SUSAN ILLSTON, United States District Judge.
This minimum wage class action proceeded to trial and resulted in a $60.8 million common fund. Plaintiffs now move for an award of attorneys' fees and costs and incentive awards for the named plaintiffs. They seek $20,266,670.50 in attorneys' fees to be paid from the common fund, offset by an award of fees from Wal-Mart in the same amount through statutory fee-shifting. Dkt. No. 570, Mot. at 26. Plaintiffs further seek $220,149.89 in statutory costs to be paid by Wal-Mart and an additional $1,593,781.44 in expenses from the common fund. Dkt. No. 594, Reply at 2, App'x 2. Finally, they ask that the Court approve incentive awards of $50,000.00 to each of the nine class representatives. Mot. at 26.
Plaintiffs are truck drivers in California previously employed by defendant Wal-Mart Stores Inc. ("Wal-Mart") for some period of time between 1993 and the present. Dkt. No. 73, Fourth Amended Complaint ("FAC") ¶¶ 3-6. Plaintiffs initially filed this case in Alameda County Superior Court on October 10, 2008. Dkt. No. 1. Wal-Mart removed the case to this Court under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2), in November 2008. Id.
Following a three-year stay pending a final decision by the California Supreme Court in Brinker Restaurant Corporation v. Superior Court, Case No. S166350; class certification in September 2014; and motions for partial summary judgment brought by both parties, this case went to trial on October 27, 2016. Upon a stipulation by the parties to modify the class period, the class definition at the time of trial was: "All persons employed in California by Defendant in the position of Private Fleet Driver at any time from October 10, 2004 to October 15, 2015." Dkt. Nos. 406, 535 at 13.
Plaintiffs went to trial on their minimum wage claims, alleging that Wal-Mart violated California minimum wage law by failing to pay class members the minimum wage for eleven tasks. Trial lasted for sixteen days. Before the close of trial, Wal-Mart filed a motion for judgment as a matter of law, which the Court denied without prejudice. See Dkt. No. 502.
On November 23, 2016, the jury returned a verdict in plaintiffs' favor on four of the eleven tasks at issue, finding that class members were paid less than the minimum wage by Wal-Mart for some or all hours worked for: performing pre-trip inspections, performing post-trip inspections, taking 10-minute rest breaks, and taking 10-hour layovers. Dkt. No. 529.
The jury accepted the damages calculations set forth by plaintiffs' expert witness Dr. G. Michael Phillips and awarded damages to the class as follows:
Performing Pre-Trip Inspections: $2,971,220.00 Performing Post-Trip Inspections: $2,971,220.00 Taking 10-minute Rest Breaks: $3,961,975.00 Taking 10-hour Layovers: $44,699,766.00
Dkt. No. 529 at 3. These figures reflect the testimony that Dr. Phillips provided at trial regarding the class members' damages for each respective task for the October 10, 2005, to October 15, 2015 time period. See Dkt. No. 497, Tr. at 1524:1-13, 1528:24-1529:15, 1532:25-1533:6, 1582:3-10.
The jury also awarded damages to the individual named plaintiffs as follows:
Charles Ridgeway: $10,713.46 Jaime Famoso: $33,580.62 Joshua Harold: $110,678.23 Richard Byers: $10,623.75 Dan Thatcher: $5,315.36 Willie Franklin: $26,016.69 Tim Opitz: $49,822.94 Farris Day: $44,251.02 Karl Merhoff: $43,681.51
See Dkt. No. 529.
As discussed at trial, the Court submitted to the jury questions relevant to the calculation of civil penalties. For this purpose, the jury found that Wal-Mart intentionally failed to pay minimum wage to class members in any pay period from October 10, 2007, to October 15, 2015. Dkt. No. 529 at 4. The jury accepted the calculations of plaintiffs' expert Edward Garcia and found that Wal-Mart failed to pay minimum wage to class members for 103,221 pay periods from October 10, 2007, to October 15, 2015. See id.; Dkt. No. 492, Tr. at 1859:11-20, 1860:10-19.
The Court delayed entering judgment until the parties had the opportunity to brief the issues reserved for the Court. On January 25, 2017, the Court issued an Order granting in part and denying in part plaintiffs' post-trial motion. Dkt. No. 554. The Court granted plaintiffs' motion for restitution under the California Unfair Competition Law in the amount of $5,861,147.00. Id. at 8. The Court denied plaintiffs' motion for liquidated damages and for civil penalties under California Labor Code sections 1194.2 and 1197.1 respectively. Id. at 12, 17. The Court entered judgment that same day. Dkt. No. 555. On May 1, 2017, the Court denied defendant's motion for judgment as a matter of law and motion for new trial and decertification. Dkt. No. 577. Combining the class damages, individual damages, and restitution, plaintiffs recovered a total of $60,800,011.58.
Plaintiffs now move for attorneys' fees, costs, and incentive awards. Dkt. No. 570. Wal-Mart opposed, Dkt. No. 587, and plaintiffs filed a reply with revised timesheets and costs, Dkt. No. 594. Wal-Mart objected to evidence newly submitted with plaintiffs' reply brief. Dkt. No. 595. Following the hearing on July 28, 2017, the Court allowed the parties to file supplemental briefs. See Dkt. Nos. 602, 605.
California law governs plaintiffs' motion for fees. See Klein v. City of Laguna Beach, 810 F.3d 693, 701 (9th Cir. 2016) ("federal courts apply state law for attorneys' fees to state claims because of the Erie doctrine" (internal footnote omitted)); see also Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 2002). "Nevertheless, the Court may still look to federal authority for guidance in awarding attorneys' fees." MacDonald v. Ford Motor Co., No. 13-cv-2988-JST, 2016 WL 3055643, at *2 (N.D. Cal. May 31, 2016).
"This is a `hybrid' class action — it was initiated under a statute with a fee-shifting provision, but it reached a judgment creating a common fund." See Sobel v. Hertz Corp., 53 F.Supp.3d 1319, 1324 (D.
Before reaching the relevant substantive issues, the Court notes that Wal-Mart objects to plaintiffs' revised fee calculations submitted with their reply brief. These revised fees reflect: (1) additional work performed between the filing of the instant motion and the date of reply, including work related to post-trial motions; (2) the removal of time entries related to the preparation of the instant fee motion; and (3) itemized entries of the time of plaintiffs' counsel Lawrence Artenian. Reply at 1. Wal-Mart objects primarily to Mr. Artenian's time records, arguing that plaintiffs have improperly submitted new evidence in their reply, depriving it of the opportunity to respond in the first instance. Dkt. No. 595, Objections. In response, plaintiffs assert the reply evidence is not "new," but is rather responsive to the arguments raised in Wal-Mart's opposition brief. Dkt. No. 600, Tr. at 4:15-7:20.
The Court finds it appropriate to consider the evidence provided by plaintiffs with their reply. Cf. In re Washington Public Power Supply Sys. Sec. Litig. ("In re WPPSS"), 19 F.3d 1291, 1306 (9th Cir. 1994) (finding district court abused its discretion in refusing to reconsider its initial fee decision where moving party provided more detailed records in support of fee request). The Court has allowed the parties to file supplemental briefs, thus ensuring that Wal-Mart had an opportunity to respond to all evidence submitted with plaintiffs' fee request. The Court addresses the matter of Mr. Artenian's time further below.
Plaintiffs move for fees under a California fee-shifting statute and the common fund doctrine. Plaintiffs seek to recover attorneys' fees of $20,266,670.50,
"`[F]ee shifting' refers to an award under which a party that did not prevail in the litigation is ordered to pay fees incurred by the prevailing party." Laffitte v. Robert Half Int'l Inc., 1 Cal.5th 480, 489, 205 Cal.Rptr.3d 555, 376 P.3d 672 (2016). As applicable here, the California Labor Code provides that "any employee receiving less than the legal minimum wage ... applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage ..., including ... reasonable attorney's fees, and costs of suit." Cal. Labor Code § 1194(a). Under a fee-shifting statute, courts typically use the "lodestar method," which "calculates the fee by multiplying the number of hours reasonably expended by counsel by a reasonable hourly rate." Laffitte, 1 Cal.5th at 489, 205 Cal.Rptr.3d 555, 376 P.3d 672. Courts may then apply a positive or negative multiplier. Id.
Wal-Mart does not contest that, based on the outcome at trial, plaintiffs are entitled to statutory fees under California Labor Code section 1194. Further, both sides acknowledge that use of the lodestar method is the appropriate method for determining the amount of statutory fees here. See Mot. at 15 ("Plaintiffs' statutory fees under California law are almost always determined by the lodestar/multiplier method set out in Serrano v. Priest, 20 Cal.3d 25, 48, 141 Cal.Rptr. 315, 569 P.2d 1303 (1977)"); Dkt. No. 600, Tr. at 25:17-26:5 (Wal-Mart advocating for use of the lodestar approach in fee-shifting cases). The Court will determine the lodestar, multiplying the number of hours reasonably spent on the litigation by a reasonable hourly rate, and will then examine whether a multiplier is warranted.
Plaintiffs' counsel submitted declarations and time records showing that they spent over 10,000 hours on this case. This chart reflects plaintiffs' revised hours submitted with their reply brief, with the exception of Mr. Artenian's hours, which the Court caps at 1200, as explained further below:
Name Position Admission Years Rate Hours Fees Jacob Weisberg Partner 1971 46 900 435.65 $392,085.00 Andrew Jones Partner 1977 40 890 969.3 $862,677.00 Stanley Saltzman Partner 1979 38 870 805.7 $700,959.00 Lawrence Artenian Partner 1981 36 850 1200.0 $1,020,000.00 Nicholas Wagner Partner 1983 34 830 1454.1 $1,206,903.00 Daniel Kopfman Partner 1997 20 730 2121.2 $1,548,476.00 Ralph MacMichael Sr. Associate 1980 37 700 134.9 $94,430.00 Stephen O'Dell Sr. Associate 1988 29 670 100.7 $67,469.00 William "Tony" Sr. Associate 1998 19 610 131.2 $80,032.00 Baird David Lee Associate 2006 11 500 547.5 $273,750.00 Russell Myrick Associate 2010 7 500 1175.4 $587,700.00 David Leimbach Associate 2010 7 450 2.0 $900.00 Jennifer Vagle Associate 2011 6 425 64.7 $27,497.50 Angela Martinez Associate 2014 3 410 704.0 $288,640.00 Cody Kennedy Associate 2014 3 355 2.3 $816.50 Laura Brown Associate 2015 4 330 83.6 $27,588.00 Amanda Kendzora Associate 2016 1 300 92.9 $27,870.00 Susan Joseph Sr. Paralegal - - 225 21.5 $4,837.50 Jennifer Davis Paralegal - - 195 32.0 $6,240.00 Laurel Fairley Paralegal - - 195 491.15 $95,774.25 Michelle Vasquez Law Clerk - - 225 26.0 $5,850.00Total Hours: 10,595.8Total Fees: $7,320,494.75
See Reply, App'x 1.
To determine whether counsel's hourly rates are reasonable, the Court looks to the "hourly amount to which attorneys of like skill in the area would typically be entitled." Ketchum v. Moses, 24 Cal.4th 1122, 1133, 104 Cal.Rptr.2d 377, 17 P.3d 735 (2001). "The fee applicant has the burden of producing satisfactory evidence, in addition to the affidavits of its counsel, that the requested rates are in line with those prevailing in the community for similar services of lawyers of reasonably comparable skill and reputation." Jordan v. Multnomah Cty., 815 F.2d 1258, 1263 (9th Cir. 1987). Similarly, Civil Local Rule 54-5(b)(3) requires the party seeking a fee award to submit "[a] brief description of relevant qualifications and experience and a statement of the customary hourly charges of each such person or of comparable prevailing hourly rates or other indication of value of the services."
In support of their hourly rates, plaintiffs submitted declarations from counsel Artenian, Jones, Wagner, Saltzman, and Weisberg discussing their qualifications and those of other firm members. Dkt. Nos. 570-1, 570-2. They also provided declarations by outside attorneys Richard Pearl and Guy B. Wallace attesting to the reasonableness of the hourly rates sought. Dkt. Nos. 570-3, 570-4. The Pearl Declaration in particular lays out the non-contingent market rates charged by attorneys in California and approved by courts in this district and by other California courts over the last few years. Pearl Decl. ¶ 33 (citing, inter alia, Cotter v. Lyft Inc., No. 13-cv-4065-VC, 2017 WL 1033527 (N.D. Cal. Mar. 16, 2017) Order Granting Final Approval of Settlement Agreement (Dkt. No. 310) (approving hourly rates of $800 for class of 1996, $500 for class of 2010, $325 for class of 2014, and $200 paralegal rate); Nat'l Fed'n of the Blind of Cal. v. Uber Techs., Inc., No. 14-cv-4086-NC (N.D. Cal. Dec. 6, 2016) Order Granting Final Approval and Attorneys' Fees (Dkt. No.
Wal-Mart does not argue that these hourly rates, standing alone, are unreasonable. Rather, it asks the Court to reduce the hourly rates based on what it terms as unreasonable billing practices. See Opp'n at 7. In light of the evidence submitted, the Court finds that the hourly rates plaintiffs seek are reasonable. The Court addresses the question of plaintiffs' billing practices below.
Under California law, "absent circumstances rendering the award unjust, an attorney fee award should ordinarily include compensation for all the hours reasonably spent, including those relating solely to the fee." Ketchum, 24 Cal.4th at 1133, 104 Cal.Rptr.2d 377, 17 P.3d 735. "A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether." Id. at 1137, 104 Cal.Rptr.2d 377, 17 P.3d 735 (quoting Serrano v. Unruh, 32 Cal.3d 621, 635, 186 Cal.Rptr. 754, 652 P.2d 985 (1982) ("Serrano IV")). "[T]rial courts must carefully review attorney documentation of hours expended; `padding' in the form of inefficient or duplicative efforts is not subject to compensation." Ketchum, 24 Cal.4th at 1132, 104 Cal.Rptr.2d 377, 17 P.3d 735 (citing Serrano v. Priest, 20 Cal.3d 25, 48, 141 Cal.Rptr. 315, 569 P.2d 1303 (1977) ("Serrano III")). "[T]he trial court has broad authority to determine the amount of a reasonable fee." PLCM Group v. Drexler, 22 Cal.4th 1084, 1095, 95 Cal.Rptr.2d 198, 997 P.2d 511 (2000).
Wal-Mart contends that plaintiffs' fee application is unreasonably inflated, and raises numerous objections to the reasonableness of the hours spent by plaintiffs' counsel.
Plaintiffs contend that discovery was voluminous: "the class collectively served more than 200 Requests for Admission (ten sets), 139 Requests for Production (seventeen sets), and 26 Special Interrogatories (six sets), as well as responding to Wal-Mart's initial sets of pre-certification discovery." Mot. at 4. Wal-Mart produced over 30,000 Bates numbered documents, in addition to electronic data. Id. Over 80 class-member depositions were taken throughout California, as well as several Rule 30(b)(6) depositions. Id.
The parties greatly disagree on the history of electronic discovery ("ESI") in this case. Plaintiffs characterize their pursuit of ESI as a "wild goose chase," asserting that "it wasn't until July 1, 2016, after expert disclosure, that Defense Counsel produced class-wide electronically stored data of trip activities, locations, and compensation." Mot. at 4; Dkt. No. 605-2, Supp. Decl. of Daniel Kopfman ¶ 24. Wal-Mart states that it produced electronic records on February
In response, plaintiffs agree that some ESI was produced in 2015 and early 2016, but state that such production was incomplete. Kopfman Supp. Decl. ¶¶ 11-24. As a result, plaintiffs' counsel had to seek records in paper format housed in Wal-Mart's three trucking distribution centers in California. Mot. at 4-5;. Kopfman Supp. Decl. ¶ 7 (over 600 boxes of materials). Plaintiffs' counsel and a third-party copying service made several visits to retrieve the files for sampling. Mot. at 4-5. After plaintiffs' experts hand-entered relevant data into a database, defense counsel found and produced the complete electronic files. Id.
Wal-Mart has not persuasively shown that the time spent pursuing electronic discovery was "needless." The sampling project would have been necessary if the complete electronic records had not ultimately been produced. The Court finds that the time spent by plaintiffs in reviewing paper copies of records and creating a sampling project is compensable, particularly in light of the parties' ongoing dispute over ESI, and will not discount plaintiffs' hours in this area.
Wal-Mart contends that over 1,000 of plaintiffs' time entries (equal to $587,527.50) are too vague and imprecise to be credited. Opp'n at 7; Dkt. No. 589, Decl. of Rachel S. Brass ¶ 9, Ex. A. Wal-Mart points to entries totaling over 175 hours to "talk with [name]" or "confer with [name]," without describing the issues discussed. Brass Decl. ¶ 10. Other entries include "review correspondence," "confer with experts," "prepare for meeting," and "email review." Id. ¶ 11. Additionally, while some entries for research describe the relevant topic, others simply state "research," "research re superior court case," "case law research" and "emails with [name] regarding research." Id. ¶ 12.
California law does not require that attorneys keep detailed fee logs in order to obtain an award of attorneys' fees. Chavez v. Netflix, Inc., 162 Cal.App.4th 43, 65, 75 Cal.Rptr.3d 413 (2008) (citing Wershba v. Apple Comp., Inc., 91 Cal.App.4th 224, 254-55, 110 Cal.Rptr.2d 145 (2001)) ("detailed time sheets are not required of class counsel to support fee awards in class action cases"). For instance, California courts may approve fee awards that are based not on detailed time entries but on the trial court's own analysis using its experience and history with the work performed in that particular case. See East West Bank v. Rio Sch. Dist., 235 Cal.App.4th 742, 750, 185 Cal.Rptr.3d 676 (2015). California courts have also approved fee awards based on declarations describing the hours worked on various tasks, without providing underlying time records of the hours worked and the type of work performed. See Lunada Biomedical v. Nunez, 230 Cal.App.4th 459, 487-88, 178 Cal.Rptr.3d 784 (2014).
In its opposition, Wal-Mart cites one California case in which the court reduced fees for vague time entries. See Opp'n at 7 (citing Christian Research Inst. v. Alnor, 165 Cal.App.4th 1315, 81 Cal.Rptr.3d 866 (2008)). There, the trial court reduced the compensable time from more than 600 hours to 71 hours, where counsel sought fees under California's anti-SLAPP statute. Christian Research Inst., 165 Cal. App.4th at 1318, 81 Cal.Rptr.3d 866. Although that law provided fees only for time spent on the anti-SLAPP motion to
The Court finds Christian Research Institute to be distinguishable, given the limited scope of the anti-SLAPP fee provision and the cumulative problems with counsel's fee records in that case. Although the Court agrees with Wal-Mart that certain portions of plaintiffs' billing records are problematic, the Court addresses those issues in turn in this Order. However, because it is within the Court's discretion to award fees under California law on methods other than a line-by-line scrutiny of detailed billing logs, the Court will not reduce the lodestar on the general ground of vagueness.
Wal-Mart claims that plaintiffs' counsel seek fees for 1,196 0.1-hour and 813 0.2-hour time entries, totaling 282.2 hours (equal to $189,451.50). Opp'n at 8; Brass Decl. ¶¶ 14-17, Ex. A. In addition, Mr. Artenian's time submitted in reply reflects 29 0.1-hour entries and 64 0.2-hour entries. Def.'s Sur-Reply at 8. Wal-Mart argues that, "[b]y billing every phone call, email, review of notice from the Court as a separate 0.1- or 0.2-hour entry, Plaintiffs' counsel appear to have inflated their lodestar by a six-figure margin." Opp'n at 8. As examples, Wal-Mart notes that Mr. Kopfman "billed 3.2 hours to review 32 nearly-identical deposition notices, but billed each individual notice as a separate 0.1-hour entry." Brass Decl. ¶ 15. Mr. Kopfman also billed 0.1 hours to "Review Notice of appearance of Edelman, Wong, and Brass," but submitted additional 0.1 hour entries to review each of these appearances separately. Id. ¶ 16.
Upon review of plaintiffs' time entries, it appears that many of the complained of entries could reasonably have taken the full amount of time billed, and thus need not be consolidated. The Court will discount Mr. Kopfman's time by $219.00 for the duplicative entries in reviewing the notices of appearance for Mr. Edelman, Mr. Wong, and Ms. Brass.
Wal-Mart next argues plaintiffs' time entries include 336 instances of block billing equal to over 900 hours. Opp'n at 9; Brass Decl. ¶ 18, Ex. A. "Block billing" refers to "the time-keeping method by which each lawyer and legal assistant enters the total daily time spent working on a case, rather than itemizing the time expended on specific tasks." Mendez v. Cty. of San Bernardino, 540 F.3d 1109, 1129 n.2 (9th Cir. 2008) (quoting Welch v. Metro. Life Ins. Co., 480 F.3d 942, 945 n.2 (9th Cir. 2007)). There is "consistent precedent in California cases that provide trial courts with the discretion about whether to penalize block billing." Heritage Pac. Fin., LLC v. Monroy, 215 Cal.App.4th 972, 1010 n.6, 156 Cal.Rptr.3d 26 (2013). Block billing may be of more concern in cases where only certain motions or certain violations allow for statutory fees. See, e.g., Bell v. Vista Unified Sch. Dist., 82 Cal.App.4th 672, 98 Cal.Rptr.2d 263 (2000) (reversing fee award where block billing made it impossible to know which time to attribute to Brown Act violation, for which fees were
The Court has reviewed the time entries at issue, in which counsel include multiple tasks within a single time entry. For instance, Mr. Artenian's November 4, 2016 time entry states: "Review depositions; extensive notes preparing direct examinations" for 7.5 hours. Artenian Decl. Ex. A at 51. The Court finds such time to be reasonably billed to this case and therefore compensable. The Court will not reduce plaintiffs' fees due to block billing.
Overlapping with its block billing contentions, Wal-Mart argues that several entries include "unspecified travel time," totaling 1,466.2 hours ($1,054,704.00). Opp'n at 9; Brass Decl. ¶ 19. Wal-Mart contends that plaintiffs' choice "not to engage local Bay Area counsel unreasonably resulted in hundreds of hours in transit between Fresno, CA and San Francisco, CA — at 3 to 3.5 hours each way — for every hearing or status conference often multiplied across multiple attorneys." Opp'n at 10. For instance, during trial, Mr. Wagner, Mr. Artenian, Mr. Saltzman, Mr. Kopfman, and Ms. Martinez billed 154.5 hours on travel time between San Francisco and their homes. Brass Decl. ¶¶ 23-24. On October 16, 2015, Mr. Jones attended a 5-minute discovery hearing, but billed 13 hours with his travel time included. Id. ¶ 22; Artenian Decl. Ex. A at 41; Dkt. No. 234. Plaintiffs respond that they did not know the hearing would be so short and that on days when travel to court was required, Mr. Jones typically left Fresno early to account for traffic, driving breaks, file review, and waiting time at court. Jones Reply Decl. ¶ 10. Plaintiffs also argue that their travel time "invariably, included extensive discussions to prepare for the hearing or event they were traveling to." Reply at 10.
In support of their respective positions, the parties have cited to two decisions from this Court. In Alvarado v. FedEx Corporation., this Court deducted from the moving party's lodestar travel time spent driving between San Francisco and Fresno, noting that "[a]lthough paying clients routinely pay for occasional travel time for out of town depositions, settlement conferences, or court hearings, here the `travel' at issue is more properly characterized as a lengthy (4.5 hours each way) commute that should be absorbed into [counsel's] overhead." Nos. 04-cv-0098-SI, 04-cv-0099-SI, 2011 WL 4708133, at *18 (N.D. Cal. Sept. 30, 2011). In Transbay Auto Service v. Chevron U.S.A., Inc., the Court declined to reduce fees related to travel time because (1) some of the travel entries also included preparation time and meetings with clients, and (2) the complained of travel time constituted less than ten percent of the total number of hours billed for the entire case. No. 09-cv-4932 SI, 2013 WL 843036, at *7 (N.D. Cal. Mar. 6, 2013). Where the entries block billed "travel time with the time spent performing the substantive task such as preparing and taking a deposition, or attending the pretrial conference," the Court found that "the time recorded as time spent conducting activities in furtherance of the litigation [was] not inconsistent with the time entries themselves." Id. at *6.
The circumstances here present a combination of the above cases. Like Alvarado, plaintiffs' counsel have commuting expenses between San Francisco and their homes outside the Bay Area. But like Transbay Auto Service, many of their entries
A court may "exclude excessive, redundant and unnecessary hours when calculating a lodestar." Kerkeles v. City of San Jose, 243 Cal.App.4th 88, 101, 196 Cal.Rptr.3d 252 (2015). Wal-Mart asserts that plaintiffs assigned multiple law firms and attorneys to do the same work, such that $502,422.50 of the fees sought are redundant. Opp'n at 10; Brass Decl. ¶ 25. For instance, Wal-Mart notes that seven attorneys spent a total of 33.1 hours to review and summarize the depositions of Ann Wilson Dyer and Rick Aurit, but that the total time for the depositions was 11 hours. Brass Decl. ¶ 26. Wal-Mart also attacks the hours of Mr. Weisberg, who it says spent 239.7 hours reviewing briefs or summarizing depositions, and that many of his time entries do not include a date. Id. ¶¶ 30-31. Wal-Mart further notes that Mr. Myrick "has more than 200 identical pairs of time entries for June and December 2015," and Mr. Lee "submitted seven identical pairs of time entries." Opp'n at 11; Brass Decl. ¶¶ 30-33.
In response, plaintiffs assert that Ms. Dyer and Mr. Aurit testified as Wal-Mart's "persons most knowledgeable" under Rule 30(b)(6) "regarding critical litigation topics," and that it would be unreasonable for counsel to prepare for a class action trial without reviewing their depositions more than once. Reply at 10. Plaintiffs also state that Mr. Lee's and Mr. Myrick's entries are not duplicates but "rather represent the same task performed more than once at different times." Id. at 11.
The Court declines to find that much of the time Wal-Mart has identified, including time reviewing and summarizing the depositions, was unnecessary or excessive. In cases of this length and magnitude, there will be duplication of efforts; "it is inherent in the process of litigating over time." See Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). As to Mr. Weisberg's hours, the Court reads his time records not as undated but as entries for work performed on the same day as the entry listed above. See Dkt. No. 570-2, Artenian Decl. Ex. 2 at 115-125. Nor will the Court discount his hours based on alleged redundancy. Plaintiffs have volunteered to exercise a five percent across-the-board reduction of their lodestar. Mot. at 17, App'x 1. Such a reduction accounts for just the sort of excess and redundancy that Wal-Mart targets.
However, the Court is troubled by the duplicative entries for Mr. Myrick and Mr. Lee. The Court finds plaintiffs' explanation, that these attorneys performed the same tasks more than once, implausible. Several of Mr. Lee's entries repeat the same described task, for the same amount of time, on the same day. Mr. Myrick's entries are even more concerning. Mr. Myrick's December 2015 time entries are
Wal-Mart points out several incorrect time entries. For instance, Mr. Kopfman submitted a June 2, 2010 time entry for 0.3 hours to review responses to Requests for Admission, and a June 10, 2010 time entry for 1 hour to review discovery responses. Brass Decl. ¶ 49. However, "[n]o written discovery was served in this case until July 10, 2013." Id. Mr. Kopfman also submitted a December 4, 2010 time entry for 1.3 hours for a case management conference appearance, but no such conference was held in 2010. Id. Accordingly, the Court deducts $1,898.00 for this time.
Wal-Mart claims that plaintiffs' counsel failed to assign the appropriate level of timekeeper to various projects because partners make up 64% of billable time and 77% of the requested fees. Opp'n at 11; Brass Decl. ¶ 34, Ex. A. Wal-Mart asserts that partners spent too much time on deposition summaries, reviewing standing orders and local rules, and the initial drafting of motions, rather than assigning such tasks to paralegals or associates. Opp'n at 12. It also notes that Mr. Myrick spent 16.4 hours to "review and organize official opt-out list" and to "update client interview schedule" and "action item list," rather than assigning such tasks to a paralegal or claims administrator. Id. Wal-Mart requests that the Court reduce plaintiffs' fees by $147,305.00 to account for such "inappropriate" timekeeping. Id.
Although Wal-Mart identifies two cases where district courts have reduced fees when associates could have performed tasks completed by partners,
Wal-Mart also claims that plaintiffs' counsel's time includes "over 70 hours ($40,828.00) of secretarial or clerical tasks not compensable as attorneys' fees — including work to prepare their time entries." Opp'n at 12; Brass Decl. ¶ 40 & Ex. A.
Wal-Mart properly highlights billing for calendaring and scheduling, scanning, securing rental cars and other travel arrangements, reviewing invoices, and downloading PDF orders onto an iPad, among other things, as clerical tasks. See Brass Decl. Ex. A. However, the Court finds that Wal-Mart incorrectly characterizes $26,024.00 worth of time as administrative or clerical. For instance, it is reasonable to award attorneys' fees for time spent updating a spreadsheet of class
Wal-Mart next contends that at least two timekeepers failed to keep contemporaneous records, noting that the time entries submitted for Mr. Wagner and Mr. Jones were "reconstructed from email logs in preparation for this motion." Opp'n at 13. Wal-Mart points to the logs of Ms. Brown, who included time for work on Mr. Wagner and Mr. Jones's timesheets. Plaintiffs contend that Ms. Brown conducted a cross-check to ensure consistency, remove duplicate time, and check for over-billing. Reply at 12. Plaintiffs state this cross-check included reference "to a database of contemporaneous, date-stamped digital records including documents, memos, and more than 20,000 emails." Id.
California courts do not require that fee logs be contemporaneously maintained as a prerequisite for an award of fees. See, e.g., PLCM Group, 22 Cal.4th at 1096 n.4, 95 Cal.Rptr.2d 198, 997 P.2d 511. Wal-Mart acknowledges that contemporaneous time records are not required, but notes that they are "preferred." Opp'n at 13. The Court finds it to be unclear from the record whether plaintiffs in fact did not maintain contemporaneous fee logs. Because contemporaneity is not a requirement in any event, the Court finds no reason to reduce plaintiffs' fee request on this basis.
With their initial motion, plaintiffs requested fees for 1,200 hours of Mr. Artenian's time. Mot., App'x 1. Mr. Artenian declared that he "worked well over 1200 hours on this case," but stated, "As to my own time, we are using only 1200 hours. I believe that 1200 hours represents at least a 33 1/3 percent discount off of my actual time (probably much more)." Artenian Decl. ¶ 39. In addition to his declaration, Mr. Artenian provided time entries for his time in 2014 and for the trial period in 2016 between jury selection and verdict. Id. To support the remainder of his time, Mr. Artenian listed in his declaration approximations of time spent on various tasks, such as reading and annotating deposition transcripts; preparing for, traveling to and attending depositions; meeting with and preparing expert witness; researching and preparing briefs for various motions, and traveling for their respective hearings; and many other tasks. Id. He declared that he believed this summary complied with Civil Local Rule 54.5(a)(2), but offered to provide more detail should the Court wish. Id.
In opposition, Wal-Mart noted that Mr. Artenian's submitted time entries reflected only 623.1 hours, and argued that Mr. Artenian should only be allowed to recover for the time supported by those entries. Opp'n at 6. To address Wal-Mart's argument, Mr. Artenian then submitted in reply itemized entries of his time, totaling 1,842.8 hours. Artenian Reply Decl.; Reply, App'x 1. Setting aside Wal-Mart's objections regarding improper reply evidence, which the Court has already
As the Court has previously noted, California courts have approved statutory fee awards based on declarations from counsel regarding the number of hours worked. See, e.g., Lunada, 230 Cal.App.4th at 487-88, 178 Cal.Rptr.3d 784. When Wal-Mart objected that Mr. Artenian had submitted a declaration without documenting each of the 1,200 hours he sought, plaintiffs filed supporting documentation to show that 1,200 hours did in fact represent a roughly 1/3 discount on Mr. Artenian's hours, as he had declared. The Court will not cut Mr. Artenian's hours down to 623.1.
Nevertheless, the Court will not award the full 1,842.8 hours for Mr. Artenian that plaintiffs now seek in their reply brief. If plaintiffs had wanted to include those hours in their lodestar, then they should have sought them in their fee motion in the first instance. For that reason, the Court here calculates plaintiffs' lodestar as including 1,200 hours for Mr. Artenian, at his hourly rate of $850. Lastly, plaintiffs' supplemental reply brief concedes that there is a duplicate 1.9-hour entry in Mr. Artenian's time sheets. Pls.' Supp. Reply at 7. In light of Mr. Artenian's $850 hourly rate, the Court reduces the lodestar by $1,615.00 for this duplicate entry.
Wal-Mart argues that it should not pay for time that plaintiffs spent on claims or theories where this Court ruled in Wal-Mart's favor or where plaintiffs abandoned the claims. Opp'n at 14. "This includes time relating to drafting and researching withdrawn motions as well as Plaintiffs' unsuccessful post-trial motion seeking liquidated damages and civil penalties under Labor Code sections 1194.2 and 1197.1, motion to compel site inspections, and motion to remand." Id. Wal-Mart also requests the Court reject "Plaintiffs' entries relating to their abandoned claim for waiting time penalties under Labor Code section 203 or time spent drafting amended complaints to which Wal-Mart never responded (including a never-filed fifth amended complaint)." Opp'n at 14. In total, Wal-Mart requests that 183.3 hours be deducted from the lodestar. Id. at 15.
"If a plaintiff has prevailed on some claims but not others, fees are not awarded for time spent litigating claims unrelated to the successful claims, and the trial court `should award only that amount of fees that is reasonable in relation to the results obtained.'" Chavez v. City of Los Angeles, 47 Cal.4th 970, 989, 104 Cal.Rptr.3d 710, 224 P.3d 41 (2010). However, "fees are not reduced when a plaintiff prevails on only one of several factually related and closely intertwined claims." Id. In Chavez, the California Court of Appeal affirmed a lower court's denial of fees for unsuccessful claims that were not "closely related to or factually intertwined with" the plaintiff's successful claim, and where plaintiff's successful claim did not have "any broad public impact or resulted in significant benefit to anyone other than [plaintiff]." Id. at 990, 104 Cal.Rptr.3d 710, 224 P.3d 41.
The Court finds that the majority of time Wal-Mart seeks to exclude is properly calculated as part of the lodestar. Although plaintiffs dropped their claims regarding Labor Code section 203, for instance, those claims were "factually related
The Court agrees with Wal-Mart, however, that time spent pursuing the meal break claim under Labor Code section 226.7 was not related to the ultimately successful minimum wage claim. The Court granted Wal-Mart's motion for summary judgment on this claim as to five of the named plaintiffs, and plaintiffs did not pursue this claim further. See Dkt. No. 143 at 4. Because this claim was based on a different legal theory and a different set of facts from the one on which plaintiffs prevailed, the Court will deduct from the lodestar the $5,331.00 that Wal-Mart has identified as time spent solely on the section 226.7 claim.
Wal-Mart asserts that plaintiffs request fees to attend continuing legal education credit seminars and to learn about "legal updates" from other class action plaintiffs' counsel. Opp'n at 15. Wal-Mart cites time entries from three dates, for the following activities: (1) on February 25, 2014, a "conference re class action developments," (2) on May 2, 2014, a conference with other plaintiffs' attorneys, and (3) on January 26, 2011, an "email string re Dukes and experts in class action researched [sic]." Brass Decl. ¶ 51. These events total 41.9 hours of attorney time. Id. Plaintiffs dispute Wal-Mart's characterization, arguing that class counsel did not bill for any CLE events, but rather that they "scheduled a `war room' meeting with other experienced class action attorneys to evaluate potential strategies in this case." Reply at 14. Based on a review of the contested time entries, the Court finds that the time spent on these activities is reasonable and therefore compensable.
Wal-Mart asserts that plaintiffs included nearly 1,000 hours for telephoning drivers who did not play a role in this case. Opp'n at 15; Brass Decl. ¶¶ 52-55. This time includes calls to drivers who wanted to opt out or who were never deposed or testified in this case. Opp'n at 15. Wal-Mart argues that this time was not "reasonably expended on the litigation" and asks the Court to reduce the lodestar by $187,400.00. Id. at 15-16 (quoting Webb v. Bd. of Educ. of Dyer Cty., 471 U.S. 234, 242, 105 S.Ct. 1923, 85 L.Ed.2d 233 (1985)). Plaintiffs argue that this time is compensable, stating, "it is absurd to suggest that counsel will know which witnesses to depose or call at trial without speaking to them first." Reply at 14.
The Court agrees with plaintiffs that this time is compensable. The California Court of Appeal has noted that "[c]ompensation should not be strictly limited to efforts that were demonstrably productive." Thayer, 92 Cal.App.4th at 839, 112 Cal.Rptr.2d 284. Although not all the time spent calling drivers was "demonstrably productive," it was nonetheless an important
Plaintiffs spent 96.4 hours (or $73,988.00) researching and lobbying against proposed legislation called the Denham Amendment. See Opp'n at 16; Brass Decl. ¶ 56. Wal-Mart argues that "it should not pay for meetings with lobbyists or `preparing for Senate Commerce Meeting on FAAAA [Federal Aviation Administration Authorization Act]'"
The Court will not include time spent on lobbying activities in calculating plaintiffs' lodestar. Although courts may award attorneys' fees for lobbying where "directly and intimately related to the successful representation of a client," the activities here are not so directly related to plaintiffs' case as to be properly included in their claim for statutory fees. See Davis v. City & Cty. of San Francisco, 976 F.2d 1536, 1545 (9th Cir. 1992), vacated in part on other grounds by 984 F.2d 345 (9th Cir. 1993). Rather, the Court has factored the threat posed by the potential passage of the Denham Amendment as one of the contingent risks in this case that warrant a positive multiplier, as outlined below. For that reason, the Court will deduct $73,988.00 for plaintiffs' lobbying activities.
Taking into account the above deductions brings plaintiffs' lodestar to $6,833,328.55. Including the five percent across-the-board reduction that plaintiffs have offered to make on their lodestar, the lodestar is now $6,491,662.12. The Court now considers whether it is appropriate to apply a multiplier.
Although both federal and California laws allow for multipliers, "California does not follow the approach to fee awards adopted by the federal courts.... As a result, an upward or downward adjustment from the lodestar figure will be far more common under California law than federal law." Weeks v. Baker & McKenzie, 63 Cal.App.4th 1128, 1173, 74 Cal.Rptr.2d 510 (1998). California law provides that while "the unadorned lodestar reflects the general local hourly rate for a fee-bearing case; it does not include any compensation for contingent risk, extraordinary skill, or any other factors a trial court may consider[.]" Ketchum, 24 Cal.4th at 1138, 104 Cal.Rptr.2d 377, 17 P.3d 735. "Once the court has fixed the lodestar, it may increase or decrease that amount by applying a positive or negative `multiplier' to take into account a variety of other factors, including the quality of the representation, the novelty and complexity of the issues, the results obtained, and the contingent risk presented." Laffitte, 1 Cal.5th at 489, 205 Cal.Rptr.3d 555, 376 P.3d 672; see also Ketchum, 24 Cal.4th at 1132, 104 Cal.Rptr.2d 377, 17 P.3d 735 (noting that court may also consider "the extent to which the nature of the litigation precluded other employment by the attorneys"). "The purpose of such an adjustment is to fix a fee at the fair market value for the particular action. In effect, the
Plaintiffs contend that a multiplier of at least 2.71
Plaintiffs' counsel argue that they took a "huge financial risk," with over 11,000 hours of attorney and paralegal time, plus $1.7 million in out of pocket expenses, that would go unpaid unless counsel won the case. Mot. at 20. An enhancement based on contingent risk "is intended to approximate market-level compensation for such services, which typically includes a premium for the risk of nonpayment or delay in payment of attorney fees." Ketchum, 24 Cal.4th at 1138, 104 Cal.Rptr.2d 377, 17 P.3d 735. A court should "consider the degree to which the relevant market compensates for contingency risk." Id. "A lawyer who both bears the risk of not being paid and provides legal services is not receiving the fair market value of his work if he is paid only for the second of these functions." Graham v. DaimlerChrysler Corp., 34 Cal.4th 553, 580, 21 Cal.Rptr.3d 331, 101 P.3d 140 (2004), as modified (Jan. 12, 2005).
Wal-Mart argues that the lodestar already accounts for any contingent risk because plaintiffs' counsel seek fees based on their current hourly rates rather than the rates in effect at the time the work was performed. Opp'n at 18. However, the utilization of current hourly rates may ameliorate the delay in payment of fees that counsel experienced. See Graham, 34 Cal.4th at 584, 21 Cal.Rptr.3d 331, 101 P.3d 140. The problems presented by delayed payment, such as "cash-flow problems for the attorneys," are distinct from those presented by the contingent risk factor, which accounts for "the risk of default (the loss of the case, which cancels the debt of the client to the lawyer)." See id. at 580, 21 Cal.Rptr.3d 331, 101 P.3d 140. While an enhancement for delay of payment "may be reduced or eliminated if the
"The `results obtained' factor can properly be used to enhance a lodestar calculation where an exceptional effort produced an exceptional benefit." Graham, 34 Cal.4th at 582, 21 Cal.Rptr.3d 331, 101 P.3d 140. Perhaps unsurprisingly, the parties differ in their respective characterizations of the results obtained. Plaintiffs contend that they recovered just above 75 percent of what they sought from the jury. Reply at 3. Additionally, they note that the $60.8 million judgment is one of the five largest verdicts in an off-the-clock wage and hour case. Wallace Decl. ¶ 9. These results confer a substantial benefit to the class members, who on average will recover $70,000.00 each. Mot. at 1.
Wal-Mart, on the other hand, contends that plaintiffs recovered less than 25 percent of what they originally sought, when taking into account summary judgment rulings and plaintiffs' abandonment of several causes of action. Opp'n at 5. It also states that plaintiffs' expert valued this case at more than $242 million, including unpaid wages, penalties, and liquidated damages. Id. (citing Dkt. No. 366-3). In addition, plaintiffs were denied the $86 million sought in restitution, liquidated damages, and civil penalties.
The Court finds this factor to be neutral. Although plaintiffs obtained a significant win at trial, they did not succeed on all of the claims that they brought in this case, nor did they obtain a jury award on all of the tasks for which they alleged minimum wage violations. While the average recovery of $70,000.00 per class member is sizeable, the Court finds that other factors, such as the contingent risk and the complexity of the case, weigh more strongly in favor of a multiplier.
Plaintiffs note several aspects of this case that it believes were novel, difficult, and complex. For instance, it asserts that class certification was unique because of the age of this action and Wal-Mart's efforts to decertify the class. It also claims that discovery imposed a significant burden, as did the numerous dispositive motions raising difficult questions regarding preemption, class certification, and the California Labor Code. And unlike many class actions, this case did not settle but proceeded to a lengthy trial. Mot. at 10-11.
Wal-Mart, on the other hand, contends that this case did not present any exceptional novelty, difficulty, or complexity. It notes that California courts have received many actions suing trucking companies for alleged wage and hour violations, including some also brought by plaintiffs' counsel. Opp'n at 23. Wal-Mart also claims that plaintiffs' counsel "has decades of labor and employment law experience and is undoubtedly well versed in plaintiffs-side class action litigation." Id. In light of this background, Wal-Mart argues that "it did not require exceptional skill or talent to handle the requisite discovery and briefing to fully litigate this case." Id. at 23-24.
Plaintiffs also assert that a multiplier is justified because plaintiffs' counsel was precluded from taking on other employment. Mot. at 22; see Ketchum, 24 Cal.4th at 1132, 104 Cal.Rptr.2d 377, 17 P.3d 735 (noting that court may also consider "the extent to which the nature of the litigation precluded other employment by the attorneys"). Mr. Wagner declares, "As a result of the extreme amount of time devoted to the case by my firm, and the equally extreme amount of costs incurred, we have been unable to undertake representation of many other clients/cases over the last eight years, which cases the firm would normally have taken on, in order to allow the time and money needed for the prosecution of this case[.]" Wagner Decl. ¶ 7. He also states that he had to reject or refer cases that he otherwise would have handled. Id. Wal-Mart does not address this point, and the Court finds this factor weighs in favor of applying a multiplier.
Plaintiffs contend that they achieved significant nonmonetary benefits, including this Court's published summary judgment rulings, that will deter employers from engaging in similar conduct and encourage employees to enforce their rights. Mot. at 12. Additionally, plaintiffs note that the California Supreme Court has recognized the public interest in enforcing California's labor laws. Id. (citing Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal.4th 319, 340, 17 Cal.Rptr.3d 906, 96 P.3d 194 (2004)).
The Court will not consider this factor in setting a multiplier. The long-term effects of this case remain to be seen and, as Wal-Mart points out, many of the Court's rulings are specific to Wal-Mart's pay policies and therefore may not apply to other employers.
The Court finds that the above factors — in particular the contingent risk, the novelty, difficulty and complexity of the litigation, and the preclusion of other employment — support a multiplier of 2.0. The Court thus GRANTS IN PART plaintiffs' request for statutory attorneys' fees and awards $12,983,324.25. This amount is to be paid by Wal-Mart.
In addition to seeking statutory fees from Wal-Mart, plaintiffs ask the Court to award them one-third of the common fund. Fee-shifting under California Labor Code section 1194 does not preclude class counsel from recovering attorneys' fees under the common fund doctrine. See Farmers Ins. Exch., 115 Cal.App.4th at 725-26, 9 Cal.Rptr.3d 544. "Nor does it appear that the intent of the fee-shifting provision at issue here would be undermined by awarding additional attorney's fees under common fund principles. Indeed, the fee-shifting statute and the common fund doctrine serve entirely different purposes: the former governs what the non-prevailing party must, by law, pay the prevailing party in attorney's fees, while the latter serves to ensure that absent class members share in the cost of litigation." Sobel, 53 F.Supp.3d at 1330.
"California has long recognized, as an exception to the general American rule that parties bear the costs of their own attorneys, the propriety of awarding an attorney fee to a party who has recovered or preserved a monetary fund for the benefit of himself or herself and others." Laffitte, 1 Cal.5th at 488-89, 205 Cal.Rptr.3d 555, 376 P.3d 672. The California Supreme Court recently clarified that where a class action suit results in a common fund for the class, the trial court may award attorneys' fees as a percentage of the common fund. Id. at 497, 504, 205 Cal.Rptr.3d 555, 376 P.3d 672. The percentage method "calculates the fee as a percentage share of a recovered common fund or the monetary value of plaintiffs' recovery." Id. at 489, 504, 205 Cal.Rptr.3d 555, 376 P.3d 672. To determine an appropriate percentage fee award, courts may consider the risks and potential value of the litigation, the contingency, novelty and difficulty of the case, and the skill shown by counsel. Id. at 504, 205 Cal.Rptr.3d 555, 376 P.3d 672. The court may then "double check the reasonableness of the percentage fee through a lodestar calculation" to ensure that the percentage fee does not "reward counsel for their services at an extraordinary rate...." Id. "If a comparison between the percentage and lodestar calculations produces an imputed multiplier far outside the normal range, ... the trial court will have reason to reexamine its choice of a percentage." Id. at 504, 205 Cal.Rptr.3d 555, 376 P.3d 672. "Notably, while the California Supreme Court recognized the Ninth Circuit's 25 percent benchmark for percentage awards in common fund cases, it did not adopt such a benchmark for California cases." Emmons v. Quest Diagnostics Clinical Labs., Inc., No. 13-cv-0474, 2017 WL 749018, at *7 (E.D. Cal. Feb. 27, 2017) (citing Laffitte, 1 Cal.5th at 495, 503-06, 205 Cal.Rptr.3d 555, 376 P.3d 672). "The goal under either the percentage or lodestar approach [is] the award of a reasonable fee to compensate counsel for their efforts." Laffitte, 1 Cal.5th at 504, 205 Cal.Rptr.3d 555, 376 P.3d 672.
Plaintiffs argue that counsel should receive one-third of the common fund for many of the same reasons that they urge they are entitled to a multiplier on their lodestar. They state that the results achieved, the risks involved, and the novelty, difficulty, and complexity of the case
The Court is mindful that, "[w]here the class settlement is for a very large amount, a percentage fee may be criticized as providing counsel a windfall in relation to the amount of work performed." Laffitte, 1 Cal.5th at 490, 205 Cal.Rptr.3d 555, 376 P.3d 672. Although here one-third of the common fund, or roughly $20 million, may not exactly be a windfall, a lodestar cross-check shows that one-third would equate to a roughly 3.0 multiplier. The Court finds this to be slightly high in light of the results achieved, work performed, and the nature of this case. Above, the Court found that a 2.0 multiplier on the lodestar was appropriate. While this case did involve difficult and complex issues, the minimum wage theory pursued was not so novel, nor the results achieved so extraordinary, as to warrant an award of one-third of the roughly $60 million common fund.
The Court finds that a reasonable percentage of the common fund is 25 percent. Although the California courts have not adopted a 25 percent as a "benchmark" figure, as the Ninth Circuit has, 25 percent is within the range of what courts will award as a percentage of the common fund in California. See, e.g., Farmers Ins. Exch., 115 Cal.App.4th at 725-26, 9 Cal.Rptr.3d 544 (trial court awarded 25 percent of common fund after plaintiffs prevailed at trial and were entitled to fees under California Labor Code section 1194); see also Lealao v. Beneficial Cal., Inc., 82 Cal.App.4th 19, 24 n.1, 97 Cal.Rptr.2d 797 (2000) ("Studies show that this [25 percent] benchmark is within the range followed by most courts.") (citations omitted). This amount is reasonable even according to plaintiffs' declaration filed in support of their fee motion. See Pearl Dec. ¶ 30 (stating that contingency fee contracts charged by law firms in large damages cases typically range from 10 to 50 percent); see also Netflix, 162 Cal.App.4th at 50, 65-66, 75 Cal.Rptr.3d 413 (not abuse of discretion for trial court to cross-check fee award against estimate that marketplace contingency fees range between 20 and 40 percent after deducting costs).
The Court GRANTS IN PART plaintiffs' request for an award of fees from the common fund. The Court will award 25 percent of the common fund ($60,800,011.58): $15,200,002.90. At plaintiffs' request, the amount that Wal-Mart pays in statutory fees will be credited against this amount, for a total net payment of $2,216,678.65 in fees from the common fund.
Plaintiffs move for taxable costs against Wal-Mart in the amount of $220,149.89. Mot. at 24. They further seek reimbursement of their reasonable non-taxable costs, as would be billed to a fee-paying client, from the common fund; when offset by what they seek from Wal-Mart, they request payment of $1,593,781.44 from the common fund. Mot. at 24; Artenian Reply Decl. ¶ 13; Reply, App'x 2 at 26.
Regarding taxable costs, Wal-Mart asks the Court in its discretion to order that each party bear its own costs because plaintiffs recovered "a mixed judgment," citing the Ninth Circuit's decision in Amarel v. Connell, 102 F.3d 1494, 1523 (9th Cir. 1996). In Amarel, the Ninth Circuit reversed and remanded the district
The Court notes Wal-Mart's argument that, of the taxable costs sought, plaintiffs have not substantiated the nearly $60,000.00 increased request in their revised bill of costs. Opp'n at 2, 29. As required by the Civil Local Rules, plaintiffs submitted a bill of costs within fourteen days of entry of judgment, on February 8, 2017. Dkt. No. 557. The bill of costs totaled $160,417.32, which included a claim for $58,372.40 in deposition transcript/video recording costs. Plaintiffs filed exhibits documenting the costs claimed. On March 27, 2017, in conjunction with their motion for attorneys' fees and costs, plaintiffs submitted a revised bill of costs totaling $220,149.89, with deposition transcript/video recording costs now totaling $118,104.97. Artenian Decl. Ex. C. However, although the revised bill of costs references various "attachments," it contained no documentation showing the increased request. After a review of the voluminous declarations and exhibits filed in support of the fee motion, the Court has been unable to identify precisely which receipts to attribute to the revised bill of costs. The Court will thus disallow the additional amount sought in the revised bill of costs for lack of supporting documentation. The Court GRANTS IN PART plaintiffs' request for costs, in the amount of $160,417.32, as sought in plaintiffs' bill of costs (Dkt. No. 557), to be taxed against Wal-Mart.
As to non-taxable costs, Wal-Mart challenges the majority of plaintiffs' request as improper, for vagueness, duplicative entries, and unreasonable or unnecessary expenditures. Opp'n at 26-29. Plaintiffs do not reply to the substance of Wal-Mart's critiques but state that Wal-Mart lacks standing to raise these concerns because the non-taxable costs will come from the common fund. Reply at 18-19 (citing Sanders v. City of Los Angeles, 45 Cal.App.3d 271, 273 (1974)).
Regardless of whether Wal-Mart has standing to challenge plaintiffs' non-taxable costs, it is the duty of this Court to ensure that any costs awarded from the common fund are reasonable. "There is no doubt that an attorney who has created a common fund for the benefit of the class is entitled to reimbursement of reasonable litigation expenses from that fund." Ontiveros v. Zamora, 303 F.R.D. 356, 375 (E.D. Cal. 2014) (citations omitted) (emphasis added). "To that end, courts throughout the Ninth Circuit regularly award litigation costs and expenses — including reasonable travel expenses — in wage-and-hour class actions." Bellinghausen
The Court has reviewed the request for non-taxable costs that plaintiffs submitted, including a summary of expenses by category with accompanying receipts. See Artenian Reply Decl. Ex. B. The Court will award most of what plaintiffs seek, as reasonable litigation expenses, with the following exceptions:
Accordingly, the Court GRANTS IN PART plaintiffs' request for non-statutory costs and expenses, in the amount of $1,574,189.79 to be paid out of the common fund.
From the common fund, plaintiffs seek incentive awards of $50,000.00 for each of the nine named plaintiffs. Mot. at 24. Wal-Mart argues that "there is no California statutory authority for an enhancement award where a case proceeds to verdict" rather than ending in a settlement. Opp'n at 25. In reply, plaintiffs argue that Wal-Mart lacks standing to challenge the incentive award, and state that the requests are reasonable.
"Incentive awards are fairly typical in class action cases," and are "generally sought after a settlement or verdict has been achieved." Rodriguez v. West Publ'g Corp., 563 F.3d 948, 958-59 (9th Cir. 2009). "Such awards are discretionary, [citation,] and are intended to compensate class representatives for work done on behalf of the class, to make up for financial or reputational risk undertaken in bringing the action, and, sometimes, to recognize their willingness to act as a private attorney general." Id. The Court has discretion to grant incentive awards, guided by the following considerations:
Covillo v. Specialtys Café, No. C-11-00594 DMR, 2014 WL 954516, at *7 (N.D. Cal. Mar. 6, 2014) (citing Van Vranken v. Atl. Richfield Co., 901 F.Supp. 294, 299 (N.D.
Here, each named plaintiff filed a declaration describing his involvement in the case, including conferences with counsel, assisting in the preparation of discovery responses, encouraging current and former co-workers to speak with counsel, providing declarations, sitting for depositions, and attending and testifying at trial.
Still, the Court finds the requested $50,000.00 for each of the nine named plaintiffs to be excessive. Although this case is nearly nine years old, the current named plaintiffs did not join the suit until November 2012. See Dkt. No. 61. The cases that plaintiffs cite in their motion granted incentive awards of $50,000.00 to a sole named plaintiff in the case. See Mot. at 25 (citing Brotherton v. Cleveland, 141 F.Supp.2d 907 (S.D. Ohio 2001); Van Vranken, 901 F.Supp. 294 at 300). Here, with nine named plaintiffs, such an award would consume nearly half a million dollars out of the common fund. The requested amount far exceeds what is presumptively reasonable in this district. See Bellinghausen, 306 F.R.D. at 266-67 (collecting cases and explaining that $5,000 incentive award is presumptively reasonable and that awards typically range from $2,000-$10,000). Based on the work performed in this case, and accounting for the risk undertaken in suing a former employer, the Court finds it appropriate to GRANT IN PART the request for incentive awards, in the amount of $15,000.00 to each named plaintiff.
Plaintiffs' motion for fees, costs, and incentive awards is GRANTED in part and DENIED in part. Plaintiffs are entitled to $12,983,324.25 in attorneys' fees and $160,417.32 in costs from Wal-Mart. In addition, the Court awards from the common fund $15,200,002.90 in fees (offset by the attorneys' fees from Wal-Mart, for a net of $2,216,678.65); $1,574,189.79 in non-taxable costs; and $15,000.00 incentive awards for each of the named plaintiffs.
