Douglas Hernandez v. Pei Wei Asian Diner LLC et al

NOTICE OF MOTION AND MOTION for Attorney Fees

C.D. Cal.December 5, 2018

1 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR APPROVAL OF ATTORNEYS’ FEES AND COSTS AND REPRESENTATIVE ENHANCEMENT; AND MEMO. OF POINTS AND AUTHORITIES IN SUPPORT 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 Larry W. Lee (State Bar No. 228175) lwlee@diversitylaw.com DIVERSITY LAW GROUP, P.C. 515 S. Figueroa St., Suite 1250 Los Angeles, CA 90071 (213) 488-6555 (213) 488-6554 facsimile Edward W. Choi, Esq. SBN 211334 LAW OFFICES OF CHOI & ASSOCIATES 515 S. Figueroa St., Suite 1250 Los Angeles, CA 90071 Telephone: (213) 381-1515 Facsimile: (213) 465-4885 Email: edward.choi@choiandassociates.com Attorneys for Plaintiff and the Class UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA – SOUTHERN DIVISION DOUGLAS HERNANDEZ, as an individual and on behalf of all others similarly situated, Plaintiff, vs. PEI WEI ASIAN DINER, LLC., a Limited Liability Company; and DOES 1 through 100, inclusive, Defendants. Case No.: 8:17-cv-00679 JLS (JCGx) PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR APPROVAL OF ATTORNEYS’ FEES AND COSTS AND REPRESENTATIVE ENHANCEMENT; AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT Date: January 11, 2019 Time: 2:30 p.m. Courtroom: 10A Case 8:17-cv-00679-JLS-JCG Document 53 Filed 12/05/18 Page 1 of 24 Page ID #:640 2 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR APPROVAL OF ATTORNEYS’ FEES AND COSTS AND REPRESENTATIVE ENHANCEMENT; AND MEMO. OF POINTS AND AUTHORITIES IN SUPPORT 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 COUNSEL OF RECORD: PLEASE TAKE NOTICE that at 2:30 p.m., on January 11, 2019, or as soon thereafter as the matter can be heard in Courtroom 10A of the United States District Court, Central District of California, Southern Division, located at 411 W. Fourth St., Santa Ana, CA, 92701, before the Honorable Josephine L. Staton, Plaintiff DOUGLAS HERNANDEZ will and hereby do move this Court for an Order granting Class Counsels’ application for attorneys’ fees in the amount of $200,000.00 (equal to 33 1/3% of the gross settlement amount), reimbursement of costs in the amount of $10,701.25 and Class Representative Enhancement of $7,500.00. This motion will be based on this Notice, the attached Memorandum of Points and Authorities, the accompanying Declarations of Larry W. Lee, Edward Choi, and Plaintiff Douglas Hernandez, and the pleadings and papers filed herein. Dated: December 5, 2018 LAW OFFICES OF CHOI & ASSOCIATES, P.C. By: /s/ Edward W. Choi Edward W. Choi, Esq. Attorney for Plaintiff and the Class Case 8:17-cv-00679-JLS-JCG Document 53 Filed 12/05/18 Page 2 of 24 Page ID #:641 3 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF ATTORNEYS’ FEES AND COSTS; AND MEMO. OF POINTS AND AUTHORITIES IN SUPPORT 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 PAGE I. INTRODUCTION……………………………………………………… 1 II. HISTORY OF THE CASE……………………………………………. 3 III. ATTORNEY FEE AWARDS IN COMMON FUND CASES……… 4 A. The Award Requested…………………………………………… 4 B. The Percentage of the Fund Approach………………………...... 5 C. The Percentage Awarded Should Mimic the Market………....... 10 IV. THE LODESTAR CALCULATION "CROSS-CHECK"…………… 12 A. Plaintiff's Counsels' Lodestar Is Reasonable………………….... 13 V. THE COURT SHOULD APPROVE THE REQUEST FOR REIMBURSEMENT OF COSTS………………………..………. 14 VI. PLAINTIFF'S ENHACEMENT REQUEST SHOULD BE APPROVED……………………………………………………..……..... 15 VII. CONCLUSION………………………………………………….……..... 16 Case 8:17-cv-00679-JLS-JCG Document 53 Filed 12/05/18 Page 3 of 24 Page ID #:642 4 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF ATTORNEYS’ FEES AND COSTS; AND MEMO. OF POINTS AND AUTHORITIES IN SUPPORT 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 PAGE Federal Cases Barbosa v. Cargill Meat Solutions Corp., 297 F.R.D. 431 (E.D. Cal. 2013) ........... 9 Benitez v. Wilbur, No. 1:08–cv–01122 LJO GSA, Doc. No. 52 (E.D. Cal., Dec. 15, 2009) ......................................................................................................... 9 Birch v. Office Depot, Inc., No. 06CV1690 DMS (WMC), slip opin. (S.D. Cal. Sept. 28, 2007) ....................................................................................... 9 Blum v. Stenson, 465 U.S. 886 (1984) ...................................................................... 5 Boeing Co. v. Van Gemert, 444 U.S. 472 (1980) ........................................ 1, 5, 6, 16 Boyd v. Bank of Am. Corp., 2014 U.S. Dist. LEXIS 162880 at *22-*23 (C.D. Cal. Nov. 18, 2014) ...................................................................................... 9 Brotherton v. Cleveland, 141 F. Supp. 2d 907, 913-14 (S.D. Ohio 2001) .............. 16 Cambden I Condominium Association, Inc., v. Dunkel, 946 F. 2d 768 (11th Cir. 1991) ................................................................................................. 5, 10 Cent. R.R. & Banking Co. v. Pettus, 113 U.S. 116, 128 (1885) ............................... 5 Chambers v. Whirlpool Corp., No. CV111733FMOJCGX, 2016 WL 5922456, at *10, _ F. Supp. 3d _ (C.D. Cal. Oct. 11, 2016) .................................................. 8 Chavez v. Petrissans, Case No. 1:08–cv–00122 LJO GSA, Doc. No. 89 (E.D. Cal. Dec. 15, 2009) ....................................................................................... 9 Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998) ............................................ 16 Cordy v. USS-Posco Indus., No. 12-CV-00553-JST, 2014 WL 212587, at *3 (N.D. Cal. Jan. 17, 2014) ....................................................................................... 9 Emmons v. Quest Diagnostics Clinical Labs., Inc., No. 113CV00474DADBAM, 2017 WL 749018, at *7 (E.D. Cal. Feb. 27, 2017) ................................................. 7 Enter. Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240 (S.D. Ohio 1991) .................................................................................................. 16 Ernst & Young, LLP v. Morris, 137 S. Ct. 809 (2017) ....................................... 3, 11 Case 8:17-cv-00679-JLS-JCG Document 53 Filed 12/05/18 Page 4 of 24 Page ID #:643 5 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF ATTORNEYS’ FEES AND COSTS; AND MEMO. OF POINTS AND AUTHORITIES IN SUPPORT 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 Florida v. Dunne, 915 F.2d 542, 545 (9th Cir. 1990) ............................................... 5 Garcia v. Gordon Trucking, Inc., No. 1:10–CV–0324 AWI SKO, 2012 WL5364575 (E.D. Cal. Oct. 31, 2012) ......................................................................................... 9 Glass v. UBS Financial Services, Inc., 2007 WL 474936, at *16 (N.D. Cal. Jan 26, 2007) ............................................................................. .....1, 16 In re Activision Securities Litigation, 723 F. Supp. 1373 (9th Cir. 1989) ............ 4, 6 In re Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366 (S.D. Ohio 1990) ................................................................................................... 16 In re Heritage Bond Litigation, 2005 U.S. Dist. LEXIS 13555 (C.D. Cal. June 10, 2005) ....................................................................................... 9 In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 954-55 (9th Cir. 2015) ........................................................................................................ 8 In re Pacific Enterprises Sec. Litig., 47 F.3d 373, 379 (9th Cir. 1995) ................. 5, 9 In re Prudential Ins. Co. of America Sales Practice Litigation, 106 F. Supp. 2d 721 (D.N.J. 2000) ......................................................................................................... 12 In Re Wal-Mart Stores, Inc. Wage and Hour Litigation, 2011 WL 31266, at *3 (N.D. Cal. Jan. 5, 2011) .......................................................................................... 2 Internal Improvement Fund Trs. v. Greenough, 105 U.S. 527, 532 (1881) .............. 5 Kearney v. Hyundai Motor Am., No. SACV 09-1298-JST, 2013 WL 3287996, at *5-9 (C.D. Cal. June 28, 2013) ........................................................................... 9 Ketchum vs. Moses, 24 Cal. 4th 1122, 1133 (2001) ............................................... 14 Mangold v. Cal. Public Util. Comm'n, 67 F.3d 1470, 1478 (9th Cir. 1995)... ...........8 Mills v. Elec. Auto-Lite Co., 396 U.S. 375 (1970) .................................................... 5 Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008)........... ....... ..13 Rippee v. Boston Mkt. Corp., No. 05CV1359 BTM (JMA), slip op. (S.D. Cal. Oct. 10, 2006) ......................................................................................... 9 Romero v. Producers Dairy Foods, Inc., 2007 U.S. Dist. LEXIS 86270 (E.D. Cal. 2007) .................................................................................................. ....9 Case 8:17-cv-00679-JLS-JCG Document 53 Filed 12/05/18 Page 5 of 24 Page ID #:644 6 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF ATTORNEYS’ FEES AND COSTS; AND MEMO. OF POINTS AND AUTHORITIES IN SUPPORT 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 Singer v. Becton Dickinson & Co., 2010 U.S. Dist. LEXIS 53416 at *22-*23 (S.D. Cal. June 1, 2010) ......................................................................................... 9 Spann v. J.C. Penney Corp., No. SACV120215FMOKESX, 2016 WL 5844606, at *11, F. Supp. 3d (C.D. Cal. Sept. 30, 2016) ...................................................... 7 Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 165 n.2 (1939) .................................. 5 Stanton v. Boeing Co., 327 F.3d 938, 975 (9th Cir. 2003) ...................................... 15 Stetson v. West Publishing Corp., Case No. 13-57061, at *11 (9th Cir. May 11, 2016) ................................................................................... 5, 12 Vandervort v. Balboa Capital Corp., 8 F. Supp. 3d 1200, 1209-10 (C.D. Cal. 2014) ............................................................................................ 2, 8, 14 Van Vranken v. Atlantic Richfield Co., 901 F. Supp. 294, 299-300 (N.D. Cal. 1995) .................................................................................................... 16 Vasquez v. Coast Valley Roofing, Inc., 266 F.R.D. 482, 492-93 (E.D. Cal. 2010) ...................................................................................................... 9 Villalpando v. Exel Direct Inc., No. 3:12-CV-04137-JCS, 2016 WL 7740854, at *2 (N.D. Cal. Dec. 12, 2016) .............................................................................. 8 Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047-50 (9th Cir. 2002) .................... 8 Vo v. Las Virgenes Municipal Water Dist., 79 Cal. App. 4th 440, 447 (2000)...15 Williams v. MGM-Pathe Communications Co., 129 F.3d 1026, 1027 (9th Cir.1997) .......................................................................................................... 1 California Cases Chavez v. Petrissans, Case No. 1:08–cv–00122 LJO GSA, Doc. No. 89 (E.D. Cal. Dec. 15,2009).................................................................................... 10 Cordy v. USS-Posco Indus., No. 12-CV-00553-JST, 2014 WL 212587, at *3 (N.D. Cal. Jan. 17, 2014)............................................................................ 10 Laffitte v. Robert Half Int’l, 1 Cal. 5th 480, 503 (2016) .............................. 2, 6, 7, 8 Case 8:17-cv-00679-JLS-JCG Document 53 Filed 12/05/18 Page 6 of 24 Page ID #:645 7 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF ATTORNEYS’ FEES AND COSTS; AND MEMO. OF POINTS AND AUTHORITIES IN SUPPORT 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 Munoz v. BCI Coca-Cola Bottling Co. of Los Angeles, 186 Cal. App. 4th 399, 412 (2010)............................................................................................................ 15 Vo v. Las Virgenes Municipal Water Dist., 79 Cal. App. 4th 440, 447 (2000)......14 Statutes Cal. Bus. & Prof. Code §§17200 et seq ..................................................................... 3 Labor Code §218 ...................................................................................................... 14 Labor Code §226(e) ................................................................................................. 14 Labor Code §2699 ("PAGA") .............................................................................. 3, 14 Treatises 4 Alba Conte & Herbert B. Newberg, Newberg on Class Actions, § 11.26 (4th ed. 2002) .......................................... 6, 10 Case 8:17-cv-00679-JLS-JCG Document 53 Filed 12/05/18 Page 7 of 24 Page ID #:646 1 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF ATTORNEYS’ FEES AND COSTS; AND MEMO. OF POINTS AND AUTHORITIES IN SUPPORT 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 By this motion, Plaintiff DOUGLAS HERNANDEZ (“Plaintiff”) and his attorneys seek an order approving Class Counsels’ application for attorneys’ fees in the amount of $200,000.00 (equal to 33 1/3% of the gross settlement amount of $600,000.00) and reimbursement of costs in the amount of $10,701.25. Plaintiff also seeks his Class Representative Enhancement of $7,500.00. This request was set forth in the Notice of Class Action Settlement mailed to all class members. 1 As set forth in the Settlement Agreement of the parties, Defendant PEI WEI ASIAN DINER, LLC. (“Defendant”) (Defendant and Plaintiff are collectively referred to as the “Parties”) have agreed to not object to the requests sought herein. The preliminarily approved settlement requires that Defendant pay the entire settlement amount of $600,000.00 for resolution of this case. As will be explained in the Plaintiff’s Motion for Final Approval of Class Action Settlement, this settlement amount is adequate, fair and reasonable. This current motion will focus on Plaintiff’s request for attorneys’ fees and costs. Governing Ninth Circuit law, following the clear instruction of the United States Supreme Court in Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980), establishes that percentage awards are to measure against the entire common fund created in the settlement. In Glass v. UBS Financial Services, Inc., 2007 WL 474936, at *16 (N.D. Cal. Jan 26, 2007), citing to the Ninth Circuit authority, the Court noted: The Ninth Circuit has held, however, that the district court must award fees as a percentage of the entire fund, or pursuant to the lodestar method, not on the basis of the amount of the fund actually claimed by the class. See also Williams v. MGM-Pathe Communications Co., 129 F.3d 1026, 1027 (9th Cir.1997). 1 The Notice of Settlement Case 8:17-cv-00679-JLS-JCG Document 53 Filed 12/05/18 Page 8 of 24 Page ID #:647 2 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF ATTORNEYS’ FEES AND COSTS; AND MEMO. OF POINTS AND AUTHORITIES IN SUPPORT 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, in In Re Wal-Mart Stores, Inc. Wage and Hour Litigation, 2011 WL 31266, at *3 (N.D. Cal. Jan. 5, 2011), at footnote 5, the Northern District again affirmed this position: With respect to the amount of the fund created, “attorneys for a successful class may recover a fee based on the entire common fund created for the class, even if some class members make no claims against the fund so that money remains in it that otherwise would be returned to the defendants.” Pursuant to the common fund approach, although courts in the Ninth Circuit typically award 25% of the common fund for attorneys’ fees, numerous courts have awarded 33 1/3% of the common fund in class actions. Indeed, this Court in Vandervort v. Balboa Capital Corp., 8 F. Supp. 3d 1200, 1209-10 (C.D. Cal. 2014), awarded 33 1/3% for attorneys’ fees in connection with a class settlement. Similarly, the California Supreme Court’s opinion in Laffitte v. Robert Half Int’l, 1 Cal. 5th 480, 503 (2016). In Laffitte, the Court affirmed an award of attorneys’ fee award of $6,333,333.33, based on 33 1/3% of the $19 million common fund. The Court further noted that awarding fees based on the common fund is appropriate in wage and hour class actions. As the Court is well aware, this was a heavily litigated case and significant risks were assumed by Plaintiff’s counsel in litigating this case. In fact, this settlement was reached during the pendency of Defendant’s Motion to Compel Arbitration, which, if granted, would have dismissed the class claims in its entirety. Further, substantial discovery has been performed including written discovery and production of thousands of pages of documents. Plaintiff’s counsel’s lodestar cross check also supports the award of the full 33 1/3% given that their lodestar amount is more than double the amount that is being sought for fees. Moreover, the $10,701.25 in costs incurred in this case are reasonable, as reflected in the Declarations of Plaintiff’s counsel. The actual costs being sought by Plaintiff’s counsel is less than the approximate $20,000.00 that was allotted for costs. To date, none of the class members have objected to the costs being sought and the cost request is less Case 8:17-cv-00679-JLS-JCG Document 53 Filed 12/05/18 Page 9 of 24 Page ID #:648 3 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF ATTORNEYS’ FEES AND COSTS; AND MEMO. OF POINTS AND AUTHORITIES IN SUPPORT 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 than the amount that was anticipated. Further, the law expressly permits the recovery of litigation costs. Finally, Plaintiff’s enhancement is also justified given the duration of the litigation and his availability throughout the litigation to cooperate in producing documents, reviewing documents, and being available both in person and phone call to offer crucial information regarding this lawsuit. II. HISTORY OF THE CASE On April 14, 2017, Plaintiff filed a putative class action Complaint in the United State District Court, Central, asserting claims against Defendant for alleged violations of the California Labor Code, including (1) failure to provide proper meal periods or premium payments in lieu thereof, (2) failure to provide complete, accurate, or properly formatted wage statements, (3) failure to timely pay final wages, untimely final pay, (4) civil penalties under PAGA, and (5) for restitution under California Business & Professions Code sections 17200, et seq., and claims for interest, attorneys’ fees and costs. After meeting and conferring, on June 9, 2017, Defendant brought a (1) Motion to Dismiss/Motion to Compel Arbitration based on the arbitration agreement Plaintiff had entered into, which included a class action waiver. (Dkt No. 16) On July 28, 2017, Plaintiff filed his Opposition to Defendant’s Motion. (Dkt No. 24). On August 4, 2017, Defendant filed its Reply to Plaintiff’s Opposition. (Dkt No. 25). On October 12, 2017, the Court denied the Motion to Dismiss, stayed the class claims pending the U.S. Supreme Court’s resolution of Morris v. Ernst & Young and allowing Plaintiff’s PAGA claims may be proceed. (Dkt No. 35). In the meantime, Plaintiff pursued discovery of the alleged claims. On April 3, 2018, the Parties participated in a full-day mediation with mediator Louis Marlin, Esq. and reached the current settlement. In fact, as the U.S. Supreme Court’s decision in Morris v. Ernst & Young was issued after the April 3, 2018 mediation, had a settlement not been reached, it is very likely this Court would have Case 8:17-cv-00679-JLS-JCG Document 53 Filed 12/05/18 Page 10 of 24 Page ID #:649 4 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF ATTORNEYS’ FEES AND COSTS; AND MEMO. OF POINTS AND AUTHORITIES IN SUPPORT 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 dismissed Plaintiff’s class allegations and the class members would have been left out of this case without any relief. On September 4, 2018, this court approved Plaintiff's Motion for Preliminary Approval. As the Court can see from the docket, from the time of removal to the instant settlement, this case has been vigorously litigated by both parties, including motion practice. The Parties have also exchanged data and documents, including the data for the entire class to permit Plaintiff to conduct a damage analysis. Further, the Parties have been engaged in active settlement discussions during the pendency of this action. III. ATTORNEY FEE AWARDS IN COMMON FUND CASES A. The Award Requested The fee sought relates to all efforts expended by Class Counsel for the complete handling of the class/representative action, including any additional work remaining to be performed by Class Counsel in securing final Court approval of the Settlement, and later following through to ensure that the Settlement is fairly administered and fully implemented. A significant amount of work on the part of Class Counsel went into achieving this resolution. Based upon the factors relating to approval of percentage of the fund fee awards, class counsel submit that the effort and result justify the requested percentage fee requested. As a secondary “cross-check” to the percentage of the common fund award, class counsel are also providing this Court with a time and task chart, which breaks down the tasks and time spent by each firm, so that the Court can conduct a lodestar analysis. Judge Marilyn Patel remarked, in an oft-quoted and prescient ruling, that in essence the task of tracking the tasks was itself a potential morass of its own making and, thus, favored the application of the percentage of the fund approach. In re Activision Securities Litigation, 723 F. Supp. 1373, 1375 (9th Cir. 1989). Notwithstanding Judge Patel’s observation, a time and task chart is offered here because it shows in this case that Plaintiff’s counsel lodestar is $141,120 which is a very modest multiplier of 1.42 of the requested common fund. As discussed in more detail below, under either the common Case 8:17-cv-00679-JLS-JCG Document 53 Filed 12/05/18 Page 11 of 24 Page ID #:650 5 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF ATTORNEYS’ FEES AND COSTS; AND MEMO. OF POINTS AND AUTHORITIES IN SUPPORT 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 fund approach, or lodestar method, Plaintiff’s attorneys’ fees are reasonable and should be awarded. B. The Percentage of the Fund Approach The U.S. Supreme Court consistently has recognized that “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.” Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980); Mills v. Elec. Auto-Lite Co., 396 U.S. 375 (1970). The purpose of this doctrine is largely to avoid unjust enrichment, by spreading the litigation costs proportionally among all the beneficiaries so that the active beneficiary does not bear the entire burden alone. It provides that when a litigant’s efforts create or preserve a fund from which others derive benefits, the litigant may require the passive beneficiaries to compensate those who created the fund. Every United States Supreme Court case that has considered the award of attorney's fees under the common fund doctrine has determined those fees as a percentage of the recovery. See, e.g., Camden I Condo. Ass'n, Inc. v. Dunkle, 946 F.2d 768, 773 (11th Cir. 1991) (citing Blum v. Stenson, 465 U.S. 886, 900 n.16 (1984)) (noting that the percentage of recovery method is the appropriate method to award attorney's fees in common fund cases); Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 165 n.2 (1939); Cent. R.R. & Banking Co. v. Pettus, 113 U.S. 116, 128 (1885); Internal Improvement Fund Trs. v. Greenough, 105 U.S. 527, 532 (1881). Moreover, the Ninth Circuit has recognized a “ground swell of support for mandating a percentage-of-the-fund approach in common fund cases.” Florida v. Dunne, 915 F.2d 542, 545 (9th Cir. 1990); see also In re Pac. Enters. Sec. Litig., 47 F.3d 373, 378-79 (9th Cir. 1995) (affirming attorney's fee of 33% of the recovery). Although the Ninth Circuit has typically found that 25% of the common fund is “benchmark,” numerous courts in the Ninth Circuit have awarded higher amounts. See Stetson v. West Publishing Corp., Case No. 13-57061, at *11 (9th Cir. May 11, 2016). The twenty-five percent benchmark may be adjusted upward or downward depending on the Case 8:17-cv-00679-JLS-JCG Document 53 Filed 12/05/18 Page 12 of 24 Page ID #:651 6 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF ATTORNEYS’ FEES AND COSTS; AND MEMO. OF POINTS AND AUTHORITIES IN SUPPORT 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 circumstances presented by the particular case. Indeed, the Ninth Circuit and district courts therein have routinely permitted recovery in the amount of 33.33%, 40% and even up to 50% of the common fund. See, e.g., In re Activision Sec. Litig., 723 F. Supp. 1373, 1378 (N.D. Cal. 1989) (listing Ninth Circuit cases). Seeking a fee based on a percentage of the gross recovery, which is what Class Counsel is seeking here, is appropriate and even desirable in cases like this. See Newberg on Class Actions, Fourth Edition, vol. 4, p. 556, §14.6 (noting that percentage of the fund awards are preferable because they align the interests of the attorney with the client, as the attorney is not incentivized to bill unnecessary hours to generate a greater fee); Boeing, 444 U.S. at 478. Unlike the lodestar method which can encourage class counsel to devote unnecessary hours to generate a substantial fee, under the POR [percentage of recovery] method, the more the attorney succeeds in recovering money for the client, and the fewer legal hours expended to reach that result, the higher dollar amount of fees the lawyer earns. Thus, one of the primary advantages of the POR method is that it is thought to equate the interests of class counsel with those of the class members and encourage class counsel to prosecute the case in an efficient manner. The California Supreme Court has also held that the award of attorneys’ fees in common fund wage and hour class action settlements should start with the percentage method. See Laffitte v. Robert Half Int’l, 1 Cal. 5th 480, 503 (2016) (“We 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.”). Indeed, the California Supreme Court in Laffitte affirmed a fee award representing 33 1/3 percent of the fund. Laffitte, 1 Cal. 5th at 506. And this was based on a lodestar amount that required a multiplier of 2.13. Id. at 487. As the Court held, only when the multiplier is “extraordinarily high or low [should] the trial court consider whether the Case 8:17-cv-00679-JLS-JCG Document 53 Filed 12/05/18 Page 13 of 24 Page ID #:652 7 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF ATTORNEYS’ FEES AND COSTS; AND MEMO. OF POINTS AND AUTHORITIES IN SUPPORT 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 percentage method should be adjusted so as to bring the imputed multiplier within a justifiable range.” Id. at 505. Moreover, in the Laffitte intermediate court decision, the court observed that “33 1/3 percent of the common fund is consistent with, and in the range of, awards in other class action lawsuits.” Laffitte v. Robert Half Int’l, 231 Cal. App. 4th 860, 871 (2014). Federal courts have followed Laffitte, 1 Cal. 5th 480, in awarding attorneys’ fees in class actions based on the percentage of the fund approach. For example, the Central District Court followed Laffitte in awarding $13,500,000 in attorneys’ fees in Spann v. J.C. Penney Corp., No. SACV120215FMOKESX, 2016 WL 5844606, at *11, F. Supp. 3d (C.D. Cal. Sept. 30, 2016). Spann involved claims for unfair advertising under California statutes. Id. The case settled for $50 million and the plaintiffs’ counsel sought 27% of the common fund based on a multiplier of 3.07. Judge Olguin granted final approval and approved the attorneys’ fees pursuant to Laffitte: “The percentage method calculates the fee as a percentage share of a recovered common fund or the monetary value of plaintiffs' recovery.” [Citation]. This method is typically used when a common fund is created. [Citation]. California has recognized that most fee awards based on either a lodestar or percentage calculation are 33 percent and has endorsed the federal benchmark of 25 percent.” Id. at *12 (citing Laffitte, 1 Cal.5th at 489, emphasis added). Thus, the Spann Court noted that the percentage method is followed in common fund cases and that California courts have generally awarded 33% in attorneys’ fees. Id. Similarly, the Eastern District in Emmons v. Quest Diagnostics Clinical Labs., Inc., No. 113CV00474DADBAM, 2017 WL 749018, at *7 (E.D. Cal. Feb. 27, 2017), followed Laffitte in awarding 33% of the common fund. As the Emmons Court explained, “[t]he California Supreme Court recently held that the percentage-of-fund method of calculating attorneys' fees survives in California courts.” Id. /// /// Case 8:17-cv-00679-JLS-JCG Document 53 Filed 12/05/18 Page 14 of 24 Page ID #:653 8 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF ATTORNEYS’ FEES AND COSTS; AND MEMO. OF POINTS AND AUTHORITIES IN SUPPORT 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 Likewise, the Northern District Court in Villalpando v. Exel Direct Inc., No. 3:12- CV-04137-JCS, 2016 WL 7740854, at *2 (N.D. Cal. Dec. 12, 2016), cited Laffitte when awarding 33% of the common fund: Plaintiffs' fee request of $ 4,500,000 represents one-third of the Settlement Fund, which is reasonable under both applicable law, and in light of the contingent risk, Counsel's documented lodestar, the complex and protracted nature of the case, and strong result for the Class. Id. Further, in Chambers v. Whirlpool Corp., No. CV111733FMOJCGX, 2016 WL 5922456, at *10 (C.D. Cal. Oct. 11, 2016), the Central District Court further reiterated that, “[i]n diversity actions ...., the Ninth Circuit applies state law to determine the right to fees and the method for calculating fees.” Id. (Emphasis added, citing Mangold v. Cal. Public Util. Comm'n, 67 F.3d 1470, 1478 (9th Cir. 1995)). Courts consider the following factors in issuing an award under the common fund approach: [T]he extent to which class counsel achieved exceptional 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 burdens 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) (internal quotation marks omitted) (quoting Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047-50 (9th Cir. 2002)). Here, Plaintiff and his counsel respectfully request that this Court follow Laffitte and award 33 1/3% of the common fund. Plaintiff’s counsel meets the factors for a common fund award pursuant to the factors above. With respect to the market rate for similar cases, numerous courts have awarded 1/3 of the common fund in class action settlements. Vandervort, 8 F. Supp. 3d at 1209- Case 8:17-cv-00679-JLS-JCG Document 53 Filed 12/05/18 Page 15 of 24 Page ID #:654 9 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF ATTORNEYS’ FEES AND COSTS; AND MEMO. OF POINTS AND AUTHORITIES IN SUPPORT 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 10 (C.D. Cal. 2014) (court awarded 33 1/3%); Kearney v. Hyundai Motor Am., No. SACV 09-1298-JST, 2013 WL 3287996, at *5-9 (C.D. Cal. June 28, 2013) (granted attorneys’ fees and costs of $993,000 in class settlement involving recall of vehicles, without any immediate financial payout to the class); Boyd v. Bank of Am. Corp., 2014 U.S. Dist. LEXIS 162880 at *22-*23 (C.D. Cal. Nov. 18, 2014) (awarded 1/3 of the common fund based on a 2.58 multiplier of the lodestar); Birch v. Office Depot, Inc., No. 06CV1690 DMS (WMC), slip opin. (S.D. Cal. Sept. 28, 2007) (awarding a 40% fee on a $16 million break claim wage and hour class action); In re Pacific Enterprises Sec. Litig., 47 F.3d 373, 379 (9th Cir. 1995) (affirming fee award equal to 33% of fund); Cordy v. USS-Posco Indus., No. 12-CV-00553-JST, 2014 WL 212587, at *3 (N.D. Cal. Jan. 17, 2014) (“a proposed attorney's fee award of not more than 33% appears to be reasonable”); Barbosa v. Cargill Meat Solutions Corp., 297 F.R.D. 431, 450 (E.D. Cal. 2013) (“The Settlement Agreement's provision of $430,000 in attorneys' fees (33 percent of the total settlement amount), is fair and reasonable in light of the awards of attorneys' fees in similar wage-and-hour cases in this district.”); In re Heritage Bond Litigation, 2005 U.S. Dist. LEXIS 13555 (C.D. Cal. June 10, 2005) (33 1/3% awarded); Garcia v. Gordon Trucking, Inc., No. 1:10–CV–0324 AWI SKO, 2012 WL 5364575 (E.D. Cal. Oct. 31, 2012) (court approving attorneys' fees in the amount of 33 percent of the common fund); Benitez v. Wilbur, No. 1:08–cv–01122 LJO GSA, Doc. No. 52 (E.D. Cal., Dec. 15, 2009) (awarding 33.3 percent of the benefit to the class in attorneys' fees); Chavez v. Petrissans, Case No. 1:08–cv–00122 LJO GSA, Doc. No. 89 (E.D. Cal. Dec. 15, 2009) (court approved awards of attorneys' fees of 33.3 percent of the common fund); Romero v. Producers Dairy Foods, Inc., 2007 U.S. Dist. LEXIS 86270 (E.D. Cal. 2007) (33 1/3% awarded); In re Heritage Bond Litigation, 2005 U.S. Dist. LEXIS 13555 (C.D. Cal. June 10, 2005) (33 1/3% awarded); Vasquez v. Coast Valley Roofing, Inc., 266 F.R.D. 482, 492-93 (E.D. Cal. 2010) (33 1/3% awarded); Singer v. Becton Dickinson & Co., 2010 U.S. Dist. LEXIS 53416 at *22-*23 (S.D. Cal. June 1, 2010) (33 1/3% Case 8:17-cv-00679-JLS-JCG Document 53 Filed 12/05/18 Page 16 of 24 Page ID #:655 10 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF ATTORNEYS’ FEES AND COSTS; AND MEMO. OF POINTS AND AUTHORITIES IN SUPPORT 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 awarded); Rippee v. Boston Mkt. Corp., No. 05CV1359 BTM (JMA), slip op. (S.D. Cal. Oct. 10, 2006) (awarding a 40% fee on a $3.75 million wage and hour class action). C. The Percentage Awarded Should Mimic the Market Newberg on Class Actions, Fourth Edition, vol. 4, p. 560, § 14.6 contains an interesting discussion of the concept of a market place analysis and why it is so valuable in determining a percentage award: [Goodrich and Silver]…suggest that fee awards should be consistent with contingent fee arrangements negotiated in non- class litigation: The percentage method is consistent with and is intended to mirror practice in the private marketplace where contingent fee attorneys typically negotiate percentage fee arrangements with their clients. As Judge Posner emphasized in In re Continental Illinois Securities Litigations, “[t]he object in awarding a reasonable attorney’s fee...is to simulate the market...The class counsel are entitled to the fee they would have received had they handled a similar suit on a contingent fee basis, with a similar outcome, for a paying client.” In non-class litigations, one-third contingency fees are typical. In their concurring opinion in Blum, Justices Brennan and Marshall observed that “[i]n tort suits, an attorney might receive one-third of whatever the plaintiff recovers. In those cases, therefore, the fee is directly proportional to the recovery.” If named plaintiffs have agreed to pay a one-third contingent fee, that is powerful evidence of a reasonable fee. One of the best ways to demonstrate the value of counsel’s work to the class is to review the consideration agreed to be paid by the named plaintiffs in their contracts. If the named plaintiffs have employed their counsel by contingent fee agreements that obligated them to pay one-third of the recovery, it would indeed be inequitable for the members of the class, who will enjoy the benefits of this settlement without incurring the risks of bringing the claim, to pay less than the named plaintiffs. The complex and heavily litigated nature of this litigation, and its successful result lead to the clear conclusion that the fee request herein is reasonable. In Cambden I Condominium Association, Inc., v. Dunkel, 946 F. 2d 768 (11th Cir. 1991), the court identified various factors to be considered in arriving at a common fund fee determination. Each of the factors is now briefly addressed. Case 8:17-cv-00679-JLS-JCG Document 53 Filed 12/05/18 Page 17 of 24 Page ID #:656 11 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF ATTORNEYS’ FEES AND COSTS; AND MEMO. OF POINTS AND AUTHORITIES IN SUPPORT 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 1. The time and labor required - this is overwhelmingly established in this motion, based upon the work involved, and the supporting attorney declarations and time charts submitted; 2. The novelty and difficulty of the questions involved – as discussed thoroughly in Plaintiff Motion for Preliminary Approval, at the time that this case was mediated, the enforceability of class action waivers in employment arbitration agreements was uncertain. Indeed, the Court’s ruling on Defendant’s Motion to Compel Arbitration was in abeyance pending the Supreme Court’s ruling Ernst & Young, LLP v. Morris, 137 S. Ct. 809 (2017). Ultimately, during the pendency of this litigation, the issue was resolved by the U.S. Supreme Court in favor of Defendant. However, Plaintiff was able to resolve this matter before the issue was resolved in favor of the employees; 3. The skill requisite to perform the legal services properly - this goes hand in hand with the first and second factors. Plaintiff’s counsel was able to litigate this case effectively and ultimately achieved a very good result for the class despite the ultimate ruling by the U.S. Supreme Court that could have dismissed all of the class claims; 4. The preclusion of other employment by the attorney due to the acceptance of the case - the case required and demanded attorney time on both sides. The result of this scheduling was that Class Counsel could have spent such time on numerous other matters while this litigation was ongoing; 5. The customary fee – as discussed above, numerous courts, including this Court, have approved an upward departure to 33 1/3% where the case has been heavily litigated and an excellent result is achieved for the class; 6. Whether the fee is fixed or contingent- this matter was clearly contingent without any sort of fixed or guaranteed fees for Class Counsel. Indeed, had this case not resulted in the current settlement, Class Counsel could have received almost nothing given the U.S. Supreme Court’s ruling in Ernst & Young, LLP v. Morris; Case 8:17-cv-00679-JLS-JCG Document 53 Filed 12/05/18 Page 18 of 24 Page ID #:657 12 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF ATTORNEYS’ FEES AND COSTS; AND MEMO. OF POINTS AND AUTHORITIES IN SUPPORT 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 7. Time limitation imposed by the client or the circumstances – although the client did not impose any time limitations, Class Counsel invested a significant amount of time in this case; 8. The amount involved and results obtained – which is discussed above; 9. The experience, reputation and ability of the attorney – as evidenced by the supporting declarations, Class Counsel has been designated and certified as class counsel in numerous other matters, including in the Central District; 10. The nature and length of the relationship with the client - this does not apply; and 11. Awards in similar cases –similar cases were identified in the section above. IV. THE LODESTAR CALCULATION “CROSS-CHECK” It has been noted that it is sometimes helpful to courts to “cross-check” a percentage award by employing a lodestar with a multiplier analysis. While the lodestar method is generally considered inappropriate in a common fund case where real cash benefits (as opposed to coupons or non-monetary benefits) are made available to class members, its use can provide further validation of the appropriateness of the percentage award approach. See In re Prudential Ins. Co. of America Sales Practice Litigation, 106 F. Supp. 2d 721 (D.N.J. 2000). Such is the case here. The declarations of Class Counsel evidence the fact that they devoted approximately 171.6 hours of time to this litigation to date. (Lee Decl. ¶ 7; Choi Decl. ¶ 9). These hours are summarized in the time and task charts that are attached to Plaintiff’s counsel’s declarations. And, to the extent that any argument is made that the time spent was duplicative, the way in which Plaintiff’s counsel works is for each attorney to handle a task and for the other attorneys to review and revise the work, which is identical to the way defense firms staff and handle cases. More importantly, as recently noted by the Ninth Circuit in Stetson v. West Publishing Corp., Case No. 13- 57061, at *13 (9th Cir. May 11, 2016), “some amount of duplicative work is ‘inherent in Case 8:17-cv-00679-JLS-JCG Document 53 Filed 12/05/18 Page 19 of 24 Page ID #:658 13 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF ATTORNEYS’ FEES AND COSTS; AND MEMO. OF POINTS AND AUTHORITIES IN SUPPORT 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 process of litigating over time.’” (Citing Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008)). In addition, as explained above, Class Counsel expect to expend an additional thirty (30) hours through the final approval hearing, including on matters such as preparing the Motion for Final Approval, travel to and attending the final approval hearing, and further conferring with class members regarding the case status. (Lee Decl. ¶ 8; Choi Decl. ¶ 9). Thus, Class Counsel will have expended 201.6 hours through final approval. Applying the various hourly rates of the law firms and lawyers who dedicated their efforts to this matter, a lodestar of $141,120.00 is established for the amount of work spent through final approval. (Lee Decl. ¶ 9; Choi Decl. ¶ 9). The percentage award sought by Class Counsel, if converted to the lodestar method, would entail a multiplier of approximately 1.42. Thus, as set forth in the Introduction to this motion, the fee application is supported whether by the cross-check lodestar/multiplier method discussed herein, or by the percentage of the common fund discussed in the preceding sections. A. Plaintiff’s Counsels’ Lodestar Is Reasonable The hourly rates employed by Class Counsel, as declared to in the attorney declarations, are reasonable. Plaintiff’s attorneys are entitled to the hourly rates charged by attorneys of comparable experience, reputation, and ability for similar litigation. The background and experience of Plaintiff’s counsel are fully set forth in the declarations filed in support of this motion. The basic hourly rates listed for each firm are fair, and representative of the combination of years of experience and the clear successes they have had in the past in connection with class action litigation. The time and task charts summarize the total hours devoted to the matter by the various law firms, along with the hourly rates as set forth in the supporting declarations, and the total billed. (Lee Decl. ¶ 9-11; Choi Decl. ¶ 7-9). As discussed in their supporting declarations, Class Counsel are a group of well- experienced litigators, including class action litigation. (Lee Decl. ¶ 9-11; Choi Decl. ¶ Case 8:17-cv-00679-JLS-JCG Document 53 Filed 12/05/18 Page 20 of 24 Page ID #:659 14 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF ATTORNEYS’ FEES AND COSTS; AND MEMO. OF POINTS AND AUTHORITIES IN SUPPORT 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 7-9). Under California law, counsel are entitled to compensation for all hours reasonably spent on the matter. Ketchum vs. Moses, 24 Cal. 4th 1122, 1133 (2001). Reasonableness of hours is assessed by “the entire course of the litigation, including pretrial matters, settlement negotiations, discovery, litigation tactics, and the trial itself . . . .” Vo v. Las Virgenes Municipal Water Dist., 79 Cal. App. 4th 440, 447 (2000). In addition, the attached time and task charts clearly reflect the many hours which were necessarily spent on the case. In History of the Case section above, the nature and extent of the proceedings held throughout this litigation were set forth in detail. Without repeating the same, it is incorporated herein. The total hours and billings thus generated are all supported herein. In sum, it is submitted that the reasonableness of Plaintiff’s lodestar is manifest. In the present case, Class Counsel’s lodestar will far exceed the 33 1/3% attorney’s fees that are being sought in this case. Thus, the lodestar cross check heavily favors granting of 33 1/3% fees in this case. V. THE COURT SHOULD APPROVE THE REQUEST FOR REIMBURSEMENT OF COSTS The request for reimbursement of costs, in the amount of $10,701.25 is fair and reasonable. As stated above, the costs are all litigation related costs, which have been detailed in the supporting declarations of Class Counsel. (Lee Decl. ¶ 7; Choi Decl. ¶ 19). The authority for the Court to award costs is the parties' Settlement Agreement and Labor Code Sections 218.5, 226(e), and 2699(g)(1). Further, pursuant to the Settlement Agreement, Defendant has agreed not to oppose any request for reimbursement of costs up to $20,000.00, but the actual costs that are being sought are much less than the amount allotted in the Settlement Agreement. Pursuant to all of the authority cited above, including this Court’s opinion in Vandervort, 8 F. Supp. 3d at 1209-10, Plaintiff’s counsel should be awarded their costs. /// /// Case 8:17-cv-00679-JLS-JCG Document 53 Filed 12/05/18 Page 21 of 24 Page ID #:660 15 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF ATTORNEYS’ FEES AND COSTS; AND MEMO. OF POINTS AND AUTHORITIES IN SUPPORT 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 VI. PLAINTIFF’S ENHANCEMENT REQUEST SHOULD BE APPROVED Plaintiff respectfully requests that the full amount of the service payment be awarded to him for his efforts that she undertook on behalf of the Class Members. It is commonly held that it is appropriate to recognize the role of the representative plaintiffs without whose actions and courage the benefits of the settlement, which are conferred on the class as a whole, would never have been achieved. The criteria courts may consider in relation to incentive payments include: 1) the risk to the class representative in commencing the suit, both financial and otherwise; 2) the notoriety and personal difficulties encountered by the class representative; 3) the amount of time and effort spent by the class representative; 4) the duration of the litigation; and 5) the personal benefit (or lack thereof) enjoyed by the class representative as a result of the litigation. See Munoz v. BCI Coca-Cola Bottling Co. of Los Angeles, 186 Cal. App. 4th 399, 412 (2010) (citing Stanton v. Boeing Co., 327 F.3d 938, 975 (9th Cir. 2003)). Each of these factors favors the service awards requested in the present case. Plaintiff is the only representative in this case. Plaintiff personally met with his attorneys to provide information regarding the facts involved. (Declaration of Douglas Hernandez (“Hernandez Decl.”) ¶6). Plaintiff met with his attorneys to respond to discovery requests and to provide documents. (Id. at ¶7) Plaintiff has made himself available to answer questions and to sign declarations in support of the various motions that have been brought in this case. (Id. at ¶8) Plaintiff took these risks upon himself from which the whole Class benefitted. Class members did not have to file individual lawsuits, nor did they have to bear the risks of payment of fees and costs should they not prevail. Class members also do not have to face the risk of potential retaliation or risk of future employment, due to Plaintiff’s efforts. In short, Plaintiff sacrificed a significant amount of time, effort, and her own rights in bringing about the benefits to the class. The payment of enhancement awards to successful class representatives is appropriate and the amount of $7,500 to Plaintiff is within the typically accepted range. Case 8:17-cv-00679-JLS-JCG Document 53 Filed 12/05/18 Page 22 of 24 Page ID #:661 16 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF ATTORNEYS’ FEES AND COSTS; AND MEMO. OF POINTS AND AUTHORITIES IN SUPPORT 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 See e.g. Van Vranken v. Atlantic Richfield Co., 901 F. Supp. 294, 299-300 (N.D. Cal. 1995) (incentive award of $50,000); In re Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366, 374 (S.D. Ohio 1990) (two incentive awards of $55,000, and three incentive awards of $ 35,000); Brotherton v. Cleveland, 141 F. Supp. 2d 907, 913-14 (S.D. Ohio 2001) (granting a $50,000 Incentive award); Enter. Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240, 251-252 (S.D. Ohio 1991) ($50,000 awarded to each class representative); Glass v. UBS Fin. Servs., No. C-06-4068, 2007 U.S. Dist. LEXIS 8476, at *51-52 (N.D. Cal. Jan. 27, 2007) (awarding $25,000 Incentive award in FLSA overtime wages class action); Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998) (affirming $25,000 Incentive award to class representative in ERISA case). Moreover, a $7,500 service payment represents a mere 1.25% of the gross settlement amount. For such reasons, Plaintiff respectfully requests that this Court find the service payments amount of $7,500 to Plaintiff as fair, reasonable and adequate and that the service payment be awarded to Plaintiff. VII. CONCLUSION Plaintiff and Class Counsel respectfully submit that the motion for approval of attorneys’ fees and costs should be granted. Whether analyzed under the percentage of the fund approach, which is the dominant view, or via the cross-check approach under the loadstar/multiplier approach, the fees are fully supported. This entire case has been litigated from the onset, demanded an extraordinary effort on the part of Class Counsel, and further required substantial costs advanced. Finally, and as instructed by our Supreme Court and Ninth Circuit law, fees should be awarded off of the total fund created. It is the creation of the fund, and the opportunity to simply receive one’s share, which creates the right to the fee. Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980). Based on the foregoing, Plaintiff and Class Counsel respectfully request that this Motion be granted in its entirety and grant Plaintiff’s counsel’s fee request of $200,000.00, cost requested in the amount of $10,701.25 and class representative Case 8:17-cv-00679-JLS-JCG Document 53 Filed 12/05/18 Page 23 of 24 Page ID #:662 17 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF ATTORNEYS’ FEES AND COSTS; AND MEMO. OF POINTS AND AUTHORITIES IN SUPPORT 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 enhancement of $7,500.00. DATED: December 5, 2018 LAW OFFICES OF CHOI & ASSOCIATES By: /s/ Edward W. Choi Edward W. Choi, Esq. Attorney for Plaintiff and the Class Case 8:17-cv-00679-JLS-JCG Document 53 Filed 12/05/18 Page 24 of 24 Page ID #:663