Valeria Guerrero-Hernandez v. Ozburn-Hessey Logistics, LLC et al

NOTICE OF MOTION AND MOTION for Attorney Fees PLAINTIFFS NOTICE OF MOTION AND MOTION FOR AN AWARD OF

C.D. Cal.January 30, 2019

Case No.: 5:16-cv-01422 JAK (AFMx) Page 1 Guerrero-Hernandez v. Ozburn-Hessey Logistics, LLC., et al. PLAINTIFF’S MOTION FOR AN AWARD OF (1) ATTORNEY’S FEES TO CLASS COUNSEL; AND (2) ENHANCEMENT TO PLAINTIFF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 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 Shaun Setareh (SBN 204514) shaun@setarehlaw.com Thomas Segal (SBN 222791) Thomas@setarehlaw.com Farrah Grant (SBN 293898) Farrah@setarehlaw.com SETAREH LAW GROUP 315 S. Beverly Drive, Suite 315 Beverly Hills, California 90212 Telephone: (310) 888-7771 Facsimile: (310) 888-0109 Attorneys for Plaintiff VALERIA GUERRERO-HERNANDEZ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA VALERIA GUERRERO- HERNANDEZ, on behalf of herself, all others similarly situated, Plaintiff, v. OZBURN-HESSEY LOGISTICS, LLC, a Tennessee limited liability corporation; and DOES 1-50, inclusive, Defendants. Case No.: 5:16-cv-01422 JAK (AFMx) PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR AN AWARD OF (1) ATTORNEY’S FEES TO CLASS COUNSEL, AND (2) ENHANCEMENT TO PLAINTIFF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: April 1, 2019 Time: 8:30 a.m. Courtroom: Courtroom 10B Case 5:16-cv-01422-JAK-AFM Document 74 Filed 01/30/19 Page 1 of 25 Page ID #:1008 Case No.: 5:16-cv-01422 JAK (AFMx) Page i Guerrero-Hernandez v. Ozburn-Hessey Logistics, LLC., et al. PLAINTIFF’S MOTION FOR AN AWARD OF (1) ATTORNEY’S FEES TO CLASS COUNSEL; AND (2) ENHANCEMENT TO PLAINTIFF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 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 THE COURT, TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD: Please take notice that on April 1, 2019, at 8:30 a.m., or as soon thereafter as counsel may be heard, in Courtroom 10B of the United States Courthouse, located at 350 W. First Street, Los Angeles, CA 90012, Plaintiff VALERIA GUERRERO- HERNANDEZ (“Plaintiff”) will and hereby does move the Court for an order awarding fees to Class Counsel and an enhancement payment to Plaintiff. Plaintiff’s motion is based on this Notice, the following Memorandum of Points and Authorities, the Declaration of Shaun Setareh submitted herewith, all other pleadings and papers on file in this action, and any oral argument or other matter that may be considered by the Court. Dated: January 30, 2019 SETAREH LAW GROUP BY: /S/ Shaun Setareh SHAUN SETAREH Attorney for Plaintiff, VALERIA GUERRERO- HERNANDEZ Case 5:16-cv-01422-JAK-AFM Document 74 Filed 01/30/19 Page 2 of 25 Page ID #:1009 Case No.: 5:16-cv-01422 JAK (AFMx) Page ii Guerrero-Hernandez v. Ozburn-Hessey Logistics, LLC., et al. PLAINTIFF’S MOTION FOR AN AWARD OF (1) ATTORNEY’S FEES TO CLASS COUNSEL; AND (2) ENHANCEMENT TO PLAINTIFF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 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. BACKGROUND ........................................................................................................1 III. SUMMARY OF SETTLEMENT TERMS ..............................................................4 IV. DISCUSSION .............................................................................................................6 A. The Legal Standard for Attorneys’ Fee Awards ........................................ 6 B. The Fee Award Is Reasonable and Should Receive Final Approval ......... 6 1. A Reasonable Result Was Achieved on Behalf of the Class ............. 6 2. The Experience, Reputation, and Ability of Class Counsel ............. 10 3. The Effort Required by the Litigation Justifies the Fee ................... 11 4. The Complexity of the Legal and Factual Issues ............................. 11 5. Class Counsel Assumed Substantial Risk ........................................ 11 6. The Fee is Reasonable Under the Common Fund Doctrine ............. 13 a) The standard fee award in class actions has, over time, resolved itself as one-third of the recovery in common fund cases. ....... 13 b) Plaintiff seek one-third of the Settlement Fund in fees and costs. .......................................................................................... 14 7. A Lodestar Analysis Supports the Requested Fee............................ 15 8. Important Public Policies Are Advanced by Awarding Reasonable Fees to Skilled Class Counsel .......................................................... 18 C. The Enhancement Award Is Reasonable .................................................. 18 V. CONCLUSION ....................................................................................................... 19 Case 5:16-cv-01422-JAK-AFM Document 74 Filed 01/30/19 Page 3 of 25 Page ID #:1010 Case No.: 5:16-cv-01422 JAK (AFMx) Page iii Guerrero-Hernandez v. Ozburn-Hessey Logistics, LLC., et al. PLAINTIFF’S MOTION FOR AN AWARD OF (1) ATTORNEY’S FEES TO CLASS COUNSEL; AND (2) ENHANCEMENT TO PLAINTIFF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 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 FEDERAL DECISIONAL AUTHORITY American Eagle Ins. Co. v. King Resources Co., 556 F.2d 471 (10th Cir. 1977) ........... 10 Bellinghausen v. Tractor Supply Co. 306 F.R.D. 245, 264 (N.D. Cal. 2014)…………..16 Boeing Co. v. Van Gemert, 444 U.S. 472 (1980) .............................................................. 12 Di Giacomo v. Plains All Am. Pipeline, Nos. 99–4137 & 99–4212, 2001 WL 34633373, at *10–11 (S.D. Fla. Dec. 19, 2001………..………………………..16 Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) ................................................ 13 Hopkins v. Stryker Sales Corp., No. 11-CV-02786- LHK, 2013 WL 496358, at *5 (N.D. Cal. Feb. 6, 2013)………… …………………………………………………16 In re Activision Sec. Litig., 723 F. Supp. 1373 (N.D. Cal. 1989) ............................... 13,15 In re Aremissoft Corp. Sec. Litig., 210 F.R.D. 109, 134–35 (D.N.J. 2002)……………16 In re Heritage Bond Litig., 2005 U.S Dist. LEXIS 13555 (C.D. Cal. June 10, 2005) .... 10 In re Immune Response Securities Litigation, 497 F. Supp. 2d 1166, 1174 (S.D. Cal. 2007)……………………………………………………………………..7 In re Public Serv. Co., 1992 U.S. Dist. LEXIS 16326 (S. D. Cal. July 28, 1992) .......... 11 In re Rent-Way Sec. Litig., 305 F. Supp. 2d 491 (W.D. Pa. 2003) ................................... 10 In re Southern Ohio Correctional Facility, 175 F.R.D. 270 (S.D. Ohio 1997) ............... 18 Ingram v. The Coca-Cola Co., 200 F.R.D. 685 (N.D. Ga. 2001) ..................................... 18 Maley v. Del Global Techs. Corp., 186 F. Supp. 2d 358, 369 (S.D.N.Y. 2002)……….16 Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268 (9th Cir. 1989) ................. 13, 17 Reynolds v. National Football League, 584 F.2d 280 (8th Cir. 1978) ............................. 10 Six Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301 (9th Cir. 1990) ......... 13 Staton, 327 F.3d 938, 967 (9th Cir. 2003)……………………………………………..17 Van Vranken v. Atl. Richfield Co., 901 F. Supp. 294 (N.D. Cal. 1995) ........................... 18 Vizcaino v. Microsoft Corp., 290 F.3d 1043 (9th Cir. 2002) .................................... passim Case 5:16-cv-01422-JAK-AFM Document 74 Filed 01/30/19 Page 4 of 25 Page ID #:1011 Case No.: 5:16-cv-01422 JAK (AFMx) Page iv Guerrero-Hernandez v. Ozburn-Hessey Logistics, LLC., et al. PLAINTIFF’S MOTION FOR AN AWARD OF (1) ATTORNEY’S FEES TO CLASS COUNSEL; AND (2) ENHANCEMENT TO PLAINTIFF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 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 CALIFORNIA DECISIONAL AUTHORITY 7-Eleven Owners for Fair Franchising v. Southland Corp., 85 Cal. App. 4th 1135 (2000) ........................................................................................................................................... 10 Bihun v. AT&T Information System, 13 Cal. App. 4th 976 (1993)................................... 15 California Grape Etc. League v. Industrial Welfare Com., 268 Cal. App. 2d 692 (1969)18 Chavez v. Netflix, Inc., 162 Cal. App. 4th 43 (2008) ......................................................... 14 Cundiff v. Verizon California, 167 Cal. App. 4th 718 (2008) ........................................... 15 Daar v. Yellow Cab Co., 67 Cal. 2d 695 (1967) ................................................................ 18 Duran v. US Bank Nat’l Ass’n, 59 Cal. 4th 1 (2014)........................................................... 7 Flannery v. California Highway Patrol, 61 Cal. App. 4th 629 (1995) ............................ 10 Ketchum v. Moses, 24 Cal. 4th 1122 (2001) ...................................................................... 11 Linder v. Thrifty Oil Co., 23 Cal. 4th 429 (2000) .............................................................. 18 Ramirez v. Yosemite Water, Inc., 20 Cal. 4th 785 (1999) ................................................. 18 Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal. 4th 319 (2004) .............................. 18 Serrano v. Priest, 20 Cal. 3d 25 (1977) ...................................................................... passim Wershba v. Apple Computer, 91 Cal. App. 4th 224 (2001) .............................................. 11 STATUTES Labor Code § 2699 ................................................................................................................ 7 TREATISES 7 Witkin, B.E., CALIFORNIA PROCEDURE (2007 Supp.) §§ 255-261 ................................ 12 Herr, MANUAL FOR COMPLEX LITIGATION, FOURTH, § 21.71 (2008) ................................. 6 OTHER AUTHORITIES Findings of the Study of California Class Action Litigation, 2000-2006 ........................... 9 Case 5:16-cv-01422-JAK-AFM Document 74 Filed 01/30/19 Page 5 of 25 Page ID #:1012 Case No.: 5:16-cv-01422 JAK (AFMx) Page 1 Guerrero-Hernandez v. Ozburn-Hessey Logistics, LLC., et al. PLAINTIFF’S MOTION FOR AN AWARD OF (1) ATTORNEY’S FEES TO CLASS COUNSEL; AND (2) ENHANCEMENT TO PLAINTIFF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 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 This is a putative wage and hour class action on behalf of any and all non-exempt hourly position individuals employed by Geodis Logistics LLC, formerly known as Ozburn-Hessey Logistics, LLC (“Defendant”) and persons who worked at Defendant’s facilities who were paid through third-party staffing agencies, in California during the Class Period (April 22, 2012 through the date of preliminary approval of this Settlement by the Court, November 28, 2018). The issues in the case were based on claims by Plaintiff Valeria Guerrero-Hernandez (“Plaintiff”) against Defendant. This case involved two claims. First, a claim that Defendants underpaid the class by rounding time punches. Setareh Decl. ¶ 4. Second, a claim that due to pressure of work class members did not always receive the meal and rest breaks they are entitled to under California law. Id. Defendant disputes these claims. After discovery, the exchange of data informally, and mediation, Plaintiff and the Defendant (collectively referred to herein as the “Parties”) reached a proposed class action settlement valued at $2,900,000.00, and this Court preliminarily approved that settlement on November 28, 2018. The Parties believe the Settlement to be fair and reasonable, to adequately reflect the potential liability, and the result of a thorough factual and legal analyses and arms-length negotiations. Through this Motion, Plaintiff requests an award of attorney’s fees and costs to Class Counsel and an enhancement award to Plaintiff. On a percentage or lodestar basis, the fee award sought by this Motion is within the range of reasonableness. The costs incurred were only those costs necessary to successfully resolve this matter. II. BACKGROUND On April 22, 2016, Plaintiff filed a lawsuit against Ozburn-Hessey Logistics, LLC and Does 1-50, in the Superior Court for the State of California, County of Alameda, alleging causes of action for: (1) Failure to Pay Hourly Wages (Lab. Code §§ 223, 510, 1194, 1194.2, 1197, 1997.1, and 1198); (2) Failure to Provide Case 5:16-cv-01422-JAK-AFM Document 74 Filed 01/30/19 Page 6 of 25 Page ID #:1013 Case No.: 5:16-cv-01422 JAK (AFMx) Page 2 Guerrero-Hernandez v. Ozburn-Hessey Logistics, LLC., et al. PLAINTIFF’S MOTION FOR AN AWARD OF (1) ATTORNEY’S FEES TO CLASS COUNSEL; AND (2) ENHANCEMENT TO PLAINTIFF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 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 Accurate Written Wage Statements (Lab. Code § 226(a)); (3) Failure to Timely Pay All Final Wages (Lab. Code §§ 201-203); and (4) Unfair Competition (Bus. & Prof. Code §§ 17200, et seq.). Plaintiff subsequently filed a First Amended Complaint, alleging claims against Defendant OHL for: (1) Failure to provide meal periods (Cal. Lab. Code §§ 204, 223, 226.7, 512, and 1198); (2) Failure to provide rest periods (Cal. Lab. Code §§ 204, 223, 226.7, and 1198); (3) Failure to pay hourly wages (Cal. Lab. Code §§ 223, 510, 1194, 1194.2, 1197, 1197.1, and 1198); (4) Failure to provide accurate written wage statements (Cal. Lab. Code § 226(a)); (5) Failure to timely pay all final wages (Cal. Lab. Code §§ 200–203); (6) Unfair competition (Bus. & Prof. Code §§ 17200, et seq.); and (7) Civil penalties under the Private Attorneys General Act (Cal. Lab. Code §§ 2698, et seq.). (Declaration of Shaun Setareh [“Setareh Decl.”], at ¶ 4.) Plaintiff subsequently filed a First Amended Complaint, alleging claims for: (1) Failure to provide meal periods (Cal. Lab. Code §§ 204, 223, 226.7, 512, and 1198); (2) Failure to provide rest periods (Cal. Lab. Code §§ 204, 223, 226.7, and 1198); (3) Failure to pay hourly wages (Cal. Lab. Code §§ 223, 510, 1194, 1194.2, 1197, 1197.1, and 1198); (4) Failure to provide accurate written wage statements (Cal. Lab. Code § 226(a)); (5) Failure to timely pay all final wages (Cal. Lab. Code §§ 200–203); (6) Unfair competition (Bus. & Prof. Code §§ 17200, et seq.); and (7) Civil penalties under the Private Attorneys General Act (Cal. Lab. Code §§ 2698, et seq.). Id. On June 3, 2016, Defendant OHL removed the Action to the Northern District of California, where it was assigned Case No. 3:16-cv-02999 WHA. (Dkt. no 1: Setareh Decl., at ¶ 5.) On June 10, 2016, Defendant OHL moved to dismiss or transfer the action based on improper venue, and, thereafter, the Parties agreed to transfer the action to the Central District of California. Based upon the Parties’ stipulation to transfer, the matter was transferred to the Central District of California. On August 1, 2016, Defendant OHL filed its Answer to Plaintiff’s First Amended Complaint. (Dkt. no Case 5:16-cv-01422-JAK-AFM Document 74 Filed 01/30/19 Page 7 of 25 Page ID #:1014 Case No.: 5:16-cv-01422 JAK (AFMx) Page 3 Guerrero-Hernandez v. Ozburn-Hessey Logistics, LLC., et al. PLAINTIFF’S MOTION FOR AN AWARD OF (1) ATTORNEY’S FEES TO CLASS COUNSEL; AND (2) ENHANCEMENT TO PLAINTIFF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 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 31: Setareh Decl., at ¶ 7.) The parties have stipulated to the filing of Plaintiff’s Second Amended Complaint to add claims against Geodis Logistics LLC and to revise the Class definition, and deeming it filed as of the date of Final Approval of the Settlement. Settlement Agreement ¶ 27(b)(iii), Exhibit D to the Agreement (The Settlement Agreement is filed as Dkt. No. 72.1). (Setareh Decl., at ¶ 7.) Through the Litigation, Plaintiff and the Class sought damages, wages, penalties, restitution, disgorgement, punitive and exemplary damages, costs, interest and attorneys’ fees. Defendant denies the allegations asserted in the Litigation and asserts that they have no liability for any of Plaintiff’s or the Class Members’ claims under any statute, wage order, rule, regulation, common law, or equitable theory. On March 1, 2017, mediation was held between the Parties with mediator, Michael E. Dickstein. (Setareh Decl., at ¶ 8.) The mediation included discussion and examination of the Parties’ respective positions on the legal and factual issues raised in the Litigation. (Id.) The matter was not resolved that day. (Id.) But, with the mediator’s assistance, the parties continued engaging in their arm's length negotiations and ultimately agreed to the Agreement now before this Court. After mediation and settlement discussions, which included arms’ length negotiations, the Parties agreed to settle this matter for the Settlement Sum of $2,900,000.00. (Id.) Plaintiff and Class Counsel concluded, after taking into account the sharply disputed factual and legal issues involved in this Litigation, the risks attending further prosecution, the discovery and investigation conducted to date, and the substantial benefits received and to be received pursuant to the compromise and settlement of the Litigation, that settlement on the terms discussed herein is in the best interests of Plaintiff and the Class. (Setareh Decl., at ¶ 9.) Plaintiff and Class Counsel are mindful of the problems of proof they face, many of which were discussed during the mediation. As such, Class Counsel believes that the Settlement reached is fair to the Class and confers substantial benefits on the Class, providing all Class Members with recoveries in the near term. Based on their evaluation, Case 5:16-cv-01422-JAK-AFM Document 74 Filed 01/30/19 Page 8 of 25 Page ID #:1015 Case No.: 5:16-cv-01422 JAK (AFMx) Page 4 Guerrero-Hernandez v. Ozburn-Hessey Logistics, LLC., et al. PLAINTIFF’S MOTION FOR AN AWARD OF (1) ATTORNEY’S FEES TO CLASS COUNSEL; AND (2) ENHANCEMENT TO PLAINTIFF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 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 Class Counsel determined that the settlement set forth in the Agreement discussed herein is in the best interest of the Class. (Id.) The Agreement, if approved by the Court, will resolve the claims of the settlement Class. (Id.) The Class Representative will also execute a general release of all claims. III. SUMMARY OF SETTLEMENT TERMS The full terms of the settlement are set forth in the Agreement. The primary material terms are as follows: a) The settlement Class is: all individuals who worked for Defendant in a non-exempt hourly position in the State of California, including, but not limited to, International Division employees of Geodis USA, Inc. (a wholly owned subsidiary of Geodis Logistics LLC) and persons who worked at Defendant’s facilities and who were paid through third-party staffing agencies, at any time during the Class Period, and who do not timely opt out of participation in the Action. As of in or around August of 2017, there were a total of approximately 8,758 Class Members who have worked approximately 219,082 workweeks during the Class Period. Also as of in or around August of 2017, the number of Class Members covered by the settlement of the Aquino Action who are also covered by this Action is approximately 2,866; these individuals worked a total of approximately 111,538 that are also covered by this Action. (Agreement, § I(1)(g).)1 1 The Settlement Administrator has indicated that the Class size is more than 5% larger than set forth in the Agreement. The Settlement Agreement provides that if at the time of the filing of the preliminary approval motion, the Class size has increased by more than 5% compared to the number set forth in the Agreement, either Defendant will, Case 5:16-cv-01422-JAK-AFM Document 74 Filed 01/30/19 Page 9 of 25 Page ID #:1016 Case No.: 5:16-cv-01422 JAK (AFMx) Page 5 Guerrero-Hernandez v. Ozburn-Hessey Logistics, LLC., et al. PLAINTIFF’S MOTION FOR AN AWARD OF (1) ATTORNEY’S FEES TO CLASS COUNSEL; AND (2) ENHANCEMENT TO PLAINTIFF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 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 (a) The total class action settlement amount is $2,900,000.00, inclusive of the following: (a) Payments to Participating Class Members; (b) Class Counsel’s attorneys’ fees and litigation costs, (c) Any Administration Costs, (d) Any Enhancement Award to the Plaintiff, and (e) The payment to the California LWDA. (Agreement, § VI. (18.) (b) Each Class Member who does not opt out will be paid his/her share of the Net Settlement Sum, subject to certain taxes and withholdings. (Agreement, § VI. (18)(g).) (c) Class Counsel will not seek an amount greater than $966,666.67 for Attorney’s Fees unless the settlement amount increases. (Agreement, § VI. (18)(a).) (d) Class Counsel will not seek an amount greater than $25,000 for Costs. (Agreement, § VI. (18)(b).) (e) Settlement Administration costs are estimated at $50,000 and will be paid out of the Settlement. (Agreement, § VI. (18)(d).) (f) Plaintiff will seek a Class Representative enhancement award will of $5,000. (Agreement, § VI. (18)(c).) (g) The sum of $280,143.75 shall be paid to the Labor and Workforce Development Agency to resolve claims arising under PAGA. (Agreement, § VI. (18)(e).) (h) If checks remain uncashed after 180 days, the amount of the Individual Settlement Award shall be considered unclaimed and in its sole discretion, increase the Total Class Action Settlement Amount proportionally or agree that the Class Period will end on November 22, 2017. (Agreement, § I(1)(h).) Plaintiff will be filing an ex parte application to ask the Court to enforce this provision prior to the Final Approval Hearing. Case 5:16-cv-01422-JAK-AFM Document 74 Filed 01/30/19 Page 10 of 25 Page ID #:1017 Case No.: 5:16-cv-01422 JAK (AFMx) Page 6 Guerrero-Hernandez v. Ozburn-Hessey Logistics, LLC., et al. PLAINTIFF’S MOTION FOR AN AWARD OF (1) ATTORNEY’S FEES TO CLASS COUNSEL; AND (2) ENHANCEMENT TO PLAINTIFF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 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 shall be paid to the State of California’s Unclaimed Wages Fund in the Class Member’s name. (Agreement, § VI. (19).) A true and correct copy of the Settlement Agreement is filed as ECF No. 72-1. IV. DISCUSSION A. The Legal Standard for Attorneys’ Fee Awards California and the Ninth Circuit, and all federal courts, for that matter, use similar criteria to assess a fee request attendant to a motion for final approval, including: (i) the results achieved on behalf of the class; (ii) class counsel’s experience, reputation and ability; (iii) the time and labor required by the litigation; (iv) whether class counsel was precluded from other work; (v) the complexity of the litigation; and (vii) the contingent nature of the litigation. See Serrano v. Priest, 20 Cal. 3d 25, 49 (1977); accord Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1048-50 (9th Cir. 2002) (identifying similar criteria); see also Herr, MANUAL FOR COMPLEX LITIGATION, FOURTH, § 21.71 at 524-27 (2008) (survey of federal criteria similar to California criteria). B. The Fee Award Is Reasonable and Should Receive Final Approval 1. A Reasonable Result Was Achieved on Behalf of the Class The benefit achieved on behalf of class members defines a primary yardstick against which any fee motion is measured. See Serrano, 20 Cal. 3d at 49; accord Vizcaino, 290 F.3d at 1048. The Parties reached a Settlement in good faith after negotiating at arm’s length with a professional mediator. (Setareh Decl., ¶ 8.) Settlement occurred only after discovery commenced. That discovery included multiple sets of interrogatories and comprehensive requests for production to Defendant. The Defendant produced documents in response to discovery (followed by still more data about class composition requested and produced prior to mediation). In addition, Class Counsel interviewed a number of putative class members about their experiences with OHL related to meal and rest breaks. The information produced in discovery, and the additional, detailed data about class Case 5:16-cv-01422-JAK-AFM Document 74 Filed 01/30/19 Page 11 of 25 Page ID #:1018 Case No.: 5:16-cv-01422 JAK (AFMx) Page 7 Guerrero-Hernandez v. Ozburn-Hessey Logistics, LLC., et al. PLAINTIFF’S MOTION FOR AN AWARD OF (1) ATTORNEY’S FEES TO CLASS COUNSEL; AND (2) ENHANCEMENT TO PLAINTIFF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 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 composition produced for mediation, were sufficient to permit Plaintiff’s counsel to adequately evaluate the settlement. (Setareh Decl., ¶ 14.) And, notably, approval of a class action settlement does not require that discovery be exhaustive. See, e.g., In re Immune Response Securities Litigation, 497 F. Supp. 2d 1166, 1174 (S.D. Cal. 2007) (settlement approved where informal discovery gave the parties a clear view of the strength and weaknesses of their cases). The fact that settlement results from arm’s length negotiations following “relevant discovery” creates “a presumption that the agreement is fair.” Linney v. Cellular Alaska Partnership, 1997 WL 450064, at *5 (N.D. Cal. 1997). With respect to the claims asserted on behalf of the settlement Class in this case, there are significant risks that support the reduced compromise amount. These risks include, but are not limited to: (i) the risk that Plaintiff would be unable to establish liability for allegedly unpaid straight time or overtime wages, see Duran v. US Bank Nat’l Ass’n, 59 Cal. 4th 1, 39 & fn. 33 (2014) (“Duran”), citing Dilts v. Penske Logistics, LLC 2014 WL 205039 (S.D. Cal. 2014) (dismissing certified off-the-clock claims based on proof at trial); (ii) the risk that Defendant’s challenged employment policies might not ultimately support class certification or a class-wide liability finding, see, Duran, 59 Cal. 4th at 14 & fn. 28 (citing Court of Appeal decisions favorable on class certification issue without expressing opinion as to ultimate viability of proposition); (iii) the risk that uncertainties pertaining to the ultimate legality of Defendant’s policies and practices could preclude class-wide awards of statutory penalties under Labor Code sections 203 and 226(e); (iv) the risk that individual differences between settlement Class Members could be construed as pertaining to liability, and not solely to damages, see, Duran, 59 Cal. 4th at 19; (v) the risk that any civil penalties award under the PAGA could be reduced by the Court in its discretion, see Labor Code section 2699(e)(1); (vi) the risk that class treatment could be deemed improper as to one or more claims except for settlement purposes; and (vii) the risk that lengthy appellate litigation could ensue. The Defendant strongly denies any liability and the propriety of class certification for any reason other than settlement. Case 5:16-cv-01422-JAK-AFM Document 74 Filed 01/30/19 Page 12 of 25 Page ID #:1019 Case No.: 5:16-cv-01422 JAK (AFMx) Page 8 Guerrero-Hernandez v. Ozburn-Hessey Logistics, LLC., et al. PLAINTIFF’S MOTION FOR AN AWARD OF (1) ATTORNEY’S FEES TO CLASS COUNSEL; AND (2) ENHANCEMENT TO PLAINTIFF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 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 (Setareh Decl., ¶ 15.) Continued litigation of this lawsuit presented Plaintiff and Defendant with substantial legal risks that were (and continue to be) very difficult to assess. In light of the uncertainties of protracted litigation, the settlement amount reflects a fair and reasonable recovery for the settlement Class Members. (Setareh Decl. ¶¶ 12-19.) The settlement amount is, of course, a compromise figure. (Id. ¶ 16.) By necessity it took into account risks related to liability, damages, and all the defenses asserted by the Defendant. (Id.) Moreover, each settlement Class Member will be given the opportunity to opt out of the Settlement, allowing those who feel they have claims that are greater than the benefits they can receive under this Settlement, to pursue their own claims. (Id.) The Settlement Agreement states there are an estimated 8,758 class members. (Agreement I(1)(g).) With 8,758 persons in the class, the gross recovery for each class member is projected to exceed $331.12 per employee ($2,900,000 / 8,758 = $331.12). The value of this amount reflects a fair compromise well within the range of reasonableness. Given the strong case that Defendant could bring to bear to challenge certification and liability, this is not an inconsequential sum in these challenging economic times. And, confirming the fundamental fairness of the settlement, each Class Member will be compensated based on the number of workweeks they worked during the class period. (Setareh Decl., ¶ 16.) Plaintiff notes that the Settlement Administrator has indicated that the Class size is 12,144. The Settlement Agreement provides that if at the time of the filing of the preliminary approval motion, the Class size has increased by more than 5% compared to the number set forth in the Agreement, either Defendant will, in its sole discretion, increase the Total Class Action Settlement Amount proportionally or agree that the Class Period will end on November 22, 2017. (Agreement, § I(1)(h).) Plaintiff will be filing an ex parte application to ask the Court to enforce this provision prior to the Final Approval Hearing. (Setareh Decl., ¶ 50.) Case 5:16-cv-01422-JAK-AFM Document 74 Filed 01/30/19 Page 13 of 25 Page ID #:1020 Case No.: 5:16-cv-01422 JAK (AFMx) Page 9 Guerrero-Hernandez v. Ozburn-Hessey Logistics, LLC., et al. PLAINTIFF’S MOTION FOR AN AWARD OF (1) ATTORNEY’S FEES TO CLASS COUNSEL; AND (2) ENHANCEMENT TO PLAINTIFF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 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 After analyzing the claims in this matter, Plaintiff has concluded that the value of this Settlement is fair, adequate and reasonable. For example, the damages for the rounding, meal break and rest break claims are estimated to be approximately $6,098,214.92. (Setareh Decl. ¶ 18.) The estimated damage values are based on data provided by Defendant in advance of mediation analyzed by Plaintiff’s retained expert. (Id.) Thus, the Gross Settlement Amount of $2.9 million represents 47.5% of the damages the class could reasonably have expected to recover at trial. (Setareh Decl., ¶ 17.) While Plaintiff would certainly have preferred to recover more (and Defendant would have preferred to pay less), this outcome is favorable considering the risks of further litigation. (Setareh Decl., ¶ 17.) On that basis, it would be unwise to pass up this settlement opportunity. This result here is fully supportable as reasonable. First, rest break and meal period claims have been challenging to certify for many years, even after Brinker. (Setareh Decl., ¶ 19.) Second, rounding pay claims have consistently proven challenging to certify. Third, certification rates are lower than conventional wisdom holds. See, e.g., H. Scott Leviant, Second Interim Report on class actions in California sheds new light on certification (February 19, 2010), www.thecomplexlitigator.com, available at http://www.thecomplexlitigator.com/post-data/2010/2/19/second-interim-report-on-class- actions-in-california-sheds-n.html; see also, Findings of the Study of California Class Action Litigation, 2000-2006, available at http://www.courtinfo.ca.gov/reference/documents/class-action-lit-study.pdf (finding, at page 5, and in Table 9, at page 15, that only 21.4 percent of all class actions were certified either as part of a settlement or as part of a contested certification motion). In estimating risk adjustments here, Plaintiff’s counsel has assumed estimated certification probabilities of 40 percent to 60 percent, depending on the claim, assumptions that substantially exceed the average rate at which cases were certified in California over the study years, based upon data available through the California Courts website. (Id.) Given that well under 20 Case 5:16-cv-01422-JAK-AFM Document 74 Filed 01/30/19 Page 14 of 25 Page ID #:1021 Case No.: 5:16-cv-01422 JAK (AFMx) Page 10 Guerrero-Hernandez v. Ozburn-Hessey Logistics, LLC., et al. PLAINTIFF’S MOTION FOR AN AWARD OF (1) ATTORNEY’S FEES TO CLASS COUNSEL; AND (2) ENHANCEMENT TO PLAINTIFF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 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 percent of all cases filed in California as proposed class actions are ultimately certified by way of a contested motion, and a similar trend is seen in federal courts, it is fair to say that, if anything, the use of high estimates for certification overstates the realistic current claim value. (Id.) Thus, this Settlement achieves the goals of the litigation. How class members respond to a class action settlement is typically addressed in concert with courts’ assessments of a settlement’s overall benefit to class members. See generally, Vizcaino, supra. State and federal courts alike take the measure of a settlement’s “fairness” with reference to the class members’ reaction, and specifically the extent to which class members object, and through their objections imply a settlement’s unfairness. See, e.g., 7-Eleven Owners for Fair Franchising v. Southland Corp., 85 Cal. App. 4th 1135, 1152-53 (2000) (only nine objectors from a class of 5454 was an “overwhelmingly positive” fact that supported approval of the settlement); Reynolds v. National Football League, 584 F.2d 280 (8th Cir. 1978) (16 objectors out of 5400 strongest evidence of no dissatisfaction with settlement among class members); American Eagle Ins. Co. v. King Resources Co., 556 F.2d 471, 478 (10th Cir. 1977) (only one objector “of striking significance and import”). Here, the absence of objections and requests for exclusion is an excellent indicator of the quality of the settlement, particularly given the class size. 2. The Experience, Reputation, and Ability of Class Counsel California law also recognizes the “skill and experience of attorneys” as appropriate criteria for evaluating a fee motion. Flannery v. California Highway Patrol, 61 Cal. App. 4th 629, 647 (1995); accord In re Rent-Way Sec. Litig., 305 F. Supp. 2d 491 (W.D. Pa. 2003) (“skill and efficiency of counsel” among fee motion criteria); In re Heritage Bond Litig., 2005 U.S Dist. LEXIS 13555 at *64 (C.D. Cal. June 10, 2005) (Considering “the quality of Class Counsel’s effort, experience and skill”). Class Counsel has had substantial experience with the causes of action here (Setareh Decl., at ¶¶ 21-34) and has regularly litigated employment law class actions. Case 5:16-cv-01422-JAK-AFM Document 74 Filed 01/30/19 Page 15 of 25 Page ID #:1022 Case No.: 5:16-cv-01422 JAK (AFMx) Page 11 Guerrero-Hernandez v. Ozburn-Hessey Logistics, LLC., et al. PLAINTIFF’S MOTION FOR AN AWARD OF (1) ATTORNEY’S FEES TO CLASS COUNSEL; AND (2) ENHANCEMENT TO PLAINTIFF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 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. The Effort Required by the Litigation Justifies the Fee California and federal law also look to the time and labor required in connection with the litigation and settlement of a class action for which final approval is sought. See Serrano, 20 Cal. 3d at 49, accord Vizcaino, 290 F.3d at 1048-50. Compared to the reasonable value of the claims, Class Counsel expended substantial effort to achieve the settlement result. (Setareh Decl. ¶¶ 12-19, 41.) Class counsel expended considerable time and resources in litigating this matter. The work done by the attorneys working on this case includes communicating with Plaintiff, drafting pleadings, propounding multiple sets of interrogatories and comprehensive requests for production to Defendant, reviewing Defendant’s written discovery responses, reviewing documents produced by Defendant, responding to Defendant’s propounded discovery requests, drafting a class member questionnaire, interviewing putative class members about their experiences with OHL related to meal and rest breaks, working up and beginning the drafting of drafting a motion for class certification, working up and drafting a mediation brief, working with an expert to analyze the data produced by Defendant, drafting a motion for preliminary approval, drafting supplemental papers in support of the motion for preliminary approval. (Setareh Decl. ¶¶ 12-19, 41.) The “time and labor” criterion weighs in favor of an award of the requested fees. 4. The Complexity of the Legal and Factual Issues California law recognizes that the litigation’s general complexity and “difficulty of the questions involved, and the skill in presenting them” are properly considered. Serrano, 30 Cal. 3d at 49, accord Wershba v. Apple Computer, 91 Cal. App. 4th 224, 245 (2001). Complexity of legal issues was moderate here, though the fee is reasonable, rendering this factor neutral. (Setareh Decl., ¶ 47.) 5. Class Counsel Assumed Substantial Risk The novelty and challenges presented by a class action, as well as the corresponding Case 5:16-cv-01422-JAK-AFM Document 74 Filed 01/30/19 Page 16 of 25 Page ID #:1023 Case No.: 5:16-cv-01422 JAK (AFMx) Page 12 Guerrero-Hernandez v. Ozburn-Hessey Logistics, LLC., et al. PLAINTIFF’S MOTION FOR AN AWARD OF (1) ATTORNEY’S FEES TO CLASS COUNSEL; AND (2) ENHANCEMENT TO PLAINTIFF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 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 risk that the class members and class counsel will be paid no recovery or fee, is properly evaluated in connection with a fee motion. See Serrano, 20 Cal. 3d at 49; accord Vizcaino, 290 F.3d at 1050-51 (multiplier applied to lodestar cross-check reflects risk of non-recovery). Ninth Circuit and California state courts regard circumstances in which class counsel’s work is wholly contingent as a factor weighing in favor of approving a negotiated fee award that approximates market rates. Ketchum v. Moses, 24 Cal. 4th 1122, 1132-33 (2001). As to the rounding claim, there is some risk that a trier of fact would conclude that the Defendants’ policies do not systematically underpay the class. Defendants contend that their rounding policies are facially neutral and do not “systematically underpay” class members. As the California Court of Appeal has recently explained: “courts have upheld an employer’s rounding policy if on average if favors neither overpayment nor underpayment but have rejected timekeeping policies that systematically undercompensate employees such as where the employer’s rounding policy encompasses only rounding down.” Silva v. Sees Candy Shops, Inc., 7 Cal.App.5th 235, 249 (2016). Plaintiff’s counsel recently lost a similar issue on summary judgment in Utne v. Home Depot U.S.A., Inc., 2017 WL 5991863 (N.D. Cal. 2017). As to the meal break claim, Plaintiff was proceeding on a theory that due to understaffing class members either did not receive breaks at all or received late or short breaks. For example, the data showed that in 2015 in 3.3% of shifts no meal break was provided, in 21.5% of shifts the break was later, and in 4.6% of shifts the meal break was short. (Setareh Decl. ¶ 18). The case would come down to whether a trier of fact concluded based on the evidence that these deficiencies were due to understaffing or that they are inadvertent errors which occurred despite compliant meal and rest break practices. This Court granted summary judgment on a similar claim in Perez v. Performance Food Group, USDC Case No. LA CV17-00357 JAK (SKx) ECF No. 154. (Setareh Decl., ¶ 15.) Class Counsel nevertheless faced that risk and reasonable result was obtained. Case 5:16-cv-01422-JAK-AFM Document 74 Filed 01/30/19 Page 17 of 25 Page ID #:1024 Case No.: 5:16-cv-01422 JAK (AFMx) Page 13 Guerrero-Hernandez v. Ozburn-Hessey Logistics, LLC., et al. PLAINTIFF’S MOTION FOR AN AWARD OF (1) ATTORNEY’S FEES TO CLASS COUNSEL; AND (2) ENHANCEMENT TO PLAINTIFF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 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 6. The Fee is Reasonable Under the Common Fund Doctrine Courts in the Ninth Circuit and California generally use the “percentage method” rather than the lodestar approach when awarding attorneys’ fees in a common fund settlement. See 7 Witkin, B.E., CALIFORNIA PROCEDURE (2007 Supp.) §§ 255-261 at 236- 241 (describing prevalence of percentage method under California law); Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980) (“[A] litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole”); In re Activision Sec. Litig., 723 F. Supp. 1373, 1377-78 (N.D. Cal. 1989) (Patel, J.) (endorsing percentage method). See generally, Serrano, 20 Cal. 3d at 25; accord Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998). a) The standard fee award in class actions has, over time, resolved itself as one-third of the recovery in common fund cases. According to a leading treatise on class actions, “No general rule can be articulated on what is a reasonable percentage of a common fund. Usually 50% of the fund is the upper limit on a reasonable fee award from a common fund in order to assure that the fees do not consume a disproportionate part of the recovery obtained for the class, although somewhat larger percentages are not unprecedented.” See Conte & Newberg, Newberg on Class Actions (3rd Ed.) § 14.03. Attorneys’ fees that are fifty percent of the fund are typically considered the upper limit, with thirty to forty percent commonly awarded in cases where the settlement is relatively small. See id; see also, Van Vranken v. Atlantic Richfield Company, 901 F. Supp. 294 (N.D. Cal. 1995) (stating that most cases where 30- 50 percent was awarded involved “smaller” settlement funds of under $10 million). The proposed one-third fee award is consistent with the average fee award in class Case 5:16-cv-01422-JAK-AFM Document 74 Filed 01/30/19 Page 18 of 25 Page ID #:1025 Case No.: 5:16-cv-01422 JAK (AFMx) Page 14 Guerrero-Hernandez v. Ozburn-Hessey Logistics, LLC., et al. PLAINTIFF’S MOTION FOR AN AWARD OF (1) ATTORNEY’S FEES TO CLASS COUNSEL; AND (2) ENHANCEMENT TO PLAINTIFF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 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 actions.2 The Ninth Circuit has directed that, to determine what constitutes a fair and reasonable percentage of the settlement for purposes of calculating common fund attorneys’ fees, the courts should use a “benchmark” percentage of 25% of the total fund. Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir. 1989); Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 2002); Six Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1311 (9th Cir. 1990). The percentage can be adjusted upwards where the risks overcome, the benefits obtained and the work necessary to achieve those results supports such an adjustment of the benchmark. In fact, while the Ninth Circuit identified twenty-five percent as a fee percentage that is presumptively reasonable, the custom and practice in class actions is to award approximately one-third of a fund as a fee award. See Chavez v. Netflix, Inc., 162 Cal. App. 4th 43, 66, n.11 (2008) (“Empirical studies show that, regardless whether the percentage method or the lodestar method is used, fee awards in class actions average around one-third of the recovery.”) (emphasis added). Class Members will have the opportunity to object to the proposed award of fees and costs (or any other aspect of the settlement, if they so choose). b) Plaintiff seek one-third of the Settlement Fund in fees and costs less than $25,000. The compensation sought for Class Counsel is also fair and reasonable. Here, the gross settlement fund obtained through the efforts of Class Counsel is $2,900,000.00. Class Counsel has agreed to request no more than $966,666.67 in fees from the gross settlement amount, or one-third of the gross settlement amount unless the settlement amount increases. Class Counsel has agreed to request no more than $25,000 in costs. Compared to a lodestar based on contemporaneously recorded and reasonably projected hours of approximately $365,651.25, the total compensation to Class Counsel is consistent with their lodestar. The multiplier necessary to reach the total requested compensation is 2 Awards of 33 percent or more are common in court-approved class actions litigated and settled by Class Counsel and other firms across the state. (Setareh Decl., ¶ 36.) Case 5:16-cv-01422-JAK-AFM Document 74 Filed 01/30/19 Page 19 of 25 Page ID #:1026 Case No.: 5:16-cv-01422 JAK (AFMx) Page 15 Guerrero-Hernandez v. Ozburn-Hessey Logistics, LLC., et al. PLAINTIFF’S MOTION FOR AN AWARD OF (1) ATTORNEY’S FEES TO CLASS COUNSEL; AND (2) ENHANCEMENT TO PLAINTIFF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 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 approximately 2.64, a multiplier below the multipliers of 3 or more that are routinely approved in class settlements. The fee award requested here is slightly above the Ninth Circuit’s starting point of a 25 percent “benchmark.” The Settlement amount available through the efforts of Plaintiffs’ counsel is $2,900,000.00. And Plaintiff's counsel agreed to request no more than $966,666.67 in fees unless the settlement amount increases and $25,000 in costs. ((Agreement, § VI. (18)(a-b).) Plaintiff has actually incurred costs of $13,337.89 in this matter, including filing fees, mediation fees, expert costs, Westlaw charges, PACER charges, travel expenses, postage charges and attorney service charges. Plaintiff estimates incurring costs of $135 for filing fees and attending a future hearing. Thus, Plaintiff requests $13,607.89 in costs, which is less than the amount provided under the Settlement Agreement. (Agreement, § VI. (18)(b).) (Setareh Decl., ¶ 44.) But perhaps most importantly, the proposed attorneys’ fees were disclosed to the Class Members in the Notice issued to Class Members. 7. A Lodestar Analysis Supports the Requested Fee Despite the widely recognized limitations of the so-called “lodestar” method, California and federal courts recognize the utility of a lodestar “cross-check.” Lealao v. Beneficial California, Inc., 82 Cal. App. 4th 19, 46 (2000). A lodestar “cross-check” analysis typically happens in three steps. Cundiff v. Verizon California, 167 Cal. App. 4th 718 (2008), accord Vizcaino, 290 F.3d at 1047. First, a trial court must determine a baseline guide or “lodestar” figure based on the time spent and reasonable hourly compensation for each attorney involved in the case. Serrano, at 48. Second, the court sets a reasonable hourly fee to apply to the time expended, with reference to the prevailing rates in the geographical area in which the action is pending. Bihun v. AT&T Information System, 13 Cal. App. 4th 976, 997 (1993) (16 years ago, affirming a $450 per hour rate for a Southern California litigation attorney). Finally, a “multiplier” of the base lodestar is set with reference to the factors described in detail in this brief. Courts often apply a Case 5:16-cv-01422-JAK-AFM Document 74 Filed 01/30/19 Page 20 of 25 Page ID #:1027 Case No.: 5:16-cv-01422 JAK (AFMx) Page 16 Guerrero-Hernandez v. Ozburn-Hessey Logistics, LLC., et al. PLAINTIFF’S MOTION FOR AN AWARD OF (1) ATTORNEY’S FEES TO CLASS COUNSEL; AND (2) ENHANCEMENT TO PLAINTIFF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 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 positive multiplier to the lodestar to determine a reasonable fee. E.g. Vizcaino supra at 1051 (positive multiplier of 3.65.) Across all jurisdictions, multipliers of up to four are frequently awarded. NEWBERG, §14.03 at 14. Often, multipliers of greater than four are warranted. Looking at the work of attorneys for Plaintiff in this matter (and excluding paralegals), the lodestar calculation is $365,651.25, calculated as follows: Attorney Year Admitted Hourly Rate Time Lodestar Shaun Setareh 1999 $750.00 156.85 hours $117,637.50 Shaun Setareh (estimate) 1999 $750.00 25 hours $18,750.00 Thomas Segal 2002 $625.00 187.50 hours $117,187.50 Farrah Grant 2013 $425.00 219.25 hours $93,181.25 William M. Pao 2002 $450.00 35 hours $15,750.00 Stacey Shim 2015 $300.00 8.40 hours $2,520.00 Ashley Batiste 2017 $375.00 .5 hours $187.50 Lilit Ter- Astvatsatryan 2018 $350.00 1.25 hours $437.50 (Setareh Decl., ¶ 40.) The figures for estimated (“est.”) time above reflect the best estimates of Class Counsel, based on their experience and the settlement class size, for the time that will be expended by Class Counsel between the filing of this motion and the hearing of Plaintiff’s Motion for Final Approval. (Id.) This lodestar figure is in line with the requested fee, requiring a multiplier of 2.64. (Id.) This is in the typical multiplier range typically applied by district courts. See, e.g., Bellinghausen v. Tractor Supply Co. 306 F.R.D. 245, 264 (N.D. Cal. 2014) (54 percent of lodestar multipliers fall within the 1.5 to 3.0 range, and 83 percent of multipliers fell within the 1.0 to 4.0 range); Hopkins v. Stryker Sales Corp., No. 11-CV-02786- LHK, 2013 WL 496358, at *5 (N.D. Cal. Feb. 6, 2013) (multiplier of 2.86); Di Giacomo v. Plains All Am. Pipeline, Nos. 99–4137 & 99–4212, 2001 WL 34633373, at *10–11 (S.D. Fla. Dec. 19, 2001) (5.3 multiplier); Maley v. Del Global Techs. Corp., 186 F. Supp. 2d Case 5:16-cv-01422-JAK-AFM Document 74 Filed 01/30/19 Page 21 of 25 Page ID #:1028 Case No.: 5:16-cv-01422 JAK (AFMx) Page 17 Guerrero-Hernandez v. Ozburn-Hessey Logistics, LLC., et al. PLAINTIFF’S MOTION FOR AN AWARD OF (1) ATTORNEY’S FEES TO CLASS COUNSEL; AND (2) ENHANCEMENT TO PLAINTIFF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 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 28 358, 369 (S.D.N.Y. 2002) (4.65 multiplier); In re Aremissoft Corp. Sec. Litig., 210 F.R.D. 109, 134–35 (D.N.J. 2002) (4.3 multiplier). The multiplier needed to align the negotiated fee award with the attorney hours expended here is below the multipliers of three or more routinely approved in class actions. (Setareh Decl., ¶ 28.) Accordingly, the lodestar cross-check affirms that the fee award that has been preliminarily approved does in fact fall easily within the range of reasonableness. (Id.) The Ninth Circuit has similarly recognized that the lodestar method “creates incentives for counsel to spend more hours than may be necessary on litigating a case so as to recover a reasonable fee, since the lodestar method does not reward early settlement.” Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1050, n.5 (9th Cir. 2002). As a corollary, a defendant willing to recognize a potential error and settle at an early stage would face the increased risk that an early settlement overture would be rejected. That did not happen here, in part because a percentage of the fund award encourages efficient litigation. The Ninth Circuit has thus cautioned that, while a lodestar method can be used as a cross check on the reasonableness of fees based on a percentage of recovery method if a district court in its discretion chooses to do so, a lodestar calculation is not required and it did “not mean to imply that class counsel should necessarily receive a lesser fee for settling a case quickly.” Id. The percentage of recovery method “rests on the presumption that persons who obtain benefits of a lawsuit without contributing to its cost are unjustly enriched at the successful litigant’s expense.” Staton, 327 F.3d 938, 967 (9th Cir. 2003). This rule, known as the “common fund doctrine,” is designed to prevent unjust enrichment by distributing the costs of litigation among those who benefit from the efforts of others. Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 271 (9th Cir. 1989). It is only fair that every class member who benefits from the opportunity to claim a share of the settlement pay his or her pro rata share of attorney’s fees, and Plaintiff’s Case 5:16-cv-01422-JAK-AFM Document 74 Filed 01/30/19 Page 22 of 25 Page ID #:1029 Case No.: 5:16-cv-01422 JAK (AFMx) Page 18 Guerrero-Hernandez v. Ozburn-Hessey Logistics, LLC., et al. PLAINTIFF’S MOTION FOR AN AWARD OF (1) ATTORNEY’S FEES TO CLASS COUNSEL; AND (2) ENHANCEMENT TO PLAINTIFF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 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 request for fees here means that Class Counsel seek an amount of fees less than the amount Class Counsel would likely receive if they represented each class member individually. Typical contingent fee contracts of plaintiffs’ counsel provide for attorney’s fees of about 40% of any recovery obtained for a client. (Setareh Decl., ¶ 49.) It would be unfair to compensate Class Counsel here at a substantially lesser rate because they obtained relief for hundreds of class members. To the contrary, equitable considerations dictate that Class Counsel be rewarded for achieving a settlement that confers benefits among so many people, especially without protracted litigation. The result achieved by Class Counsel merits an award of attorney’s fees equal to 33.3% of the total recovered value in this case. 8. Important Public Policies Are Advanced by Awarding Reasonable Fees to Skilled Class Counsel Wage and hours laws “concern not only the health and welfare of the workers themselves, but also the public health and general welfare.” California Grape Etc. League v. Industrial Welfare Com., 268 Cal. App. 2d 692, 703 (1969). California’s overtime laws “are to be construed so as to promote employee protection.” Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal. 4th 319, 340 (2004) (citing Ramirez v. Yosemite Water, Inc., 20 Cal. 4th 785, 794 (1999)). Courts have also long acknowledged the importance of class actions as a means to prevent a failure of justice in our judicial system. Linder v. Thrifty Oil Co., 23 Cal. 4th 429, 434-435 (2000) (citing Daar v. Yellow Cab Co., 67 Cal. 2d 695, 703-704 (1967)). As a practical matter, therefore, privately initiated class actions are the primary mechanism for enforcement of California’s labor code protections. C. The Enhancement Award Is Reasonable Enhancement awards serve to reward the named plaintiff for the time and effort expended on behalf of the class, and for exposing herself to the significant risks of litigation. “Courts routinely approve incentive awards to compensate named plaintiffs for the services they provided and the risks they incurred during the course of the class action litigation.” Ingram v. The Coca-Cola Co., 200 F.R.D. 685, 694 (N.D. Ga. 2001); In re Case 5:16-cv-01422-JAK-AFM Document 74 Filed 01/30/19 Page 23 of 25 Page ID #:1030 Case No.: 5:16-cv-01422 JAK (AFMx) Page 19 Guerrero-Hernandez v. Ozburn-Hessey Logistics, LLC., et al. PLAINTIFF’S MOTION FOR AN AWARD OF (1) ATTORNEY’S FEES TO CLASS COUNSEL; AND (2) ENHANCEMENT TO PLAINTIFF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 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 Southern Ohio Correctional Facility, 175 F.R.D. 270, 272 (S.D. Ohio 1997). In Coca- Cola, for example, the court approved incentive awards of $300,000 to each named plaintiff in recognition of the services they provided to the class by responding to discovery, participating in the mediation process and taking the risk of stepping forward on behalf of the class. Coca-Cola, 200 F.R.D. at 694; see also Van Vranken v. Atl. Richfield Co., 901 F. Supp. 294, 300 (N.D. Cal. 1995) (approving $50,000 participation award). Here, Plaintiff’s counsel requests that the Court grant Plaintiff an incentive award of $5,000. The amount of the enhancement award requested for Plaintiff reasonable given the risks undertaken by Plaintiff. Taking the risk of filing a lawsuit against an employer deserves reward, especially in light of the settlement achieved by Plaintiff. Additionally, Plaintiff was actively involved in the litigation and settlement negotiations of this Action. Plaintiff worked diligently with counsel to prepare the action, assisted with mediation and conferred with counsel regarding settlement negotiations. (Setareh Decl., ¶ 51; see also, Dkt. no 69-5: Declaration of Valeria Guerrero-Hernandez.) V. CONCLUSION This settlement is fair and reasonable, especially given the claims and the potential defenses to them and to class certification. Thus, the $2,900,000.00 settlement is worthy of final approval. And because Plaintiff’s counsel were required to expend resources and take risks to obtain that result, fair compensation is also reasonable. For the reasons set forth herein, Plaintiff requests that the Court award Plaintiff’s counsel $966,666.67 in fees3, which is one-third of the gross settlement and roughly 2.64 times the actual lodestar 3 As noted, if the Settlement Amount increases, Class Counsel intends to request a larger amount in fees on a pro rata basis to the increase of the Settlement Amount. In other words, Class Counsel intends to seek fees of one-third of the final gross settlement amount. Case 5:16-cv-01422-JAK-AFM Document 74 Filed 01/30/19 Page 24 of 25 Page ID #:1031 Case No.: 5:16-cv-01422 JAK (AFMx) Page 20 Guerrero-Hernandez v. Ozburn-Hessey Logistics, LLC., et al. PLAINTIFF’S MOTION FOR AN AWARD OF (1) ATTORNEY’S FEES TO CLASS COUNSEL; AND (2) ENHANCEMENT TO PLAINTIFF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 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 of Plaintiff’s counsel and $13,607.89 in costs.4 Respectfully submitted, Dated: January 30, 2019 SETAREH LAW GROUP By: /S/ Shaun Setareh Shaun Setareh Attorneys for Plaintiff 4 This motion for attorneys’ fees, costs and class representative enhancement award is being filed 14 days prior to the deadline for class members to object or opt out of the settlement, and by the deadline set by the court in ECF No. 73. Plaintiff will submit a proposed order regarding this motion and the motion for final approval when the motion for final approval is filed. Case 5:16-cv-01422-JAK-AFM Document 74 Filed 01/30/19 Page 25 of 25 Page ID #:1032