Ramonoa J. Hogue v. YRC, Inc., et al

NOTICE OF MOTION AND MOTION for Attorney Fees and Costs and Class Representative Incentive Award

C.D. Cal.February 26, 2019

1 NOT. OF MTN. AND MTN. FOR AWARD OF ATTNYS’ FEES AND COSTS AND CLASS REP.’S INCENTIVE AWARD – CASE NO. 5:16-CV-CJC-JEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACKERMANN & TILAJEF, P.C. Craig J. Ackerman, CA Bar No. 229832 cja@ackermanntilajef.com 1180 South Beverly Drive, Suite 610 Los Angeles, California 90035 Telephone: (310) 277-0614 Facsimile: (310) 277-0635 HAMMONDLAW, P.C. Julian Hammond, CA Bar No. 268489 jhammond@hammondlawpc.com 1829 Reisterstown Rd., Suite 410 Baltimore, MD 21208 Telephone: (310) 601-6766 Facsimile: (310) 295-2385 Attorneys for Plaintiff IN THE DISTRICT COURT OF THE UNITED STATES CENTRAL DISTRICT OF CALIFORNIA RAMONA J. HOGUE, individually and on behalf of all others similarly situated, Plaintiff, v YRC, Inc., a Delaware Corporation doing business as YRC FREIGHT; and DOES 1- 20, inclusive, Defendant. Case No. 5:16-cv-01338-CJC-JEM NOTICE OF MOTION AND MOTION FOR AWARD OF ATTORNEYS’ FEES AND COSTS AND CLASS REPRESENTATIVE’S INCENTIVE AWARD Date: May 20, 2019 Time: 1:30 p.m. Judge: Hon. Cormac J. Carney Case 5:16-cv-01338-CJC-JEM Document 32 Filed 02/26/19 Page 1 of 27 Page ID #:312 1 NOT. OF MTN. AND MTN. FOR AWARD OF ATTNYS’ FEES AND COSTS AND CLASS REP.’S INCENTIVE AWARD – CASE NO. 5:16-CV-CJC-JEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: NOTICE IS HEREBY GIVEN that, on May 20, 2019 at 1:30 p.m., or as soon thereafter as the matter may be heard, in the United States District Court for the Central District of California before Judge Cormac Carney, pursuant to Fed. R. Civ. P. 23(h) and 54(d)(2), Plaintiff Ramona Hogue ( “Plaintiff”) individually and on behalf of all others similarly situated, will move this Court for entry of an Order (a) approving Plaintiff’s Counsel’s request for 30% of the Gross Settlement Amount (“GSA”) as attorneys’ fees (i.e., $210,000); (b) reimbursement of actual litigation costs of $20,825.30; and (c) approving an Incentive Award of $10,000 in recognition of Plaintiff’s significant service to the Class and the excellent results obtained for the Class in this case. This motion for fees and costs will be heard at the same time as Plaintiff’s forthcoming motion for final approval of the class action settlement in this case. It is filed now, before the deadline for class members to opt-out or object, pursuant to the Ninth Circuit’s ruling in the case of In Re Mercury Interactive Corp. Securities, 618 F.3d 988, 994-5 (9th Cir. 2010) (fee motions in class actions must be filed before the objection deadline). This motion is based upon the supporting Memorandum of Points and Authorities, the Declarations of Craig Ackermann, Julian Hamond, and Ramona Hogue, submitted herewith, and all other papers and records on file in this action, and on such oral and documentary evidence as may be presented at the hearing on this Motion. Dated: February 26, 2019 Respectfully submitted, ACKERMANN & TILAJEF, P.C. HAMMONDLAW, P.C. By: /s/ Craig J. Ackermann Craig J. Ackermann, Esq. Attorneys for Plaintiffs and the Class Case 5:16-cv-01338-CJC-JEM Document 32 Filed 02/26/19 Page 2 of 27 Page ID #:313 i NOT. OF MTN. AND MTN. FOR AWARD OF ATTNYS’ FEES AND COSTS AND CLASS REP.’S INCENTIVE AWARD – CASE NO. 5:16-CV-CJC-JEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS I. INTRODUCTION .................................................................................................. 1 II. THE REQUESTED ATTORNEYS’ FEES ARE REASONABLE ......................... 2 A. A Fee Award Of 30% Of the Settlement Fund Is Reasonable Under the “Percentage of the Fund” Method ........................................................... 3 B. The Reasonableness Of The Requested Fee Award Is Confirmed By A Lodestar Cross-Check ................................................................................. 10 C. Plaintiff’s Fee Request Passes Scrutiny Under Heightened Ninth Circuit Standards Articulated in Bluetooth, Bedolla, and Kellog ................. 15 D. Class Counsel’s Requested Cost Reimbursement Is Also Reasonable ......... 17 III. THE CLASS REPRESENTATIVE AWARD IS REASONABLE ........................ 18 IV. CONCLUSION .................................................................................................... 21 Case 5:16-cv-01338-CJC-JEM Document 32 Filed 02/26/19 Page 3 of 27 Page ID #:314 ii NOT. OF MTN. AND MTN. FOR AWARD OF ATTNYS’ FEES AND COSTS AND CLASS REP.’S INCENTIVE AWARD – CASE NO. 5:16-CV-CJC-JEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Allen v. Bedolla, 787 F.3d 1218 (9th Cir. 2015) ............................................................................... 15, 16 Chemi v. Champion Mortg. No. 05-1238, 2009 WL 1470429 (D.N.J. May 26, 2009) .....17 Dennis v. Kellogg Co., 697 F.3d 858 (9th Cir. 2012) ................................................................................. 15, 16 Elliott v. Rolling Frito-Lay Sales, LP, Case No. SACV 11-01730 DOC, 2014 U.S. Dist. LEXIS 83796 (C.D. Cal. June 12, 2014) ............................................................................................................................ 9 Fernandez v. Victoria Secret Stores, LLC, 2008 U.S. Dist. LEXIS 118631 (C.D. Cal. 2008) ......................................................... 9 Fischel v. Equitable Life Assur. Soc’y, 307 F.3d 997 (9th Cir. 2002) .......................................................................................14 Fox v. Vice, 563 U.S. 826 (2011) ....................................................................................................11 Garner v. State Farm Mut. Auto. Ins. Co., Case No. CV 08 1365 CW (EMC), 2010 U.S. Dist. LEXIS 49477 (N.D. Cal. Apr. 22, 2010) ...........................................................................................................................20 Graham v. DaimlerChrysler Corp., 34 Cal. 4th 553 (2004) ............................................................................................. 9, 14 Hensley v. Eckerhart, 461 U.S. 424 (1983) ................................................................................................ 3, 11 Hightower v. JPMorgan Chase Bank, N.A., f Case No. CV111802PSGPLAX, 2015 U.S. Dist. LEXIS 174314 (C.D. Cal. Aug. 4, 2015) ............................................................................................................................ 9 Hollis v. Union Pacific Railroad Co., Case No. 17-cv-2449 JGB (C.D. Cal. Sept. 19, 2018) ............................................ 8, 13 In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935 (9th Cir. 2011) ..................................................................................... 2, 3 In re Mercury Interactive Corp. Securities Litigation, 618 F.3d 988 (9th Cir. 2010) .......................................................................................16 In re Omnivision Techs., 559 F. Supp. 2d 1036 (N.D. Cal. 2007) .......................................................................17 In re Online DVD-Rental Antitrust Litig., 779 F.3d 934 (9th Cir. 2015) ........................................................................................ 3 In re Washington Pub. Power Supply Sys. Secs. Litig., 19 F.3d 1291 (9th Cir. 1994) .......................................................................................10 Case 5:16-cv-01338-CJC-JEM Document 32 Filed 02/26/19 Page 4 of 27 Page ID #:315 iii NOT. OF MTN. AND MTN. FOR AWARD OF ATTNYS’ FEES AND COSTS AND CLASS REP.’S INCENTIVE AWARD – CASE NO. 5:16-CV-CJC-JEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ingalls v. Hallmark Mktg. Corp., Case No. 08cv4342 VBF (Ex), Dkt. No. 77 (C.D. Cal. Oct. 16, 2009) ........................ 9 Knight v. Red Door Salons, Inc., 2009 U.S. Dist. LEXIS 11149 (N.D. Cal. 2009) ........................................................... 3 Laffitte v. Robert Half Int'l Inc., 1 Cal. 5th 480 (2016) .................................................................................................... 2 Livadas v. Bradshaw, 512 U.S. 107 (1994) ..................................................................................................... 5 Louie v. Kaiser Found. Health Plan, Inc., No. 08cv0795 IEG RBB, 2008 U.S. Dist. LEXIS 78314, at *18 (S.D. Cal. Oct. 6, 2008) ...........................................................................................................................20 Machinists v. Wisconsin Employment Relations Commission, 427 U.S. 132 (1976) ..................................................................................................... 5 Maldonado, et al. v. Heavy Weight Transport, Inc., No. 2:16-cv-08838-CAS-RAO, Dkt. 40 (C.D. Cal.) ...................................... 4, 8, 14, 20 Moreno v. City of Sacramento, 534 F.3d 1106 (9th Cir. 2008) .....................................................................................13 Moss et al. v. USF Reddaway, Inc., No. 5:15-cv-01541-JAK (FFM), Dkt. 124 (C.D. Cal.) ....................................... 4, 13, 20 Perkins v. Mobile Housing Bd., 847 F.2d 735 (11th Cir. 1988) .....................................................................................11 Rodriguez v. West Publ’g Corp., 563 F.3d 948 (9th Cir. 2009) .......................................................................................18 Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003) ............................................................................. 1, 18, 19 Vincent v. Hughes Air West, Inc., 557 F.2d 759 (1977) ....................................................................................................17 Vizcaino v. Microsoft Corp., 290 F.3d 1043 (9th Cir. 2002) ............................................................................. 2, 3, 10 Statutes § 226.2 .......................................................................................................................... 7, 8 2699(g)(1) ................................................................................................................... 2, 18 2802(c) ....................................................................................................................... 2, 18 Cal. Labor Code § 1194.2 ........................................................................................... 2, 18 Fed. R. Civ. P. 23 ............................................................................................................. 1 Federal Rule of Civil Procedure 23(h) ............................................................................. 2 Case 5:16-cv-01338-CJC-JEM Document 32 Filed 02/26/19 Page 5 of 27 Page ID #:316 iv NOT. OF MTN. AND MTN. FOR AWARD OF ATTNYS’ FEES AND COSTS AND CLASS REP.’S INCENTIVE AWARD – CASE NO. 5:16-CV-CJC-JEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Federal Rule of Civil Procedure 54(d)(2) ......................................................................... 2 Case 5:16-cv-01338-CJC-JEM Document 32 Filed 02/26/19 Page 6 of 27 Page ID #:317 1 NOT. OF MTN. AND MTN. FOR AWARD OF ATTNYS’ FEES AND COSTS AND CLASS REP.’S INCENTIVE AWARD – CASE NO. 5:16-CV-CJC-JEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Ramona Hogue (“Plaintiff”) hereby moves this Court for an award of $210,000 in attorneys’ fees (representing 30% of the $700,000 gross settlement), $20,825.30 in costs, and an award to the Plaintiff/Class Representative in the amount of $10,000 for the service she has rendered to the Class throughout the litigation. These amounts are allocated by the Settlement Agreement, and YRC, Inc. (“Defendant” or “YRC”) does not oppose these proposed payments. Class Counsel’s fee request is justified here by the excellent result obtained for the Class (particularly since the FMCSA issued an agency ruling on December 21, 2018 indicating that California’s meal and rest break laws are no longer enforceable due to federal Hours of Service requirements of the Department of Transportation), and the fact that the amount sought in total fees is less than Class Counsel’s actual lodestar incurred. This is a non-reversionary $700,000 Gross Settlement, of which approximately $420,000 will be automatically distributed to Class Members who do not opt out of the Settlement. The requested fees are $33,579 less than Class Counsel’s actual lodestar to date, and thus represent a negative multiplier on Class Counsel’s time, despite the risks entailed in this litigation and the fact that contingency attorneys are frequently awarded lodestar multipliers for the contingent risk of litigation. The requested Class Representative Incentive Award in the amount of $10,000, approximately 0.14% of the Gross Settlement,1 is also reasonable and should be approved because class representatives in class action litigation are eligible for reasonable participation payments to compensate them for the risks assumed and efforts made on behalf of the Class. Staton v. Boeing Co., 327 F.3d 938, 976 (9th Cir. 2003). Accordingly, the Court should award the requested attorneys’ fees and costs and the award for Class Representative, in full. 1 $10,000/ $700,000 Case 5:16-cv-01338-CJC-JEM Document 32 Filed 02/26/19 Page 7 of 27 Page ID #:318 2 NOT. OF MTN. AND MTN. FOR AWARD OF ATTNYS’ FEES AND COSTS AND CLASS REP.’S INCENTIVE AWARD – CASE NO. 5:16-CV-CJC-JEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. THE REQUESTED ATTORNEYS’ FEES ARE REASONABLE In class actions, courts may award attorneys’ fees that are authorized by law or the parties’ agreement. See Fed. R. Civ. P. 23(h); 54(d)(2) . Here, Plaintiff’s counsel are entitled to recover their attorneys’ fees under California Labor Code §§ 1194.2;2 218.5;3 2802(c);4 and 2699(g)(1).5 In determining the reasonableness of the requested fees in a common fund settlement like this one, “courts have discretion to employ either the lodestar method or the percentage-of-recovery method.” In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 942 (9th Cir. 2011). If a court elects to employ a percentage-of-fund method, it may “cross-check” this amount by calculating the lodestar. Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1050 (9th Cir. 2002). Recently, the California Supreme Court approved the state courts’ usage of the common fund method of awarding attorneys’ fees in wage and hour class actions, stating that “[w]e join the overwhelming majority of federal and state courts in holding that when class action litigation establishes a monetary fund for the benefit of the class members, and the trial court in its equitable powers awards class counsel a fee out of that fund, the court may determine the amount of a reasonable fee by choosing an appropriate percentage of the fund created.” Laffitte v. Robert Half Int'l Inc., 1 Cal. 5th 480, 506 (2016) (approving fees of 1/3 of the common fund constituting a lodestar multiplier more than 2 were appropriate in a hard-fought wage and hour class action 2 “... any employee receiving less than the legal minimum wage ... applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage ... including ... reasonable attorney’s fees, and costs of suit.” 3 “[i]n any action brought for the nonpayment of wages ... the Court shall award reasonable attorneys’ fees and costs to the prevailing party.” 4 “…the term “necessary expenditures or losses” shall include all reasonable costs, including, but not limited to, attorney’s fees incurred by the employee enforcing the rights granted by this section.” 5 “Any employee who prevails in any action shall be entitled to an award of reasonable attorney's fees and costs” Case 5:16-cv-01338-CJC-JEM Document 32 Filed 02/26/19 Page 8 of 27 Page ID #:319 3 NOT. OF MTN. AND MTN. FOR AWARD OF ATTNYS’ FEES AND COSTS AND CLASS REP.’S INCENTIVE AWARD – CASE NO. 5:16-CV-CJC-JEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 case). In light of the risks involved here, the results obtained, and the fact that the fees sought are less than the lodestar incurred, Plaintiff seeks a slight upward adjustment of the benchmark up to 30% of the non-reversionary common fund obtained for the Class. A. A Fee Award Of 30% Of the Settlement Fund Is Reasonable Under the “Percentage of the Fund” Method The typical range of acceptable attorneys’ fees in the Ninth Circuit is 20% to 30% of the total settlement value, with 25% considered the benchmark. Vizcaino, 290 F.3d at 1047. However, the exact percentage varies depending on the facts of the case, and in “most common fund cases, the award exceeds that benchmark.” Knight v. Red Door Salons, Inc., 2009 U.S. Dist. LEXIS 11149 (N.D. Cal. 2009). To determine whether the percentage requested is reasonable, courts examine several factors, including: “[T]he extent to which class counsel ‘achieved the results for the class,’ whether the case was risky for class counsel, whether counsel’s performance ‘generated benefits beyond the cash settlement fund,’ the market rate for the particular field of law (in some circumstances), the burden class counsel experienced while litigating the case (e.g., cost, duration, foregoing other work), and whether the case was handled on a contingency basis.” In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 954-55 (9th Cir. 2015). Each of these factors supports approval of the requested attorneys’ fees. 1. The Result Achieved Courts recognize that the result achieved is the most important factor to be considered in making a fee award. Hensley v. Eckerhart, 461 U.S. 424, 436 (1983) (“[T]he most critical factor is the degree of success obtained.”); In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d at 942 (same). The $700,000 settlement amount represents 65% of the realistic damages and penalties that Plaintiff contends are owed to the Class (excluding PAGA penalties). Dkt. 29 at 10. The 230 Class Members will enjoy substantial monetary relief from the approximately $420,000 Net Settlement with an average recovery per Class Member of $1,826. Id. This compares very favorably with the settlement reached by Class Case 5:16-cv-01338-CJC-JEM Document 32 Filed 02/26/19 Page 9 of 27 Page ID #:320 4 NOT. OF MTN. AND MTN. FOR AWARD OF ATTNYS’ FEES AND COSTS AND CLASS REP.’S INCENTIVE AWARD – CASE NO. 5:16-CV-CJC-JEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Counsel in Maldonado, et al. v. Heavy Weight Transport, Inc., No. 2:16-cv-08838-CAS- RAO (C.D. Cal.) in a case with nearly identical claims, and which resulted in an average recovery of $1,195 per class member. See Plaintiff Hogue’s Motion for Preliminary Approval (Dkt. 29 at p. 20). Notably, in the Heavy Weight case, the Hon. Judge C. Snyder approved an upward adjustment of the fee award to 33% of the common fund. See Heavy Weight, Dkt. 40.6 This settlement here – with a per-week value of $32.88 gross and $19.94 net – is also nearly as good as the result obtained by Class Counsel in the very similar case Moss et al. v. USF Reddaway, Inc., No. 5:15-cv-01541-JAK (FFM), Dkt. 124 (C.D. Cal.) that resulted in a per week payment of $35.31 gross and $25.03 net.7 Dkt. 29 at p. 20. The result obtained here is particularly impressive when considering the very real risk posed by Defendant’s arguments that Plaintiff’s state law claims are, or would be, preempted by the Federal Aviation Authorization Administration Act (“FAAAA”) or by the Department of Transportation’s (“DOT”) Hours of Service Rules. Dkt. 29 at p. 14-15.8 At the time the parties negotiated this settlement, a DOT funding bill was pending that included a provision to retroactively preempt all state meal and rest break laws as applied to the trucking industry. Id. Further, at the time that the parties reached this settlement, the Federal Motor Carrier Safety Administration (“FMSCA”) was considering issuing an agency determination that federal Hours of Service rules preempt California meal and rest break law. Id. On December 21, 2018, the FMCSA determined that California’s meal and 6 In the Moss et al. v. USF Reddaway, Inc., No. 5:15-cv-01541-JAK (FFM) Class Counsel only sought 25% of the common fund as fees, since even at 25%, there was a significant 1.43 lodestar multiplier. The 25% fee request there was approved by the Hon. Judge J. A. Krondstadt, including approval of all of Class Counsel’s hourly rates. See USF Reddaway, Dkt. 124 at pp. 10-14 (order granting final approval of class action settlement and attorneys’ fees and costs). 7 The slightly lower amount obtained here is justified because USF Reddaway, Inc. was settled only after Plaintiff obtained class certification on a contested motion, and only after summary judgment motions were fully briefed. 8 See also, https://www.fmcsa.dot.gov/regulations/fmcsa-grants-petitions-ensure-safe- and-uniform-rest-rules-california-truck-drivers Case 5:16-cv-01338-CJC-JEM Document 32 Filed 02/26/19 Page 10 of 27 Page ID #:321 5 NOT. OF MTN. AND MTN. FOR AWARD OF ATTNYS’ FEES AND COSTS AND CLASS REP.’S INCENTIVE AWARD – CASE NO. 5:16-CV-CJC-JEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 rest break rules are preempted by the Hours of Service rules. See Declaration of Julian Hammond In Support of Plaintiff’s Motion for Award of Attorneys’ Fees and Costs and Class Representative’s Incentive Award, filed herewith, (“Hammond Decl.”) at ¶ 11. Although this agency ruling is being challenged in the Ninth Circuit and may only have prospective impact, it underscores the very real risk of federal preemption that Plaintiff faced and demonstrates that the settlement is adequate and unquestionably reasonable and that the 30% fee award request the appropriate. Id. 2. The Risks of Litigation As discussed at length in Plaintiffs’ Motion for Preliminary Approval of the Settlement (Dkt. 29 at pp. 14-18), Plaintiff faced significant risks including (a) federal preemption; (b) class certification; and (c) losing on the merits. a. Federal Preemption First, YRC argued that Plaintiff’s individual claims are wholly barred by federal labor law preemption on two distinct grounds – the Machinists Supreme Court ruling and Section 301 of the Labor Management Relations Act of 1947 (“LMRA”). Dkt. 29 at p. 14. Defendant argued, based on Machinists v. Wisconsin Employment Relations Commission, 427 U.S. 132 (1976), that Congress intended to leave certain areas of labor management to the “free play of economic forces” and “were not to be regulated by States” and the CBAs governing the Class’s pay are the embodiment of employee concerted activity. Because the compensation and rest break policies were bargained for in the collectively bargained CBAs, Defendant argued that Plaintiff’s claims would essentially require the Court to dictate – without statutory guidance – the specific language that YRC and the union should have negotiated on this topic, contrary to the Machinists ruling. Dkt. 29 at p. 14. Defendant further asserted, based on Livadas v. Bradshaw, 512 U.S. 107, 119-22 (1994), that Plaintiff’s claims are inextricably intertwined with the CBAs, and that the LMRA preempts state law that “conflicts or otherwise stands as an obstacle to the Case 5:16-cv-01338-CJC-JEM Document 32 Filed 02/26/19 Page 11 of 27 Page ID #:322 6 NOT. OF MTN. AND MTN. FOR AWARD OF ATTNYS’ FEES AND COSTS AND CLASS REP.’S INCENTIVE AWARD – CASE NO. 5:16-CV-CJC-JEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 accomplishment and execution of the full purposes and objectives of federal [labor] law.” Defendant argued that although Plaintiff’s California wage and rest break claims are founded on state law rights, their success (or defeat) is necessarily dependent on the interpretation of the CBAs and they are therefore preempted under Section 301 of the LMRA. Dkt. 29 at p. 14. Finally, Defendant asserted that the threat of legislative action – including repeated Congressional efforts to preempt state meal and rest break laws – presented a serious risk to Plaintiff’s unpaid wage claims. Dkt. 29 at p. 14-15. At the time the Parties were negotiating this Settlement, a Department of Transportation (“DOT”) funding bill was pending that includes a provision to retroactively preempt all state meal and rest break laws as applied to the trucking industry. If such legislation passed, which was high on the legislative agenda of the Republicans, this case would immediately be largely worthless. Dkt. 29 at p. 15. The American Trucking Association’s petition for a determination that California’s meal and rest break rules are preempted Department of Transportation Hours of Service (“HOS”) was also pending at the time the parties negotiated this settlement and has since been granted. Dkt. 29 at p. 15; Hammond Decl. at ¶ 11. While the FMCSA’s newly asserted views are not law per se, and is very much an open question both whether the courts will defer the FMCSA’s Preemption Order, and whether it will be applied retroactively, this nonetheless highlights the serious risk posed to Plaintiff’s claims. Hammond Decl. at ¶ 11. b. Class Certification Defendant also contended that Plaintiff would be unable to certify a class because individualized issues would predominate in that YRC did not maintain rest break records, and some drivers took rest breaks, while others did not. Dkt. 29 at p. 15. Likewise, Defendant did not maintain records of Non-Driving Time tasks. Id. Although most courts have certified claims similar to those asserted in this action, several courts in the Central District of California have agreed with this position. Dkt. 29 at p. 16. Likewise, YRC Case 5:16-cv-01338-CJC-JEM Document 32 Filed 02/26/19 Page 12 of 27 Page ID #:323 7 NOT. OF MTN. AND MTN. FOR AWARD OF ATTNYS’ FEES AND COSTS AND CLASS REP.’S INCENTIVE AWARD – CASE NO. 5:16-CV-CJC-JEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 contended that individual issues would predominate as to Plaintiff’s Labor Code § 2802 claims because of the factors involved in determining Class Members’ actual business expenses and whether each expense was “necessary” as other federal courts have found. Id. For these reasons, it was by no means certain that Plaintiff would prevail on class certification. Id. c. Merits Defendant further contended that even if Plaintiff won class certification, she would lose on the merits for several reasons, including: • Defendant’s piece-rate pay covered the non-driving activities for which Plaintiff claims drivers were not paid; • The alleged non-driving tasks are not “nonproductive time” within the meaning of Labor Code § 226.2 such that they would have to be separately compensated because they are directly related to driving duties; • YRC paid Class Members the greater of the actual miles driven rate or eight (8) hours at their hourly rate and thus they were not piece rate workers; • 16% of the routes assigned to Class Members were outside of California, so at a minimum its liability had to be reduced by the 16% of the time that Class Members spent working outside of the state; and • At a maximum, Plaintiff could only recover for the actual 10 minutes of unpaid rest break time (or 20 minutes per day), not for the one hour of premium pay, which cuts that claim’s valuation by 2/3; and • There can be no liability for unpaid rest breaks or non-driving time prior to January 1, 2016 (when Labor Code § 226.2 was enacted) which constitutes the majority of the Class Period.9 Dkt. 29 at p. 16-17. 9 The Class Period is May 19, 2012 through August 17, 2017. Case 5:16-cv-01338-CJC-JEM Document 32 Filed 02/26/19 Page 13 of 27 Page ID #:324 8 NOT. OF MTN. AND MTN. FOR AWARD OF ATTNYS’ FEES AND COSTS AND CLASS REP.’S INCENTIVE AWARD – CASE NO. 5:16-CV-CJC-JEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As to Plaintiff’s expense reimbursement claim, Defendant contended that Class Members were not expected or required to use their personal cell phones to perform their daily job duties and thus were not entitled to reimbursement. Id. at p. 17. Finally, as to the derivative claims (i.e., wage statement claims, waiting time penalties, PAGA penalties, and UCL), Defendant contended that these would fail for the same reasons as Plaintiff’s underlying claims. Id. at p. 17-18. Despite the foregoing risks, Class Counsel recovered $700,000 on behalf of the Class, an amount that the Class Members would likely not have recovered independent of this action. Given the uncertainty associated with trial, the very real risk of federal preemption, and the risks associated with class certification and with the merits, Plaintiff obtained an outstanding settlement for the Class. 3. Benefits Beyond the Settlement Fund In addition to the robust monetary relief that this settlement provides to the Class, this Action has resulted in significant injunctive relief in the form of changes made by Defendant to its compensation policies. Dkt. 29 at p. 19. A little more than one year after the filing of this Action, in August 2017, Defendant changed its compensation policy to pay Class Members separately and hourly for their rest breaks and non-productive time, as required under Labor Code § 226.2. Id. Thus, this Action has resulted in significant benefit to the Class beyond the $700,000 Settlement Fund. 4. The Fees Are Consistent With the Market Rate for Wage and Hour Cases Courts within the Central District award attorneys’ fees in the 30% range in smaller wage and hour class actions, in wage and hour class actions where the cases are risky, and in cases where the amount in fees sought is reasonable when compared to the lodestar expended. See e.g., Hollis v. Union Pacific Railroad Co., Case No. 17-cv-2449 JGB (C.D. Cal. Sept. 19, 2018) (Hon. Judge J. Bernal appointing Ackerman & Tilajef as co- class counsel and awarding fees of 33.33% of the common fund) and Maldonado v. Heavy Weight Transport, Case No. 2:16-cv-08838-CAS, Dkt. 40 (C.D. Cal. Dec. 11, 2018) (Hon. Case 5:16-cv-01338-CJC-JEM Document 32 Filed 02/26/19 Page 14 of 27 Page ID #:325 9 NOT. OF MTN. AND MTN. FOR AWARD OF ATTNYS’ FEES AND COSTS AND CLASS REP.’S INCENTIVE AWARD – CASE NO. 5:16-CV-CJC-JEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Judge C. Snyder in appointing both putative class counsel law firms as co-class counsel awarding fees of 33% of the common fund).10 Declaration of Craig J. Ackermann In Support of Plaintiff’s Motions for Final Approval of Class Action Settlement, and Attorneys’ Fees and Costs (“CJA Decl.”) at ¶ 17; Hammond Decl. at ¶ 6. In this case, Class Counsel seeks 30% percent of the non-reversionary $700,000 common fund generated for the benefit of the Class. Given the uncertainty surrounding Plaintiff’s claims, the strength of Defendant’s defenses, and the political climate posing a risk of legislation retroactively preempting Plaintiff’s claims, Class Counsel understood it faced significant hurdles in certifying and prevailing at trial on behalf of the Class. As such, this Court should find 30% of the Settlement fits within the range of fees awarded within this district, particularly in a small wage and hour class action such as this one. 5. Class Counsel Litigated the Case on a Contingency Basis and Carried a Significant Financial Burden Attorneys who represent clients on a contingency basis are entitled to more than the market value of their services as a reward for the risk of non-payment. See Graham v. DaimlerChrysler Corp., 34 Cal. 4th 553, 580 (2004) (“[A] lawyer who both bears the risk of not being paid and provides legal services is not receiving the fair market value of his work if he is paid only for the second of these functions.”); In re Washington Pub. Power 10 Other cases where Courts in this district awarded 30% or more include Fernandez v. Victoria Secret Stores, LLC, 2008 U.S. Dist. LEXIS 118631 (C.D. Cal. 2008) (awarding 34% of common fund as attorneys’ fees in a wage and hour class action settlement); Hightower v. JPMorgan Chase Bank, N.A., Case No. CV111802PSGPLAX, 2015 U.S. Dist. LEXIS 174314, at *30 (C.D. Cal. Aug. 4, 2015) (awarding 30% of common fund as attorneys’ fees in a wage and hour class action settlement); Ingalls v. Hallmark Mktg. Corp., Case No. 08cv4342 VBF (Ex), Dkt. No. 77, at ¶ 6 (C.D. Cal. Oct. 16, 2009) (awarding 33.33% of common fund as attorneys’ fees in a wage and hour class action); Elliott v. Rolling Frito-Lay Sales, LP, No. SACV 11-01730 DOC, 2014 U.S. Dist. LEXIS 83796, at *27 (C.D. Cal. June 12, 2014) (finding that “[a]lthough the case was resolved very early in the litigation, the Court finds that the requested 30 percent is a reasonable fee award” given Class Counsel’s “willingness to accept difficult legal challenges and the risk of nonpayment.”). Case 5:16-cv-01338-CJC-JEM Document 32 Filed 02/26/19 Page 15 of 27 Page ID #:326 10 NOT. OF MTN. AND MTN. FOR AWARD OF ATTNYS’ FEES AND COSTS AND CLASS REP.’S INCENTIVE AWARD – CASE NO. 5:16-CV-CJC-JEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Supply Sys. Secs. Litig., 19 F.3d 1291, 1299 (9th Cir. 1994) (“It is an established practice in the private legal market to reward attorneys for taking the risk of non-payment by paying them a premium over their normal hourly rates for winning contingency cases”). Further, awarding fees that exceed the market value of the services rendered “are accepted in the legal profession as a legitimate way of assuring competent representation for plaintiffs who could not afford to pay on an hourly basis regardless whether they win or lose.”) If this bonus methodology did not exist, “very few lawyers could take on the representation of a class client given the investment of substantial time, effort, and money, especially in light of the risks of recovering nothing.” Id. at 1300. Here, Class Counsel were committed to prosecuting this case despite the risk that they would not be paid for their time and resources expended. CJA Decl. at ¶ 11. This case was especially risky because of pending legislation seeking retroactive preemption of Plaintiff’s claims as well the ATA’s petition that the HOS preempt California’s rest break laws - which has since been granted. Hammond Decl. at ¶ 11. As detailed below, Class Counsel expended 505 hours, with a lodestar value of $243,579, with no guarantee of payment. Thus, Plaintiff’s request for 30% of the total settlement amount as fees (or $210,000) for Class Counsel is well within the zone of reasonable attorneys’ fees awards for the quality of services Class Counsel rendered and the results they obtained for the Class. CJA Decl. at ¶ 11. B. The Reasonableness Of The Requested Fee Award Is Confirmed By A Lodestar Cross-Check A lodestar cross-check confirms that the percentage requested is reasonable. See Vizcaino, 290 F.3d at 1050 (“while the primary basis of the fee award remains the percentage method, the lodestar may provide a perspective on the reasonableness of a given percentage award”). In determining the reasonableness of the fee under the lodestar method, the Court must begin with the “lodestar” figure, which “is calculated by multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly Case 5:16-cv-01338-CJC-JEM Document 32 Filed 02/26/19 Page 16 of 27 Page ID #:327 11 NOT. OF MTN. AND MTN. FOR AWARD OF ATTNYS’ FEES AND COSTS AND CLASS REP.’S INCENTIVE AWARD – CASE NO. 5:16-CV-CJC-JEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 rate.” See Hensley v. Eckerhart, 461 U.S. at 433. “That figure may then be increased or reduced by the application of a ‘multiplier’ after the trial court has considered other factors concerning the lawsuit.” Id. Class Counsel has already spent more than 505 hours on this litigation resulting in lodestar fees through the present of more than $243,579. CJA Decl. ¶ 16. Thus, the requested $210,000 fee award represents $33,579 less than Class Counsel’s lodestar to date. Id This is a far less lucrative result than class counsel typically expect in cases like this one, where Class Counsel provided a skilled representation, accepted the contingent risk of litigation, obtained an excellent result, and which presented many novel and complex issues. 1. Class Counsel’s Current Lodestar is $243,579 Applying the first step of this analysis, Class Counsel have expended at least 505 hours in this litigation for a lodestar of at least $243,579. CJA Decl. ¶ 9. This lodestar amount is documented by detailed and contemporaneous billing records maintained by Plaintiff’s Counsel. CJA Decl. ¶ 9; Hammond Decl. ¶ 7. The time summaries and records included in Class Counsel’s declarations filed herewith accurately reflect the extensive work class counsel necessarily performed in this complex litigation and are the best evidence of the time that this case has required. See Perkins v. Mobile Housing Bd., 847 F.2d 735, 738 (11th Cir. 1988) (counsel’s “[s]worn testimony that, in fact, it took the time claimed is evidence of considerable weight on the issue of the time required in the usual case”). Indeed, trial courts may even use “rough” estimations, so long as they apply the correct standard. Fox v. Vice, 563 U.S. 826, 838 (2011).11 This lodestar amount does not 11 As the Supreme Court has stated, “The fee applicant ... must, of course, submit appropriate documentation to meet ‘the burden of establishing entitlement to an award.’ But trial courts need not, and indeed should not, become green-eye-shade accountants. The essential goal in shifting fees ... is to do rough justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney’s time.” Fox, 563 U.S. at 838 (citations omitted). To ensure there is no waiver of the attorney-client privilege or work Case 5:16-cv-01338-CJC-JEM Document 32 Filed 02/26/19 Page 17 of 27 Page ID #:328 12 NOT. OF MTN. AND MTN. FOR AWARD OF ATTNYS’ FEES AND COSTS AND CLASS REP.’S INCENTIVE AWARD – CASE NO. 5:16-CV-CJC-JEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 include the additional work that will be needed to obtain final approval and oversee distribution of proceeds to the Class. CJA Decl. at ¶ 16; Hammond Decl. at ¶ 8. Class Counsel’s hours were spent on numerous tasks from pre-filing research, discovery, multiple depositions, preparing for and attending two mediations, negotiating the settlement, and obtaining preliminary approval, and are described at length in the declarations filed herewith. Class Counsel investigated and researched the facts and circumstances underlying the pertinent issues and applicable law prior to filing the Complaint. After Defendant removed the case, the parties propounded and responded to written discovery, and both Plaintiff and Defendant’s Rule 30(b)(6) designees were deposed. Prior to the mediation, Class Counsel analyzed highly relevant documents and information produced by Defendant including compensation policies; rest break policies; job descriptions; and wage statements. Class Counsel then drafted a detailed mediation brief including an extensive discussion of the applicable case law and a thorough damages analyses. Class Counsel attended a full-day mediation with experienced wage- and-hour class action employment law mediator, Joel M. Grossman, Esq. See Dkt 29-1 at p. 4-5. The parties were unable to reach a resolution at mediation, primarily because Defendant believed that legislation would pass the next day which would retroactively preempt state rest break laws for truckers. Id. When the legislation did not pass, Defendant agreed to participate in a second mediation with Lisa Klerman, another well- known mediator who specializes in wage-and-hour and employment law cases. Following the second full-day mediation, the parties reached a class-wide agreement in principle, and spent several months finalizing the Settlement. Dkt 29-1 at p. 5-6. Further, as discussed above, Class Counsel took this case on a contingent basis. “It must be kept in mind that lawyers are not likely to spend unnecessary time on product protection, Class Counsel have provided summaries of their lodestar fees and litigation expenses. Case 5:16-cv-01338-CJC-JEM Document 32 Filed 02/26/19 Page 18 of 27 Page ID #:329 13 NOT. OF MTN. AND MTN. FOR AWARD OF ATTNYS’ FEES AND COSTS AND CLASS REP.’S INCENTIVE AWARD – CASE NO. 5:16-CV-CJC-JEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 contingency fee cases in the hope of inflating their fees. The payoff is too uncertain, as to both the result and the amount of the fee.” Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). Given this absence of incentive to spend unnecessary hours, the Court should defer to Class Counsel’s professional judgment concerning the number of hours reasonably required to reach a successful resolution of the case. 2. Class Counsel’s Hourly Rates Are Reasonable Class Counsel calculated their lodestar using hourly rates that have been previously approved and found reasonable by numerous state and federal courts including Hon. Judge Kronstadt in Moss v. USF Reddaway, Inc., Case No. 5:15-cv-01541-JAK-FFM12 and Judge Bernal in Hollis v. Union Pacific Railroad Co., Case No. 5:17-cv-02449-JGB- SHK.13 Hammond Decl. at ¶ 5; CJA Decl. at ¶ 17-18. Class Counsel’s hourly rates are reasonable in light of their significant experience, expertise, and skill demonstrated by their ability to obtain an excellent settlement especially when considering the uncertainties involved with litigation. 12 Judge Kronstadt approved the rates of every attorney and paralegal submitting time on this matter and stated that “attorneys and paralegals who worked on this matter have substantial experience in complex employment litigation. For example, Craig Ackermann has served as lead counsel or co-lead counsel in more than 200 class cases during his 21- year career… Goldstein has extensive experience litigating employment cases, including before the Supreme Court…..Based on the evidence that has been presented, as well as the Court’s familiarity with hourly rates that are charged within this District, the proposed rates are within the range of reasonableness.” USF Reddaway, Dkt. 124. 13 Judge Bernal approved the hourly rates of Craig Ackermann, Barry Goldstein, and Sam Vahedi and stated that “counsel billed at hourly rates ranging from $200-$890 for attorney timekeepers….The Court reviewed the experience of the respective attorneys and finds the amount billed per hour to be reasonable. For instance, Craig Ackerman has been an employment attorney since 1997 and has handled numerous federal and state employment class action cases. Barry Goldstein has practiced employment law for 45 years and has taught employment law courses at Harvard Law School…He has also served as lead counsel in multiple employment class actions that settled for amounts of $30 million.” Case 5:16-cv-01338-CJC-JEM Document 32 Filed 02/26/19 Page 19 of 27 Page ID #:330 14 NOT. OF MTN. AND MTN. FOR AWARD OF ATTNYS’ FEES AND COSTS AND CLASS REP.’S INCENTIVE AWARD – CASE NO. 5:16-CV-CJC-JEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. Class Counsel Fees Request is Less than the Lodestar to Date Class Counsel requested fees are $33,579 less than their current lodestar. CJA Decl. at ¶ 16. This is less than Class Counsel would typically seek to recover for a case like this one where Counsel accepted the contingent risk of the litigation and obtained an excellent result. Fischel v. Equitable Life Assur. Soc’y, 307 F.3d 997, 1008 (9th Cir. 2002) (“A district court generally has discretion to apply a multiplier to the attorney’s fees calculation to compensate for the risk of nonpayment.”). In fact, Class Counsel were awarded a 1.26 lodestar by Judge Snyder in Heavy Weight, and a 1.43 multiplier by Judge Kronstadt in USF Reddaway. Hammond Decl. at ¶¶ 5-6. Further, Class Counsel could seek a multiplier here based on the following factors including: (a) Class Counsel loaned their services out with no guarantee of being paid: It is well-settled that providing attorneys who represent clients under fee agreements a larger fee than the market value of their services helps to assure adequate representation for plaintiffs unable to afford accomplished attorney hourly rates. Graham, 34 Cal. 4th at 580 (“[A] lawyer who both bears the risk of not being paid and provides legal services is not receiving the fair market value of his work if he is paid only for the second of these functions.”); (b) This case presented very real risk of being rendered worthless by legislation: including the then-pending DOT Funding bill with the Denham Amendment attached, and ATA petition for DOT Hours of Service preemption that has since been granted at the agency level by the FMCSA; and (c) Class Counsel obtained an excellent result for the Class: As discussed above, the 230 Class Members will enjoy substantial monetary relief from the $420,000 Net Settlement, with an average recovery per Class Member of $1,827. The Settlement will provide immediate compensation to the Settlement Class and will avoid the substantial risks of less or no recovery presented by continued litigation. Additionally, Class Case 5:16-cv-01338-CJC-JEM Document 32 Filed 02/26/19 Page 20 of 27 Page ID #:331 15 NOT. OF MTN. AND MTN. FOR AWARD OF ATTNYS’ FEES AND COSTS AND CLASS REP.’S INCENTIVE AWARD – CASE NO. 5:16-CV-CJC-JEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Members will enjoy the significant injunctive relief as a result of this action including that Defendant changed its compensation policy in August 2017 to pay Class Members separately and hourly for their rest breaks. Finally, the lodestar does not include time Class Counsel expects to expend in the remainder of the proceedings. Hammond Decl. at ¶ 8; CJA Decl. at ¶ 16. The foregoing strongly demonstrates the reasonableness of the requested multiplier. C. Plaintiff’s Fee Request Passes Scrutiny Under Heightened Ninth Circuit Standards Articulated in Bluetooth, Bedolla, and Kellog The present Settlement also comports with the heightened standards of scrutiny for approving attorneys’ fees in class actions that the Ninth Circuit articulated in In re Bluetooth, 654 F.3d 935, Allen v. Bedolla, 787 F.3d 1218 (9th Cir. 2015) , and Dennis v. Kellogg Co., 697 F.3d 858 (9th Cir. 2012). In Bluetooth, the Ninth Circuit vacated and remanded an award of fees by a district court in approving a class action settlement, finding that the district court did not fully assess the reasonableness of the fee request and settlement as a whole. 654 F.3d at 943, 947. The court reasoned that the disparity between the value of the class recovery (a $100,000 cy pres award) and class counsel’s compensation ($800,000), and the reversionary nature of the settlement that returned unclaimed funds to the defendant, gave rise to an inference of unfairness. Id. at 938, 947. Likewise, in Bedolla, the Ninth Circuit reversed the district court’s granting of final approval of a class action settlement and reasoned that the reversionary nature of the settlement and the fact that the attorneys’ fee awarded exceeded the maximum possible amount of class monetary relief by a factor of three, evidenced possible implicit collusion between the parties. 787 F.3d at 1224. However, both Bluetooth and Bedolla are factually inapposite to the present case. In Bluetooth, there was no monetary benefit to the class and in Bedolla there was an 8% claims rate. Id. at 1224, fn. 4. Here the settlement will result in a significant net payment of $420,000 that will be automatically paid to Class Members unless they opt-out. Case 5:16-cv-01338-CJC-JEM Document 32 Filed 02/26/19 Page 21 of 27 Page ID #:332 16 NOT. OF MTN. AND MTN. FOR AWARD OF ATTNYS’ FEES AND COSTS AND CLASS REP.’S INCENTIVE AWARD – CASE NO. 5:16-CV-CJC-JEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Further, Bluetooth and Bedolla both involved reversionary settlements, whereas here none of the Settlement will revert to Defendant. Finally, in both Bluetooth and Bedolla the district courts failed to perform a proper lodestar analysis including failing to make an express finding on a reasonable lodestar amount. Bluetooth, 654 F.3d at 943; Bedolla, 787 F.3d at 1225. Here, the fee award sought ($210,000) is not disproportionate to the $420,000 net recovery and is less than Class Counsel’s lodestar to date, as discussed above. Accordingly, neither Bluetooth nor Bedolla poses a bar to Plaintiff’s requested fees.14 Kellogg, likewise, provides no reason to deny or reduce the requested fees and is factually distinguishable. In Kellogg, the Ninth Circuit reversed and vacated a class action settlement of false advertising claims, which was entered into three months after filing of the complaint. The Kellogg settlement was reversionary, only $800,000 worth of claims were made, part of the settlement included charitable donations that Defendant had in place prior to the settlement, and class counsel sought millions of dollars in fees. In rejecting the proposed award of fees, the Ninth Circuit noted that the benefits to the class were “vaporous” and class counsel’s lodestar multiplier (4.3) and hourly rates (on average $2,100 per hour) were greatly in excess of the range of market rates. 697 F.3d at 862. The settlement in the instant case does not suffer from any of the defects of the Kellogg settlement. It consists entirely of real, hard-money payments that will be made to Class Members automatically unless they opt-out; there is no reversion to the 14 The Bedolla Court also vacated the attorneys’ fees award because the district court did not set the deadline for objecting to counsel’s fee request for a date after the fees brief had been filed as required under In re Mercury Interactive Corp. Securities Litigation, 618 F.3d 988, 993 (9th Cir. 2010). Bedolla, 787 F.3d at 1225-1226. Here, Class Counsel motion for fees is being filed well before the opt-out/objection deadline to give the class “an adequate opportunity to review and prepare objections to class counsel’s completed fee motion” if they wish to. Id. at 994-995. Case 5:16-cv-01338-CJC-JEM Document 32 Filed 02/26/19 Page 22 of 27 Page ID #:333 17 NOT. OF MTN. AND MTN. FOR AWARD OF ATTNYS’ FEES AND COSTS AND CLASS REP.’S INCENTIVE AWARD – CASE NO. 5:16-CV-CJC-JEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant; the lodestar to date is over $33,500 more than the requested fees; and the effective hourly rates of Class Counsel are well within market rates and have been approved by numerous courts. D. Class Counsel’s Requested Cost Reimbursement Is Also Reasonable Class Counsel request an award of costs in the amount of $20,825.30 (including $500 in anticipated costs associated with obtaining final approval). Hammond Decl. ¶ 10. This amount is $4,174.70 less than the $25,000 agreed upon in the Settlement, preliminarily approved by the Court, and noticed to the Class. Hammond Decl. ¶ 10. The difference will be added to the Net Settlement Fund and thus each Class Member’s share will be higher than the estimate included in the Share Forms. Id. Under the common fund doctrine, the attorneys whose efforts helped to create the fund are entitled to recover “the costs of . . . [the] litigation” from the fund, in addition to attorneys’ fees. Vincent v. Hughes Air West, Inc., 557 F.2d 759, 769 (1977). “In common fund cases, counsel is entitled to reimbursement of expenses that were adequately documented and reasonably and appropriately incurred in the prosecution of the case.” Chemi v. Champion Mortg. No. 05-1238, 2009 U.S. Dist. LEXIS 44860 (D.N.J. May 26, 2009); In re Omnivision Techs., 559 F. Supp. 2d 1036, 1048-49 (N.D. Cal. 2007) (awarding payment for reimbursement of expenses, plus interest; discussing that attorneys may recover reasonable expenses that would typically be billed to paying clients in non-contingency matters, including expenses for photocopying, printing, postage, messenger services, legal research in electronic databases, experts and consultants, and travel costs). Class Case 5:16-cv-01338-CJC-JEM Document 32 Filed 02/26/19 Page 23 of 27 Page ID #:334 18 NOT. OF MTN. AND MTN. FOR AWARD OF ATTNYS’ FEES AND COSTS AND CLASS REP.’S INCENTIVE AWARD – CASE NO. 5:16-CV-CJC-JEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Counsel are also entitled to recover their costs under California Labor Code §§ 1194.2;15 218.5;16 2802(c);17 and 2699(g)(1).18 Here, the costs incurred are reasonable for a contested wage and hour case. The costs were primarily incurred on filing and service fees, deposition fees, mediation fees, and travel costs associated with attending hearings, depositions and mediations. CJA Decl. at ¶ 19 and Exhibit B; CJA Decl. at ¶ 19; Hammond Decl. at ¶ 9. Given the nature of the litigation, Class Counsel’s request for costs are imminently reasonable and reflect necessary expenditures needed to obtain the favorable settlement achieved on behalf of the class. III. THE CLASS REPRESENTATIVE AWARD IS REASONABLE The requested award to Plaintiff of $10,000 allocated by the Settlement is reasonable and should be approved because class representatives in class action litigation are eligible for reasonable participation payments to compensate them for the risks assumed and efforts made on behalf of the Class. See Staton, 327 F.3d at 976. “Incentive awards are fairly typical in class action cases. Such awards are discretionary and are intended to compensate class representatives for work done on behalf of the class, to make up for financial or reputational risk undertaken in bringing the action…” Rodriguez v. West Publ’g Corp., 563 F.3d 948, 958 (9th Cir. 2009) (internal citations omitted). “The district court must evaluate [incentive] awards individually, using ‘relevant factors includ[ing] the actions the plaintiff has taken to protect the interests of the class, 15 “... any employee receiving less than the legal minimum wage ... is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage ... including ... reasonable attorney’s fees, and costs of suit.” 16 “[i]n any action brought for the nonpayment of wages ... the Court shall award reasonable attorneys’ fees and costs to the prevailing party.” 17 “…the term “necessary expenditures or losses” shall include all reasonable costs, including, but not limited to, attorney’s fees incurred by the employee enforcing the rights granted by this section.” 18 “Any employee who prevails in any action shall be entitled to an award of reasonable attorney's fees and costs” Case 5:16-cv-01338-CJC-JEM Document 32 Filed 02/26/19 Page 24 of 27 Page ID #:335 19 NOT. OF MTN. AND MTN. FOR AWARD OF ATTNYS’ FEES AND COSTS AND CLASS REP.’S INCENTIVE AWARD – CASE NO. 5:16-CV-CJC-JEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the degree to which the class has benefitted from those actions, . . . the amount of time and effort the plaintiff expended in pursuing the litigation . . . and reasonabl[e] fear[s of] workplace retaliation.’” Staton, 327 F.3d at 977. Plaintiff requests an incentive award in an amount of $10,000, to recognize her very significant contributions to the Class, the reputational risks she undertook suing her current employer, the time and efforts expended on behalf of the Class while dealing with serious health issues, her general release of all claims against Defendant, and the significant monetary and non-monetary accomplishments of this case. See Declaration of Ramona Hogue In Support of Plaintiff’s Motion for Attorneys’ Fees and Costs and Class Representative’s Incentive Award (“Hogue Decl.”) filed herewith. The requested incentive award here is admittedly on the higher end of the range of those awarded in wage and hour class actions, but is justified because Plaintiff was significantly active in this litigation, spent substantial time acting in her capacity as class representative, and incurred significant lost wages for the time she took off work in order to attend her deposition and mediation. Plaintiff has spent in excess of 130 hours to date participating in this matter. Hogue Decl. at ¶¶ 6, 10. Plaintiff spent over 100 hours making and receiving hundreds of phone calls with Class Counsel, gathering and providing documents and other information to Class Counsel, and speaking to other Class Members to advise them of the nature of this matter and asking for additional information from them. Id. at ¶¶ 5-6. Plaintiff was present at the first all-day mediation between the parties, and was available by phone throughout the entire second mediation, and also had her full-day deposition taken by Defendant. Id. at ¶¶ 7-8. Plaintiff spent at least 30 hours traveling to and from her home and Los Angeles attending the mediation and deposition, and missed 6 days of work order to accommodate the scheduling in this case. Id. at ¶¶ 10- 11. Moreover, Plaintiff’s contributions to this case are extraordinary when the Court considers that she was diagnosed with an inoperable brain tumor in 2016, which made Case 5:16-cv-01338-CJC-JEM Document 32 Filed 02/26/19 Page 25 of 27 Page ID #:336 20 NOT. OF MTN. AND MTN. FOR AWARD OF ATTNYS’ FEES AND COSTS AND CLASS REP.’S INCENTIVE AWARD – CASE NO. 5:16-CV-CJC-JEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 her work and travel schedule difficult. Id. at ¶ 12. Not only did Plaintiff gain notoriety and risk facing difficulty finding future positions in the trucking industry, she relies on her position with YRC for the health benefits, which made this litigation even riskier for her than it would be otherwise. Id. The fact that Plaintiff undertook to represent the class in this case while suffering from a brain tumor and attending to her serious health issues simultaneously is noteworthy and deserving of praise. Id. at ¶ 13. Despite her health issues, Plaintiff has been a capable and dedicated class representative, and has zealously represented the interests of the Class throughout this litigation. Id. at ¶ 14. Further, the requested award is modest (approximately 1.4%) when considered relative to the $700,000 Gross Settlement19 and is proportionally less than the 2.2% of the Settlement Fund awarded by Hon. Judge Snyder to each Plaintiff in Maldonado et al v. Heavy Weight Transport, Inc., Case No. 2:16-cv-08838-CAS, Dkt. 40.20 Hammond Decl. at ¶ 6. The requested award also falls within the range of reasonable incentive payments awarded to class representatives in similar class actions. See USF Reddaway, Inc., Dkt. 124 (approving $14,000 enhancement awarded to each plaintiff where plaintiffs were deposed, attended mediations, and served the interests of the class admirably). CJA Decl. at ¶ 23.21 19 $10,000/ $700,000 20 Judge Snyder awarded $7,500 awarded to each plaintiff in the Heavy Weight case, which represented 2.2% of $340,000 settlement. Hammond Decl. at ¶ 6. The total awards were $15,000, or 4.4% of the Settlement amount. 21 Other California Federal Court orders awarding include e.g. Louie v. Kaiser Found. Health Plan, Inc., No. 08cv0795 IEG RBB, 2008 U.S. Dist. LEXIS 78314, at *18 (S.D. Cal. Oct. 6, 2008) (approving “$25,000 incentive award for each Class Representative” in wage an hour settlement); Garner v. State Farm Mut. Auto. Ins. Co., Case No. CV 08 1365 CW (EMC), 2010 U.S. Dist. LEXIS 49477, at *47-48 n.8 (N.D. Cal. Apr. 22, 2010) (“Numerous courts in the Ninth Circuit and elsewhere have approved incentive awards of $20,000 or more where, as here, the class representative has demonstrated a strong commitment to the class”). Case 5:16-cv-01338-CJC-JEM Document 32 Filed 02/26/19 Page 26 of 27 Page ID #:337 21 NOT. OF MTN. AND MTN. FOR AWARD OF ATTNYS’ FEES AND COSTS AND CLASS REP.’S INCENTIVE AWARD – CASE NO. 5:16-CV-CJC-JEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Here, Plaintiff has demonstrated an extraordinary commitment to the Class, which has resulted in a $700,000 settlement fund and significant recoveries per Class Member. The $10,000 Incentive Award is therefore fair, reasonable, and well-warranted. IV. CONCLUSION For the foregoing reasons, it is respectfully requested that the Court enter an award granting Class Counsel $210,000 in attorneys’ fees; $20,825.30 in costs; and a $10,000 incentive award to the Plaintiff. Respectfully submitted, ACKERMANN & TILAJEF, P.C. HAMMONDLAW, P.C. Dated: February 26, 2019 By: /s/Craig J. Ackermann___________ Craig J. Ackermann, Esq. Attorneys for Plaintiffs and the Class Case 5:16-cv-01338-CJC-JEM Document 32 Filed 02/26/19 Page 27 of 27 Page ID #:338