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.
BACKGROUND
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 partiеs 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 Thatoher: $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 16, 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 time-sheets 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.
LEGAL STANDARD
California law governs plaintiffs’ motion for fees. See Klein v. City of Laguna Beach,
“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.,
DISCUSSION
I. OBJECTIONS TO EVIDENCE SUBMITTED IN REPLY
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. Armenian's time records, arguing that plaintiffs have improperly submitted new evidеnce 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’),
II. ATTORNEYS’FEES
Plaintiffs move for fees under a California’ fee-shifting statute and the common fund doctrine. Plaintiffs seek to recover attorneys’ fees of $20,26é,670.50,
A. Fee-Shifting Analysis—California Labor Code § 1194
“ ‘[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.,
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,
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:
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See Reply, App’x 1.
1. Hourly Rates
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,
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 Deck ¶ 33 (citing, inter alia, Cotter v. Lyft Inc., No. 13-cv-4065-VC,
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.
2. Reasonableness of the Hours Spent
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,
Wal-Mart contends that plaintiffs’ fee application is unreasonably inflated, and raises numerous objections to the reasonableness of the hours spent by plaintiffs’ counsel.
a. Discovery
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 rеsult, 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.
b. Yague Entries
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 desсribe 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 riot require that attorneys keep detailed fee logs in order to obtain an award of attorneys’ fees. Chavez v. Netflix, Inc.,
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,
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.
c. Billing in 0.1- and 0.2-Hour Increments
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.
d. Block Billing
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,
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.
e. Travel Time
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 Deel. ¶ 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 Deck ¶¶ 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 Deck 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 Deck ¶ 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-k0099-SI,
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
f. Redundant, Excessive, or Duplicative Work
A court may “exclude excessive, redundant and' unnecessary hours when calculating a lodestar.” Kerkeles v. City of San Jose,
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,
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 2016 time entries are
g.Incorrect Time Entries
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.
h.Appropriate Level of Timekeeper
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 рartners 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,
i.Clerical Tasks
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
j. Contemporaneous Time Entries
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 crosscheck included reference “to a database of contemporaneoús, 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,
k. Mr. Artenian’s Time
With their initial motion, plaintiffs requested fees for 1,200 hours of Mr. Arte-nian’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 Deck ¶ 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 Deck; 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,
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. Pis.’ 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.
1. Lost or Abandoned Claims
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,
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 timé 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 Num-mary 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,
m. Continuing Legal Education
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 develoрments,” (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 Deck ¶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.
n. Drivers Who Never Testified
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 pot “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.,
The Court agrees with plaintiffs that this time is compensable. The California Court of Appeal has noted that “[cjompen-sation should not be strictly limited to efforts that were demonstrably ■ productive.” Thayer,
o. Denham Amendment Research and Lobbying
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. ¶ 66. 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,
3. Multiplier
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,
Plaintiffs contend that a multiplier of at least 2.71
a. Risk
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,
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,
b. Results Obtained
“The ‘results obtained’ factor can properly be used to enhance a lodestar calculation where an exceptional effort produced an exceptional benefit.” Graham,
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 size-able, 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.
c. Novelty, Difficulty, and Complexity
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 á significant burden, as did the numerous dispositive mo-tiqns 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-Marfi 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.
d. Preclusion from Other Employment
Plaintiffs also assert that a multiplier is justified because plaintiffs’ counsel was precluded from taking on other employment. Mot. at 22; see Ketchum,
e. Public Interest
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 lab'or laws. Id. (citing Sav-On Drug Stores, Inc. v. Superior Court,
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 Wаl-Mart.
B. Common Fund Doctrine
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.,
“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,
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,
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.,
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. \
III. COSTS
Plaintiffs move for taxable costs against Wal-Mart in the amount of $220,149.89. Mot. at 24. They further seek reimburse.ment 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 Deck ¶ 13; Reply, App’x 2 at 26.
A. Taxable Costs from Wal-Mart
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,
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 transeript/vid-eo 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.
B. Non-Taxable Costs from Common Fund
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,
Regardless of whether Wal-Mart has standing to challenge plaintiffs’ nontaxable costs, it is the duty of this Court to ensure that any costs awarded from the comhfion 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,
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:
Mileage: A review of the records shows that plaintiffs reimbursed themselves at a mileage rate of $0.70-$1.00 per mile. See Artenian Reply Decl. Ex. B at 75-79, 295-399. The Court finds'this rate to be excessive. As comparison, the current IRS standard mileage rate for tax business is $.535 per mile, https://www.irs.gov/newsroom/ 2017-standard-mileage-rates-fór-business- and-medicál-and-moving-announced. The Court will thus reduce plaintiffs’ mileage costs by 50 percent, for a deduction of $13,461.51 (out of the requested $26,923.02).
Meals: Plaintiffs’ counsel claim meal expenses totaling $12,260.28, Artenian Reply Decl. Ex. B.at 71, but have itemized or documented, only $6,348.28. See Brass Decl. ¶ 63 & Ex. B. Further, the Court is unable to discern the reasonableness of some of these meаl expenses, where the documentation does not state which or how many people dined at a given meal. For these reasons, the Court applies a 50 percent reduction to plaintiffs’; meal expenses, for a deduction of $6,130,14 from the costs sought.
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.
IV. INCENTIVE AWARDS FOR NAMED PLAINTIFFS
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.,
(1) the risk tо the class representative in commencing a suit, both financial and otherwise; (2) the notoriety and personal difficulties encountered by the class representative; (3) the amount of time and effort spent by the class representative; (4)' the duration of the litigation; and (5) the personal benefit (or lack thereof) enjoyed by the. class representative as a result of the litigation.
Covillo v. Specialtys Café, No. C-11-00594 DMR,
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 ⅛ sole named plaintiff in the case. See Mot, at 25 (citing Brotherton v. Cleveland,
CONCLUSION
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 nontaxable costs; and $15,000.00 incentive awards for each of the named plaintiffs,
IT IS SO ORDERED.
Notes
. In the introduction to their motion, plaintiffs stаte that they seek fees of $20,226,670.20. Mot. at 2. In their conclusion, they ask the Court to award fees of $20,266,670,50. Id. at 26. Read in the context of their motion, the Court assumes that the former figure is an error and that plaintiffs seek the latter amount,
. Wal-Mart also contends that the Court should deny plaintiffs’ motion for fees in its entirety for failure to meet and confer. Opp’n at 5-6. Civil Local Rule 54-5(a) requires counsel to "meet and confer for the purpose of resolving all disputed issues relating to attorney's fees before making a motion for award of attorney’s fees.” In his reply declaration, plaintiffs’ counsel notes that the parties submitted stipulations regarding the briefing schedule for this motion. Artenian Reply Decl. ¶ 2. He states that the parties met and conferred regarding the stipulations,- and that "it was understood that Wal-Mart intends to contest Plaintiffs’ attorneys' fee claims and that the matter would be presented to the Court for determination!.]” Id, The Court declines to deny the motion for failure to meet and confer.
. Wal-Mart further argues that it is.unreasonable to charge for. .travel to meet with clients who were not deposed or who, according to Wal-Mart, did not otherwise participate in ■ the case. Opp’n at 10, However, ”[c]ompensation should not .be strictly limited to efforts that were demonstrably productive.’’ Thayer v. Wells Fargo Bank,
. See MacDougal v. Catalyst Nightclub,
. Plaintiffs alleged in their complaint that ■ they 'were entitled to waiting time penalties under section 203 because Wal-Mart "had a.. .policy, practice and procedure of willfully failing to pay the earned and unpaid wages or accrued wages, including.. .the failure to pay minimum wages .,.. ” FAC ¶ 65.
. Wal-Mart argued throughout this case that the FAAAA preempted plaintiffs’ minimum wage claims under state law. See, e.g., Dkt. No. 72 at 6.
. In their motion, plaintiffs argue for a multiplier of 2,91. They revise their multiplier request to 2.71 in their reply brief. See Reply at 2.
. Wal-Mart also argues that plaintiffs are not entitled to a multiplier for “fees-for-fees,” that is, that a multiplier may not be applied to time billed on the fee motion itself, Opp’n at 20. This issue has been rendered moot by plaintiffs’ decision not to seek attorneys’ fees for the work performed on the fee motion; See Reply at 1-2, 12-13,
. Plaintiffs submitted revised expenses in their reply brief to reflect a new invoice from their fee expert for $9,600.00 and an additional $11,534.00 invoice from their economics expert. Reply at 2. The statutory costs sought against Wal-Mart remain the same.
. See'Declaration of Charles Ridgeway (Dkt. No. 570-4 at 18); Declaration of Jaime Famo-so (Dkt. No. 570-4 at 23); Declaration of Joshua Harold (Dkt, No, 570-4 at 29); Declaration of Richard Byers (Dkt. No. 570-4 at 34); Declaration of Dan Thatcher (Dkt. No. 570-4 at 39); Declaration of Willie Franklin (Dkt. No. 570-4 at 44); Declaration of Tim Opitz (Dkt. No. 570-4 at 50); Declaration of Farris Day (Dkt. No. 570-4 at 55); Declaration of Karl Merhoff (Dkt. No. 570-4 at 60).