[PROPOSED] ORDER GRANTING: (1) MOTION FOR FINAL APPROVAL OF CLASS AND COLLECTIVE ACTION SETTLEMENT; AND (2) PLAINTIFFS' AND CLASS COUNSEL'S MOTION FOR AWARD OF ATTORNEYS' FEES, LITIGATION COSTS, AND ENHANCEMENT AWARDS
MAXINE M. CHESNEY, District Judge.
ORDER
Plaintiff's unopposed Motion for Final Approval of Class and Collective Action Settlement and Plaintiffs' and Class Counsel's Motion for Award of Attorneys' Fees, Litigation Costs, and Enhancement Awards (the "Motions") came on regularly for hearing on April 29, 2016, at 9:00 a.m., in the United States District Court for the Northern District of California, the Honorable Maxine M. Chesney presiding. All parties were represented by counsel.
Having considered the memoranda and declarations, oral arguments of counsel, and the relevant statutory and case law, the Court GRANTS Plaintiff's and Class Counsels' Motions and orders and finds as follows:
1. The Court FINDS that no member of the Rule 23 class or the FLSA collective action has objected to the settlement.
2. The Court FINDS that the settlement is fair and reasonable, and, therefore, the Motion for Final Approval of Class and Collective Action Settlement is GRANTED.
2. The Parties' proposed Stipulated Settlement Agreement of Class Action Claims (the "Settlement"), which the Court preliminarily approved with certain modifications as set forth in the Order Regarding Motion for Preliminary Approval of Class and Collective Action Settlement (ECF No. 108), is APPROVED as so modified.
3. The following Class and Collective Action is finally certified for settlement purposes only pursuant to Federal Rules of Civil Procedure 23 and 29 U.S.C. § 216(b):
All persons who have submitted a "Consent to Join Collective Action" in the instant Lawsuit prior to June 1, 2015 ("Opt-In Class Members") and all individuals employed in the State of California between January 1, 2011 and August 1, 2014 who were employed in any of the following "Covered Positions": All Star; Community Advisor; Community Assistant; Leasing All-Star; Work for Rent Leasing All-Star; or any combination thereof ("California Class Members") (collectively, "Class Members").
4. The appointment of Plaintiffs' attorneys, Joshua M. David of David, Kamp & Frank, L.L.C. and Eric B. Kingsley of Kingsley & Kingsley, APC as Class Counsel is confirmed.
5. The appointment of Nicholas Selbe, Daniel Ghyczy, Makaela O'Connell, and Anniya Louis as Class Representatives is confirmed.
6. The appointment of Simpluris as the Settlement Administrator is confirmed.
7. Under Federal Rules of Civil Procedure 23(h) and 54(d) and Section 216 of the FLSA, 29 U.S.C. § 216(b), Plaintiffs and Class Counsel have moved for an award of attorneys' fees, enhancement awards, and litigation costs.
8. This class action and collective action settlement resolves a wage-and-hour dispute on a class-wide basis.
9. The Court's December 30, 2015 Order granted preliminary approval of the Settlement, pursuant to which Plaintiffs and Class Counsel requested payment from the Settlement Amount of attorneys' fees of thirty percent (30%) of the Settlement Amount, equating to $240,000.00, litigation costs of $24,473.43, and enhancement awards for the Class Representatives totaling $24,000.00 to be allocated $8,000.00, $8,000.00, $4,000.00, and $4,000.00, respectively.
10. Rule 23(h) provides that, "[i]n a certified class action, the court may award reasonable attorney's fees and nontaxable costs that are authorized by . . . the parties' agreement." The Rule further provides that "[a] claim for an award must be made by motion under Rule 54(d)(2)," notice of which must be "directed to class members in a reasonable manner" and that the Court "must find the facts and state its legal conclusions under Rule 52(a)." Fed. R. Civ. P. 23(h)(1) & (3). In turn, Rule 54(d)(2) requires a claim for fees to be made by motion, and specifies its timing and content, including, in relevant part, "the grounds entitling the movant to the award" and "the amount sought." Fed. R. Civ. P. 54(d)(2)(B).
11. All Class Members were advised of Class Counsel's request for an award of fees and costs in the Court-approved Class Settlement Notices. As directed by the Court, on February 9, 2016, Plaintiffs and Class Counsel filed a separate Motion for Award of Attorneys' Fees, Litigation Costs, and Enhancement Awards (ECF No. 110). In the Class Settlement Notices, all Class Members were advised how to obtain a copy of the Motion either from PACER or the Settlement Administrator's website where the Motion is readily available.
12. When "the settlement produces a common fund for the benefit of the entire class, courts have discretion to employ either the lodestar method or the percentage-of-recovery method" of calculating attorneys' fees awards. In Re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 942 (9th Cir. 2011).
13. Under the percentage-of-the-fund method, it is appropriate to base the percentage calculation on the gross settlement amount. See generally Boeing v. Gemert, 444 U.S. 472, 479 (1980); Williams v. MGM-Pathe Commc'ns Co., 129 F.3d 1026, 1027 (9th Cir. 1997).
14. The Court adopts the percentage-of-the-fund approach here and finds that the attorneys' fees and litigation costs requested are reasonable. The fee award of thirty percent (30%) of the fund is within the range of reasonable percentage fee awards in this Circuit. Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1311 (9th Cir. 1990) (stating that the Ninth Circuit has historically considered twenty-five percent of the common fund a "benchmark" figure for attorneys' fee awards); Knight v. Red Door Salons, Inc., 2009 U.S. Dist. LEXIS 11149, at *17, 2009 WL 248367 (N.D. Cal. 2009) (stating the exact percentage varies depending on the facts of the case, and in "most common fund cases, the award exceeds that benchmark."); Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir. 1989) ("Ordinarily, however, such fee awards range from 20 percent to 30 percent of the fund created.").
15. A lodestar cross-check reveals that the attorneys' fees requested, 30% of the common fund amount, equating to $240,000.00, is substantially less than the lodestar amount of $449,195.00. The Court finds that Class Counsel's hours and hourly rates are reasonable, thus, the requested fee award results in a "negative multiplier" and the lodestar cross-check supports a finding that the requested percentage of the fund, 30%, is both fair and reasonable.
16. Litigation costs are routinely awarded in addition to attorneys' fees. See Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994); Odrick v. UnionBanCal Corp., 2012 U.S. Dist. LEXIS 171413, at *17, 2012 WL 6019495 (N.D. Cal. Dec. 3, 2012); Knight v. Red Door Salons, Inc., 2009 U.S. Dist. LEXIS 11149, at *20 (N.D. Cal. Feb. 2, 2009). Class Counsel have advanced all costs incurred in this case and request reimbursement from the common settlement fund in the total amount of $24,473.43, including $23,223.43 in costs incurred and $1,250 in anticipated costs. Class Counsel has provided a detailed itemization of these costs, and the Court FINDS that these costs are reasonable.
17. The Court has the discretion to award enhancement awards, or incentive fees, to named class representatives in a class action suit. Van Vranken v. Atl. Richfield Co., 901 F.Supp. 294, 299 (N.D. Cal. 1995). The Court FINDS that enhancement awards to the Class Representatives in this case are justified.
18. Accordingly, Plaintiffs' and Class Counsel's Motion for Award of Attorneys' Fees, Litigation Costs, and Enhancement Awards is GRANTED. Class Counsel is awarded a fee of thirty percent (30%) of the Settlement Amount, equating to $240,000.00, and litigation costs of $24,473.43. The Class Representatives are awarded total Enhancement Awards of $24,000.00, to be allocated $8,000.00 each to Nicholas Selbe and Daniel Ghyczy and $4,000.00 each to Makaela O'Connell and Anniya Louis.
19. The Settlement Administrator shall distribute the Settlement Amount to the Class Members, Class Counsel, the Class Representatives, and the LWDA as specified in the Settlement Agreement and this Order.
IT IS SO ORDERED.
