1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT MIDDLETON, Case No. 1:19-cv-01747-CDB
12 Plaintiff, ORDER GRANTING AS MODIFIED MOTION FOR APPROVAL OF PAGA 13 v. SETTLEMENT AND ENTRY OF JUDGMENT 14 HALLIBURTON ENERGY SERVICES, INC., (Doc. 39) 15 Defendant. Clerk of the Court to Close Case 16 17 18 Pending before the Court is the parties’ joint motion for approval of Private Attorneys 19 General Act (“PAGA”) Settlement, filed December 6, 2023. (Doc. 39). The motion is 20 accompanied by declarations from Plaintiff’s attorney, Karl Gerber, and from Jon D. Meer, 21 counsel for Halliburton Energy Services, Inc. (“Halliburton or “Defendant”). (Docs. 40, 41).1 22 The Court finds that the terms of the settlement are fundamentally fair, adequate, and reasonable. 23 For the reasons set forth herein, the Court will reduce Plaintiff’s requested incentive award. 24 I. Background 25 On December 16, 2019, Robert Middleton (“Plaintiff”), initiated this action with the filing 26 of a complaint against Halliburton for alleged California Labor Code (“Labor Code”) violations.
27 1 On January 4, 2024, the parties consented to the jurisdiction of the United States Magistrate Judge and the action was reassigned to Magistrate Judge Christopher D. Baker for all 1 (Doc. 1). On December 6, 2023, Plaintiff filed a motion for approval of PAGA settlement which 2 is accompanied by a declaration from Attorney Gerber. (Docs. 39-40). The settlement is the 3 result of arm’s length negotiations between the parties, who were represented by counsel and 4 assisted by a Ninth Circuit mediator. (Doc. 39 p. 1). The parties also have engaged in individual 5 arbitration on behalf of Plaintiff Middleton and six other Halliburton employees in separate 6 California wage and hour arbitrations. Id. 7 The parties request the Court to (1) approve the settlement and the gross settlement 8 amount of $100,000 in exchange for a dismissal of the PAGA claim with prejudice; (2) approve 9 an award of one-third of the gross settlement amount ($33,333.33) to Plaintiff’s counsel; (3) 10 approve an award of $9,500 in costs to Plaintiff’s counsel; (4) appoint ILYM Group, Inc. 11 (“ILYM”) as the settlement administrator and approve $4,250 in anticipated settlement 12 administration costs; (5) approve a $5,000 enhancement award to Plaintiff Middleton in exchange 13 for his participation in this action and executing a general release; and (6) approve $47,916.67 14 (the remainder of the gross settlement amount) as payment of civil penalties under PAGA, 15 $35,937.50 (75% of the PAGA penalties payment) of which will be paid to the California Labor 16 and Workforce Development Agency (“LWDA”) for its share of PAGA civil penalties, and 17 $11,979.17 (25% of the PAGA penalties payment) to the aggrieved employees. Id. 18 A. The Proposed Settlement 19 Pursuant to the parties’ settlement agreement, the underlying PAGA claims to be released 20 include alleged violations of California Labor Code §§ 201-203, 204, 210, 221, 223, 226, 226.7, 21 510, 512, 516, 551-552, 558, 1174, 1182.12, 1194, 1194.2, 1197, 1198, 2699, 2699.3, 2699.5, and 22 2802; any applicable California Industrial Welfare Commission Wage Orders; and Cal. Bus. & 23 Prof. Code § 17200 et seq., during the relevant period. (Doc. 40-4 “Agreement” ⁋5.1). The 24 Agreement further states that “[t]he release does not cover potential damages available from 25 individual claims under the California Labor Code that are unrelated to a PAGA cause of action.” 26 Id. (emphasis omitted). 27 Under the terms of the Agreement, Defendant will pay a gross settlement amount of 1 administration costs, an enhancement award for plaintiff, the LWDA PAGA payment, and all 2 individual PAGA payments. Id. The net settlement amount is the portion of the gross settlement 3 amount remaining for payments to the aggrieved employees and the LWDA, after deductions for 4 settlement administration costs, attorneys’ fees, costs, and any enhancement award to Plaintiff. 5 (Id. ⁋1.14). Following those deductions, the Net Settlement Amount is valued at $47,916.67. 6 As required by the PAGA statute, 75 percent of the Net Settlement Award or ($35,937.50) 7 shall be paid to the LWDA, and the remaining 25 percent ($11,979.17) will be paid to the 8 aggrieved employees on a pro-rata basis based on the number of pay periods each employee 9 worked during the relevant period which lasts from December 16, 2018, to the date of the entry of 10 this order. (Id. ⁋1.16). 11 II. Legal Standard 12 The Private Attorneys General Act, Cal. Lab. Code §§ 2699 et seq., was enacted after the 13 California Legislature declared that: (i) adequate financing of labor law enforcement was 14 necessary to achieve maximum compliance; (ii) staffing levels for state labor law enforcement 15 agencies declined and were unable to keep up with a growing labor market; (iii) vigorous 16 assessment and collection of civil penalties provides a meaningful deterrent to unlawful conduct; 17 and (iv) it is in the public interest to allow aggrieved employees, acting as private attorneys 18 general, to seek and recover civil penalties for Labor code violations. Chamberlain v. Baker 19 Hughes, a GE Company, LLC, No. 1:19-cv-00831-DAD-JLT, 2020 WL 4350207, at *3 (E.D. 20 Cal. July 29, 2020) (citations omitted). 21 PAGA allows an aggrieved employee to bring an action for civil penalties for labor code 22 violations on behalf of themselves and other current or former employees. Cal Lab. Code § 23 2699(a). A plaintiff suing under PAGA “does so as the proxy or agent of the state’s labor law 24 enforcement agencies.” Arias v. Superior Court, 46 Cal.4th 969, 986 (2009). A judgment in a 25 PAGA action “binds all those, including nonparty aggrieved employees, who would be bound by 26 a judgment in an action brought by the government.” Id. 27 PAGA imposes certain limits on litigants. First, because a PAGA action is a “substitute” 1 penalties only, rather than damages available privately through direct or class action claims. Id. 2 Second, under PAGA, the aggrieved employee must first provide written notice to the LWDA as 3 well as to the employer. Cal. Lab. Code § 2699.3(a)(1). Third, any civil penalties recovered must 4 be distributed as follows: 75 percent to the LWDA, and the remaining 25 percent to the aggrieved 5 employees. Id. § 2699(i). 6 Finally, any settlement of PAGA claims must be reviewed and approved by a trial court. 7 Id. §2699(l)(2). The legal authority identifying the proper standard of review of PAGA 8 settlements to by employed by the court is still nascent. Moniz v. Adecco USA, Inc., 72 Cal. 9 App.5th 56, 75 (2021) (“PAGA itself does not provide a standard for this review and approval”). 10 In the Ninth Circuit, courts have approved of PAGA settlements when (1) they meet the statutory 11 requirements set forth by PAGA, and (2) are fundamentally fair, reasonable, and adequate in view 12 of PAGA’s public policy goals. See Chamberlain, 2020 WL 4350207, at *4 (cited favorably by 13 Moniz, 72 Cal. App.5th at 75-76). 14 III. Discussion 15 A. PAGA Statutory Requirements 16 The Agreement complies with the statutory requirements of PAGA, which provides that 17 “75 percent of the civil penalties recovered by aggrieved employees must be allocated to the 18 LWDA and 25 percent allocated to aggrieved employees.” Cal. Lab. Code § 2699(i). The parties 19 have agreed that $35,937.50, or 75 percent of the PAGA penalties payment be allocated to the 20 LWDA, and $11,979.17 or 25 percent of the PAGA penalties payment be allocated to the 21 aggrieved employees. 22 PAGA further requires that the plaintiff provide written notice of the allegations to the 23 LWDA and that the “proposed settlement shall be submitted to the agency at the same time that it 24 is submitted to the court.” Cal. Lab. Code §§ 2699(l)(2); 2699.3(a)(1). On or about November 1, 25 2023, Plaintiff gave the LWDA notice of the settlement and as of more than 30 days later 26 (December 6, 2023), the LWDA had not objected. (Doc. 40 ¶ 29; Doc. 40-8). 27 B. Whether the Settlement is Fundamentally Fair, Reasonable, and Adequate 1 abandoning of highest hopes.’” Officers for Justice, 688 F.2d at 624 (citations omitted); see 2 Linney v. Cellular Alaska P’Ship, 151 F.3d 1234, 1242 (9th Cir. 1998) (a proposed settlement 3 may be fair, adequate, and reasonable even though greater recovery might be available to the 4 class members at trial). In assessing whether a settlement is fair, reasonable, and adequate, “[t]he 5 court may consider factors such as the merits of the action, the maximum recovery the plaintiff 6 could obtain if the merits were decided in his favor, and ‘how and why [the] parties arrived at the 7 settlement amount.’” Hollis v. Weatherford US LP, No. 1:16-cv-00252-JLT, 2017 WL 131994, at 8 *2 (E.D. Cal. Jan. 12, 2017) (quoting McKeen-Chaplin v. Franklin Am. Mortg. Co., No. C 10- 9 5243 SBA, 2012 WL 6629608, at *3 (N.D. Cal. Dec. 19, 2012)). Courts also have considered 10 other factors common to class settlements, such as: (1) the anticipated difficulties of litigating the 11 case; (2) the risks associated with the costs of continued litigation; (3) counsel’s experience in 12 pursuing similar settlements; and (4) lack of objection from the LWDA. Aronson v. Gannet Co., 13 Inc., No. 19-996 PSG (JEMx), 2023 WL 2025706, at *4 (C.D. Cal. Feb. 15, 2023) (citing 14 Campbell v. FMC Technologies Surface Integrated SVCS, No. 1:20-cv-00901-CDB, 2022 WL 15 17555517, at *3 (E.D. Cal. Dec. 9, 2022)). 16 1. The Settlement Agreement 17 According to the Agreement, Plaintiff’s PAGA claim is based on the following alleged 18 California Labor Code Violations: (1) aggrieved employees were not paid minimum wage for all 19 work performed; (2) aggrieved employees were not paid overtime and double time; (3) Defendant 20 violated Cal. Lab. Code § 223 when it purported to maintain a wage scale, but secretly paid the 21 aggrieved employees a lower wage; (4) aggrieved employees suffered meal and rest break 22 violations; (5) aggrieved employees’ regular rates of pay were not calculated correctly; (6) the 23 aggrieved employees were not reimbursed for business expenses, which includes expenses related 24 to use of personal vehicles and cell phones for work; (7) the aggrieved employees worked seven 25 consecutive days in a workweek in violation of Cal. Lab. Code §§551-552; (8) aggrieved 26 employees whose employment ended allegedly were not timely paid all final wages; (9) 27 Defendant did not pay reporting time pay when the aggrieved employees had to report back to 1 scheduled day’s work; (10) Defendant collected part of the wages it already paid to the aggrieved 2 employees; (11) aggrieved employees did not receive accurate and itemized wage statements 3 from Defendant; (12) Defendant failed to maintain employee records; and (13) Defendant 4 allegedly failed to pay all wages due each month. (Doc. 39 pp. 3-4). 5 2. Reimbursement Issues 6 Attorney Gerber opines that there was a 60 percent chance of obtaining a PAGA penalty 7 for violations of Cal. Lab. Code § 2802 (indemnification for employee’s expenses and losses in 8 discharging duties). (Doc. 40 ⁋11). However, according to Attorney Gerber, Defendant would 9 have argued that some of the requested cellphone reimbursements were unnecessary and that 10 there was a reimbursement policy for some of the 17,356 pay periods at issue. Attorney Gerber 11 assessed the settlement value for the reimbursement period to be $25,000. Id. In connection with 12 his assessment, Attorney Gerber also considered whether there were other reimbursement items 13 but concluded that no other potential reimbursables were “particularly worthy.” Id. 14 3. Unpaid Wages 15 For the theories pertaining to unpaid wages, Attorney Gerber attests to uncertainty that a 16 jury would find “across the board” liability for aggrieved employees. Id. ⁋12. He expressed 17 doubts about employees’ ability to convincingly testify at trial given that many have relocated. 18 He also identified apparent legal issues he believes would be ripe for presentment to the Court of 19 Appeals were a jury to find in Plaintiff’s favor, including the possible exempt status of some 20 directional driller employees and the viability of a favorable ruling on issues relating to flat rate 21 bonuses. Id. For these reasons, Attorney Gerber assigned a settlement value to these claims at 22 $50,000. 23 4. Paystub Violations 24 Attorney Gerber attests that PAGA penalties for paystub violations would require a 25 finding of unpaid wages. Id. ⁋13. Attorney Gerber valued settlement of the PAGA penalties 26 based on errant paystubs under Cal. Lab. Code § 226 to be fair since he did not believe that every 27 pay period in the suit would result in a penalty. He further assessed that due to the nature of the 1 believes would lower the probability of off-the-clock work or missed meal and rest breaks, with 2 certain short shifts having as few as one rest break and no meal breaks due. Id. For these reasons, 3 Attorney Gerber assigned a settlement value to these claims at $25,000. 4 5. Penalties Below the Maximum Allowed 5 Attorney Gerber also attests that under Labor Code section 2699(e)(2), the Court may 6 enter penalties for less than the maximum amount allowed. Id. ⁋14. This presents an uncertainty 7 as to the maximum recoverable amount since Plaintiff expects a vigorous defense and based on 8 Attorney Gerber’s experience, judges might feel differently about the payment of PAGA 9 penalties. Id. 10 6. Plaintiff’s Overall Valuation 11 In terms of overall valuation, Attorney Gerber attests to having doubt whether a judge 12 would award over one million dollars in PAGA penalties in this case. Instead, he believes that a 13 $250,000 verdict would have been a great outcome after trial. Id. ⁋18. Thus, Attorney Gerber 14 believes that the $100,000 settlement is a better outcome given the risk of losing the trial 15 completely or losing on some of the issues. Id. Attorney Gerber further attests that he would 16 likely spend $100,000 in costs should this case go to trial and that he believes Defendant would 17 likely appeal any loss to the United States Supreme Court since this case involves various novel 18 and important issues worthy of a high appeal. Id. 19 Attorney Gerber’s declaration demonstrates that he is experienced with litigating PAGA 20 claims and has a suitably informed sense of viable settlement amounts. His declaration cites to 21 various PAGA non-class settlements, including settlements approved by this court. See e.g., 22 Campbell, 2022 WL 17555517; Chamberlain v. Baker Hughes, a GE Company, LLC, No. 1:19- 23 cv-00831-DAD-JLT (E.D. Cal. July 29, 2020). 24 * * * * * 25 Attorney Gerber attests that the maximum PAGA penalties to which Defendant would 26 have been exposed absent a settlement is a total of $10,413,600. (Doc. 40 ⁋9). On the other hand, 27 Attorney Gerber anticipates that Defendant would argue that damages should be comprised of 1 of $34,200. Id. 2 In light of the issues presented by Plaintiff and summarized above, the Court finds that the 3 parties’ settlement terms are fair, reasonable, and adequate in light of the PAGA’s policy goals. 4 See Chamberlain, 2020 WL 4350207, at *5 (citing O’Connor v. Uber Techs., Inc., 201 F. Supp. 5 3d 1110, 1132–33) (N.D. Cal. 2016) (defining PAGA’s goals as including “benefit[ting] the 6 public by augmenting the state’s enforcement capabilities, encouraging compliance with Labor 7 Code provisions, and deterring noncompliance”) (emphasis added). The record indicates that 8 Plaintiff and counsel litigated this matter by filing the original and two amended complaints in 9 this Court. (Docs. 1, 7, 36). Thereafter, the parties attest that they engaged in extensive 10 discovery and investigation of the claims, both in connection with Plaintiff’s individual 11 arbitration and arbitration of other aggrieved employees. (Doc. 39 pp. 14-15) (citing Docs. 40, 12 41). 13 The parties thereafter worked with an experienced Ninth Circuit mediator to reach a 14 settlement, which involved multiple collective and single-side conferences with the mediator. Id. 15 p. 15. See Adoma v. Univ. of Phx., Inc., 913 F. Supp. 2d 964, 977 (E.D. Cal. 2012) (“A 16 settlement following sufficient discovery and genuine arms-length negotiation is presumed fair.”) 17 (quoting Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 526 (C.D. Cal. 18 2004)). This suggests that the parties arrived at a compromise based on a full understanding of 19 the legal and factual issues surrounding the case. See Kutzman v. Derrel’s Mini Storage, Inc., No. 20 1:18-cv-00755-AWI-JLT, 2020 WL 5909151, at *9 (E.D. Cal. Oct. 6, 2020). 21 The PAGA settlement also accounts for the risks of further litigation. Among other risks, 22 Defendant would be expected to contest that all possible PAGA penalties apply for every pay 23 period and every employee based on the employees’ ability to take lawful breaks. (Doc. 39 p. 24 15). Moreover, layoffs and voluntary relocations for work outside of California present 25 challenges to establishing PAGA violations. Id. Counsel for Plaintiff acknowledges 26 circumstances that further complicate aggrieved employees’ ability to establish liability due to 27 their manually recording time on paper sheets, alleged inflation of hours worked, and that 1 all time worked. Id. pp. 15-16; see Munoz v. Giumarra Vineyards Corp., No. 1:09-cv-00703- 2 AWI-JLT, 2017 WL 2665075, at *9 (E.D. Cal. Jun. 21, 2017) (noting that “[a]pproval of 3 settlement is ‘preferable to lengthy and expensive litigation with uncertain results.’”), F&R 4 adopted, 2017 WL 7371175 (E.D. Cal. Nov. 27, 2017). 5 The total settlement sum of $100,000 is reasonable, given the above-mentioned risks 6 involved and given that the record shows the parties express greatly divergent views regarding the 7 likely maximum PAGA penalty exposure. (Doc. 40 ¶9); see Officers for Justice, 688 F.2d at 628 8 (“[A] cash settlement amounting to only a fraction of the potential recovery will not per se render 9 the settlement inadequate or unfair.”). On the one hand, using a low estimate of the possible 10 PAGA penalty amount ($100) and assuming at least one violation per pay period, the PAGA 11 exposure would be $1,735,600. (Doc. 39 p. 15; Doc. 40 ¶11). The total settlement sum proposed 12 by the parties represents only six percent (6%) of that estimate. Cf. Dunleavy v. Nadler (In re 13 Mego Fi. Corp. Sec. Litig.), 212 F.3d 454, 458-59 (9th Cir. 2000) (affirming a 16.67 % settlement 14 approval for a weak and risky case), with Greko v. Diesel U.S.A., Inc., No. 10-cv-02576 NC, 2013 15 WL 1789602, at *5 (N.D. Cal. April 26, 2013) (the 24% settlement approval was reasonable in 16 light of the uncertainties involved in the litigation). 17 On the other hand, based on the liability challenges summarized above, counsel for 18 Plaintiff attests that a more likely and reasonable expectation of a post-trial verdict would be 19 $250,000. (Doc. 40 ¶18). In the light of that estimate, the settlement sum of $100,000 falls more 20 comfortably within the range of settlement values deemed reasonable by the courts noted above. 21 Moreover, in assessing reasonableness of the settlement, the Court acknowledges that the 22 settlement agreement does not release any aggrieved employee’s non-PAGA claims for alleged 23 violations of the Labor Code. (Agreement” ⁋5.1)). 24 Given the amounts allocated to the LWDA and the Aggrieved Employees, the litigation 25 and negotiation involved in achieving the settlement, the potential risks of further litigation, and 26 the fact that Aggrieved Employees are not precluded from bringing actions against Defendant for 27 individual claims, the Court concludes that the parties’ PAGA settlement is fundamentally fair, 1 With this understanding, the Court will approve the Agreement as it pertains to the award 2 of PAGA penalties. Counsel has adequately described his experience with pursuing settlements, 3 the difficulties related to the nature of this case, and the risks associated with increased costs of 4 litigation. Attorney Gerber’s declaration elaborates on the risk analysis he undertook concerning 5 the possibilities of failing to prevail at trial or receiving a reduced award. Counsel’s 6 consideration of all these factors as well as the examples of settlement amounts that he secured in 7 similar cases reflect the fairness and reasonableness of the Agreement. 8 C. Attorney’s Fees 9 The relevant PAGA provision pertaining to attorney’s fees states: “Any employee who 10 prevails in any action shall be entitled to an award of reasonable attorney’s fees and costs.” Cal. 11 Lab. Code § 2699(g). Calculating fees under this provision requires application of the lodestar 12 method. Chamberlain, 2020 WL 4350207, at *5; see PLCM Grp. v. Drexler, 22 Cal. 4th 1084, 13 1095 (2000) (noting that the fee inquiry in California begins with the “lodestar”). “In determining 14 reasonable hours, counsel bears the burden of submitting detailed time records justifying the 15 hours claimed to have been expended.” Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 16 (9th Cir. 1986). “Where the documentation of hours is inadequate, the district court may reduce 17 the award accordingly.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Likewise, the court 18 should exclude from the lodestar fee calculation any hours that are not “reasonably expended,” 19 like excessive, redundant, or otherwise unnecessary hours. Id. at 434. The lodestar figure is 20 calculated by multiplying the number of hours counsel reasonably expended on the litigation by a 21 “reasonable hourly rate for the region and experience of the lawyer.” In re Bluetooth Headset 22 Prods. Liability Litig., 654 F.3d 935, 941 (9th Cir. 2011). The lodestar figure may be adjusted 23 upward or downward by an appropriate positive or negative multiplier based on “reasonableness” 24 factors, such as the benefits obtained by counsel and the complexity and novelty of the issues 25 presented. Id. at 941-42. 26 In considering fee applications, the reasonable hourly rates are calculated according to 27 prevailing market rates in the relevant legal community. Blum v. Stenson, 465 U.S. 886, 895 1 rates are in line with those prevailing in the community for similar services by lawyers of 2 reasonably comparable skill, experience and reputation.” Id. at 896 n.11; McCown v. City of 3 Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009) (party seeking attorney’s fees bears the burden of 4 producing documentary evidence demonstrating the number of hours spend on and rates on the 5 litigation). “Affidavits of the plaintiffs’ attorney and other attorneys regarding the prevailing fees 6 in the community, and rate determinations in other cases, particularly setting a rate for the 7 plaintiffs’ attorney, are satisfactory evidence of the prevailing market rate.” United Steelworkers 8 of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). 9 Here, the Agreement provides for Plaintiff’s counsel to request attorneys’ fees not to 10 exceed 33.33 percent of the gross settlement amount, or no more than $33,333.33. (Agreement 11 ⁋1.4). Attorney Gerber submitted in support of the Agreement billing summary from his firm, 12 which totaled 694.7 hours of total attorney time, at $600 per hour. (Doc. 40-5 p. 7). 13 In the Ninth Circuit, the benchmark for attorney’s fees awards is 25 percent. Alcazar v. 14 OEI Holdings, LLC, No. 2:19-cv-01209-KJM-AC, 2024 WL 472297, at *3 (E.D. Cal. Jan. 8, 15 2024) (citing In re Easysaver Rewards Litig., 906 F.3d 747, 754 (9th Cir. 2018)). The Court must 16 specify its reasons for approving an attorney’s fees award that exceed the 25 percent benchmark. 17 Powers v. Eichen, 229 F.3d 1249, 1256 (9th Cir. 2000). 18 Attorney Gerber attests that his rate for PAGA actions is $750 per hour and that he has 19 received a rate as high as $1,000 per hour in PAGA class actions. (Doc. 40 p. 19). The proposed 20 $33,333.33 attorney fee award, which represents 33.33 percent of the gross settlement payment, 21 amounts to a rate of approximately $48 per hour – significantly below the lodestar – based on 22 Attorney Gerber’s declaration that he expended close to 700 hours litigating this action over the 23 course of approximately four years. This reduced hourly rate is less than hourly rates deemed 24 reasonable in other PAGA cases. E.g., Chamberlain, 2020 WL 4350207, at *8 (approving a fee 25 award consistent with an hourly rate of $90.90 for Attorney Gerber); Campbell, 2022 WL 26 17555517, at *4 (approving $25,000 fee award equivalent to a rate of $123.95 per hour). This 27 effective hourly rate also is substantially below prevailing rates within the Eastern District of 1 2215749, at *13 (E.D. Cal. May 7, 2020) (finding a rate of $450.00 per hour for a partner with 2 nineteen years of experience, $400.00 per hour for a senior associate attorney with an 3 indeterminate amount of years of experience, and $325.00 for an associate with eight years of 4 experience to be reasonable); Garcia v. FCA U.S. LLC, No. 1:16-cv-00730-JLT, 2018 WL 5 1184949, at *6 (E.D. Cal. Mar. 7, 2018) (awarding $400.00 per hour for attorney with thirty years 6 of experience to be appropriate). 7 The Court has reviewed Attorney Gerber’s seven-page summary of attorney and paralegal 8 hours expended in the litigation of this action (Doc. 40-5). Although the preferred practice is for 9 an attorney to support his fee request with contemporaneous billing records (Chamberlain, 2020 10 WL 4350207, at *8), the exhibit submitted in support of the requested award is sufficient to 11 permit this Court to conclude that the fee request is reasonable, particularly given the reduced 12 effective hourly rate it represents. 13 D. Costs 14 “There is no doubt that an attorney who has created a common fund for the benefit of [a] 15 class is entitled to reimbursement of reasonable litigation expenses from that fund.” Ontiveros v. 16 Zamora, 303 F.R.D. 356, 375 (E.D. Cal. 2014) (citations omitted). 17 Attorney Gerber proffers an itemized list of costs incurred in the case in support of his 18 requested cost award. (Doc. 40-6). Although Attorney Gerber errantly attests that the proffered 19 exhibits “shows $??? in costs as of ?, 2023” (id. ⁋26), the referenced exhibit of itemized costs 20 totals $10,699.85, which are comprised of, among other things, the arbitration filing fee, service 21 fees, mailing of PAGA charges, copies, copies of the motion for summary judgment and various 22 other filing fees, depositions, exhibit copies for arbitrator, the retention of a private investigator, 23 and toll calls. Id. The agreement provides for recovery of costs only up to $9,500. (Agreement 24 ⁋6.3). 25 While the itemized exhibit largely supports the requested cost award, the summary is not 26 supported by annexed invoices and, without such, the descriptive summaries leave open the 27 possibility or even likelihood that there are some duplicative costs. For example, the statement 1 for certified copies of “Defendant’s RME K LIC.”; (2) $200.75 for “copies for sj motion”; (3) 2 $250 for “copies of cases arb. wanted”; (4) $50 for “copies of closing argument”; (5) $134.30 for 3 “copies of transcript”; and (6) $31.83 for “mailing copies of cases to arb.” However, given the 4 relatively minimal possible overlap of these costs, the fact that the total costs exceed the $9,500 5 maximum provided for in the Agreement by more than $1,000, and that the costs otherwise 6 appear reasonably, the Court will grant Plaintiff’s request for reimbursement of costs in the 7 amount of $9,500. 8 Attorney Gerber also submits a statement from ILYN Settlement Administration Experts 9 involving administrative tasks costing about $4,250.00. (Doc. 40-7). Upon review of the figures 10 set forth in the Declaration, the Court approves $4,250 for 350 aggrieved employees in claim 11 administrator costs as reasonable. See Campbell, 2022 WL 17555517, at *3 (finding settlement 12 administration costs of $1,514.23 reasonable to manage disbursement to 15 individuals); Granillo 13 v. Weatherford U.S., L.P., No. 1:20-cv-01614-CDB, 2023 WL 5985321, at * (E.D. Cal. Sept. 14, 14 2023) (finding $3,000 in administrator costs reasonable for disbursement on action brought on 15 behalf of 191 individuals). 16 E. Enhancement Award 17 The parties request the Court to grant Plaintiff a $5,000 enhancement award for his 18 involvement in the action and in exchange for providing a general release. A representative may 19 “receive a share of class recovery above and beyond [his] individual claim” with a service 20 payment, or enhancement award. China Agritech, Inc. v. Resh, 584 U.S. 732, 747 n.7 (2018). 21 However, the decision to approve such an award is a matter within the court’s discretion. In re 22 Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 463 (9th Cir. 2000). The Ninth Circuit has 23 emphasized that “district courts must be vigilant in scrutinizing all incentive awards.” Radcliffe 24 v. Experian Info. Solutions, 715 F.3d 1157, 1165 (9th Cir. 2013). In evaluating a request for an 25 incentive payment to a representative, the Court must consider “‘the actions the plaintiff has taken 26 to protect the interests of the class, the degree to which the class has benefitted from those 27 actions, the amount of time and effort the plaintiff expended in pursuing the litigation,’ and any 1 F.4th 769, 786 (9th Cir. 2022) (quoting Roes v. SFBSC Mgmt., LLC, 944 F.3d 1035,1057 (9th Cir. 2 2019)). 3 Plaintiff Middleton has not submitted a declaration explaining his participation in this 4 case, nor does Attorney Gerber’s own declaration address the factors outlined above. Instead, 5 Attorney Gerber declares generally that Plaintiff Middleton has been very active in this lawsuit, 6 including that he provided testimony on several occasions and was present during witness 7 depositions. (Doc. 40 ⁋30). Plaintiff Middleton also assisted counsel by helping him acquire 8 documents and identifying witnesses even though he relocated to Oklahoma and suffered from a 9 serious back injury. 10 An unsworn assertion in Plaintiff’s briefing provides that Attorney Gerber’s billing 11 records “recount more than 100 hours of [Plaintiff] Middleton’s involvement in this case.” (Doc. 12 39 p. 18). While Plaintiff Middleton in fact may have undertaken activities in connection with 13 the case that amount to more than 100 hours, Attorney Gerber’s billing records are not nearly 14 detailed enough to support that claim and the Court is unwilling to rely on a single, unsworn 15 assertion that Plaintiff expended more than 100 hours in litigating the case. Based on its review 16 of the summary billing exhibit proffered (Doc. 40-6), Plaintiff spent approximately 15 hours with 17 Attorney Gerber in connection with deposition preparation and approximately 3.5 hours 18 communicating with Attorney Gerber via email and telephone. Even if Plaintiff’s deposition 19 lasted eight hours and even if Plaintiff was present for some of the other depositions noted in the 20 billing summary, no records permit the Court to conclude that Plaintiff spent more than 50 hours 21 litigating the case. 22 In determining whether and the extent to which an incentive award is appropriate, courts 23 also will consider the “proportion of the [representative] payment[s] relative to the settlement 24 amount, and the size of each payment.” Smothers v. NorthStar Alarm Services, LLC, No. 2:17-cv- 25 00548-KJM-KJN, 2020 WL 1532058, at *11 (E.D. Cal. Mar. 31, 2020) (quoting In re Online 26 DVD-Rental Antitrust Litig., 779 F.3d 934,947 (9th Cir. 2015)). Here, the requested incentive 27 payment constitutes five percent of the gross settlement amount and is over 146 times higher than 1 other cases and coupled with its concerns articulated above that Plaintiff has not submitted his 2 own declaration to support the requested award and that Attorney Gerber’s billing records provide 3 only a cursory snapshot of Plaintiff’s involvement, the Court finds a $5,000 incentive award 4 disproportionately high and will reduce the award to $3,500. See, e.g., Aguilar v. Wawona 5 Frozen Foods, No. 2017 WL 2214936, at *8 (E.D. Cal. May 19, 2017) (approving $7,500 6 incentive payment to each of two plaintiffs where gross settlement amount was $4.5 million); Roe 7 v. Frito-Lay, Inc., No. 14-cv-00751-HSG, 2017 WL 1315626, at *7-8 (N.D. Cal. Apr. 7, 2017) 8 (reducing $10,000 requested incentive award to $5,000 where gross settlement amount was 9 $950,000); Hawthorne v. Umpqua Bank, No. 11-cv-06700-JST, 2015 WL 1927342, at *5 (N.D. 10 Cal. Apr. 28, 2015) (approving $5,000 incentive payment to each of three plaintiffs where 11 settlement fund was $2.9 million); Clayton v. Knight Transp., No. 1:11-cv-00735-SAB, 2014 WL 12 1154098, at *2, 6 (E.D. Cal. Mar. 21, 2014) (awarding $3,500 incentive payment where average 13 recovery was approximately $150). 14 IV. Conclusion and Order 15 For the reasons stated above, IT IS HEREBY ORDERED: 16 1. Plaintiff's unopposed motion for approval of the PAGA settlement agreement (Doc. 17 No. 39) is granted as modified and detailed herein. 18 2. The Court approves a Gross Settlement Amount of $100,000. 19 3. The Settlement Group encompassed by this Order is all hourly, non-exempt employees 20 of Defendant in California, aside from such employees who worked exclusively in an office 21 during their employment with Defendant at any time between December 16, 2018, and the date of 22 entry of an order by the Court approving the Settlement (the “PAGA Period”). By operation of 23 this Approval Order and the Judgment, Plaintiff – on behalf of himself, every member of the 24 Settlement Group (including each of their respective executors, administrators, representatives, 25 agents, heirs, successors, assigns, trustees, spouses, or guardians), and the LWDA – will fully 26 release Halliburton and each of the Released Parties during the PAGA Period of any claims, 27 rights, demands, charges, complaints, causes of action, penalties, interest, attorneys’ fees, costs, 1 of 2004 (“PAGA”) that were or could have been brought based on the facts asserted in any 2 version of the Complaints filed in the Action (including the Second Amended Complaint filed in 3 September 2023, and the Complaint filed in Plaintiff’s individual arbitration) or in the PAGA 4 notice letters Plaintiff sent to the LWDA. This release by Plaintiff, the LWDA, and the Aggrieved 5 Employees includes, but is not limited to, claims based on alleged violations of California Labor 6 Code §§ 201-203, 204, 210, 221, 223, 226, 226.7, 510, 512, 516, 551-552, 558, 1174, 1182.12, 7 1194, 1194.2, 1197, 1198, 2699, 2699.3, 2699.5, and 2802; any applicable California Industrial 8 Welfare Commission Wage Order; and Cal. Bus. & Prof. Code § 17200 et seq., which may have 9 arisen during the PAGA Period. The release does not cover potential damages available from 10 individual claims under the California Labor Code that are unrelated to a PAGA cause of 11 action. The specific California Labor Code provisions that could potentially create liability under 12 PAGA and that are being released include California Labor Code Sections 204, 210, 215, 216, 13 221, 223 226.3, 226.4, 226.6, 516, 551-552, 558, 1174, 1182.12, 1198, and 2802, to the extent 14 there is PAGA liability apart from individual rights under the statute, and Wage Order 16 to the 15 extent the Wage Order provides remedies available through PAGA. 16 4. The Court appoints ILYM Group, Inc. (“ILYM”) as the Settlement Administrator. 17 5. The Court approves an award of up to $4,250 (of the Gross Settlement Amount) in 18 anticipated Settlement Administration Costs to ILYM. 19 6. The Court awards Plaintiff’s Counsel’s Attorneys’ Fees of $33,333.33 (1/3 of the 20 Gross Settlement Amount) and Costs of $9,500. 21 7. The Court approves an Individual Settlement Sum to Plaintiff of $3,500 from the Gross 22 Settlement Amount as a service enhancement award. 23 8. The Court approves the remainder of the Gross Settlement Amount as payment of civil 24 penalties under PAGA, to be allocated as follows: 75% of the PAGA penalties payment to the 25 California Labor and Workforce Development Agency (“LWDA”) for its share of PAGA civil 26 penalties, and 25% of the PAGA penalties payment to the Settlement Group. The amount 27 allocated as PAGA penalties for the Settlement Group is called the Total PAGA Payment To All 1 9. The Total PAGA Payment To All Aggrieved Employees will be divided and 2 | distributed as follows: each member of the Settlement Group shall be assigned a percentage share 3 | of the amount allocated to the Total PAGA Payment To All Aggrieved Employees. The 4 | percentage share shall be based upon the total number of Pay Periods the specific member of the 5 | Settlement Group was employed during the PAGA Period in comparison to the total number of 6 | Pay Periods all members of the Settlement Group were employed during the PAGA Period. 7 10. The Total PAGA Payment To All Aggrieved Employees will be distributed to all 8 | members of the Settlement Group and there will be no reversion of unclaimed funds to 9 | Defendant. 10 11. Defendant shall provide ILYM with contact information for and the number of Pay 11 | Periods worked by each member of the Settlement Group within 30 calendar days after the Court 12 | issues final approval of the Settlement (the “Effective Date”). The Gross Settlement Amount shall 13 || be funded to ILYM within 60 days of the Effective Date. Within 30 days of the funding of the 14 | Gross Settlement Amount, ILYM shall make all settlement payments to each member of the 15 || Settlement Group, the LWDA, and Plaintiff's Counsel. 16 12. The Court enters final judgment in accordance with the terms of the Settlement 17 | Agreement and this Order. 18 19 The Clerk of the Court is DIRECTED to close this case. 20 | □□ □□ SO ORDERED. | Dated: _May 1, 2024 | Wr bo 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 17