1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD GRANILLO, Case No. 1:20-cv-01614-CDB
12 Plaintiff, ORDER RE: MOTION FOR APPROVAL OF PAGA SETTLEMENT 13 v. 14 (Doc. 23) WEATHERFORD U.S., L.P., et al. 15 Defendants. 16 17 Before this Court is Plaintiff Edward Granillo’s (“Plaintiff”) motion for approval of 18 settlement pursuant to the California Labor Code Private Attorneys General Act of 2004 19 (“PAGA”). (Doc. 23).1 The motion is unopposed. (Doc. 25). Accordingly, the motion is ripe 20 for review. 21 Procedural Background 22 Defendant Weatherford U.S., L.P. (“Weatherford”) is a Louisiana limited partnership 23 authorized to and doing business in Kern County, California. (Doc. 5 at ¶ 10). Plaintiff was 24 employed by Weatherford during the PAGA Period as a non-exempt employee in Kern County, 25 California. Id. at ¶ 8. On October 12, 2020, Plaintiff submitted notice to the California Labor 26 and Workforce Development Agency (“LWDA”) of his intent to seek civil penalties under PAGA
27 1 On May 30, 2023, the parties consented to the jurisdiction of the United States Magistrate Judge and the action reassigned to Magistrate Judge Christopher D. Baker for all 1 for violations of the California Labor Cal. Lab. Code §§ 201, 202, 203, 204, 210, 226, 226.3, 2 226.7, 227.3, 510, 512, 1174, 1194, 1194.2, 1197, 1197.1, 1198, and 2802, among other 3 provisions of the California Labor Code. (Doc. 23-1 at ¶ 14). 4 On October 14, 2020, Plaintiff filed a class action complaint in the Superior Court of 5 California for the County of Kern. (Doc. 1-1); Granillo v. Weatherford U.S., L.P., et al, No. 6 BCV-20-102386. Specifically, Plaintiff alleged Defendant: 7 (1) failed to pay minimum wages; (2) failed to pay overtime wages; (3) failed to provide 8 compliant rest periods and/or pay missed rest period premiums; (4) failed to provide 9 compliant meal periods and/or pay meal period premiums; (5) failed to reimburse business expenses; (6) failed to pay accrued vacation wages; (7) failed to provide complete and 10 accurate wage statements; (8) waiting time penalties; (9) failure to pay timely wages; and (10) violations of the unfair competition laws. 11 12 (Doc. 1-1). On November 13, 2020, Plaintiff’s action was removed by Defendant to this Court. 13 (Doc. 1). On January 22, 2021, Plaintiff filed a first amended complaint to add one cause of 14 action seeking penalties pursuant to PAGA for the violations underlying wage-and-hour claims of 15 the original complaint and removed all class claims based on an arbitration agreement with 16 Defendant. (Docs. 5, 23-1 at ¶ 15). Jonathan Melmed, Esq. (hereinafter “Counsel for Plaintiff”), 17 counsel for Plaintiff, estimated Defendant’s “total realistic exposure” for PAGA penalties is 18 $385,750. (Doc. 23-1 at ¶ 35). Thereafter, the parties agreed to participate in mediation and 19 exchanged discovery. Id. at ¶ 16. Counsel for Plaintiff reviewed Defendant’s policies and 20 Plaintiff’s employment records, analyzed, researched, and investigated potential issues related to 21 the case. Id. 22 On October 19, 2021, the parties engaged in mediation with the assistance of mediator 23 Steve Pearl, Esq. Id. at ¶ 17. The parties, with the assistance of the mediator, reached an 24 agreement to resolve the case in a PAGA settlement. Id. On November 17, 2021, the parties 25 executed a settlement term sheet memorializing the broad terms of the agreement they reached 26 during the mediation. Id. On January 7, 2022, the parties filed a joint notice of settlement to this 27 Court. (Doc. 21). On March 21, 2022, the parties finalized the terms of the Settlement 1 (Doc. 23-1 at ¶ 17). On June 7, 2022, Plaintiff filed the instant motion to approve the parties’ 2 PAGA settlement. (Doc. 23). 3 Proposed PAGA Settlement 4 According to the parties’ proposed PAGA Settlement Agreement, Defendant will pay a 5 gross settlement payment of $325,000 to resolve Plaintiff’s PAGA claims as well as attorneys’ 6 fees and costs related to the PAGA claim. Id. at 11, 15. Subject to court approval, the gross 7 settlement payment will include: (1) PAGA Counsel’s reasonable attorneys’ fees of up to 8 $108,333.33; (2) PAGA Counsel’s request for allowable costs of up to $20,000; (3) reasonable 9 settlement administration costs estimated to be $3,0002; and (4) a representative award of $7,500. 10 (Doc. 23-1 at 37). Plaintiff proposes to use ILYM Group, Inc. as the settlement administrator. Id. 11 at 28-29. 12 The remaining amount from the gross settlement payment shall be “designated as the 13 ‘General PAGA Penalty Fund,’ which is estimated to be $186,166.67.” Id. The general fund is 14 to be divided 75 percent to the Labor and Workforce Development Agency (“LWDA”) and 25 15 percent to the “Aggrieved Employees”. Id. The settlement defines the “Aggrieved Employees” 16 as “all current and former non-exempt employees employed in California by Weatherford 17 between October 12, 2019, through and including December 31, 2021.” Id. at 32. The settlement 18 notes there are approximately 191 “Aggrieved Employees.” Id. at 2. 19 The “Aggrieved Employees” shall receive a pro rata value equal to the 25 percent share of 20 the general fund, multiped by the quotient of (1) the number of Eligible Pay Periods worked by 21 that Aggrieved Employee during the applicable Covered Period divided by (2) the total number of 22 Eligible Pay Periods worked by all Aggrieved Employees during the Covered Period. Id. at 37. 23 Defendant represents that the Aggrieved Employees worked approximately 6,180 pay periods 24 between October 12, 2019, and August 17, 2021. Id. at 40. If the number of pay periods worked 25 between those dates exceeds more than 10% of the proffered 6,180 weeks, then the Total 26 Settlement Amount shall be increased proportionately for each additional pay period worked. Id.
27 2 The parties agree if the settlement administration costs exceed the estimated amount, the additional amount will be paid through a downward adjustment to the General PAGA Penalty 1 Within 30 calendar days after the entry of judgment approving the PAGA settlement, 2 Defendant shall compile a list of all Aggrieved Employees containing the following: (1) name, (2) 3 last known home address and telephone number, (3) number of pay periods as an Aggrieved 4 Employee during the covered period, and (4) each Aggrieved Employee’s social security number. 5 Id. at 42. Defendant shall provide this list to the settlement administrator. Id. Within 45 calendar 6 days after the entry of judgment approving the PAGA settlement, Defendant shall fund the gross 7 settlement amount in a qualified settlement account administered by the settlement administrator. 8 Id. 9 The “Effective Date” of the settlement will be the date when the judgment of this Court 10 becomes “final.” Id. at 33. A final judgment shall mean (1) the date that the time to appeal the 11 judgment entered in the litigation approving the PAGA settlement has expired; or (2) the date on 12 which any appeal of the judgment entered in the litigation has been fully and finally resolved in a 13 way that approves and does not alter the terms of the settlement. Id. at 33. 14 The settlement administrator shall distribute all payments due under this settlement 15 (except the amount allocated to settlement administration costs) within 10 business days after the 16 “Effective Date,” provided that such date has occurred. Id. at 43. If the Effective Date has not 17 occurred within 30 days of the deadline to find the qualified settlement account, the settlement 18 administrator will return the gross settlement amount to Defendant, and Defendant shall not be 19 required to fund the qualified settlement account until the Effective Date occurs. Id. 20 The settlement administrator shall send payment checks for each Aggrieved Employee by 21 U.S. First Class mail, along with a letter agreed upon by the parties explaining the settlement. Id. 22 “It will be conclusively presumed that an Aggrieved Employee’s individual settlement payment 23 check was received if the payment check has not been returned within [30] days of the original 24 mailing of the payment check.” Id. Settlement checks shall remain valid and negotiable for 120 25 days from the date of their issuance. Id. at 43. Funds represented by settlement checks returned 26 as undeliverable and those settlement checks remaining un-cashed for more than 120 days after 27 issuance will be tendered to the State Controller’s Office, Unclaimed Property Division, in the 1 The settlement provides that, upon entry of the court’s order approving the settlement: 2 Plaintiff, the State of California on whose behalf Plaintiff has brought the Litigation, and 3 all the Aggrieved Employees will be forever barred from pursuing against Defendant and 4 Defendant Releases any and all claims for civil penalties under PAGA arising during the applicable Covered Period that were alleged in the Litigation or any associated LWDA 5 submissions by Plaintiff, or that could have been alleged based on the facts alleged in Plaintiff’s Complaint in the Litigation or any associated LWDA submission by Plaintiff. 6 The claims released by this PAGA Settlement therefore include all claims for civil penalties and associated fees or costs related to claims for unpaid regular or premium 7 wages (as defined by the Labor Code), meal/rest period violations and/or premium 8 payments for meal and/or rest period violations, wage statement violations, wage payment timing violations, record-keeping violations, and to the extent not covered above, any and 9 all claims pied in the Litigation or the associated notices to the LWDA, including without limitation all associated claims for civil penalties and associated fees or costs related to 10 alleged or actual violations of Labor Code sections 201, 202,203,204,210,226,226.3, 226.7, 510, 512, 558, 1174, 1185, 1194, 1194.2, 1197, 1197.1, 1198,1199, 2802, 2804, 11 and 2699. The Aggrieved Employees, other than the Plaintiff by executing the Individual 12 Settlement Agreement, will not be deemed to have released any individual, non-PAGA wage and hour claims by sole virtue of the execution of this PAGA Settlement and the 13 associated entry of Judgment. 14 Id. at 40. The settlement provides for notice and delivery of the individual payments to the 15 Aggrieved Employees, and the tax treatment of the settlement amounts. Id. at 28-29, 39-40, 42- 16 43. 17 Legal Standard 18 California adopted PAGA to allow individual plaintiffs “to bring a civil action to collect 19 civil penalties for Labor Code violations previously only available in enforcement actions 20 initiated by the State’s labor law enforcement agencies.” Caliber Bodyworks, Inc. v. Superior 21 Court, 134 Cal. App. 4th 365, 374 (2005); Cal. Lab. Code § 2699(a); Urbino v. Orkin Servs. Of 22 Cal., Inc., 726 F.3d 1118, 1121 (9th Cir. 2013). When a plaintiff brings a PAGA action, they do 23 so as the “proxy or agent of the state’s labor law enforcement agencies,… who are real parties in 24 interest.” Sakkab v. Luxottica Retail N. Am. Inc., 803 F. 3d 425, 435 (9th Cir. 2015); Arias v. 25 Superior Court, 46 Cal. 4th 969, 986 (2009). 26 Pursuant to PAGA, an “aggrieved employee” may bring an action for civil penalties for 27 labor code violations on behalf of himself and other current or former employees. Cal. Lab. Code 1 alleged violator and against whom one or more of the alleged violations was committed.” Id. A 2 judgment in a PAGA action “binds all those, including nonparty aggrieved employees, who 3 would be bound by a judgment in an action brought by the government.” Arias, 46 Cal. 4th at 4 986; See O’Connor v. Uber Technologies, Inc., 201 F. Supp. 3d 1110, 1133 (N.D. Cal. 2016) 5 (“[W]here plaintiffs bring a PAGA representative claim, they take on a special responsibility to 6 their fellow aggrieved workers who are effectively bound by any judgment.”) (citing Iskanian v. 7 CLS Transp. Los Angeles, LLC, 59 Cal. 4th 348, 381 (2014)). 8 The PAGA statute imposes several limits on litigants. First, because a PAGA action 9 functions as a “substitute” for an action brought by the state government, a plaintiff seeking relief 10 under PAGA is limited to the recovery of civil penalties only, rather than damages available 11 privately through direct or class action claims. Iskanian, 59 Cal. 4th at 381. Second, to bring an 12 action under PAGA, an aggrieved employee must first provide written notice to the LWDA as 13 well as the employer. Cal. Lab. Code § 2699.3(a)(1). Third, any civil penalties recovered must 14 be distributed as follows: 75 percent to the LWDA, and the remaining 25 percent to the aggrieved 15 employees. § 2699(i). 16 Any proposed settlement of PAGA claims must be submitted to the LDWA, and a trial 17 court must “review and approve” any settlement of PAGA claims. Cal. Lab. Code § 2699(l)(2); 18 see also Haralson v. U.S. Aviation Servs. Corp., 383 F. Supp. 3d 959, 971 (N.D. Cal. 2019) 19 (because settling a PAGA claim “compromises a claim that could otherwise be brought by the 20 state,” it requires that a court “review and approve any settlement of any civil action pursuant to 21 [PAGA]”) (citation omitted). 22 Although authorities addressing the standard of review for PAGA settlements are limited, 23 in the class action context, California district courts “have applied a Rule 23-like standard, asking 24 whether the settlement of the PAGA claims is ‘fundamentally fair, adequate, and reasonable in 25 light of PAGA’s policies and purposes.’” Haralson, 383 F. Supp. 3d at 972; Officers for Justice 26 v. Civil Serv. Comm’n of City & Cty. of San Francisco, 688 F.2d 615, 625 (9th Cir. 1982); In re 27 Heritage Bond Litig., 546 F.3d 667, 674-75 (9th Cir. 2008). However, this is not a class action, 1 public rather than for the benefit of private parties. See Arias, 46 Cal. 4th at 986. The LWDA 2 has provided some guidance regarding court approval of PAGA settlements. O’Connor, 201 F. 3 Supp. 3d at 1133. The LDWA indicated:
4 It is [] important that when a PAGA claim is settled, the relief provided for under the 5 PAGA be genuine and meaningful, consistent with the underlying purpose of the statute to benefit the public and, in the context of a class action, the court evaluates whether the 6 settlement meets the standards of being “fundamentally fair, reasonable, and adequate” with reference to the public policies underlying the PAGA. 7 8 Id. (citation omitted). Recognizing the distinct issues presented by class actions, this Court is 9 nevertheless persuaded by the LWDA’s reasoning in O’Connor and therefore adopts its proposed 10 standard in evaluating the PAGA-only settlement agreement now before the court. Accordingly, 11 the Court will approve a settlement of PAGA claims upon a showing that the settlement terms (1) 12 meet the statutory requirements set forth by PAGA, and (2) are fundamentally fair, reasonable, 13 and adequate in view of PAGA’s public policy goals. Tenorio v. Gallardo, No. 1:16-cv-00283- 14 DAD-JLT, 2019 WL 4747949, at *3 (E.D. Cal. Sep. 30, 2019). 15 Discussion 16 A. Statutory Requirements 17 The Court finds that the settlement terms meet the statutory requirements set forth by 18 PAGA. Pursuant to Cal. Lab. Code § 2699(i), PAGA requires that 75 percent of the civil 19 penalties recovered by aggrieved employees be distributed to the LWDA while 25 percent be 20 distributed to the aggrieved employees. PAGA further requires that the plaintiff provide written 21 notice of the allegations to the LWDA and that the “proposed settlement shall be submitted to the 22 agency at the same time that it is submitted to the court.” Cal. Lab. Code §§ 2699(l)(2); 23 2699.3(a)(1). 24 Here, of the $325,000 gross PAGA settlement sum, $138,833.33 is allotted for attorneys’ 25 fees, litigation costs, settlement administration costs, and a representative service award. (Doc. 26 23 at 11). 75 percent ($139,625.00) of the remaining “General PAGA Penalty Fund” ($186,166) 27 is allotted to the LWDA, and 25 percent ($46,541.67) is allotted to the Aggrieved Employees. Id. 1 to notice, Plaintiff notified the LWDA regarding his allegations on October 12, 2020. (Doc. 23-1 2 at 15). The LWDA deferred the prosecution of this action to Plaintiff by failing to respond to 3 Plaintiff’s notice within 65 days. Id.; (Doc. 23 at 14). Plaintiff additionally submitted the 4 settlement to the LWDA on June 7, 2022, concurrent with the filing of this motion. (Doc. 23-1 at 5 29, 62). Therefore, the statutory requirements of § 2699 regarding the distribution of penalties 6 and notice have been met. 7 B. Fairness, Adequacy, and Reasonableness of the PAGA Settlement 8 “[T]he very essence of a settlement is compromise, ‘a yielding of absolutes and an 9 abandoning of highest hopes.’” Officers for Justice, 688 F.2d at 624 (citations omitted); see 10 Linney v. Cellular Alaska P’Ship, 151 F.3d 1234, 1242 (9th Cir, 1998) (a proposed settlement 11 may be fair, adequate, and reasonable even though greater recovery might be available to the 12 class members at trial). When analyzing an agreement, the Court should examine “the complete 13 package taken as a whole,” and the proposed settlement is “not to be judged against a 14 hypothetical or speculative measure of what might have been achieved by the negotiators.” 15 Officers for Justice, 688 F.2d at 628. 16 Here, the Court finds that the settlement terms are fair, reasonable, and adequate in light 17 of the PAGA’s policy goals. The record indicates that Plaintiff and counsel litigated this matter 18 by filing the original complaint in the Superior Court of California for the County of Kern and 19 filed an amended complaint in this Court. (Doc. 23-1 at 15). Thereafter, the parties agreed to 20 participate in mediation. Id. 21 In preparation for mediation, the parties exchanged documents and information including 22 Defendant’s employee handbook, policies and procedures, personnel files, payroll, and time 23 records. Id. Plaintiff’s counsel analyzed, researched, and investigated the potential issues, 24 interviewed Plaintiff and other alleged Aggrieved Employees. Id. at 15-16. The parties attended 25 an all-day mediation with an experienced wage-and-hour mediator and engaged in a 26 “comprehensive arm’s-length settlement discussion.” Id. at 2, 16. See Adoma v. Univ. of Phx., 27 Inc., 913 F. Supp. 2d 964, 977 (E.D. Cal. 2012) (“A settlement following sufficient discovery and 1 based on an understanding of the legal and factual issues surrounding the case. See Kutzman v. 2 Derrel’s Mini Storage, Inc., No. 1:18-cv-00755-AWI-JLT, 2020 WL 5909151, at *9 (E.D. Cal. 3 Oct. 6, 2020). 4 The PAGA settlement also recognized the risks of further litigation in that Defendant will 5 continue to contest any alleged violations of applicable law and liability for any claims asserted 6 by Plaintiff. (Doc. 23-1 at 16-20). Counsel for Plaintiff acknowledges that even if Plaintiff 7 prevailed on the merits, the PAGA penalty could still be reduced under the Court’s discretion. Id. 8 at 20; see Munoz v. Giumarra Vineyards Corp., No. 1:09-cv-00703-AWI-JLT, 2017 WL 9 2665075, at *9 (E.D. Cal. Jun. 21, 2017) (noting that “[a]pproval of settlement is ‘preferable to 10 lengthy and expensive litigation with uncertain results.’”), report and recommendation adopted, 11 No. 1:09-cv-00703-AWI-JLT, 2017 WL 7371175 (E.D. Cal. Nov. 27, 2017). 12 The total settlement sum of $325,000 is reasonable, given the abovementioned risks 13 involved and given that the record shows that the expected maximum potential penalty was 14 $385,750. (Doc. 23-1 at ¶ 35); see Officers for Justice, 688 F.2d at 628 (“[A] cash settlement 15 amounting to only a fraction of the potential recovery will not per se render the settlement 16 inadequate or unfair.”). Here, the total settlement sum is only 16 percent lower than the expected 17 total recovery. Compare Dunleavy v. Nadler (In re Mego Fi. Corp. Sec. Litig.), 212 F.3d 454, 18 458-59 (9th Cir. 2000) (affirming a 16.67 % settlement approval for a weak and risky case), with 19 Greko v. Diesel U.S.A., Inc., No. 10-cv-02576 NC, 2013 WL 1789602, at *5 (N.D. Cal. April 26, 20 2013) (the 24% settlement approval was reasonable in light of the uncertainties involved in the 21 litigation). The settlement amount to be distributed to the approximate 191 Aggrieved 22 Employees, is “roughly $243.67 per Aggrieved Employee.” (Doc. 23-1 at ¶ 37). This is 23 commensurate with PAGA settlement amounts regularly approved by district courts. Hartley v. 24 On My Own, Inc., No. 2:17-cv-00353-KJM-EFB, 2020 WL 5017608, at *4 (E.D. Cal. Aug. 2020) 25 (a settlement of $61.18 per PAGA settlement group member to be in line with several other court 26 approved PAGA settlement). Further, the settlement agreement also does not release any 27 Aggrieved Employee’s non-PAGA claims for alleged violations of the Labor Code. (Doc. 23 at 1 Given the amounts allocated to the LWDA and the Aggrieved Employees, the litigation 2 and negotiation involved in achieving the settlement, the potential risks of further litigation, and 3 the fact that Aggrieved Employees are not precluded from bringing actions against Defendant for 4 individual claims, the Court concludes that the parties’ PAGA settlement is fundamentally fair, 5 reasonable, and adequate in view of PAGA’s public policy goals. 6 C. Reasonableness of Attorney’s Fees 7 The Court now turns to the attorney’s fees provision of the settlement agreement. Counsel 8 for Plaintiff asks for $108,333.33 in attorney’s fees. (Doc. 23 at 11). The relevant PAGA 9 provision pertaining to attorney’s fees provides: “[a]ny employee who prevails in any action shall 10 be entitled to an award of reasonable attorney’s fees and costs.” Cal. Lab. Code § 2699(g). The 11 Ninth Circuit and the California Supreme Court both have held that trial courts have the 12 discretion to choose among two different methods for calculating a reasonable attorney’s fees 13 award. See Laffitte v. Robert Half Int’l Inc. 1 Cal. 5th 480, 504 (2016) (“The choice of a fee 14 calculation method is generally one within the discretion of the trial court, the goal under either 15 the percentage or lodestar approach being the award of a reasonable fee to compensate counsel 16 for their efforts.”); In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 942 (“Where a 17 settlement produces a common fund for the benefit of the entire class, courts have discretion to 18 employ either the lodestar method or the percentage-of-recovery method”). 19 The typical range of acceptable attorney’s fees in the Ninth Circuit is 20 percent to 30 20 percent of the total settlement value, with 25 percent considered the benchmark. In re Bluetooth 21 Headset Prods. Liab. Litig., 654 F.3d at 942. Counsel for Plaintiff seeks attorney’s fees pursuant 22 to the percentage of the common fund method and requests the Court approve a fee award of one- 23 third of the settlement amount. (Doc. 23 at 27-30). Because Counsel for Plaintiff asks the Court 24 to depart from the “benchmark” of 25 percent, the Court must determine whether the requested 25 percentage is reasonable. Powers v. Eichen, 229 F.3d 1249, 1256 (9th Cir. 2000). See Roes v. 26 SFBSC Mgmt., LLC, 944 F.3d 1035, 1056 (9th Cir. 2019) (concluding that district court should 27 have “explained why attorneys’ fees of 31.6% ($950,000 out of $3 million …) or more were 1 justified” for purposes of performing the lodestar cross-check using a percentage of the total 2 class). 3 To evaluate whether the requested percentage is reasonable, the Ninth Circuit has 4 favorably commended a district court’s consideration of five factors: (1) the results achieved, (2) 5 the risk of further litigation, (3) the skill required of plaintiff’s counsel and the quality of work 6 performed, (4) the contingent nature of this action, and (5) awards granted in similar cases. 7 Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1048-50 (9th Cir. 2002); Lafitte v. Robert Half 8 Internat. Inc., 1 Cal. 5th 480, 504-05 (2016) (endorsing similar factors in class action context). 9 The Court will address each factor in turn. 10 1. Results Achieved 11 “The overall result and benefit to the class from the litigation is the most critical factor in 12 granting a fee award.” In re Omnivision Techs., 559 F. Supp. 2d 1036, 1046 (N.D. Cal. 2007). In 13 this case, Plaintiff recovered 84 percent of the estimated potential recovery. See (Doc. 23-1 at ¶ 14 35). Moreover, the average individual settlement share is estimated to be “roughly $243.67 per 15 Aggrieved Employee.” Id. at ¶ 37. This provides moderate monetary relief to the alleged 16 Aggrieved Employees. Given the monetary relief obtained, this factor favors an increase over the 17 25 percent benchmark. 18 2. Risk of Litigation 19 The risk that further litigation might result in no recovery is a significant factor in 20 assessing the fairness and reasonableness of an award of attorney’s fees. See Vizcaino, 290 F.3d 21 at 1048 (“Risk is a relevant circumstance” in determining a fee award in a common fund case). 22 Counsel for Plaintiff asserts there was a risk that Plaintiff would not prevail and even if they had 23 won there could be a potential for substantial delays to realizing any recovery. (Doc. 23-1 at ¶ 24 41; Doc. 23 at 28). The Court agrees that Counsel for Plaintiff would have faced significant 25 opposition from Defendant if a settlement had not been reached. See (Doc. 23-1 at ¶¶ 19-33). 26 However, the risks identified by Counsel for Plaintiff are not unique to this action, rather these 27 risks generally apply to PAGA litigation. Compare Lusk v. Five Guys Enter. LLC, No. 1:17-cv- 1 counsel generally applied to class action litigation). Therefore, this factor supports an award 2 equal to the 25 percent benchmark. See id. 3 3. Skills Required and the Quality of Work 4 The Court also considers the skills required to prosecute and manage this litigation, as 5 well as counsel’s overall performance. See In re Pac. Enters. Sec. Litig., 47 F.3d 373, 379 (9th 6 Cir. 1995) (the complexity of issues and skills required may support a departure from the 7 benchmark fee award). Counsel for Plaintiff is an experienced litigator and has represented 8 thousands of employees in wage and hour class actions, and other employment-related matters. 9 (Doc. 23-1 at ¶¶ 7-9). Counsel for Plaintiff has “served as lead counsel or co-lead counsel in 10 approximately sixty wage-and-hour class actions and PAGA representative actions” that have 11 been granted preliminary and final approval. See id. at ¶ 10 (citing cases). 12 Counsel for Plaintiff asserts he and his firm have spent a considerable amount of time 13 extensively investigating, researching, and litigating this matter, over 108 hours. Id. at ¶¶ 46, 51- 14 52. However, Counsel for Plaintiff has not identified any evidence that he, or his firm, were 15 precluded from other work because of this action. Indeed, Counsel for Plaintiff notes along with 16 this action he also is lead or co-lead counsel or PAGA counsel on approximately twenty-five class 17 action and PAGA cases pending in California state and federal courts. Id. at ¶ 10. The pleadings 18 do not support the conclusion that the time and labor required for this action was burdensome. 19 Cf. Wise v. Ulta Salon, Cosmetics & Fragrance, Inc., No. 1:17-cv-00853-DAD-EPG, 2020 WL 20 1492672, at *8 (E.D. Cal. Mar. 17, 2020) (“counsel devoted approximately 1,375 hours and 21 $44,825.32 in out-of-pocket expenses to litigating the case for almost four years.”). 22 The Court finds the overall experience of Counsel and his firm undoubtedly benefited 23 Plaintiff and the Aggrieved Employees in securing a settlement. However, Counsel for Plaintiff 24 has not identified any complex issues faced in this matter. Instead, Plaintiff filed a first amended 25 complaint on January 22, 2021. (Doc. 5); (Doc. 23-1 at ¶ 15). Thereafter, the Parties agreed to 26 participate in private mediation. Id. at ¶ 10. The parties reached the proposed settlement in a 27 private mediation without formal discovery or motion practice. Id. at ¶¶ 16-18. Counsel for 1 case than any other action asserting PAGA claims. See Monterrubio v. Best Buy Stores, L.P., 291 2 F.R.D. 443, 458 (E.D. Cal. 2013) (declining to depart from the benchmark as the “case is, quite 3 simply a garden-variety wage and hour class action”). Accordingly, this factor supports an award 4 equal to the 25 percent benchmark. 5 4. Contingent Nature of this Action 6 Counsel for Plaintiff argues the contingent nature of his representation supports a 33 7 percent fee award. (Doc. 23 at 32-33). Counsel argues there was a prospect of enormous cost 8 inherent in this litigation including “the risk of Defendant prevailing on the merits; the risk that a 9 court may not award the damages or penalties sought; difficulties in establishing bad faith; and 10 the difficulty in proving a sustainable injury.” Id. Counsel asserts the risk justified the requested 11 fee award. Id. at 33. 12 The Ninth Circuit has suggested the distinction between a contingency arrangement and a 13 fixed fee arrangement alone does not merit an enhancement from the benchmark. Bluetooth, 654 14 F.3d at 942 n.7 (“whether the fee was fixed or contingent” is “no longer valid” as a factor in 15 evaluating reasonable fees) (citation omitted); contra In re Online DVD-Rental Antitrust 16 Litigation, 779 F.3d 934, 954-55 (9th Cir. 2015) (finding the contingent nature of litigation 17 remains a relevant factor to evaluate a request from the common fund); Clayton v. Knight 18 Transp., No. 1:11-cv-00735-SAB, 2013 WL 5877213, at *8 (E.D. Cal. Oct. 30, 2013) (the 19 contingent nature of a fee is an important factor in determining the fee award but risks that “are 20 no greater than that associated with any other wage and hour action and no extraordinary 21 circumstances exist that would support an increase from the 25% benchmark”). Counsel for 22 Plaintiff does not identify any unusual risk with the contingent nature of their fee in this action. 23 Accordingly, this factor supports an award equal to the 25 percent benchmark. 24 5. Awards Made in Similar Cases 25 In support of his fee request, Counsel for Plaintiff argues the fees requested “falls [well 26 within] the norms accepted by state and federal courts in California in comparable wage and hour 27 actions.” See (Doc. 23 at 29-30). Counsel lists a number of cases where federal courts in 1 Counsel for Plaintiff has not provided any analysis as to how these cases are similar to the matter 2 now pending. Counsel only asserts that federal courts in California have and can award 3 attorneys’ fees in the amount of one-third of the gross settlement amount. “The Court declines to 4 manufacture arguments on behalf of [Counsel].” Martinez v. Semi-Tropic Coop. Gin, No. 1:19- 5 cv-01581-JLT-CDB, 2023 WL 3569906, at *28 (E.D. Cal. May 19, 2023). Accordingly, this 6 factor supports an award equal to the 25 percent benchmark. 7 6. Lodestar crosscheck and market rate 8 The Court may also perform a lodestar cross-check to confirm that requested attorneys’ 9 fees are reasonable. Indirect Purchaser Class v. Erwin (In re Optical Disk Drive Prods. Antitrust 10 Litig.), 959 F.3d 922, 933 (9th Cir. 2020). The lodestar method calculates attorney fees “by 11 multiplying the number of hours reasonably expended by counsel on the particular matter times a 12 reasonably hourly rate.” Florida v. Dunne, 915 F.2d 542, 545 n.3 (9th Cir. 1990) (citing Hensley 13 v. Eckerhart, 461 U.S. 424, 433 (1983)). The product of this computation, the “lodestar” amount, 14 yields a presumptively reasonable fee. Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th 15 Cir. 2013). Next, the Court may adjust the lodestar upward or downward using a “multiplier” 16 considering factors adopted by the Ninth Circuit:
17 (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) 18 the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) 19 whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, 20 reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in 21 similar cases.3 22 23 Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975). 24 In general, the first step in determining the lodestar is to assess whether the number of 25 hours expended was reasonable. Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000); 26 Lafitte, 1 Cal. 5th at 489. The Court does not necessarily require a “minute-by-minute
27 3 The Ninth Circuit has determined the “desirability” of a case is no longer a relevant factor. Resurrection Bay Conservation Alliance v. City of Seward, 640 F.3d 1087, 1095 n.5 (9th 1 breakdown” of counsel’s hours. See Beltran v. Spices, No. 1:18-cv-01676-JLT-SAB, 2023 WL 2 1467118, at *28 (E.D. Cal. Feb. 2, 2023), F&R adopted in relevant part, 2023 WL 5817577 3 (Sept. 8, 2023); Barbosa v. Cargill Meat Sols. Corp., 297 F.R.D. 431, 451 (E.D. Cal. 2013) (the 4 Court is not required to perform an “exhaustive cataloging and review of counsel’s hours”). 5 Rather, “plaintiff’s counsel can meet his burden—although just barely—by simply listing his 6 hours and identify[ing] the general subject matter of his time expenditures.” Fischer, 214 F.3d at 7 1121. Here, Counsel for Plaintiff has provided a chart of the hours his firm worked, 108.1 total. 8 (Doc. 23-1 at ¶ 51). Counsel did not provide the Court with a breakdown of total hours by 9 category. Instead, Counsel only proffered a total amount of hours expended and a general 10 description of the tasks. Id. at ¶ 52. The Court is unable to determine the reasonableness of the 11 hours proffered to have been expended by Counsel and his firm, particularly for purposes of a 12 lodestar check. See Lafitte, 1 Cal. 5th at 505 (“trial courts retain the discretion to consider 13 detailed timesheets as part of a lodestar calculation, even when performed as a cross-check on a 14 percentage calculation”). It is unclear if the 108.1 hours proffered by Counsel include 15 unnecessary tasks, duplicative work, or clerical tasks. 16 Next, the Court must determine whether the hourly rates are reasonable to calculate the 17 lodestar. Dunne, 915 2d at 545 n.3. The Supreme Court has explained attorney fees are to be 18 calculated with “the prevailing market rates in the relevant community.” Blum v. Stenson, 456 19 U.S. 886, 895-96, n.11 (1984). In general, the “relevant community” for purposes of determining 20 the prevailing market rate is the “forum in which the district court sits.” Camacho v. Bridgeport 21 Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008). Thus, when a case is filed in the Eastern District of 22 California, this District “is the appropriate forum to establish the lodestar hourly rate…” Jadwin 23 v. County of Kern, 767 F.Supp.2d 1069, 1129 (E.D. Cal. 2011). 24 The fee applicant bears the burden to establish that the requested rates are commensurate 25 "with those prevailing in the community for similar services by lawyers of reasonably comparable 26 skill, experience, and reputation.” Blum, 465 U.S. at 895 n.11. The applicants meet this burden 27 by producing “satisfactory evidence—in addition to the attorney's affidavits—that the requested 1 reasonably comparable skill, experience and reputation.” Id.; see Chaudhry v. City of Los 2 Angeles, 751 F.3d 1096, 1110-11 (9th Cir. 2014) (“Affidavits of the plaintiffs’ attorney[s] and 3 other attorneys regarding prevailing fees in the community ... are satisfactory evidence of the 4 prevailing market rate”). 5 Here, Counsel for Plaintiff applied the following hourly rates: (1) $500.00 for Jonathan 6 Melmed, Esq., 10 years’ experience; (2) $525.00 for Kyle D. Smith, Esq., 11 years’ experience; 7 (3) 381.00 for Joanne H. Kim, Esq. 0.5 years’ experience; and (4) $205.00 for Lorrie Gutierrez, 8 Paralegal, 6 years’ experience. (Doc. 23-1 at ¶ 51). Counsel asserts the rates he requests are 9 reasonable, similar, and competitive in the field of employment law within southern California. 10 Id. at ¶ 57. 11 It is Counsel’s burden to establish that the requested rates are commensurate with the 12 market rate within the Eastern District. Blum, 465 U.S. at 895 n.11. Counsel has failed to carry 13 his burden. Moreover, it appears the requested rates are higher than those previously accepted by 14 the Eastern District as reasonable. E.g., Martinez, No. 1:19-cv-01581-JLT-CDB, 2023 WL 15 3569906, at *34 (awarding $525.00 per hour to attorney with twenty years or more of experience, 16 $300.00 per hour for around seven years of experience, and $200.00 for two years or less of 17 experience); Lusk, No. 1:17-cv-00762-JLT-EPG, 2023 WL 4134656, at *29 (awarding $525.00 18 per hour to attorneys with twenty years or more of experience, $450.00 per hour to an attorney 19 with thirteen years of experience, $400.00 per hour to an attorney with eight years of experience, 20 $300.00 per hour for attorneys with approximately five years of experience, and $200.00 per hour 21 for attorneys with less than two years of experience); Englert v. City of Merced, No. 1:18-cv- 22 01239-NONE-SAB, 2020 WL 2215749, at *13 (E.D. Cal. May 7, 2020) (finding a rate of 23 $450.00 per hour for a partner with nineteen years of experience, $400.00 per hour for a senior 24 associate attorney with an unspecified amount of years of experience, and a rate of $325.00 per 25 hour for an associate with eight years of experience to be reasonable); Garcia v. FCA US LLC, 26 No. 1:16-cv-00730-JLT, 2018 WL 1184949, at *6 (E.D. Cal. Mar. 7, 2018) (awarding $400.00 27 per hour to attorney with approximately thirty years of experience, $300.00 to attorney with 1 with five years of experience, and $175.00 to attorney with less than five years of experience); 2 Schmidt v. City of Modesto, No. 1:17-cv-01411-DAD-MJS, 2018 WL 6593362, at *6 (E.D. Cal. 3 Dec. 14, 2018) (paralegal rates within the Eastern District range from $75.00 to approximately 4 $150.00 per hour, depending on experience); In re Taco Bell Wage & Hour Actions, 222 F. Supp. 5 3d 813, 839 (E.D. Cal. 2016) (attorneys with experience of twenty or more years of experience 6 are awarded $350.00 to $400.00 per hour). 7 In summary, the Court will provide Counsel for Plaintiff the opportunity to provide 8 supplemental briefing to clarify why an upward departure of the 25 percent benchmark is 9 appropriate in this action. Further, Counsel may provide supplemental briefing to allow the Court 10 to conduct a lodestar crosscheck. 11 D. Requests for Costs 12 1. Litigation Costs 13 “There is no doubt that an attorney who has created a common fund for the benefit of [a] 14 class is entitled to reimbursement of reasonable litigation expenses from that fund.” Ontiveros v. 15 Zamora, 303 F.R.D. 356, 375 (E.D. Cal. 2014) (citation omitted). Attorneys may recover 16 reasonable expenses that would typically be billed to paying clients in non-contingency matters. 17 Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994); Munoz v. Chipotle Mexican Grill, Inc., 238 18 Cal. App. 4th 291, 311 (2015) (“A prevailing PAGA plaintiff may recover his or her attorney fees 19 and costs as well.”). 20 The Settlement Agreement authorizes Counsel for Plaintiff to recover their actual 21 litigation costs of up to $20,000. (Doc. 23-1 at 37-38). Counsel for Plaintiff seeks litigation 22 expenses in the amount of $11,090.04. Id. at ¶ 59. Counsel notes these costs do not include 23 anticipated costs in connection with shepherding the settlement through funding and 24 disbursement. Id. The itemized costs include mailing and filing fees, expert costs, and mediation 25 fees. Id. “Such costs are routinely reimbursed in these types of cases.” Alvarado v. Nederend, 26 No. 1:08-cv-01099-OWW-DLB, 2011 WL 1883188, at *10 (E.D. Cal. May 17, 2011) (citation 27 omitted). Because the costs requested are reasonable and do not exceed the amount authorized, 1 2. Costs of Settlement Administration 2 Plaintiff asks the Court to appoint ILYM Group, Inc. as settlement administrator and 3 approve costs of approximately $3,000.00. (Doc. 23-3 at 3). This estimate is ultimately 4 reasonable given that this action is brought on behalf of 191 individuals. See Campbell v. FMC 5 Techs. Surface Integrated SVCS, No. 1:20-cv-00901-CDB, 2022 WL 17555517, at *12 (E.D. Cal. 6 Dec. 9, 2022) (finding settlement administration costs of $1,514.23 reasonable to manage 7 disbursement to 15 individuals). Thus, the Court will appoint ILYM Group, Inc. as settlement 8 administrator and finds the estimated administration costs are reasonable. 9 3. Representative Award 10 Plaintiff requests an enhancement award in the amount of $7,500.00. (Doc. 23 at 34). 11 Courts have generally found that $7,500.00 incentive payments are reasonable. Monterrubio, 291 12 F.R.D. at 462. A representative may “receive a share of class recovery above and beyond [his] 13 individual claim” with a service payment, also known as an “incentive payment.” China 14 Agritech, Inc. v. Resh, 138 S. Ct. 1800, 1811 n. 7 (2018); see Rodriguez v. West Pub’g Corp., 563 15 F.3d 948, 958 (9th 2009) (“Incentive awards are fairly typical in class action cases.”) (citations 16 omitted). However, the decision to approve such an award is a matter within the court’s 17 discretion. Dunleavy v. Nadler (In re Mego Fin. Corp. Sec. Litig.), 213 F.3d 454, 463 (9th Cir. 18 2000). Incentive awards are meant to compensate representatives for work done on behalf of the 19 class, to make up for financial or reputational risk undertaken in bringing the action, and to 20 recognize their willingness to act as a private attorney general. Rodriguez, 563 F.3d 948 at 958- 21 59. 22 The Ninth Circuit has emphasized that “district courts must be vigilant in scrutinizing all 23 incentive awards.” Radcliffe v. Experian Info. Solutions, 715 F.3d 1157, 1165 (9th Cir. 2013). In 24 evaluating a request for an incentive payment to a representative, the Court must consider ‘“the 25 actions the plaintiff has taken to protect the interests of the class, the degree to which the class has 26 benefited from those actions, the amount of time and effort the plaintiff expended in pursuing the 27 litigation,’ and any financial or reputational risks the plaintiff faced.” Named Plaintiffs & 1 Settlement Class Members v. Feldman (In re Apple Inc. Device Performance Litig.), 50 F.4th 769, 2 786 (9th Cir. 2022) (quoting Roes v. SFBSC Mgmt., LLC, 944 F.3d 1035, 1057 (9th Cir. 2019)). 3 a. Time Expended 4 The Eastern District has awarded service payments for “’substantial efforts taken as a 5 class representative’ when the plaintiff has undertaken at least 30 to 40 hours of work.” Greer v. 6 Dick’s Sporting Goods, Inc., No. 2:15-cv-01063-KJM-CKD, 2020 WL 5535399, at *4 (E.D. Cal. 7 Sep. 15, 2020). Here, Plaintiff asserts he regularly conferred with his attorneys, actively 8 participated in the prosecution of his claims, remained available to assist his attorneys during 9 settlement negotiations, and reviewed and evaluated the settlement. (Doc. 23-2 at ¶¶ 6-8). 10 Plaintiff purports he spent a “significant amount of time” conferring and working with his 11 attorneys on this action. Id. at ¶ 9. However, Plaintiff has provided no information related to the 12 actual number of hours he spent working with his attorneys on this action, or even an estimate of 13 the number of hours spent. Accordingly, this factor does not support an enhancement award. 14 b. Action taken for the benefit of the Aggrieved Employees and California 15 Counsel for Plaintiff notes “Plaintiff’s efforts were instrumental in securing the favorable 16 terms of the Settlement Agreement.” (Doc. 23-1 at ¶ 62). Plaintiff reports he provided his 17 attorneys with information about his employment, reviewed documents, attempted to locate 18 witnesses, and educated his attorneys on the intricacies and details of Defendant’s unique 19 business. (Doc. 23-2 at ¶¶ 6-8). It appears Plaintiff did not participate in settlement negotiations 20 but remained available. Id. at ¶ 8; Cf. Lusk, No. 1:17-cv-00762-JLT-EPG, 2023 WL 4134656, at 21 *32 (plaintiff was deposed and participated in the full-day mediation). In light of Plaintiff’s 22 representations, it appears Plaintiff’s actions benefited the Aggrieved Employees, who will 23 receive an average payment of $243.67. 24 Further, incentive payments may recognize a named plaintiff’s “willingness to act as a 25 private attorney general.” Rodriguez, 563 F.3d at 958-59. Here, Plaintiff acted as a private 26 attorney general, which will result in a payment of $139,625.00 to the LWDA. (Doc. 23 at 11). 27 Thus, this factor supports an enhancement award. 1 c. Reputational risk 2 Counsel for Plaintiff argues that Plaintiff faces a potential risk that future employers will 3 find Plaintiff’s name associated with this lawsuit. (Doc. 23-1 at ¶ 62). Counsel’s claim is 4 unpersuasive. Any difficulty obtaining future employment due to Plaintiff’s status as a named 5 plaintiff lacks evidentiary support and is simply speculative. A “trial court is not bound to, and 6 should not, accept conclusory statements about ‘potential stigma’ and ‘potential risk,’ in the 7 absence of supporting evidence.” Wilson v. Tesla, Inc., 833 Fed. App’x 59, 62 (9th Cir. 2020) 8 (quoting Clark v. Am. Residential Servs. LLC, 175 Cal. App. 4th 785, 805 (2009)). Accordingly, 9 this factor does not support an enhancement award. 10 d. Financial Risk 11 Counsel for Plaintiff contends that Plaintiff undertook the risk of having to pay 12 Defendant’s costs if Plaintiff did not prevail. (Doc. 23-1 at ¶ 62). Courts in the Ninth Circuit 13 have acknowledged such a financial risk supports an enhancement award. Vasquez v. Coast 14 Valley Roofing, Inc., 266 F.R.D. 482, 491 (plaintiff undertook the financial risk that, in the event 15 of a judgment in favor of defendant, plaintiff could have been personally responsible for any costs 16 awarded in favor of defendant); Wilson v. Metals USA, Inc., No. 2:12-cv-00568-KJM-DB, 2021 17 WL 516585, at *9 (E.D. Cal. Feb. 11, 2021). Additionally, Counsel for Plaintiff notes Plaintiff 18 executed a general release that far exceeds the scope of the claims being released by the 19 Aggrieved Employees. (Doc. 23-1 at ¶ 62). The Court takes this sacrifice into account when 20 scrutinizing an enhancement award. See Ontiveros, 303 F.R.D. at 375 (citing Rodriguez, 563 21 F.3d at 958-59). Thus, this factor supports an enhancement award. 22 Considering the factors set forth above including the actions and financial risks 23 undertaken by Plaintiff, a $7,500.00 enhancement award may be warranted. However, without 24 additional information regarding the time Plaintiff spent on this action, the Court is presently 25 unable to evaluate the reasonableness of the requested award.
26 27 1 | Conclusion and Order 2 In summary, the Court concludes that the parties’ PAGA settlement is fundamentally fair, 3 || reasonable, and adequate in view of PAGA’s public policy goals. The Court finds Plaintiff's 4 | requests for litigation costs and settlement administration costs also are reasonable. The Court 5 || presently is unable to determine whether Plaintiffs request for attorney’s fees and enhancement 6 | award were reasonable. 7 Accordingly, IT IS HEREBY ORDERED, Plaintiff's motion for approval of settlement 8 || shall be held in abeyance for 14 days pending his filing of any supplemental briefing he may 9 | submit to address the aforementioned deficiencies in his request for attorneys’ fees and 10 | enhancement award. 11 For the reasons set forth herein, in the event Plaintiff declines to timely file supplemental 12 | briefing, the Court intends to approve an award of attorney’s fees in the amount of 25% and an 13 | enhancement award in the amount of $5,000. 14 | IT IS SO ORDERED. 's Dated: _ September 14, 2023 | ) Ww Vv KD 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28