Case Information
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA PENNY A. SCOTT, on behalf of herself Case No. 21-cv-1470-MMA-KSC and other aggrieved and similarly- situated employees , et al., ORDER GRANTING MOTION FOR FINAL APPROVAL OF CLASS Plaintiffs, ACTION SETTLEMENT v. [Doc. No. 43] BLACKSTONE CONSULTING, INC.,
Defendant.
Penny A. Scott, Tiffany Lockett, Tocashema Williams, Kawana Anderson, and Ahmir Ringo (collectively, “Plaintiffs”) bring this putative wage and hour class action against Defendant Blackstone Consulting, Inc. (“Defendant” or “BCI”). Plaintiffs move for final approval of a class settlement pursuant to Federal Rule of Civil Procedure 23(e) and seek an award of attorneys’ fees and costs pursuant to Rule 23(h), as well as a class representative service award. Doc. No. 43. Defendant does not oppose Plaintiff’s motion, and the Court preliminarily approved the class settlement. See Doc. No. 42. On January 17, 2024, the Court held a final approval hearing on these matters pursuant to Federal Rule of Civil Procedure 23(e)(2). See Doc. No. 55. For the reasons set forth below, the Court GRANTS Plaintiffs’ motion for final approval of class settlement subject to a reduction of the class representative service award.
B ACKGROUND
Defendant hires, employs, manages, and provides service employees to hospitals, schools, universities, and industrial sites throughout California. See Doc. No. 39-1 at 7. [1] Plaintiff Penny Scott was employed by BCI as a non-exempt Security Officer at the Kaiser Permanente Zion Medical Center from December 2017 through March 2021. Id. Plaintiff Scott initiated this putative class action on August 18, 2021. See Doc. No. 1.
On December 1, 2022, Scott and BCI participated in an all-day mediation, along with four other aggrieved individuals: Kawana Anderson, Tiffany Lockett, Tocashema Williams, and Ahmir Ringo. See Doc. No. 43-1 at 8. Anderson, Lockett, Williams, and Ringo also worked as non-exempt Security Officers at a Kaiser Permanente facilities: Anderson in Los Angeles from July 2019 through February 2022; Lockett in Riverside from August 2021 through January 2022; Williams in Riverside from June 2021 through January 2022; and Ringo in Los Angeles from April through September 2021. See Doc. No. 39-1 at 7. All four also had pending actions in state court: Ahmir Ringo v. Blackstone Consulting, Inc., et al. , Case No. 22SMCV00066, pending in the Los Angeles Superior Court; Tiffany Lockett and Tocashema Williams v. Blackstone Consulting, Inc. , Case No. CVRI2201443, pending in the Riverside Superior Court; Kawana Anderson v. Blackstone Consulting, Inc. (PAGA only action), Case No. 22SMCV01667, pending in the Los Angeles Superior Court; and Kawana Anderson v. Blackstone Consulting, Inc. (Class action), Case No. 22STCV3 l 450, pending in the Los Angeles Superior Court.
The parties globally settled all five actions during that mediation. Thereafter, Scott’s First Amended Complaint was amended by consent to include the four additional Plaintiffs. See Doc. No. 34 (“Second Amended Complaint” or “SAC”). Plaintiffs allege that BCI violated the California Labor Code in a variety of ways, including: (1) failure to pay minimum, regular, and overtime wages; (2–3) failure to provide meal and rest periods; (4) failure to provide accurate itemized wage statements; (5) failure to pay vacation wages; (6) failure to timely pay wages to separated employees, and (7) failure to reimburse business expenses. They also bring a (8) claim for violation of the Unfair Competition Law, and eight (9–16) claims under the Private Attorneys General Act (“PAGA”) for the Labor Code violations.
The parties executed the Settlement Agreement in March 2023. Doc. No. 43-3 (“Khoury Decl.”) Ex. 1.
T HE S ETTLEMENT A GREEMENT The Settlement class (“Class”) consists of “all individuals who are or previously were employed by Defendant in California as non-exempt employees working at Kaiser Permanente facilities and hospitals in California at any time during the Class Period.” Khoury Decl. Ex. 1. The Class Period is from May 21, 2017 to April 30, 2023. Id.
The gross settlement amount is $1,000,000 (the “Gross Settlement Amount”). The parties have allocated $50,000 of the Gross Settlement Amount as penalties under PAGA (“PAGA Payment”). This represents just 5% of the Gross Settlement Amount.
As to deductions, the parties agreed to the following: (1) Class Counsel fees up to 33% the Gross Settlement Amount, or $333,333.33; (2) Class Counsel litigation expenses up to $25,000; (3) Class Representative Awards to each Plaintiff of $10,000, for a total of $50,000; (4) Settlement Administration Expenses up to $15,000; and (5) 75% of the PAGA Payment, or $37,500, to the California LWDA. Khoury Decl. Ex. 1. Plaintiffs now ask the Court to approve the following: (1) Class Counsel fees in the amount of $333,333.33, which is 33% the Gross Settlement Amount; (2) Class Counsel litigation expenses of $15,204.08; (3) Class Representative Awards to each Plaintiff of $10,000, for a total of $50,000; (4) Settlement Administration Expenses of $14,750; and (5) 75% of the PAGA Payment, or $37,500, to the California LWDA. The Gross Settlement Amount is defined as “non-reversionary” and therefore no portion of the Gross Settlement Amount will revert to BCI. After deductions, the estimated Net Settlement Amount is $536,712.59 (the “Net Settlement Amount”).
On September 15, 2023, the Settlement Administrator CPT Group, Inc. (“CPT”) mailed out the class notices. See Doc. No. 43-6 ¶ 7. In November, CPT was contacted by a self-identifying individual requesting to be included in the class, and notice was sent. Doc. No. 51 (“Olivares Decl.”) ¶¶ 3–4. Seven (7) individuals submitted valid and timely requests to exclude themselves from the Settlement, and four (4) notices were returned undeliverable. Id. ¶¶ 5–7. Therefore, there are 1,312 participating Class Members. Id. ¶ 9.
The Net Settlement Amount will be distributed proportionally based upon the total workweeks during the Class Period. Id. ¶ 10. Individual settlement payments are estimated to average $409.08, with the highest totalling $1,844.54. Id.
The Court has received no objections to the Settlement.
F INAL A PPROVAL OF C LASS S ETTLEMENT
A. Legal Standard
Federal Rule of Civil Procedure 23 provides that class actions may only be settled
with approval of the district court.
Officers for Justice v. Civil Serv. Comm’n of City &
Cty. of San Francisco
,
the court’s intrusion upon what is otherwise a private consensual agreement negotiated between the parties to a lawsuit must be limited to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned. Id. at 625.
A court considers several factors in determining whether a Settlement Agreement is “fair, reasonable, and adequate” under Rule 23(e). The Rule provides that a court should consider whether: (1) “the class representatives and class counsel have adequately represented the class”; (2) “the proposal was negotiated at arm’s length”; (3) “the relief provided for the class is adequate,” taking into consideration the risks associated with 1 continued litigation, the effectiveness of distributing the proposed relief to the class, the terms of any proposed attorneys’ fees, and the underlying settlement agreement; and (4) “the proposal treats class members equitably relative to each other.” Fed. R. Civ. P. 23(e)(2).
Judicial policy favors settlement in class actions and other complex litigation
where substantial resources can be conserved by avoiding the time, cost, and rigors of
formal litigation.
See Class Plaintiffs v. City of Seattle
,
B. Discussion
The Court proceeds by addressing Rule 23(e)(2)’s “fair, reasonable, and adequate” factors and the related factors noted by the Ninth Circuit. [2]
1. Adequate Representation
Rule 23(e)(2) requires the Court to consider whether “the class representatives and
class counsel have adequately represented the class.” Fed. R. Civ. P. 23(e)(2)(A).
Relatedly, the Court also considers the experience and views of counsel.
Staton
, 327
F.3d at 959 (quoting
Molski
,
Here, Class Counsel includes numerous trial attorneys who have extensive experience litigating wage and hour class actions. See Khoury Decl. ¶¶ 5–6, 8; Doc. No. 43-3 (“Aiwazian Decl.”) ¶¶ 15–16; Doc. No. 43-4 (“Gavron Decl.”) ¶¶ 14–16; Doc. No. 43-5 (“Marder Decl.”) ¶¶ 12–17. Further, it appears that Plaintiffs, as Class Representatives, have been instrumental in representing their former coworkers, and have assisted in realizing a comprehensive resolution for the Class.
Based upon the sworn declarations and the pertinent other portions of the record, the Court finds that both Plaintiffs and Class Counsel have adequately represented the Settlement Class Members and therefore this factor favors approval of the Settlement Agreement.
2. Arm’s Length Negotiation
Rule 23(e)(2) requires the Court to consider whether “the proposal was negotiated
at arm’s length.” Fed. R. Civ. P. 23(e)(2)(B). Courts must ensure settlements are not the
product of collusion or other conflicts of interest.
In re Bluetooth Headset Prod.
Liab. Litig.
,
(1) “when counsel receive a disproportionate distribution of the settlement, or when the class receives no monetary distribution but class counsel are amply rewarded”; (2) “when the parties negotiate a ‘clear sailing’ arrangement providing for the payment of attorneys’ fees separate and apart from class funds”; and (3) “when the parties arrange for fees not awarded to revert to defendants rather than be added to the class fund.”
Ferrell v. Buckingham Prop. Mgmt.
, No. 1:19-cv-00332-LJO-SAB,
The parties reached this Settlement after engaging in significant informal discovery and attending a full-day mediation. Class Counsel will not recover an unreasonable portion of the Gross Settlement Amount and no portion of that fund will revert to Defendant. Accordingly, the Court finds that the arm’s length negotiations favor approval of the Settlement Agreement.
3. Adequate Relief
Rule 23(e)(2) requires the Court to consider whether “the relief provided for the
class is adequate” after assessing several factors, such as the risks associated with
continued litigation, the effectiveness of proposed relief to the class, the terms of any
proposed attorneys’ fees, and the underlying settlement agreement. Fed. R. Civ. P.
23(e)(2)(C). To determine whether the relief is adequate and in assessing the other
underlying subfactors, “the Court must balance the continuing risks of litigation
(including the strengths and weaknesses of Plaintiffs’ case), with the benefits afforded to
members of the Class, and the immediacy and certainty of a substantial recovery.”
Baker
v. SeaWorld Entm’t, Inc.
, No. 14-cv-02129-MMA-AGS,
[t]he Court shall consider the vagaries of litigation and compare the
significance of immediate recovery by way of the compromise to the mere
possibility of relief in the future, after protracted and expensive litigation. In
this respect, “[i]t has been held proper to take the bird in hand instead of a
prospective flock in the bush.”
Nat’l Rural Telecommunications Coop.
,
a. Risks of Continued Litigation
“In determining whether to approve a Settlement Agreement, the Court should also
consider the expense, complexity and likely duration of further litigation or delay of trial
and appeal.”
Baker
,
Here, if the parties had not settled, Plaintiffs would have had to spend considerable time and effort litigating formal discovery, class certification, and summary judgment. Further, while Class Counsel is optimistic about prevailing at trial, they nevertheless concede that there are inherent risks to “further prosecution.” Khoury Decl. ¶ 27; Gavron Decl. ¶ 8; Marder Decl. ¶ 8. Accordingly, the Court finds that the strength of the case, the costs associated with trial and appeal, the stage of the proceedings, and the risk of maintaining class action status throughout the trial favor approval of the Settlement Agreement.
b. Effectiveness of Proposed Relief Distribution In determining the effectiveness of distributing the proposed relief to the class and the processing of class claims, the Court should “scrutinize the method of claims processing to ensure that it facilitates filing legitimate claims. A claims processing method should deter or defeat unjustified claims, but the court should be alert to whether the claims process is unduly demanding.” Fed. R. Civ. P. 23(e) advisory committee’s note to 2018 amendment.
In this case, the Notice of Class Action Settlement provided as follows: Doc. No. 43-6, Ex. A.
This method of distribution imposes no burden on the Settlement Class Members. Accordingly, the effectiveness of the proposed method of distributing relief to the Class favors approval of the Settlement Agreement.
c. Terms of Proposed Attorney’s Fees
In assessing whether the relief for a class is adequate, “[e]xamination of the attorney-fee provisions may also be valuable in assessing the fairness of the proposed settlement.” Fed. R. Civ. P. 23(e) advisory committee’s note to 2018 amendment. “Ultimately, any award of attorney’s fees must be evaluated under Rule 23(h), and no rigid limits exist for such awards. Nonetheless, the relief actually delivered to the class can be a significant factor in determining the appropriate fee award.” Id.
This subfactor considers the “terms” of any proposed and agreed upon request for attorney’s fees. Fed. R. Civ. P. 23(e)(C)(iii). Here, the Settlement Agreement contains an attorney’s fees provision which permits Class Counsel to apply for an attorneys’ fees award of up to one-third of the Gross Settlement Amount. Khoury Decl. Ex. 1 at 38. Class Counsel’s entitlement to such award is ultimately contingent upon the Court’s approval of the request for attorney’s fees and costs, which is addressed in detail below.
The Court must be mindful when determining whether to approve a proposed
attorney’s fee award in the class action settlement context that “settlement class actions
present unique due process concerns for absent class members.”
Hanlon
, 150 F.3d at
1026. Accordingly, “the district court has a fiduciary duty to look after the interests of
those absent class members.”
Allen v. Bedolla
,
[C]ourts should scrutinize pre-class certification settlements because
plaintiffs’ counsel may collude with the defendant to strike a quick settlement
without devoting substantial resources to the case. The potential for collusion
reaches its apex pre-class certification because, among other things, (1) the
court has not yet approved class counsel, who would owe a fiduciary duty to
the class members; and (2) plaintiffs’ counsel has not yet devoted substantial
time and money to the case, and may be willing to cut a quick deal at the
expense of class members’ interests.
In contrast, by the time a court has certified a class — the theory goes
— the parties have vigorously litigated the dispute, reducing the chance that
class counsel will settle on the cheap for a quick buck. By devoting substantial
time and resources to the case, class counsel has skin in the game,
guaranteeing his or her interest in maximizing the size of the settlement fund.
Likewise, because a district court has appointed class counsel who owes a
fiduciary duty to the class members, class counsel would be ethically
forbidden from sacrificing the class members’ interests.
Briseño v. Henderson
,
Here, the parties reached their Settlement prior to class certification. This requires
the Court to take on the fiduciary role that would ordinarily fall to Class Counsel.
See
Allen
,
d. Underlying Settlement Agreement
“It is well-settled law that a proposed settlement may be acceptable even though it
amounts to only a fraction of the potential recovery that might be available to the class
members at trial.”
Rodriguez v. Bumble Bee Foods, LLC
, No. 17-cv-2447-MMA
(WVG),
Here, the Settlement Agreement provides for a Gross Settlement Amount of $1,000,000.00 for 1,312 Class Members and, after deducting various fees and costs, each Class Member is estimated to recover, on average, $409.08. Olivares Decl. ¶ 10. Only seven (7) Class Members have timely opted out of the Settlement and no objections to the Settlement terms have been received by either the attorneys, the Settlement Administrator, or the Court. See id. ¶¶ 7–8. Accordingly, the Court finds that the underlying Settlement Agreement favors approval of the Settlement.
e. Conclusion
Based on the foregoing, the Court finds that on balance, the relief provided for the Class is adequate and favors approval of the Settlement Agreement.
4. Equitable Treatment of Class Members
Rule 23(e)(2) requires the Court to consider whether “the proposal treats class
members equitably relative to each other.” Fed. R. Civ. P. 23(e)(2)(D). “Matters of
concern could include whether the apportionment of relief among class members takes
appropriate account of differences among their claims, and whether the scope of the
release may affect class members in different ways that bear on the apportionment of
relief.” Fed. R. Civ. P. 23(e) advisory committee’s note to 2018 amendment. In
assessing this factor, courts determine whether the settlement unreasonably gives
preferential treatment to the class representatives or other class members.
Ferrell v.
Buckingham Prop. Mgmt.
,
The Settlement payments will be distributed proportionally to the Class based the number of workweeks during the Class Period divided by the total number of weeks worked by all participating members. Olivares Decl. ¶ 10. This is fair, reasonable, and adequate in light of the underlying harm and the lack of facts indicating certain Class Members suffered a disproportionate injury compared to others. Further, although disproportionate, as discussed below, the Court finds that a Class Representative Service Award is appropriate here. Accordingly, the general equitable treatment of class members favors approval of the Settlement Agreement.
C. Conclusion
Upon due consideration of the factors set forth above, the Court finds that the Class Settlement is on balance “fair, reasonable, and adequate” under Rule 23(e)(2) and therefore GRANTS Plaintiff’s motion for final approval of the Settlement.
D. PAGA Penalty
Under PAGA, an “aggrieved employee” may bring an action for civil penalties for
labor code violations on behalf of himself and other current or former employees. Cal.
Lab. Code § 2699(a). A plaintiff suing under PAGA “does so as the proxy or agent of the
state’s labor law enforcement agencies.”
Arias v. Superior Ct.
,
Under PAGA, civil penalties collected are distributed between the aggrieved employees (25%) and the LWDA (75%). Cal. Lab. Code § 2699(i). Any settlement of PAGA claims must be approved by the Court. Cal. Lab. Code § 2699(l)(2). The proposed settlement must also be sent to the agency at the same time that it is submitted to the court. Cal. Lab. Code § 2699(l)(2).
While PAGA requires a trial court to approve a PAGA settlement, district courts
have noted there is no governing standard to review PAGA settlements.
Sanchez
v. Frito-Lay, Inc.
, No. 1:14cv797-DAD-BAM,
It is thus important that when a PAGA claim is settled, the relief provided for
under the PAGA be genuine and meaningful, consistent with the underlying
purpose of the statute to benefit the public and, in the context of a class action,
the court evaluate whether the settlement meets the standards of being
“fundamentally fair, reasonable, and adequate” with reference to the public
policies underlying the PAGA.
O’Connor
,
First, in accordance with the statutory requirements, Plaintiffs submitted the Settlement Agreement to the LWDA. Doc. No. 39-2. The Court finds it persuasive that the LWDA was permitted to file a response to the proposed Settlement and no comment or objection has been received.
The Settlement Agreement provides for a $50,000 PAGA Penalty. As noted
above, this represents 5 percent of the Gross Settlement Amount, which is within the
range of penalties approved by courts.
Magadia v. Wal-Mart Assocs., Inc.
, 384 F.
Supp. 3d 1058, 1101 (N.D. Cal. 2019) (collecting cases in which settlements providing
for $10,000 in PAGA penalties were preliminarily or finally approved despite total
settlement amounts of $900,000 and $6.9 million);
see also Alcala v. Meyer Logistics,
Inc.
, No. CV 17-7211 PSG (AGRx),
A TTORNEY ’ S F EES AND C OSTS Plaintiffs seek an award of attorney’s fees in the amount of $333,333.33, which is one-third of the Gross Settlement Amount, as well as litigation costs in the amount of $15,204.08.
A. Attorney’s Fees
1. Legal Standard
Rule 23(h) of the Federal Rules of Civil Procedure provides that, “[i]n a certified
class action, the court may award reasonable attorney’s fees and nontaxable costs that are
authorized by law or by the parties’ agreement.” Fed. R. Civ. P. 23(h). And as
mentioned above, in addition to the reasonableness inquiry mandated under Rule 23(h),
“district courts must now consider ‘the terms of any proposed award of attorney’s fees’
when determining whether ‘the relief provided for the class is adequate’” pursuant to
Rule 23(e).
Briseño
,
The Court has discretion in a common fund case such as this to choose either the
lodestar method or the percentage-of-the-fund method when calculating reasonable
attorneys’ fees.
See Vizcaino v. Microsoft Corp.
,
Whether the Court awards the benchmark amount or some other rate, the award
must be supported “by findings that take into account all of the circumstances of the
case.”
Vizcaino
,
2. Discussion
As noted above, Plaintiffs on behalf of Class Counsel request $333,333.33 in fees,
or one-third of the Gross Settlement Amount. This amount exceeds the Ninth Circuit’s
“benchmark” for a reasonable fee award under the percentage-of-recovery method.
See,
e.g.
,
Espinosa v. Ahearn (In re Hyundai & Kia Fuel Econ. Litig.)
,
a. Lodestar Calculation
In order to determine the lodestar figure, the Court calculates the number of hours
reasonably expended on the litigation and then multiplies that number by a reasonable
hourly rate.
See Hensley v. Eckerhart
,
The Court first considers whether Class Counsel’s hourly rates are reasonable. A
reasonable hourly rate is typically based upon the prevailing market rate in the
community for “similar work performed by attorneys of comparable skill, experience,
and reputation.”
Chalmers v. City of Los Angeles
,
Here, Plaintiffs requests hourly rates ranging from $500 to $925. In addition to the
declarations of counsel, the Court relies on its own knowledge and experience of
customary rates concerning reasonable and proper fees,
see Ingram v. Oroudjian
, 647
F.3d 925, 928 (9th Cir. 2011), and considers the relevant
Kerr
factors.
See Davis v. City
of San Francisco
,
The Court next considers whether Class Counsel’s expenditure of 625.2 hours on
this case is reasonable. “The fee applicant bears the burden of documenting the
appropriate hours expended in the litigation and must submit evidence in support of those
hours worked.”
Gates v. Deukmejian
,
Class Counsel has provided billing records, which indicate that the hours of work
performed on this case were generally reasonable, necessary, and thus compensable. Khoury Decl. Exs. 3-A, 3-BB, 3-CC, -D; Doc. No. 49, Ex. A; Doc. No. 50, Ex. A; Doc.
No. 53, Ex. A. Moreover, “[t]he lodestar ‘cross-check’ need not be as exhaustive as a
pure lodestar calculation” because it only “serves as a point of comparison by which to
assess the reasonableness of a percentage award.”
Fernandez v. Victoria Secret Stores,
LLC
, No. CV 06-04149 MMM (SHx),
Here, having found that the hourly rates and hours expended to be reasonable, the Court agrees with Class Counsel’s calculation of the lodestar figure in this case of $438,802.50. Khoury Decl. Ex. 2.
b. Lodestar Crosscheck
This Court has previously acknowledged that “California courts routinely award
attorneys’ fees of one-third of the common fund.”
Espinosa v. Cal. Coll. of San Diego,
Inc.
, No. 17cv744-MMA (BLM),
“[A]n appropriate positive or negative multiplier reflect[s] . . . the quality of
representation, the benefit obtained for the class, the complexity and novelty of the issues
presented, and the risk of nonpayment.”
In re Bluetooth
,
Here, the lodestar crosscheck supports the requested fee award in this case. The requested award of $333,333.33—one-third of the Gross Settlement Amount—represents a negative multiplier and is roughly $105,000 less than the actual fees incurred. Accordingly, the Court GRANTS Plaintiff’s motion for an attorney’s fee award of $333,333.33.
B. Costs
Plaintiffs also request reimbursement for $15,204.08 in actual litigation costs expended by Class Counsel.
1. Legal Standard
Rule 23(h) of the Federal Rules of Civil Procedure provides that, “[i]n a certified
class action, the court may award reasonable attorney’s fees and nontaxable costs that are
authorized by law or by the parties’ agreement.” Fed. R. Civ. P. 23(h). Counsel is
entitled to reimbursement of the out-of-pocket costs they reasonably incurred
investigating and prosecuting the case.
In re Media Vision Tech. Sec. Litig.
, 913 F.
Supp. 1362, 1366 (N.D. Cal. 1996) (citing
Mills v. Elec. Auto-Lite Co.
,
2. Discussion
Plaintiffs seek an award of costs totaling $15,204.08 expended by Class Counsel
for filing fees, service fees, photocopying costs, postage, and other litigation related
expenses. See Khoury Decl. ¶ 43, Ex. 4; Gavron Decl. ¶ 21, Ex. B; Aiwazian Decl. ¶ 17,
Ex. B. The Court finds that upon review, the requested award is reasonable in light of the
itemized costs. Costs for service of process are taxable under 28 U.S.C. § 1920 as well as
Civil Local Rule 54.1.b.1, which provides that “(c)osts for service of subpoenas are
taxable as well as service of summonses and complaints.” Filing fees are recoverable
under 28 U.S.C. §1920(1). Additionally, the Ninth Circuit has held that an award to a
prevailing party “can include reimbursement for out-of-pocket expenses including . . .
travel, courier and copying costs.”
Grove v. Wells Fargo Fin. Cal., Inc.
,
Accordingly, because Class Counsel’s out-of-pocket costs were reasonably
incurred in litigating this action and were advanced by Counsel for the benefit of the
Class, the Court
APPROVES
reimbursement of litigation costs in the full amount
requested.
See, e.g.
,
Fontes v. Heritage Operating, L.P.
, No. 14-cv-1413-MMA (NLS),
C LASS R EPRESENTATIVE S ERVICE A WARD Finally, Plaintiffs request a class representative service award of $10,000 each.
A. Legal Standard
“Incentive awards are payments to class representatives for their service to the
class in bringing the lawsuit.”
Radcliffe v. Experian Info. Sols. Inc.
,
[t]he district court must evaluate their awards individually, using “relevant
factors includ[ing] the actions the plaintiff has taken to protect the interests of
the class, the degree to which the class has benefitted from those actions, . . .
the amount of time and effort the plaintiff expended in pursuing the litigation
. . . and reasonabl[e] fear[s of] workplace retaliation.”
Staton
,
Further, “class members can certainly be repaid from any cost allotment for their substantiated litigation expenses.” Id. Taken together, courts examine the following factors when scrutinizing incentive awards on an individual basis in class action settlements: (1) conflicts of interest between the class representative and the class in assessing the terms or disparity of an award, (2) actions taken by the class representative to protect the class’s interest, (3) the benefit received by the class based on the class representative’s actions, (4) the time and effort expended by the class representative, and (5) the class representative’s reasonable fears of workplace retaliation.
B. Discussion
Pursuant to the Settlement Agreement
Plaintiffs will apply to the Court for an award of not more than Ten Thousand Dollars and Zero Cents ($10,000.00) each as Class Representative Service Payments, which is a combined total of Fifty Thousand Dollars and Zero Cents ($50,000) in Class Representative Service Payments, in addition to any Individual Class Payment the Class Representatives are entitled to receive as Participating Class Members. Defendant will not oppose Plaintiffs' request for a Class Representative Service Payment that does not exceed this amount. As part of the motion for Class Counsel Fees Payment and Class Litigation Expenses Payment, Plaintiff Scott and Class Counsel will seek Court approval for any Class Representative Service Payments no later than 16 court days prior to the Final Approval Hearing. If the Court approves a Class Representative Service Payment less than the amount requested, the Settlement Administrator will retain the remainder in the Net Settlement Amount. The Settlement Administrator will pay the Class Representative Service Payment using IRS Form 1099. Plaintiffs assume full responsibility and liability for employee taxes owed on the Class Representative Service Payment and shall hold Defendant harmless from any and all liability with regard thereto. Khoury Decl. Ex. 1.
The $10,000 incentive award as requested by Plaintiffs in this case is at the high end of the range of such awards in this Circuit. Moreover, the aggregate award is five percent of the Gross Settlement Amount, and each individual $10,000 payment is nearly twenty-five times the average Class Member payout. Having reviewed the declarations, the Court agrees that an incentive award is appropriate here, but finds that $10,000 is not reasonably supported on this record. Rather, the Court finds that a $5,000 award is reasonable in light of the Gross Settlement Amount, length of the litigation, and time and effort expended.
Accordingly, the Court APPROVES Plaintiffs’ request for a class representative service award subject to a reduction and AWARDS each Plaintiff $5,000.
C ONCLUSION
Based on the foregoing, the Court GRANTS Plaintiffs’ motion for final approval of the class settlement.
The Court CERTIFIES the Settlement Class for the purposes of the Settlement. The Court APPROVES the Settlement as fair, reasonable, and adequate pursuant to Federal Rule of Civil Procedure 23(e). The Court ORDERS the parties to undertake the obligations set forth in the Settlement Agreement that arise out of this Order.
The Court AWARDS attorneys’ fees to Class Counsel in the amount of $333,333.33 and costs in the amount of $15,204.08 .
The Court AWARDS to the Settlement Administrator CPT Group Inc. administration costs in the amount of $14,750 .
The Court further AWARDS to Plaintiffs an incentive payment for work performed as the class representatives in the amount of $5,000 each.
The Court DIRECTS the Clerk of Court to enter a separate judgment of dismissal in accordance herewith, see Fed. R. Civ. P. 58(a), and to close the case.
Without affecting the finality of this Order, the Court maintains jurisdiction over this matter for purpose of enforcing the Judgment.
IT IS SO ORDERED .
Dated: January 24, 2024
_____________________________ HON. MICHAEL M. ANELLO United States District Judge
Notes
[1] Citations refers to the pagination assigned by the CM/ECF system unless otherwise indicated.
[2] Because of the overlap between the Rule 23(e)(2)’s factors and the Ninth Circuit’s additional factors, the Court folds the Ninth Circuit’s factors into its analysis of Rule 23(e)(2).