver of claims at the time of 15 separation from employment. Dkt. No. 49. 16 On September 30, 2022, the Court approved the parties’ proposed joint discovery plan, 17 which permitted the County to depose the two named Plaintiffs, a random sample of ten opt-ins, 18 and two more opt-ins selected by the County. Dkt. No. 52. The discovery plan also permitted the 19 County to propound formal discovery on the named Plaintiffs, the random sample of opt-ins, and 20 the two opt-ins selected by the County, as well as informal discovery (not including depositions) 21 on the remaining opt-ins. Id. 22 The County propounded interrogatories and requests for production of documents on 23 named Plaintiffs, to which Plaintiffs responded, producing hundreds of pages of documents. Gray 24 Decl. ¶ 4. The County also propounded interrogatories and requests for production of documents 25 on the twelve sample opt-ins, to which ten opt-ins responded and produced documents. Id. 26 Plaintiffs also propounded discovery on the County and the County responded by producing 27 thousands of pages of documents, including records related to hours worked by Plaintiffs and opt- 1 of video surveillance data of the pre-shift activities of Plaintiffs and opt-ins. Id. 2 Both parties retained damages experts who created damages models using payroll data 3 provided by the County. Gray Decl. ¶ 5. The experts and counsel met informally to “share[ ] 4 models, answer[ ] questions, and refine[ ] their methodologies.” Id. According to Plaintiffs’ 5 counsel, “[t]hese damages models . . . were fairly consistent with each other [and] provided further 6 support for the Parties’ assessment of the range of potential recovery in this case.” Id.; see 7 generally Don Decl. Plaintiffs’ expert concluded that “[a]t 27.3 minutes of uncompensated time 8 every shift, the model showed $54,120.94 in wages owed, or $108,241.88 with liquidated 9 damages included”; she noted, however, that “the actual testimony in this case showed a lower 10 average in the amount of time spent from the time workers retrieved their duty belt in the locker 11 room to the time that workers started their scheduled shift” and with this lower amount of 12 uncompensated time every shift (24.4 minutes), “the model showed $40,659.56 in wages owed, or 13 $81,319.12 with liquidated damages included.” Don Decl. ¶¶ 7-8. Finally, she found that “if 14 workers could only recover for the unpaid time from the time they reported to operations until the 15 start of their shift -- an average of 21.8 minutes -- there would only be $29,057.33 in wages owed, 16 or $58,114.66 with liquidated damages.” Id. ¶ 9. All of these estimates factored in the offsets 17 related to the premium rates paid under the collective bargaining agreement. Id. ¶ 5. 18 The parties engaged in informal settlement negotiations and participated in three settlement 19 conferences with Magistrate Judge Hixson, ultimately entering into a settlement agreement. Id. at 20 ¶¶ 9-10. At the time of the Settlement Agreement the parties were arranging for depositions but 21 no depositions had yet occurred. Motion at 10. All 61 opt-ins signed the agreement. Gray Decl., 22 Ex. 1. After the Settlement Agreement had been finalized and most of the opt-in signatures had 23 been collected, however, the parties discovered a corrections officer who had been overlooked, 24 Terrence Thomas. Id. ¶¶ 30-32. Thus, the parties agreed to an addendum to the Settlement 25 Agreement allowing Thomas to opt in to the action and participate in the settlement. Id. All 61 26 Plaintiffs and opt-ins have signed the Settlement Agreement and Thomas has signed both an opt-in 27 form joining this action and the addendum to the Settlement Agreement. Id., Exs. 1, 3, 4. 1 B. The Settlement Agreement 2 In the Settlement Agreement, the Parties agreed to a total settlement amount of $115,000. 3 Gray Decl., Ex. 1 (Settlement Agreement). Of this amount, Plaintiffs and opt-ins will receive a 4 total of $73,200, with each individual’s share based on the number of pay periods that individual 5 worked during the covered period. Settlement Agreement ¶ 2(a). The amounts they will receive 6 range from $323.79 to $1,364.55, with an average payout of $1,200 per opt-in. Settlement 7 Agreement, Attachment A. The remaining $41,800 will be allocated for Plaintiffs’ reasonable 8 attorneys’ fees ($38,737.39) and costs ($3,062.61) incurred in this action. Settlement Agreement ¶ 9 2(b). In return, Plaintiffs and opt-ins agree to a release of all overtime claims against the County 10 under any legal theory relating to or arising from this Action and agree to dismiss the lawsuit with 11 prejudice. Id. ¶ 5. 12 C. The Addendum 13 Under the addendum to the Settlement Agreement, Terrence Thomas will be bound by all 14 terms of the Settlement Agreement, including the Release of Claims and will receive 15 $671.56, which will be paid at the same time and on the same terms as the payments to the opt-ins 16 outlined in Exhibit A to the Settlement Agreement. Thomas’s recovery will come from the 17 $38,737.39 in Plaintiffs’ attorney’s fees referenced in the Agreement, bringing the total fee 18 amount down to $38,065.83. 19 III. ANALYSIS 20 A. Legal Standards 21 “[C]laims for unpaid wages under the FLSA may only be waived or otherwise settled if 22 settlement is supervised by the Secretary of Labor or approved by a district court.” Selk v. 23 Pioneers Mem’l Healthcare Dist., 159 F. Supp. 3d 1164, 1172 (S.D. Cal. 2016). While the Ninth 24 Circuit has not established criteria for district courts to consider in determining whether a FLSA 25 settlement should be approved, “courts in this district apply the Eleventh Circuit’s widely- 26 followed standard set forth in [Lynn’s Food Stores, Inc. v. United States, 679 F.2d 1350, 1352–53 27 (11th Cir. 1982)] and consider whether the proposed settlement constitutes a ‘fair and reasonable 1 Am., No. 13-CV-05456-HSG, 2016 WL 153266, at *3 (N.D. Cal. Jan. 13, 2016) (quoting Otey v. 2 CrowdFlower, Inc., No. 12-cv-05524, 2015 WL 6091741, at *4 (N.D. Cal. Oct. 16, 2015) (quoting 3 Lynn Food Stores, 679 F.2d at 1355)). “If a settlement in an employee FLSA suit . . . reflect[s] a 4 reasonable compromise over issues . . . that are actually in dispute,” the district court may approve 5 the settlement. Lynn’s Food Stores, 679 F.2d at 1354. 6 To determine whether a FLSA settlement is fair and reasonable, courts evaluate the 7 “totality of the circumstances” within the context of the purposes of the FLSA. Slezak v. City of 8 Palo Alto, No. 16-cv-03224-LHK, 2017 WL 2688224, at *3 (N.D. Cal. June 22, 2017) (citing 9 Selk, 159 F. Supp. 3d at 1173). In Selk, the court set forth the following factors to be considered: 10 (1) the plaintiff's range of possible recovery; (2) the stage of proceedings and amount of discovery completed; (3) the 11 seriousness of the litigation risks faced by the parties; (4) the scope of any release provision in the settlement agreement; (5) 12 the experience and views of counsel and the opinion of participating plaintiffs; and (6) the possibility of fraud or 13 collusion. 14 Id. 15 B. Discussion 16 1. Whether there is a bona fide dispute 17 The Court finds that there is a bona fide dispute between the parties regarding liability as 18 Plaintiffs allege that they perform thirty minutes of necessary work prior to each shift for which 19 they are entitled to overtime while the County contends the activities are non-compensable, that 20 the time spent on them is de minimis, and that it is entitled to substantial offsets due to the 21 overtime premiums Plaintiffs receive under their collective bargaining agreement. Therefore, this 22 requirement is satisfied. 23 2. Whether the terms of the Settlement Agreement and Addendum are fair and reasonable 24 The Court also finds that the Settlement Agreement and Addendum are fair and reasonable 25 under the totality of the circumstances based on consideration of the factors set forth in Selk. 26 27 1 a. Range of Possible Recovery 2 Under the Settlement Agreement, Plaintiffs and opt-ins will receive a total sum of $73,200 3 exclusive of attorneys’ fees and costs. Plaintiffs have presented evidence that this amount 4 represents close to the maximum range of what Plaintiffs might be able to recover given the 5 offsets the County would be entitled to. Don Dec., ¶¶ 7-10. In particular, the average time from 6 retrieval of the duty belt to the start of the shift reported in the discovery responses of the two 7 named Plaintiffs and ten of the opt-ins was 24.4 minutes. Don Dec., ¶ 8. At 24.4 minutes of 8 uncompensated time every shift, the model developed by Plaintiffs’ expert showed $40,659.56 in 9 wages owed, or $81,319.12 with liquidated damages included. Id. Thus, the amount of the overall 10 recovery for the Plaintiffs and opt-ins supports approval of the settlement. 11 Furthermore, the recovery of each individual plaintiff and opt-in is fair and reasonable 12 because the individual payout amounts were calculated by Plaintiffs’ damages expert using payroll 13 data for each individual supplied by the County and a methodology that appears to be sound. Don 14 Decl. ¶¶ 4-5. The fact that each Plaintiff and opt-in has signed the Settlement Agreement, which 15 specifically lists the individual pay-outs under the agreement, lends further support to the 16 conclusion that this factor supports approval of the Settlement Agreement. 17 b. Stage of the Proceeding 18 As discussed above, the parties engaged in both formal and informal discovery before 19 settling this case, allowing them to evaluate the strengths and weaknesses of the case, both legal 20 and factual. They also retained damages experts who were able to use the information obtained in 21 discovery to determine the range of damages that might be awarded were Plaintiffs to prevail in 22 the case. Finally, the parties engaged in several settlement conferences with Magistrate Judge 23 Hixson as well as informal settlement negotiations. All of these facts point to the conclusion that 24 the Settlement Agreement is fair and reasonable. Therefore, the Court finds that this factor favors 25 approval of the Settlement Agreement. 26 c. Seriousness of Risk that Litigation Would Result in Lesser Recovery 27 Because the amount of the recovery under the Settlement Agreement approaches the 1 significant risk that continuing to litigate rather than settling the case would reduce the amount 2 that Plaintiffs and opt-ins would receive. For example, the planned depositions of the named 3 Plaintiffs and opt-in sample could have resulted in the discovery that the time spent on pre-shift 4 activities was actually less than Plaintiffs alleged in the Complaint. Therefore, this factor supports 5 approval of the Settlement Agreement. 6 d. Scope of Release 7 “A FLSA release should not go beyond the specific FLSA claims at issue in the lawsuit 8 itself.” Slezak, 2017 WL 2688224, at *5 (citing Daniels v. Aeropostale W., Inc., 2014 WL 9 2215708, at *4 (N.D. Cal. May 29, 2014)). Here, the release in the Settlement Agreement states 10 as follows: 11 5. Release of Claims. Plaintiffs and Opt-Ins, on behalf of themselves and their spouses, domestic partners, heirs, representatives, executors, 12 agents, attorneys, administrators, successors-in-interest, and assigns, irrevocably and unconditionally release and discharge Defendant, and 13 all of its departments, officers, employees, attorneys, and agents, and any other person acting by, through or in concert with it, from any and 14 all lawsuits, claims, actions, demands or other legal responsibilities of any kind that Plaintiffs and Opt-Ins have, or may have, against 15 Defendant, which were or could have been asserted in the Action, arising from or related to the facts alleged in the Complaint, up to the 16 date of the Parties’ execution of this Agreement. Plaintiffs and Opt- Ins expressly acknowledge that this release includes, but is not limited 17 to, any and all claims for failure to pay overtime required under federal or state law or contractual agreement based on Defendants’ 18 alleged failure to compensate them for activities they allegedly performed in advance of their shifts. Plaintiffs and Opt-Ins also 19 acknowledge and agree that this release is an essential and material term of this Agreement and without such release, no settlement would 20 have been reached by the Parties. 21 Settlement Agreement ¶ 5. This release is similar to the release approved by the court in Slezak, 22 where the release waived the right to bring FLSA claims “on the grounds alleged in the lawsuit 23 that may exist or have existed as of and including the Effective Date of the Agreement” but that 24 reserved the plaintiffs’ right to “pursue any FLSA claims that they might have for events occurring 25 after the Effective Date of this agreement.” Further, the parties confirmed at the motion hearing 26 that this provision is intended to be limited to wage and hour claims based on the facts contained 27 in the complaint. The Court therefore concludes that the scope of the release in the Settlement 1 e. Experience and Views of Counsel 2 Plaintiffs’ counsel, who are experienced attorneys, believe that the Settlement Agreement 3 is fair and reasonable. Gray Decl. ¶ 10. Therefore, this factor favors approval of the Settlement 4 Agreement. 5 f. Absence of Fraud or Collusion 6 There is no indication that the Settlement Agreement was the result of fraud or collusion. 7 Instead, the evidence shows that it was the result of arms-length negotiation, facilitated by an 8 impartial mediator. Therefore, this factor supports approval of the Settlement Agreement. 9 g. Attorneys’ Fees 10 The Court also finds that the fees and costs that will be paid to counsel under the 11 Settlement Agreement are reasonable. 12 Prevailing plaintiffs are entitled to reasonable attorneys’ fees and costs under the FLSA. 13 See 29 U.S.C. § 216(b). “Under Ninth Circuit precedent, the district court has discretion in 14 common fund cases to choose either the percentage-of-the-fund or the lodestar method for 15 awarding attorneys’ fees.” Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 2002); In re 16 Bluetooth Headset Prod. Liab. Litig., 654 F.3d 935, 941-42 (9th Cir. 2011). However, “in fee- 17 shifting statute cases[,]” “the lodestar method is favored.” Norris v. Mazzola, No. 15-CV-04962- 18 JSC, 2017 WL 6493091, at *11 (N.D. Cal. Dec. 19, 2017) (citing Tahara v. Matson Terminals, 19 Inc., 511 F.3d 950, 955 (9th Cir. 2007)). This approach is justified because use of the lodestar 20 “ensure[s] compensation for counsel undertaking socially beneficial litigation.” Rose v. Bank of 21 Am. Corp., No. 5:11-CV-02390-EJD, 2014 WL 4273358, at *6 (N.D. Cal. Aug. 29, 2014) (citing 22 In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prod. Liab. Litig., 55 F.3d 768, 821 (3d Cir. 23 1995) (observing that when “the lodestar award is de-coupled from the class recovery, the lodestar 24 assures counsel undertaking socially beneficial litigation (as legislatively identified by the 25 statutory fee shifting provision) an adequate fee irrespective of the monetary value of the final 26 relief achieved for the class”)). 27 Here, Plaintiffs have provided evidence of the hours worked on this case and the fees 1 and $750.00. Gray Decl. ¶¶ 12-28. The Court has reviewed the evidence supplied by Plaintiffs 2 and concludes that both the rates and time are reasonable. Furthermore, the attorneys’ fees 3 Plaintiffs seek under the Settlement Agreement ($38,065.83, factoring in the payment to Thomas 4 under the Addendum) represent a 14% negative multiplier on that amount, further supporting the 5 conclusion that the Settlement Agreement should be approved. 6 The Court recognizes that the fees requested are slightly higher than might be awarded 7 under the percentage-of-the recovery approach, amounting to approximately 33% of the total 8 award rather than the benchmark 25%. The Court nonetheless finds the fee amount to be fair and 9 reasonable given the favorable result obtained for the Plaintiffs and opt-ins under the Settlement 10 Agreement, which is the most important factor in determining the reasonableness of a fee award. 11 See Norris v. Mazzola, No. 15-CV-04962-JSC, 2017 WL 6493091, at *13 (N.D. Cal. Dec. 19, 12 2017) (finding that fee award was reasonable even though it was approximately 44% of the total 13 settlement fund where the amount was lower than the actual lodestar and in light of the overall 14 result). 15 h. Litigation Costs 16 Plaintiffs’ counsel have spent $3,062.61 in actual litigation expenses, including filing fees, 17 costs of service of process, electronic research, travel for appearances, and other reasonable 18 litigation-related costs. Gray Decl., ¶ 38, Ex. 2. Attorneys are entitled to be reimbursed for their 19 out-of-pocket expenses incurred in creating a common fund for the benefit of a class so long as the 20 submitted expenses are reasonable, necessary, and would typically be billed to paying clients. In 21 re Omnivision Techs., Inc., 559 F. Supp. 2d 1036, 1048 (N.D. Cal. 2008). The Court finds that the 22 costs are reasonable, necessary and of the kind that would normally be passed on to clients.
23 24 25 26 27 1 IV. CONCLUSION 2 The Court finds that there is a bona fide dispute and that on balance, the Settlement 3 Agreement and the Addendum are fair and reasonable. Therefore, the Motion is GRANTED and 4 || the Court approves the Settlement Agreement and the Addendum to the Settlement Agreement. 5 The Parties are ordered to comply with all terms and provisions of the Settlement Agreement and 6 || Addendum. The Court directs payment to the Opt-Ins pursuant to the terms of the Settlement 7 || Agreement and Addendum and awards $38,065.83 in attorneys’ fees and $3,062.61 in costs to 8 || Plaintiffs’ and Opt-Ins’ Counsel, Weinberg, Roger & Rosenfeld APC, in accordance with the 9 terms of the Settlement Agreement. The Court retains jurisdiction over the implementation and 10 || enforcement of the Settlement Agreement until each and every act agreed to be performed by the 11 Parties has been performed. 12 IT IS SO ORDERED.
14 || Dated: September 5, 2023
J PH C. SPERO 17 nited States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28