HAYWOOD S. GILLIAM, JR., District Judge.
Pending before the Court are Plaintiffs Ronda Austin, Christopher Corduck, Ernest Dial, Billy Wayne Gibson, and Bobby G. Smith's unopposed motions for (1) final approval of class action settlement, see Dkt. No. 56 ("FA Mot."); and (2) attorneys' fees, costs, and class representative incentive awards, see Dkt. No. 55 ("Fees Mot."). For the reasons stated below, the Court
Plaintiffs were formerly employed as truck drivers by Defendant Foodliner, Inc. See Dkt. No. 23 (First Amended Complaint, or "FAC") ¶¶ 12-17. They brought suit on behalf of a class of "[a]ll individuals whom FOODLINER employed as truck drivers in California at any time during the Class Period," id. ¶ 35, which commenced on November 3, 2012, see id. ¶ 12.
Plaintiffs alleged that their job was to haul materials from one location to another using Foodliner's trucks. Id. ¶ 23. Foodliner controlled all the logistical details, such as drivers' schedules, work locations, and the specific duties to be performed. Id. ¶ 24. It paid drivers on a per-trip basis. Id. ¶ 25. Plaintiffs alleged that this system meant that they were
Id. ¶ 27. And they were "not paid separately for their missed meal and rest periods." Id. Further, Foodliner allegedly failed to reimburse the putative class members for certain eligible costs incurred while on the job, id. ¶ 30, and to provide accurate wage statements, id. ¶ 31.
Plaintiffs originally filed suit in state court on November 3, 2016. Dkt. No. 1, Ex. A. Foodliner removed the case on December 15. Dkt. No. 1. On October 20, 2017, Plaintiffs filed the FAC, Dkt. No. 23, which Foodliner answered on November 13, 2017, Dkt. No. 29.
On April 19, 2018, the parties notified the Court that they had reached a settlement agreement, see Dkt. No. 43, after which Plaintiffs filed an unopposed motion for preliminary approval of the class settlement, Dkt. No. 49. The Court granted preliminary approval on August 17. See Dkt. No. 51.
Plaintiffs filed their motion for attorneys' fees, costs, and class representative incentive awards on November 6, see Fees Mot., and their motion for final approval on December 20, see FA Mot. The Court held a hearing on the motions on May 2, 2019. See Dkt. No. 60 (minute entry).
After conducting discovery, the parties engaged in a mediation on August 16, 2017. See Dkt. No. 49-1 (Declaration of Hunter Pyle, or "Pyle Decl.") ¶¶ 19-22. Although the case did not settle at the August session, the mediator made a proposal the following April. Id. ¶ 22. The parties accepted a modified version of the mediator's proposal and reached this settlement. Id.; see also Dkt. No. 49-2 (Settlement Agreement or "SA"). The Settlement Agreement's key terms are as follows:
The class is defined as "all individuals employed by Foodliner as truck drivers in California at any time" from November 3, 2012 to August 17, 2018. SA ¶¶ 5-6. There is also a Private Attorneys General Act ("PAGA") subclass ("the PAGA Subclass"), consisting of class members employed by Foodliner between October 31, 2015 to August 17, 2018. Id. ¶ 53(b).
Foodliner agreed to pay a gross settlement amount of $1.2 million, which "is inclusive of all payments to Class Members, the Class Counsel Fees and Costs Payment, the Class Representative Service Payment, the Settlement Administration Fees, withholdings for wage payments made to Class Members under this Settlement, and payment to the [California Labor & Workforce Development Agency] for its share of PAGA penalties." Id. ¶ 40. This amount does not include employer payroll taxes. Id. ¶ 15. The proceeds will be distributed as follows:
Id. ¶ 53(a). Further, one-quarter of the $81,405 allocated to PAGA penalties (i.e., $20,351.25) will be distributed to the PAGA subclass as follows:
Id. ¶ 53(b). Class members "will not have to make a claim in order to receive a distribution." Id. ¶ 41. No portion of the settlement fund will revert to Foodliner and any unclaimed portion of the fund will ultimately be paid to Legal Aid at Work. See id. ¶¶ 41, 44.
The settlement administrator estimates that that the net settlement fund will total $751,873.63. See Declaration of Lindsay Kline ("Kline Decl."), Dkt. No. 56-2 ¶ 15. The 217 class members will receive an average payment of $3,558.64; the largest individual payment is estimated to be $15,653.44 and the smallest individual payment is estimated to be $7.09. See id.
Upon final approval of the settlement, Plaintiffs agree to "forever release, discharge, and. . . hold harmless Foodliner" from "all claims that were plead in the Action, including the Operative Complaint, or that could have been plead based on the facts alleged in the Action." Id. ¶¶ 28, 73. "The Parties intend that the Settlement described in this Agreement will release and preclude any further claim, whether by lawsuit, administrative claim or action, arbitration, demand, or other action of any kind, by each and all of the Participating Class Members to obtain a recovery based on, arising out of, and/or related to any and all of the Released Claims." Id. ¶ 74. Further, the parties intend that the Settlement Agreement act as a "general release precluding any further claim . . . or other action of any kind, by the Plaintiffs, to obtain a recovery based on any claim that could have been asserted against Foodliner as well as any other Released Party in connection with his or her employment with Foodliner through the date that this Settlement is signed by Plaintiffs." See id. ¶ 75.
The settlement administrator mailed the class notice to 216 class members. See Kline Decl. ¶ 8. The class notice explained the nature of the action, the terms of the proposed settlement, the recipient's estimated settlement payment, information about the release of claims against Foodliner, information on how to opt out from and object to the settlement, and the relevant deadlines. Id. Of the 216 class notices sent, two were deemed undeliverable. Id. ¶ 9. The settlement administrator also received two requests from class members to be added to the class list. Id. ¶ 10.
Any putative class member wishing to opt out was required to mail a request for exclusion within 45 days of when the settlement administrator initially mailed the class notice. SA ¶ 62. One putative class member opted out. Kline Decl. ¶ 11.
Plaintiff Austin requested a $10,000 incentive award. See Fees Mot. at 16. Plaintiffs Corduck, Dial, Gibson, and Smith requested incentive awards of $7,500 each. Id. at 16-17. Defendant agreed not to oppose any of these applications. See SA ¶¶ 45-46.
Plaintiffs agreed to seek attorney's fees amounting to 33% or less of the gross settlement amount, id. ¶ 49, or $399,960, see Pyle Decl. ¶ 25(d). Counsel filed an application for $300,000 in attorneys' fees, which is 25% of the gross settlement amount. Fees Mot. at 1. Class counsel also seek costs and expenses of $22,221.37. Id.
Final approval of a class action settlement requires, as a threshold matter, an assessment of whether the class satisfies the requirements of Federal Rules of Civil Procedure 23(a) and (b). Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019, 1022 (9th Cir. 1998). Because no facts that would affect these requirements have changed since the Court preliminarily approved the class on August 17, 2018, the Court incorporates by reference its prior analysis under Rules 23(a) and (b) as set forth in the order granting preliminary approval. See Dkt. No. 51 at 5-9. The Court affirms its previous findings and certifies the settlement class.
"The claims, issues, or defenses of a certified class may be settled . . . only with the court's approval." Fed. R. Civ. P. 23(e). The Court may finally approve a class settlement "only after a hearing and on finding that it is fair, reasonable, and adequate." Fed. R. Civ. P. 23(e)(2); Hanlon, 150 F.3d at 1025. To assess whether a proposed settlement comports with Rule 23(e), courts should consider the following factors:
Under Federal Rule of Civil Procedure 23(e), the Court "must direct notice in a reasonable manner to all class members who would be bound by the proposal." Fed. R. Civ. P. 23(e)(1). Rule 23(c)(2)(B) requires "the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." The notice must "clearly and concisely state in plain, easily understood language" the nature of the action, the class definition, and the class members' right to exclude themselves from the class. Fed. R. Civ. P. 23(c)(2)(B). Although Rule 23 requires that reasonable efforts be made to reach all class members, it does not require that each class member actually receives notice. See Silber v. Mabon, 18 F.3d 1449, 1454 (9th Cir. 1994) (noting that the standard for class notice is "best practicable" notice, not "actually received" notice).
The Court finds that the notice plan previously approved by the Court was properly implemented and complied with Rule 23(c)(2)(B). The settlement administrator mailed the class notice to 216 putative class members. See FA Mot. at 12; Kline Decl. ¶ 8. Eight of those notices were returned as undelivered; six were mailed to an updated address. See Kline Decl. ¶ 8. The administrator also established a toll-free phone number for putative class members with questions about the settlement. See id. ¶ 4. Two people contacted the administrator to request to be added to the class list. Id. ¶ 10. The administrator ultimately received one opt-out request and no objections to the settlement. See id. ¶¶ 11-12. In light of these facts, the Court finds that the parties have provided the best practicable notice.
Having found the notice procedures adequate under Rule 23(e), the Court next considers whether the entire settlement comports with Rule 23(e).
Approval of a class settlement is appropriate when plaintiffs must overcome significant barriers to make their case. Chun-Hoon v. McKee Foods Corp., 716 F.Supp.2d 848, 851 (N.D. Cal. 2010). Courts "may presume that through negotiation, the Parties . . . arrived at a reasonable range of settlement by considering Plaintiff's likelihood of recovery." Garner v. State Farm Mut. Auto. Ins. Co., No. 08-cv-1365-CW, 2010 WL 1687832, at *9 (N.D. Cal. Apr. 22, 2010). Additionally, difficulties and risks in litigating weigh in favor of approving a class settlement. Rodriguez v. West Publishing Corp., 563 F.3d 948, 966 (9th Cir. 2009); see also In re Syncor ERISA Litig., 516 F.3d 1095, 1101 (9th Cir. 2008) (noting that "there is a strong judicial policy that favors settlements, particularly where complex class action litigation is concerned"). "Generally, unless the settlement is clearly inadequate, its acceptance and approval are preferable to lengthy and expensive litigation with uncertain results." Ching v. Siemens Indus., Inc., No. 11-cv-04838-MEJ, — WL 2926210, at *4 (N.D. Cal. June 27, 2014) (quotation omitted).
The parties settled this case before the Court had an opportunity to consider the merits of Plaintiffs' claims. But continuing to litigate this case would have posed substantial risks for Plaintiffs, as well as generated additional costs (which would ultimately reduce any recovery). The parties would have continued to engage in discovery and Plaintiffs likely would have moved for class certification and summary judgment. Each of these procedural hurdles would have been risky and costly. Accordingly, the Court finds that these factors support approving the settlement.
The settlement amount also weighs in favor of approval. Class counsel estimates that Foodliner's maximum potential exposure for Plaintiffs' claims is roughly $5.5 million. See Pyle Decl. ¶ 41. The $1.2 million settlement thus represents an approximately 22% recovery for class members. See FA Mot. at 9. After fees and costs, class counsel estimates that the average class member will take home over $3,500—a significant recovery for class members. And any unclaimed portion of the settlement fund will not revert to Foodliner but will be paid to Legal Aid at Work as a cy pres recipient. See SA ¶¶ 41, 44.
This factor evaluates whether class counsel had sufficient information to make an informed decision about the merits of the case. See In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 459 (9th Cir. 2000). The parties have engaged in a significant amount of informal exchange of information as well as formal discovery. See Mot. at 10. The discovery process also included Plaintiffs' successful motion to compel additional information about the class members. See id.; see also Dkt. No. 39. This factor weighs in favor of approval.
The Court next considers the experience and views of counsel, and it finds that this factor also weighs in favor of approval. "[P]arties represented by competent counsel are better positioned than courts to produce a settlement that fairly reflects each party's expected outcome in litigation." Rodriguez, 563 F.3d at 967 (quotation omitted). Accordingly, "[t]he recommendations of plaintiffs' counsel should be given a presumption of reasonableness." In re Omnivision Techs., Inc., 559 F.Supp.2d 1036, 1043 (N.D. Cal. 2008). Counsel opines that the settlement "is in the best interest" of the class, especially when considering the "risk of significant delay, the risk that Foodliner will prevail on its defenses, and potential appellate issues." See Mot. at 11. The Court recognizes that courts have diverged on the weight to assign counsel's opinions. Compare Carter v. Anderson Merch., LP, 2010 WL 1946784, at *8 (C.D. Cal. May 11, 2010) ("Counsel's opinion is accorded considerable weight.") with Chun-Hoon, 716 F. Supp. 2d at 852 ("[T]his court is reluctant to put much stock in counsel's pronouncements. . . ."). And the Court has previously recognized that class counsel have considerable experience with wage-and-hour class action cases. See Dkt. No. 51 at 9. Though this factor's impact is modest, it favors approval.
The reaction of class members supports final approval. "[T]he absence of a large number of objections to a proposed class action settlement raises a strong presumption that the terms of a proposed class settlement action are favorable to the class members." Nat'l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 529 (C.D. Cal. 2004); In re Linkedin User Privacy Litig., 309 F.R.D. 573, 589 (N.D. Cal. 2015) ("A low number of opt-outs and objections in comparison to class size is typically a factor that supports settlement approval.").
Class notice advising each class member of the requirements regarding opt-outs and objections was served in accordance with the methods approved by the Court. No class member objected either to the settlement administrator or at the final fairness hearing. Only one putative class member opted out of the settlement—and two people who were not initially notified of the settlement requested to join. The Court finds that the almost unanimously positive reception of the settlement by class members favors approval. Cf. Churchill Village LLC v. Gen. Elec., 361 F.3d 566, 577 (9th Cir. 2004) (affirming settlement where 45 of approximately 90,000 class members objected).
After considering and weighing all of the above factors, the Court finds that the Settlement Agreement is fair, reasonable, and adequate, and that the settlement class members received adequate notice. Accordingly, Plaintiffs' motion for final approval of class action settlement is
In its second unopposed motion, class counsel asks the Court to approve attorneys' fees of $300,000, Fees Mot. at 1, costs and expenses of $22,221.37, id., and a $10,000 incentive award for Plaintiff Austin and $7,500 incentive awards for Plaintiffs Corduck, Dial, Gibson, and Smith, id. at 16-17.
"In a certified class action, the court may award reasonable attorney's fees and nontaxable costs that are authorized by law or by the parties' agreement." Fed. R. Civ. P. 23(h). In a state law claim—like this one—state law also governs the calculation of attorneys' fees. See Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 2002).
Under California law, the "percentage of fund method" is proper in class actions. Laffitte v. Robert Half Int'l Inc., 1 Cal. 5th 480, 506 (2016). In addition, "trial courts have discretion to conduct a lodestar cross-check on a percentage fee." Id. The "lodestar figure is calculated by multiplying the number of hours the prevailing party reasonably expended on the litigation (as supported by adequate documentation) by a reasonable hourly rate for the region and for the experience of the lawyer." In re Bluetooth, 654 F.3d at 941 (citing Staton v. Boeing Co., 327 F.3d 938, 965 (9th Cir. 2003). Trial courts "also retain the discretion to forgo a lodestar cross-check and use other means to evaluate the reasonableness of a requested percentage fee." Laffitte, 1 Cal. 5th at 506.
Under federal law, using the percentage-of-recovery method, 25% of the common fund is the benchmark for attorney fee awards. See, e.g., In re Bluetooth, 654 F.3d at 942 ("[C]ourts typically calculate 25% of the fund as the `benchmark' for a reasonable fee award, providing adequate explanation in the record of any `special circumstances' justifying a departure.").
Class counsel seek a benchmark award of 25% of the common fund, which amounts to $300,000. Fees Mot. at 6. Cf. In re Bluetooth, 654 F.3d at 942 (noting 25% as benchmark for fees). Class counsel represent that they incurred 427 hours of billable time, at rates ranging from $410 to $675 per hour. Fees Mot. at 13-14. According to counsel's calculations, their efforts in this case yield a lodestar of $217,575.50. Id. at 15. Counsel contend that the resulting 1.38 lodestar multiplier is reasonable considering the risk of non-payment, given that this case was litigated on a contingency basis. See Fees Mot. at 15.
The Court finds the fee request reasonable under both the percentage of fund and lodestar methods. First, the Court notes that class counsel are requesting less in fees than they were permitted to seek under the settlement agreement. Second, the 25% requested is the federal law benchmark and is thus presumptively reasonable. Third, the Court finds that the hours expended and rates charged on this matter were reasonable, and that the 1.38 multiplier is appropriate given the risk undertaken by class counsel in litigating this case on contingency. See Fischel v. Equitable Life Assur. Soc'y of U.S., 307 F.3d 997, 1008 (9th Cir. 2002) ("It is an established practice in the private legal market to reward attorneys for taking the risk of non-payment by paying them a premium over their normal hourly rates for winning contingency cases.") (internal quotation omitted). Therefore, the Court
Class counsel is also entitled to recover "those out-of-pocket expenses that would normally be charged to a fee paying client." Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994) (quotation omitted). Class counsel seeks reimbursement of $22,221.37 in out-of-pocket costs. Counsel has provided an itemized list of expenses, including filing fees, travel expenses, mediation expenses, postage, and printing. See Pyle Decl. Ex. B. The Court has reviewed the enumerated costs and find them to be reasonably incurred. Accordingly, the Court
Class counsel requests a $10,000 incentive award for Plaintiff Austin and a $7,500 incentive award for each of Plaintiffs Corduck, Dial, Gibson, and Smith. Fees Mot. at 16-17.
"[N]amed plaintiffs . . . are eligible for reasonable incentive payments." Staton, 327 F.3d at 977; see also Rodriguez, 563 F.3d at 958 ("Incentive awards are fairly typical in class action cases."). They are designed to "compensate class representatives for work done on behalf of the class, to make up for financial or reputational risk undertaken in bringing the action, and, sometimes, to recognize their willingness to act as a private attorney general." Rodriguez, 563 F.3d at 958-59. Nevertheless, the Ninth Circuit has cautioned that "district courts must be vigilant in scrutinizing all incentive awards to determine whether they destroy the adequacy of the class representatives." Radcliffe v. Experian Info. Solutions, Inc., 715 F.3d 1157, 1164 (9th Cir. 2013). This is particularly true where "the proposed service fees greatly exceed the payments to absent class members." Id. at 1165 (quotation omitted). The district court must evaluate an incentive award using "relevant factors includ[ing] the actions the plaintiff has taken to protect the interests of the class, the degree to which the class has benefitted from those actions, . . . [and] the amount of time and effort the plaintiff expended in pursuing the litigation." Staton, 327 F.3d at 977 (quotation omitted).
Courts in this district recognize that a $5,000 incentive award is "presumptively reasonable." Smith v. Am. Greetings Corp., No. 14-CV-02577-JST, 2016 WL 362395, at *10 (N.D. Cal. Jan. 29, 2016); see also Odrick v. UnionBancal Corp., No. C 10-5565 SBA, 2012 WL 6019495, at *7 (N.D. Cal. Dec. 3, 2012) (granting an award of $5,000 to plaintiff prosecuting a wage and hour class action); Harris v. Vector Mktg. Corp., No. C-08-5198 EMC, 2012 WL 381202, at *7 (N.D. Cal. Feb. 6, 2012) (observing that "as a general matter, $5,000 is a reasonable amount").
The Court finds that an incentive award of $10,000 for Austin and $5,000 each for the other named Plaintiffs is reasonable. Given that the average class member will receive approximately $3,500 from this settlement, these awards constitute a low multiplier as compared to the average class member. This low multiplier stands in stark contrast to some consumer class actions, where the multiplier may be in the hundreds and thus runs the risk of undermining adequacy. See, e.g., Esomonu v. Omnicare, Inc., No. 15-CV-02003-HSG, WL 499750, at *8 (N.D. Cal. Feb. 8, ') (approving $5,000 award to named plaintiff where class members would each receive $17.31). Further, class counsel has justified the larger award for Austin. Counsel explained at the final fairness hearing that Austin was integral to the initiation and successful prosecution of this lawsuit and that she took on personal and professional risk by searching for an attorney and recruiting co-workers to join the lawsuit while still employed by Foodliner. The Court also finds it noteworthy that Austin spent 80 hours working on this case (including attending the mediation) and felt the need to resign from Foodliner because she was the named Plaintiff. See Dkt. No. 55-2. However, counsel has not provided any particular reason why the other named Plaintiffs are deserving of an award greater than the presumptive one. Therefore, the Court awards $10,000 to Austin and $5,000 to the other named Plaintiffs.
For the foregoing reasons, the Court orders that:
The parties and settlement administrator are directed to implement this final order and the Settlement Agreement in accordance with the terms of the Settlement Agreement. The parties are directed to submit a joint proposed judgment by May 31, 2019.
