1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MIGUEL GUERRERO, on behalf of Case No.: 3:21-cv-01502-RBM-JLB himself and all others similarly situated, 12 ORDER: Plaintiff, 13 v. (1) GRANTING MOTION FOR 14 FINAL APPROVAL OF CLASS UNITED STATES GYPSUM 15 ACTION SETTLEMENT (Doc. 35) COMPANY, a Delaware corporation; and
16 DOES 1–20, inclusive, (2) GRANTING MOTION FOR 17 Defendants. ATTORNEYS’ FEES COSTS AND SERVICE AWARD (Doc. 35-1) 18
19 [Doc. 35] 20 21 I. INTRODUCTION 22 On November 17, 2022, Plaintiff Miguel Guerrero (“Plaintiff”) filed a Motion for 23 Order Granting Final Approval of Class Action Settlement (“Motion for Final Approval”) 24 (Doc. 35) and a Motion for Attorneys’ Fees, Costs, and Service Award (“Motion for 25 Attorneys’ Fees”) (Doc. 35–1). The undersigned held a hearing on December 22, 2022. 26 The Court has reviewed the Stipulation, Settlement and Release of Class Action and Private 27 Attorneys General Claims (the “Settlement”), the docket, and the applicable law. For the 28 reasons discussed below, Plaintiff’s Motion for Final Approval and Motion for Attorneys’ 1 Fees are GRANTED. 2 II. BACKGROUND 3 On April 29, 2021, Plaintiff filed a putative class action pursuant to California Code 4 of Civil Procedure Section 382 against Defendant United States Gypsum Company 5 (“Defendant”) in the Superior Court of the State of California, County of San Diego. (Doc. 6 1 at 2.) Defendant filed an answer on June 1, 2021. (Id.) Plaintiff filed a first amended 7 complaint (“FAC”) on July 29, 2021. (Id.) Plaintiff alleges he was Defendant’s employee 8 from January 2016 through April 20, 2021, and Plaintiff filed this putative class action “on 9 behalf of himself and all non-nonexempt employees who are or were employed by 10 Defendant in California during the four years preceding the filing of the complaint.” (Id. 11 at 3.) Defendant filed an answer to the FAC on August 4, 2021. (Doc. 1 at 3.) The FAC 12 includes the following claims: (1) failure to pay all wages, (2) non-payment of overtime 13 compensation, (3) failure to provide proper meal breaks, (4) failure to authorize and permit 14 proper rest breaks, (5) failure to properly maintain and submit itemized wage statements, 15 (6) violation of Labor Code §§ 201 and 202.7, (7) failure to reimburse business expenses, 16 (8) violation of California Business and Professions Code § 17200, and (9) violation of 17 California Labor Code Private Attorney General Act. (Doc. 1–4.) 18 On February 9, 2022, Plaintiff and Defendant (collectively, the “Parties”) attended 19 mediation with Steve Rottman, “a well-respected mediator for wage and hour claims.” 20 (Doc. 25 at 13.) After a full day of mediation, the Parties were able to reach a resolution. 21 (Id.) The Parties continued to draft and negotiate the Settlement over the next month, and 22 it was finalized and mutually executed on March 24, 2022. (Doc. 25 at 13; see Doc. 25– 23 7.) Also on March 24, 2022, Plaintiff submitted the Settlement to the Labor and Workforce 24 Development Agency (“LWDA”) pursuant to Labor Code § 2699(1)(2). (Doc. 25 at 13; 25 Doc. 35 at 10.) 26 On March 25, 2022, Plaintiff filed a Motion for Preliminary Approval of Class 27 Action Settlement (“Motion for Preliminary Approval”). (Doc. 25.) Defendant did not file 28 an opposition. The undersigned held a hearing for the Motion for Preliminary Approval 1 on June 17, 2022 and issued an order granting the Motion for Preliminary Approval on 2 June 23, 2022 (“Preliminary Approval Order”). (Doc. 33.) The Preliminary Approval 3 Order provisionally certified the class for settlement purposes, designated Plaintiff as the 4 Class Representative, designated Plaintiff’s counsel as Class Counsel, authorized retention 5 of Phoenix Settlement Administrators as the Settlement Administrator, approved the 6 Notice of Class Action Settlement and proposed notice procedures. (See Doc. 33.) Plaintiff 7 subsequently filed the instant Motion for Final Approval and Motion for Attorneys’ Fees 8 on November 17, 2022. (Docs. 35, 35–1.) 9 III. SUMMARY OF SETTLEMENT TERMS 10 The proposed settlement class includes “all current and former non-exempt 11 employees employed by Defendant in the State of California during the Class Settlement 12 Period” (“Settlement Class” or “Settlement Class Members”). (Doc. 35–2 at 34.) The 13 settlement class period is from April 29, 2017 through June 3, 2022. (Id. at 29.) 14 The deadline to opt-out or object to the Settlement fell on September 19, 2022. (Doc. 15 35 at 15; Doc. 35–4 at 4.) Out of the 414 Settlement Class Members, two opted out of the 16 Settlement, and there have been no objections to the Settlement. (Doc. 35 at 7; Doc. 35–4 17 at 4.) Moreover, none of the notices were deemed undeliverable. (Id.) This results in a 18 99% participation rate for the Settlement. (Doc. 35 at 16.) 19 The basic terms of the Settlement include the following: 20 1. Defendant to pay up to $600,000.00 to establish the Gross Settlement Amount, 21 subject to credit for Pick-Up Stix Payments previously paid by Defendant to 352 22 Settlement Class Members. 23 2. The Net Settlement Amount is the Gross Settlement Amount, less the Service 24 Award, General Release Payment, California Private Attorneys General Act of 2004 25 (“PAGA”) Payment, Class Counsel Costs Award, Class Counsel Fees Award, 26 Settlement Administration Costs, Employer Taxes, Pick-Up Stix Payments, and 27 Pick-Up Stix Adjustment Payments. 28 / / / 1 3. The Class Representative Service Award is the Court approved payment of $5,000 2 paid to Plaintiff for his time, effort and risk in bringing and prosecuting the action. 3 4. The General Release Payment is the Court approved payment of $10,000.00 to 4 Plaintiff in exchange for his execution of a general release of known and unknown 5 claims and waiver pursuant to California Civil Code § 1542. 6 5. The PAGA Payment is the $10,000.00 allocated to penalties under the PAGA, of 7 which $7,500.00 shall be paid by the Settlement Administrator directly to the 8 LWDA; and the remaining $2,500.00 shall be distributed to PAGA Group Members 9 based on Compensable PAGA Pay Periods. 10 6. The Class Counsel Costs Award is the expenses and costs incurred by Class Counsel 11 in connection with litigation of the Action, which are not to exceed $17,000.00 and 12 are paid from the Gross Settlement Amount. 13 7. The Class Counsel Fees Award is the attorneys’ fees for Class Counsel’s litigation 14 and resolution of the Action, which are not to exceed 30% of the Gross Settlement 15 Amount, or $180,000.00 and are paid from the Gross Settlement Amount. 16 8. The Settlement Administration Costs are the costs payable from the Gross 17 Settlement Amount to the Settlement Administrator for administering this 18 Settlement, which are not to exceed $9,000.00. 19 9. The Employer Taxes are Defendant’s share of any employer payroll taxes and other 20 required employer withholdings due on the Individual Settlement Payments, and 21 Pick-Up Stix Adjustment Payments, which are estimated at $10,445.25. 22 10. The Pick-Up Stix Payments is the $167,700.00 already paid by Defendant for Pick- 23 Up Stix settlement agreements entered into with 352 Settlement Class Members to 24 settle the action prior to this Settlement, and for which Defendant shall receive credit 25 as part of this Settlement. The Pick-Up Stix Adjustment Payments is the payment 26 of $5,000.00 set aside to give to employees who were not already paid by Defendant 27 for signing Pick-Up Stix settlement agreements. 28 (Doc. 35 at 11–14.) 1 IV. LEGAL STANDARD 2 A class action may not be settled and have judgment entered without court approval. 3 FED. R. CIV. P. 23(e). Rule 23(e) settlement approval proceeds in three steps: (1) 4 preliminary approval of the settlement; (2) notice of the settlement to class members; and 5 (3) a final fairness hearing at which class members may be heard, and at which evidence 6 and argument regarding the settlement may be considered. Murillo v. Pac. Gas & Elec. 7 Co., 266 F.R.D. 468, 473 (E.D. Cal. 2010). 8 The Ninth Circuit maintains a “strong judicial policy that favors settlement” of class 9 actions. Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992); see also 10 Clesceri v. Beach City Investigations & Protective Servs., Inc., No. CV-10-3873-JST RZX, 11 2011 WL 320998, at *7 (C.D. Cal. Jan. 27, 2011) (“[j]udicial policy favors settlement in 12 class actions, as substantial resources can be saved by avoiding the time, cost, and rigors 13 of formal litigation”). The district court’s decision to approve a settlement will not be 14 overturned except upon a strong showing of a clear abuse of discretion. Hanlon v. Chrysler 15 Corp., 150 F.3d 1011, 1026–27. 16 Federal Rule of Civil Procedure (“Rule” or “Rules”) 23(e) “requires the district court 17 to determine whether a proposed settlement is fundamentally fair, adequate, and 18 reasonable.” Hanlon, 150 F.3d at 1026 (citing Class Plaintiffs, 955 F.2d at 1276); see also 19 FED. R. CIV. P. 23(e). Where the “parties reach a settlement agreement prior to class 20 certification, courts must peruse the proposed compromise to ratify both the propriety of 21 the certification and the fairness of the settlement.” Staton v. Boeing Co., 327 F.3d 938, 22 952 (9th Cir. 2003). In these situations, settlement approval “requires a higher standard of 23 fairness and a more probing inquiry than may normally be required under Rule 23(e).” 24 Dennis v. Kellogg Co., 697 F.3d 858, 864 (9th Cir. 2012). 25 The Ninth Circuit notes that “[i]t is the settlement taken as a whole, rather than the 26 individual component parts, that must be examined for overall fairness.” Hanlon, 150 F.3d 27 at 1026. A court may not “delete, modify or substitute certain provisions” of the settlement; 28 rather, “[t]he settlement must stand or fall in its entirety.” Id. Courts “must be particularly 1 vigilant not only for explicit collusion, but also for more subtle signs that class counsel 2 have allowed pursuit of their own self-interests and that of certain class members to infect 3 the negotiations.” Dennis, 697 F.3d at 864 (quoting In re Bluetooth Headset Prods. Liab. 4 Litig., 654 F.3d 935, 947 (9th Cir. 2011)). 5 In determining whether a proposed settlement is “fair, reasonable, and adequate” 6 under Rule 23(e), courts considers several factors including: (1) the strength of the 7 plaintiff’s case, (2) the risk, expense, complexity, and likely duration of further litigation, 8 (3) the risk of maintaining class-action status throughout the trial, (4) the amount offered 9 in settlement, (5) the extent of discovery completed and the stage of the proceedings, (6) 10 the experience and views of counsel, (7) the presence of a governmental participant, and 11 (8) and the reaction of the class members to the proposed settlement. Hanlon, 150 F.3d at 12 1026; Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004); see also 13 Staton, 327 F.3d at 959. The Court need only consider some of these factors—namely, 14 those designed to protect absentees. See Molski v. Gleich, 318 F.3d 937, 953 (9th Cir. 15 2003). 16 V. DISCUSSION 17 A. Motion for Final Approval 18 a. Preliminary Approval of Class Action Settlement 19 As an initial matter, the Court issued the Preliminary Approval Order on June 23, 20 2022. (Doc. 33.) The Court found class certification under Rules 23(a) and 23(b)(3) 21 appropriate for the reasons outlined in the Preliminary Approval Order (Doc. 33). See FED. 22 R. CIV. P. 23(a) & (b)(3). The Court also found “the Settlement is fair, reasonable and 23 adequate.” (Doc. 33 at 11); see also FED. R. CIV. P. 23(e). In doing so, the Court made an 24 initial fairness determination examining whether Plaintiff and his counsel adequately 25 represent the Settlement Class, whether the Settlement is a result of arm’s length 26 negotiation, the costs, risks, and delay of trial and appeal, and whether compensation to the 27 Settlement Class was relative to Defendant’s exposure. (See Doc. 33.) The Court found 28 these factors weighed in favor of preliminarily approving the settlement. (Id. at 11.) As 1 such, the Court directed the Parties to proceed with providing proper notice to Settlement 2 Class Members and set a date for the required final approval hearing under Rule 23(e). 3 (Doc. 33 at 13–16.) 4 b. Notice to Settlement Class Members 5 The Court’s Preliminary Approval Order approved the form and manner of notice to 6 the Settlement Class Members. (See Doc. 33 at 13–14.) The Court now finds the method 7 for distributing class notice was executed as previously detailed in its Preliminary Approval 8 Order. (See Doc. 35–4 at 4, 9–22.) The Settlement Administrator conducted a National 9 Change of Address search in an attempt to update the class list of addresses as accurately 10 as possible. (Doc. 35 at 15.) Moreover, the Settlement Administrator distributed notice 11 via U.S. first class mail, in English and Spanish, to 414 Settlement Class Members. (Doc. 12 35–4 at 4.) Settlement Class Members had until September 19, 2022 to submit objections, 13 disputes, and/or requests for exclusion. (Id.) As of November 16, 2022, no notices had 14 been returned, no notices were considered undeliverable, and only two individuals 15 requested exclusion. (Id.) The Court finds the notice to the Settlement Class Members 16 satisfies due process, and the notice procedures were “the best notice practicable under the 17 circumstances.” Silber v. Mabon, 18 F.3d 1449, 1452–54 (9th Cir. 1994) (quoting In re 18 Victor Techs. Sec. Litig., 792 F.2d 862, 865 (9th Cir. 1986)) (holding that Rule 23’s “best 19 notice practicable” requirement is satisfied by “what notice is reasonably certain to inform 20 the absent members of the plaintiff class”); see also FED. R. CIV. P. 23(c)(2)(B). 21 c. Final Approval of Class Action Settlement 22 As previously noted, the Court made an initial fairness determination in its 23 Preliminary Approval Order. (See Doc. 33.) The Court again finds the following: (1) Class 24 Counsel adequately represents the interests of the class and conducted a thorough 25 investigation; (2) the Settlement was reached through arm’s length negotiation in which a 26 private mediator was involved, and the Parties were represented by experienced counsel; 27 (3) the Settlement was achieved after evaluating the strengths of Plaintiff’s case as well as 28 the risks, expense, complexity, and likely duration of further litigation; (4) the relief 1 provided for the Settlement Class is adequate, and (5) the Settlement treats Settlement 2 Class Members equitably relative to each other. (See id.) 3 Now, after Settlement Class Members have been notified of the Settlement and have 4 had an opportunity to express their reactions, the Court examines the reaction to the 5 Settlement. No objections to the Settlement have been filed, no notices have been returned, 6 and only two individuals requested exclusion. (See Doc. 35 at 15; Doc. 35–4 at 4.) Thus, 7 in addition to those factors considered by the Court in its Preliminary Approval Order, the 8 Court finds this remaining factor supports approving the Settlement. 9 Accordingly, because the Settlement is fair and the Settlement Administrator 10 executed the notice program previously approved by the Court, the Court finds final 11 approval of the Settlement is warranted. Therefore, Plaintiff’s Motion for Final Approval 12 is GRANTED. 13 B. Motion for Attorneys’ Fees 14 In conjunction with the Motion for Final Approval, Plaintiff also filed a Motion for 15 Attorneys’ Fees. (Doc. 35–1.) In the Motion for Attorneys’ Fees, Plaintiff requests the 16 Court enter an order: “(1) awarding Class Counsel’s attorneys’ fee of $180,000; (2) 17 awarding Class Counsel’s reasonable litigation costs and expenses of $14,570.88; (3) 18 awarding Plaintiff the Service Award in the amount of $5,000 and the General Release 19 Payment in the amount of $10,000; and (4) awarding settlement administration costs of 20 $9,000 to the Settlement Administrator.” (Id. at 10.) 21 a. Attorneys’ Fees and Costs 22 Plaintiff seeks “payment to Class Counsel for attorneys’ fees in the amount of 23 $180,000 and litigation expenses in the amount of $14,570.88.” (Id. at 3, 10.) 24 “While attorneys’ fees and costs may be awarded in a certified class action where so 25 authorized by law or the parties’ agreement . . . courts have an independent obligation to 26 ensure that the award, like the settlement itself, is reasonable, even if the parties have 27 already agreed to an amount.” In re Bluetooth Headset Prod. Liab. Litig., 654 F.3d at 941. 28 “Where a settlement produces a common fund for the benefit of the entire class, courts 1 have discretion to employ either the lodestar method or the percentage-of-recovery 2 method.” Id. at 942. Under the percentage-of-recovery method, “the court simply awards 3 the attorneys a percentage of the fund sufficient to provide class counsel with a reasonable 4 fee.” Hanlon, 150 F.3d at 1029; see also Kim v. Allison, 8 F.4th 1170, 1181 (9th Cir. 2021). 5 Typically, courts calculate 25% of the fund as a “benchmark” for a reasonable fee award. 6 In re Bluetooth Headset Prod. Liab. Litig., 654 F.3d at 942. “The lodestar figure is 7 calculated by multiplying the number of hours the prevailing party reasonably expended 8 on the litigation (as supported by adequate documentation) by a reasonable hourly rate for 9 the region and for the experience of the lawyer.” Id. at 941 (citing Staton, 327 F.3d at 10 965)). 11 i. Attorneys’ Fees 12 Here, “Plaintiff seeks final approval of Class Counsel’s attorneys’ fees of 30% of 13 the Gross Settlement Amount of $600,000, a common fund established for the benefit and 14 distribution to Settlement Class Members.” (Doc. 35–1 at 13.) This amounts to 15 $180,000.00. (Id. at 14.) Plaintiff explains that “the negotiated fees reflect an arms’-length 16 compromise that was reached after a full day mediation session with Steve Rottman, a well- 17 regarded mediator of wage and hour class actions, who proposed the principal terms of this 18 class action settlement.” (Id. at 15.) Moreover, “the fee amount is part of an overall 19 settlement that the parties accepted after taking into account risks to both sides, and the 20 result is a non-collusive agreement that provides substantial benefits to Settlement Class 21 Members as well as reasonable fees to counsel that assumed substantial risk in prosecuting 22 this case.” (Id.) Plaintiff notes that Class Counsel’s requested attorneys’ fees can be 23 justified under the percentage-of-recovery method, or the lodestar method. (Id. at 16, 23.) 24 (a) Percentage-of-Recovery Method 25 Plaintiff asserts that, “[h]ere, the request for attorneys’ fees in the amount of 30% of 26 the common fund falls within the range of acceptable attorneys’ fees in Ninth Circuit 27 cases.” (Id. at 17.) While the Ninth Circuit has established a “benchmark” figure of 25% 28 of the settlement fund as a reasonable fee award, the exact percentage awarded varies, and 1 fee awards often exceed that benchmark. (Id. at 16); see In re Omnivision Technologies, 2 Inc., 559 F. Supp. 2d 1036, 1047 (N.D. Cal. 2008) (“in most common fund cases, the award 3 exceeds [the 25%] benchmark”); see also In re Heritage Bond Litig., No. 02-ML-1475 DT, 4 2005 WL 1594403, at *19 (C.D. Cal. June 10, 2005) (“[c]ourts in the Ninth Circuit have 5 awarded attorney fees in amounts greater than the twenty-five percent (25%) ‘benchmark 6 percentage’”); see, e.g., In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 460 (9th Cir.2000) 7 (affirming award of fees equal to one-third of total recovery). Moreover, courts may 8 consider the following factors when determining whether the benchmark percentage should 9 be adjusted: (1) the result obtained for the class; (2) the effort expended by counsel; (3) 10 counsel’s experience; (4) counsel’s skill; (5) the complexity of the issues; (6) the risks of 11 non-payment assumed by counsel; (7) the reaction of the class; and (8) comparison with 12 counsel’s lodestar. In re Heritage Bond Litig., 2005 WL 1594403, at *18. 13 In examining the above factors, the Court finds adjusting the benchmark percentage 14 is warranted. Class Counsel negotiated an agreement in which Settlement Class Members 15 will share the entire Net Settlement Amount and will receive an average payment of 16 $469.14, with the highest payment estimated at $1,139.65 and the lowest at $8.57. (See 17 Doc. 35 at 22; Doc. 35–1 at 18.) “Considering that Class Members here earned an average 18 of $22.36 per hour, the average recovery (including the Pick-Up Stix Payment) equals pay 19 for over 39 hours of work.” (Doc. 35–1 at 18.) Additionally, “[t]his matter had been 20 pending for a year and a half, and Class Counsel performed substantial work and 21 investigation leading up to the Parties’ negotiation of the Settlement.” (Id. at 19.) Class 22 Counsel has “considerable experience settling wage and hour class actions” and “had to 23 conduct extensive research and demonstrate advanced skill in presenting their arguments 24 to convince Defendant it faced a significant risk.” (Id. at 20.) Lastly, Class Counsel faces 25 heightened risk because this action was undertaken on a contingent basis. (Id. at 21); see 26 In re Washington Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1300–01 (9th Cir. 27 1994) (citing Skelton v. General Motors Corp., 860 F.2d 250, 254 (7th Cir.1988)) (“in the 28 common fund context, attorneys whose compensation depends on their winning the case, 1 must make up in compensation in the cases they win for the lack of compensation in the 2 cases they lose”); see also Barbosa v. Cargill Meat Sols. Corp., 297 F.R.D. 431, 449 (E.D. 3 Cal. 2013) (explaining the action was taken on a contingency fee basis “and, as such, Class 4 Counsel invested time, effort, and money with no guarantee of recovery . . . where recovery 5 is uncertain, an award of one-third of the common fund as attorneys’ fees has been found 6 to be appropriate”). 7 While the percentage of recovery method appears to be a reasonable calculation of 8 attorneys’ fees, the Court will cross-check this method with the lodestar method. See In re 9 Bluetooth Headset Prod. Liab. Litig., 654 F.3d at 944 (noting that even when one method 10 “may be a perfectly appropriate method of fee calculation, we have also encouraged courts 11 to guard against an unreasonable result by cross-checking their calculations against a 12 second method”). 13 (b) Lodestar Method 14 As stated, the lodestar method involves multiplying the number of hours the 15 prevailing party reasonable expended on the litigation by a reasonable hourly rate. Staton, 16 327 F.3d at 965. The resulting amount will be considered “presumptively reasonable,” but 17 “the court may adjust it upward or downward by an appropriate positive or negative 18 multiplier reflecting a host of ‘reasonableness’ factors” including the quality of the 19 representation, the benefit obtained for the class, the complexity of the issues, and the risk 20 of nonpayment. In re Bluetooth, 654 F.3d at 941–42; see also In re Washington Pub. 21 Power Supply Sys. Sec. Litig., 19 F.3d at 1301 (holding that “district courts have discretion 22 to use risk multipliers to enhance the lodestar in common fund cases”); Nichols v. City of 23 Taft, 155 Cal. App. 4th 1233, 1240 (2007) (“application of a lodestar multiplier is 24 discretionary; that is, it is based on the exercise of the court’s discretion after consideration 25 of the relevant factors in a particular case”). 26 In this action, Class Counsel includes Sam Kim and Yoonis Han, both of which have 27 an hourly rate of $600.00. (Doc. 35–1 at 24.) Sam Kim has thirteen years of experience, 28 and Yoonis Han has fourteen years of experience. (Id.) “Class Counsel have submitted 1 detailed itemized timesheets attesting to their efforts to prosecute this action, including 2 descriptions of the tasks performed, the time spent on those tasks, and the hourly rates of 3 each of the attorneys performing those tasks.” (Id.) The itemized timesheets represent a 4 total of 263.90 hours worked over the almost year and a half this matter has been pending. 5 (Id. at 23.) Thus, Plaintiff states that “Class Counsel’s requested attorneys’ fees can be 6 justified under the lodestar method with applying a multiplier of 1.14.” (Id.); see, 7 e.g., Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1051 (9th Cir. 2002) (upholding 8 a lodestar multiplier cross-check showing a multiplier of 3.65); Kelly v. Wengler, 822 F.3d 9 1085, 1093, 1105 (9th Cir. 2016) (affirming lodestar multipliers of 2.0 and 1.3). Further, 10 Plaintiff notes that “[t]heir practice is limited exclusively to plaintiff’s-side employment 11 litigation, and they focus on representing employees in wage and hour class action matters 12 such as this one.” (Id. at 24.) “They have litigated numerous wage and hour class actions 13 and have been appointed class counsel or co-class counsel in dozens of those cases, 14 representing hundreds of employees” and “[t]he requested fees and hourly rates are 15 reasonable and commensurate with their skill and experience.” (Id.) 16 The Court finds the requested fees and hourly rates are reasonable in light of Class 17 Counsels’ experience. See Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984) (explaining 18 courts examine whether “requested rates are in line with those prevailing in the community 19 for similar services by lawyers of reasonably comparable skill, experience and 20 reputation”); see also Drenckhahn v. Costco Wholesale Corp., No. 2:08-CV-01408-JHN- 21 SS, 2012 WL 12952720, at *4 (C.D. Cal. May 4, 2012) (finding “hourly billing rates 22 ranging from $450 to $515 for associates and $600 to $750 for partners are reasonable in 23 a ‘straightforward wage-and-hour litigation’ in this district”); Moreno v. Beacon Roofing 24 Supply, Inc., No. 19CV185-GPC(LL), 2020 WL 3960481, at *8 (S.D. Cal. July 13, 2020) 25 (applying lodestar calculation in wage and hour putative class action resulting in settlement 26 and finding reasonable an hourly rate of $742 for attorney with 18 years of experience in 27 complex class actions); Vasquez v. Kraft Heinz Foods Co., No. 3:16-CV-2749-WQH- 28 1 BLM, 2020 WL 1550234, at *7 (S.D. Cal. Apr. 1, 2020) (finding rates of $650 for an 2 attorney with 13 years of experience reasonable). 3 Accordingly, the Court concludes that Class Counsels’ attorneys’ fees request is 4 reasonable under either calculation method based on the result obtained for the class, 5 quality of representation, the quality of the settlement, and the contingent risk. 6 ii. Litigation Expenses 7 Plaintiff also requests litigation costs and expenses on behalf of Class Counsel in the 8 amount of $14,570.88. (Doc. 35–1 at 25.) Plaintiff asserts that Class Counsel incurred 9 $14,570.88 in costs and expenses, which is a fair and reasonable amount and that “[a]ll of 10 these costs were necessary, litigation-related, and reasonably incurred in the prosecution 11 of this case.” (Doc. 35–1 at 25; see Doc. 35–2 at 22.) 12 Rule 23(h) provides that “[i]n a certified class action, the court may award 13 reasonable attorney’s fees and nontaxable costs that are authorized by law or by the parties’ 14 agreement.” FED. R. CIV. P. 23(h); see Mills v. Elec. Auto-Lite Co., 396 U.S. 375, 391 15 (1970); Staton, 327 F.3d at 974–75. Pursuant to the Settlement, Class Counsel may seek 16 reimbursement of reasonable costs not to exceed $17,000.00. (Doc. 35 at 12.) In light of 17 the foregoing, the Court approves litigation expenses in the amount of $14,570.88. 18 In conclusion, the Court finds the requested attorneys’ fees and costs reasonable. 19 See In re M.D.C. Holdings Sec. Litig., No. CV89-0090 E (M), 1990 WL 454747, at *4 20 (S.D. Cal. Aug. 30, 1990) (“[b]ecause this Court believes the parties should be encouraged 21 to settle all their disputes as part of the settlement . . . including the amount of the fee . . . 22 if the agreed-to fee falls within a range of reasonableness, it should be approved as part of 23 the negotiated settlement”). As such, Class Counsel may receive attorneys’ fees in the 24 amount of $180,000.00 and litigation expenses in the amount of $14,570.88. 25 b. Class Representative Service Award 26 Plaintiff requests a $5,000 Service Award for his time and effort in pursuing this 27 action. (Doc. 35–1 at 29); see Cellphone Termination Fee Cases, 186 Cal. App. 4th 1380, 28 1 1394 (2010) (“a class representative is entitled to a fee in a California class action”). 2 Plaintiff also seeks a $10,000 General Release Payment. (Doc. 35–1 at 29.) 3 Service payments “compensate class representatives for work done on behalf of the 4 class, [and] to make up for the financial or reputational risk undertaken in bringing the 5 action.” Cellphone Termination Fee Cases, 186 Cal. App. 4th at 1394. Plaintiffs “should 6 be compensated for the expense or risk they have incurred in conferring a benefit on other 7 members of the class.” Clark v. Am. Residential Services LLC, 175 Cal. App. 4th 785, 806 8 (2009). Factors to be considered in granting a service award include: (1) the risk to the 9 class representative in commencing suit, both financial and otherwise; (2) the notoriety and 10 personal difficulties encountered by the class representative; (3) the amount of time and 11 effort expended by the class representative; (4) the duration of the litigation and; (5) the 12 personal benefit (or lack thereof) enjoyed by the class representative as a result of the 13 litigation. Van Vranken v. Atl. Richfield Co., 901 F. Supp. 294, 299 (N.D. Cal. 1995). 14 Plaintiff states the risks in commencing this suit were significant as “Plaintiff could 15 have been responsible for Defendant’s costs if the case was not successfully concluded in 16 their favor.” (Doc. 35–1 at 26.) Moreover, “as a former employee of Defendant, Plaintiff 17 placed his future employment prospects in peril by becoming a class representative.” (Id.) 18 Plaintiff also assumed “reputational risk that may impact his ability to find employment in 19 the near and distant future.” (Id. at 27.) The Court finds Plaintiff did assume risk by being 20 the named class representative in this action. 21 Regarding the amount of time and effort expended by the class representative, the 22 Court notes this action was filed on April 29, 2021, and Plaintiff explains that since that 23 time he has: 24 [A]ssisted Plaintiff’s Counsel with investigation of the class claims by, among other things, gathering relevant information and documents for investigation 25 and discovery, participating in numerous meetings and telephone conferences 26 to discuss Defendant’s policies and practices and the experiences of Defendant’s employees as they relate to the policies at issue in this case, 27 attending the early neutral conference, answering discovery requests, and 28 further reviewing and discussing the Settlement. 1 (Id.) Accordingly, the Court finds that a $5,000 Service Award is warranted. Regarding 2 the General Release Payment, Plaintiff states that, in exchange for $10,000, he will execute 3 general release of known and unknown claims and waiver pursuant to California Civil 4 Code § 1542. (Doc. 35 at 14; Doc. 35–1 at 28–29.) The Court also finds this amount 5 reasonable under the circumstances and concludes Plaintiff is entitled to a $10,000 General 6 Release Payment. 7 c. Settlement Administrator Costs 8 Plaintiff requests reimbursement of the Settlement Administrator’s costs, “which 9 were incurred pursuant to the Parties’ agreement and the Court’s Preliminary Approval 10 Order.” (Doc. 35–1 at 29.) The Settlement Administrator “has complied with the 11 requirements to mail the class notice to 414 Class Members and track responses, and will 12 distribute the checks after final approval, along with other duties.” (Id.) As such, Plaintiff 13 states “the Court should permit Phoenix Settlement Administrators to recover the fees and 14 costs it charged in the amount of [$]9,000 to perform its duties in this case.” (Id.) 15 The Court finds the notice procedure afforded adequate protections to Settlement 16 Class Members and provides the basis for the Court to make an informed decision 17 regarding approval of the Settlement based on the responses of the Settlement Class 18 Members. Moreover, the request is reasonable, and the Court hereby approves the 19 Settlement Administrator’s costs in the amount of $9,000. 20 For the foregoing reasons, Plaintiff’s Motion for Attorneys’ Fees is GRANTED. 21 VI. CONCLUSION 22 For the reasons stated in this Order as well as in the Court’s Preliminary Approval 23 Order, Plaintiff’s Motion for Final Approval and Motion for Attorneys’ Fees are 24 GRANTED. Accordingly, the Court ORDERS as follows: 25 1. The Settlement and the definition of words and terms contained therein are 26 incorporated by reference in this Order. The terms of this Court’s Preliminary 27 Approval Order are also incorporated by reference in this Order. 28 2. This Court has jurisdiction over the subject matter of this litigation and over all 1 Parties to this litigation, including all members of the Settlement Class certified for 2 settlement purposes in this Court’s Preliminary Approval Order: all current and 3 former non-exempt employees employed by Defendant in the State of California 4 during the period from April 29, 2017 through June 3, 2022. (See Doc. 33 at 3, 12.) 5 The PAGA Group Members bound by this Judgment include “all non-exempt 6 employees employed by Defendant in the State of California at any time between 7 April 29, 2020 to June 3, 2022.” (See id. at 12.) 8 3. A total of two requests for exclusion were received: Eldon Hoffner and Neiba 9 Jimenez. The Court hereby excludes the two individuals from the Settlement Class 10 as not bound by the final judgment in this action. 11 4. The Court hereby finds that the Settlement is the product of arm’s length settlement 12 negotiations between Plaintiff, Class Counsel and Defendant. 13 5. The Court hereby finds and concludes that Class Notice was disseminated to the 14 Settlement Class in accordance with the terms set forth in the Settlement, and that 15 the Class Notice and its dissemination were in compliance with this Court’s 16 Preliminary Approval Order. 17 6. The Court further finds and concludes that the Class Notice set forth in the 18 Settlement fully satisfies Rule 23 and the requirements of due process, was the best 19 notice practicable under the circumstances, provided individual notice to the 20 Settlement Class who could be identified through reasonable effort, and support the 21 Court’s exercise of jurisdiction over the Settlement Class as contemplated in the 22 Settlement and this Order. 23 7. This Court hereby finds and concludes that the notice provided by the Phoenix 24 Settlement Administrators, the Settlement Administrator, to the appropriate state and 25 federal officials pursuant to 28 U.S.C. § 1715(b) fully satisfied the requirements of 26 that statute. 27 8. The Court hereby finally approves the Settlement contemplated thereby, and finds 28 that the terms constitute, in all respects, a fair, reasonable, and adequate settlement 1 as to all Settlement Class Members in accordance with Rule 23 and directs its 2 consummation pursuant to its terms and conditions. 3 9. This Court hereby dismisses this action with prejudice, without costs to any party, 4 except as expressly provided for in the Settlement. 5 10. Upon final approval (including, without limitation, the exhaustion of any judicial 6 review, or requests for judicial review, from this final judgment and Order), Plaintiff 7 and each and every one of the Settlement Class Members unconditionally, fully, and 8 finally releases and forever discharges the Released Parties from the Released Class 9 Claims. 10 11. Upon final approval (including, without limitation, the exhaustion of any judicial 11 review, or requests for judicial review, from this final judgment and Order), Plaintiff 12 as a representative of the State of California and on behalf of the LWDA 13 unconditionally, fully, and finally releases and forever discharges the Released 14 Parties from the Released PAGA Claims. PAGA Group Members will be bound to 15 the Judgment entered by the Court as to the Released PAGA Claims. 16 12. The Settlement (including, without limitation, its exhibits) and any and all 17 negotiations, documents, and discussions associated with it, shall not be deemed or 18 construed to be an admission or evidence of any violation of a statute, law, rule, 19 regulation or principle of common law or equity, of any liability or wrongdoing, or 20 of the truth of any of the claims asserted by Plaintiff in the action, and evidence 21 relating to the Settlement shall not be discoverable or used, directly or indirectly, in 22 any way, whether in the Action or in any other action or proceeding, except for 23 purposes of enforcing the terms and conditions of the Settlement, the Preliminary 24 Approval Order, and/or this Order. 25 13. If for any reason the Settlement terminates or final approval does not occur, then 26 certification of the Settlement Class shall be deemed vacated. In such an event, the 27 certification of the Settlement Class for settlement purposes shall not be considered 28 as a factor in connection with any subsequent class certification issues, and the 1 Parties shall return to the status quo ante in the action, without prejudice to the right 2 of any of the Parties to assert any right or position that could have been asserted if 3 the Settlement had never been reached or proposed to the Court. 4 14. The Court finally approves Verum Law Group, APC, as adequate counsel and 5 approves Class Counsel’s application for $180,000.00 in attorneys’ fees and 6 $14,570.88 in costs. 7 15. The Court finally approves Miguel Guerrero as an adequate Class Representative 8 and approves his Service Award in the amount of $5,000.00 and General Release 9 Payment in the amount of $10,000.00. 10 16. The Court approves the payment to the LWDA. 11 17. The Court approves the payment to the Settlement Administrator in the amount of 12 $9,000.00. 13 18. Finding that there is no just reason for delay, the Court orders that this Final 14 Judgment and Order of dismissal shall constitute a final judgment pursuant to Rule 15 54. The clerk of the Court is directed to enter this Order on the docket forthwith. 16 IT IS SO ORDERED. 17 |} DATE: December 30, 2022 Pitan Metres, 19 HON. RUTH BERMUBEZ MONTENEGRO UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 18