1. society
2. crime
3. property crime
4. fraud

Case3:14-cv-04461-WHO Document29 Filed04/10/15 Page1 of 31
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ERIC A. GROVER (SBN 136080)
[email protected]
ROBERT W. SPENCER (SBN 238491)
[email protected]
KELLER GROVER LLP
1965 Market Street
San Francisco, California 94103
Telephone: (415) 543-1305
Facsimile: (415) 543-7861
SHAWN C. WESTRICK (SBN 235313)
[email protected]
KAWAHITO SHRAGA & WESTRICK LLP
1990 S. Bundy Drive, Suite 280
Los Angeles, California 90025
Telephone: (310) 746-5300
Facsimile: (310) 593-2520
Attorneys for Plaintiff
GAYLE SMITH
Attorneys for Plaintiffs
CLAY TRIPP and KAREN SOLBERG
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KELLER GROVER LLP
1965 Market Street, San Francisco, CA 94103
Tel. 415.543.1305 | Fax 415.543.7861
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
CLAY TRIPP and KAREN SOLBERG, on
behalf of themselves and all others similarly
situated,
Plaintiffs,
v.
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CROSSMARK, INC., CHI MANAGEMENT
GROUP, LP, and DOES 1 through 10,
inclusive,
Defendants.
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GAYLE SMITH, individually, and on behalf of
other members of the general public similarly
situated,
Plaintiff,
v.
CROSSMARK, INC. a Delaware Corporation,
and DOES 1-10, inclusive,
Defendants.
Case No: 3:13-cv-03480-WHO
Case No.: 3:14-cv-04461-WHO
CLASS ACTION
NOTICE OF MOTION AND MOTION
FOR AWARD OF REASONABLE
ATTORNEYS’ FEES, COSTS AND
LITIGATION EXPENSES, CLAIMS
ADMINISTRATION FEES AND SERVICE
AWARD/GENERAL RELEASE
PAYMENTS FOR THE SETTLEMENT
CLASS; MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT
THEREOF
Date:
Time:
Ctrm:
Judge:
June 17, 2015
2:00 p.m.
2, 17th Floor
The Hon. William H. Orrick
Action Filed in Superior Court:
Action Removed to District Ct:
Trial Date:
June 4, 2013
July 26, 2013
None set.
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NOTICE AND MOTION FOR ATTORNEYS’
FEES AND COSTS, ETC.
CASE NO. 3:13-CV-03480-WHO
KELLER GROVER LLP
1965 Market Street, San Francisco, CA 94103
Tel. 415.543.1305 | Fax 415.543.7861
Case3:14-cv-04461-WHO Document29 Filed04/10/15 Page2 of 31
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PLEASE TAKE NOTICE that on May 27, 2015, at 2:00 p.m., or as soon thereafter as the
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matter may be heard, in Courtroom 2 of the United States District Court of the Northern District
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of California, located at 450 Golden Gate Avenue, San Francisco, California, the Honorable
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William H. Orrick presiding, Plaintiffs Clay Tripp, Karen Solberg and Gayle Smith (“Plaintiffs”)
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will and hereby do will and hereby does move this Court for an order (1) granting Class
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Counsel’s application for an award of reasonable attorneys’ fees in the amount of $350,000,
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which is 25% of the Common Fund, and reimbursement of out-of-pocket costs in the amount of
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up to $18,566.80; (2) approving service award/general release payments to Settlement Class
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Representatives Tripp and Solberg in the amount of $8,000 each and Class Representative Smith
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in the amount of $5,000; and approving payment of up to $50,000 to CPT Group for claims
11
administration services.
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The motion is based on this notice of motion and motion, the attached memorandum of
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points and authorities, the Declarations of Eric A. Grover and Shawn C. Westrick, the
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Declarations of Clay Tripp, Karen Solberg and Gayle Smith, the Declaration of Tim Cunningham
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of CPT Group, Inc., the pleadings and papers filed in this case, and any oral argument this Court
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permits. Defendants CROSSMARK, INC. and CHI Management Group, LP do not oppose this
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motion.
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Dated: April 10, 2015
Respectfully submitted,
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KELLER GROVER LLP
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Eric A. Grover
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By: /s/
ERIC A. GROVER
Attorneys for Plaintiffs
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KAWAHITO SHRAGA & WESTRICK LLP
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Shawn C. Westrick
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By: /s/
SHAWN C. WESTRICK
Attorneys for Plaintiff Smith
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NOTICE AND MOTION FOR ATTORNEYS’
FEES AND COSTS, ETC.
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CASE NO. 3:13-CV-03480-WHO
Case3:14-cv-04461-WHO Document29 Filed04/10/15 Page3 of 31
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TABLES OF CONTENTS
Page
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I. INTRODUCTION .............................................................................................................. 1 II. PROCEDURAL HISTORY AND SUMMARY OF CLAIMS .......................................... 3 5
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III. KELLER GROVER LLP
1965 Market Street, San Francisco, CA 94103
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A. Class Counsel’s work litigating and settling the actions......................................... 3 B. The Named Plaintiffs’ participation in the action. .................................................. 5 C. The status of the claims process. ............................................................................. 5 THE PROPOSED SETTLEMENT ..................................................................................... 6 A. The settlement classes and class periods................................................................. 6 B. The settlement fund. ................................................................................................ 7 C. Settlement payments to the Class Members. .......................................................... 8 D. Settlement of the PAGA penalties claims. .............................................................. 9 E. The Settlement Agreement clearly states the
attorneys’ fees and costs........................................................................................ 10 F. Settlement Class Representatives’ service
award/general release payments. ........................................................................... 10 G. Claims administration fees. ................................................................................... 11 15
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17
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IV. ARGUMENT .................................................................................................................... 11 A. Plaintiffs seek a fee award under the
percentage of the common fund method. .............................................................. 11 19
1. The requested fee matches the benchmark in this circuit. ........................ 13 20
2. The circumstances of this case support a 25% fee award. ........................ 14 21
a. The contingent nature of this case ................................................ 14 22
b. The experience, reputation, and ability of Class
Counsel, and the skill they displayed in litigation. ....................... 15 c. The results achieved. ..................................................................... 15 d. Size of the total settlement value. ................................................. 16 e. Preclusion of other employment. .................................................. 17 23
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3. As of this date, there have been no objections
to the requested attorneys’ fees. ................................................................ 17 28
NOTICE AND MOTION FOR ATTORNEYS’
FEES AND COSTS, ETC.
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B. A cross-check under the lodestar method confirms
the reasonableness of the fee requested. ............................................................... 17 2
4. Class Counsel’s hourly rates are reasonable. ............................................ 19 5. Class Counsel’s hours are reasonable. ...................................................... 20 3
4
C. Class Counsel’s request for costs is also reasonable. ............................................ 21 D. The requested service awards for the Class
Representatives are reasonable. ............................................................................ 22 E. The Claims Administrator’s requested fees are reasonable. ................................. 23 5
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V. CONCLUSION ................................................................................................................. 23 KELLER GROVER LLP
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MEMORANDUM IN SUPPORT OF MOTION
FOR ATTORNEYS’ FEES AND COSTS, ETC.
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2
TABLE OF AUTHORITIES
3
Page
4
5
Federal Cases
6
Alyeska Pipeline Serv. Co. v. Wilderness Soc’y.
421 U.S. 240 (1975) ........................................................................................................... 12
7
8
KELLER GROVER LLP
1965 Market Street, San Francisco, CA 94103
Tel. 415.543.1305 | Fax 415.543.7861
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10
11
12
13
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15
16
17
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19
20
21
22
23
24
25
26
27
28
Becerra, et al. v. RadioShack Corporation
USDC ND Case No. 11-cv-3586 YGR .............................................................................. 20
Behrens v. Wometco Enters., Inc.
118 F.R.D. 534 (S.D. Fla. 1988) ........................................................................................ 15
Behrens v. Wometco Enters., Inc.
899 F.2d 21 (11th Cir. 1990).............................................................................................. 15
Boeing Co. v. Van Gemert
444 U.S. 472 (1980) ..................................................................................................... 12, 13
Bolton v. U.S. Nursing Corp.
2013 WL 5700403 (N.D. Cal. Oct. 18, 2013) .................................................................... 19
Burden v. Select Quote Ins. Servs.
2013 WL 39887771 (N.D. Cal. Aug. 2, 2013)................................................................... 22
Camacho v. Bridgeport Financial, Inc.
523 F.3d 973 (9th Cir. 2008).............................................................................................. 19
City of Burlington v. Dague
505 U.S. 557 (1992) ........................................................................................................... 18
Cook v. Niedert
142 F.3d 1004 (7th Cir. 1998)............................................................................................ 22
Craft v. Cnty. of San Bernardino
624 F. Supp. 2d 1113 (C.D. Cal. 2008) ............................................................................. 16
Glass v. UBS Fin. Servs., Inc.
331 F. App’x 452 (9th Cir. 2009) ...................................................................................... 17
Gonzalez v. Southern Wine & Spirits of Am., Inc.
2014 WL 636807 (9th Cir. Feb. 19, 2014).................................................................. 18, 19
Greko v. Diesel U.S.A., Inc.
2013 WL 1789602 (N.D. Cal. Apr. 26, 2013) ................................................................... 21
Hanlon v. Chrysler Corp.,
150 F.3d 1011 (9th Cir. 1998)...................................................................................... 13, 18
MEMORANDUM IN SUPPORT OF MOTION
FOR ATTORNEYS’ FEES AND COSTS, ETC.
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Hensley v. Eckerhart,
461 U.S. 424 S.Ct. 1933 (1983) ......................................................................................... 15
2
3
4
In re Activision Sec. Litig.
723 F. Supp. 1373 (N.D. Cal. 1989) ............................................................................ 13, 18
In re Bluetooth Headset Products Liab. Litig.
654 F.3d 935 (9th Cir. 2011)........................................................................................ 12, 18
5
6
7
In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litig.
109 F.3d 602 (9th Cir. 1997).............................................................................................. 17
In re GNC Shareholder Litig.
668 F. Supp. 450 (W.D. Pa. 1987). .................................................................................... 21
8
KELLER GROVER LLP
1965 Market Street, San Francisco, CA 94103
Tel. 415.543.1305 | Fax 415.543.7861
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10
In re Heritage Bond Litig.
2005 WL 1594389 (C.D. Cal. June 10, 2005) ................................................................... 13
In re Ikon Office Solutions, Inc., Sec. Litig.
194 F.R.D. 166 (E.D. Pa. 2000) ......................................................................................... 18
11
12
13
In re King Resources Co. Sec. Litig.
420 F. Supp. 610 (D. Colo. 1976) ...................................................................................... 15
In re Mego Fin. Corp. Sec. Litig.
213 F.3d 458 (9th Cir. 2000).............................................................................................. 22
14
15
16
In Re Oracle Secs. Litig.
131 F.R.D. 688 (N.D. Cal. 1990) ....................................................................................... 18
In re Sumitomo Copper Litig.
74 F. Supp. 2d 393 (S.D.N.Y. 1999) .................................................................................. 14
17
18
19
In re United Energy Corp. Sec. Litig.
1989 WL 73211 (C.D. Cal. 1989) ...................................................................................... 21
Ingram v. The Coca-Cola Co.
200 F.R.D. 685 (N.D. Ga. 2001) ........................................................................................ 22
20
21
22
Jacobs v. California State Auto Ass’n Inter-Ins. Bureau
2009 WL 3562871 (N.D. Cal. Oct. 27, 2009). ................................................................... 22
Ko v. Natura Pet Products, Inc.
2012 WL 3945541 (N.D. Cal. Sept. 10, 2012) .................................................................. 12
23
24
25
Matter of Cont’l Illinois Sec. Litig.
962 F.2d 566 (7th Cir. 1992).............................................................................................. 17
Radcliffe v. Experian Info. Solutions Inc.
715 F.3d 1157 (9th Cir. 2013)............................................................................................ 22
26
27
Rodriguez v. W. Publ’g Corp.
563 F.3d 948 (9th Cir. 2009).............................................................................................. 22
28
MEMORANDUM IN SUPPORT OF MOTION
FOR ATTORNEYS’ FEES AND COSTS, ETC.
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Staton v. Boeing Co.
327 F.3d 938 (9th Cir. 2003).................................................................................. 12, 13, 18
2
3
4
Steinfeld v. Discover Fin. Servs.
2014 WL 1309692 (N.D. Cal. Mar. 31, 2014) ................................................................... 19
United Steelworkers of Am. v. Phelps Dodge Corp.
896 F.2d 407 (9th Cir. 1990).............................................................................................. 19
5
6
7
Van Vranken v. Atl. Richfield Co.
901 F. Supp. 294 (N.D. Cal. 1995) ........................................................................ 16, 21, 22
Vasquez v. Coast Valley Roofing, Inc.
266 F.R.D. 482 (E.D. Cal. 2010) ....................................................................................... 12
8
KELLER GROVER LLP
1965 Market Street, San Francisco, CA 94103
Tel. 415.543.1305 | Fax 415.543.7861
9
10
Vedachalam v. Tata Consulting Serv. Ltd.
2013 WL 3941319 (N.D. Cal. July 18, 2013) .................................................................... 19
Vizcaino v. Microsoft Corp.
142 F. Supp. 2d 1299 (W.D. Wash. 2001) ......................................................................... 17
11
12
13
Vizcaino v. Microsoft Corp.
290 F.3d 1043 (9th Cir.2002)...................................................................................... passim
Webb v. Board of Educ.
471 U.S. 234 (1985). .......................................................................................................... 20
14
15
16
Williams v. SuperShuttle Int'l, Inc.
2015 WL 685994 (N.D. Cal. Feb. 12, 2015) ..................................................................... 19
Wren v. RGIS Inventory Specialists
2011 WL 1230826 (N.D. Cal. Apr. 1, 2011) ............................................................... 12, 20
17
18
State Cases
19
Ketchum v. Moses,
24 Cal.4th 1122 (2001) ...................................................................................................... 18
20
21
Serrano v. Priest (“Serrano IV”)
32 Cal.3d 621 (1982) ......................................................................................................... 20
22
23
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Statutes
California Labor Code
§ 2699 ................................................................................................................................. 10
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MEMORANDUM IN SUPPORT OF MOTION
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2
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Rules
Federal Rules of Civil Procedure
Rule 23 ............................................................................................................................... 11
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Treatises
5
6
7
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David F. Herr, Manual for Complex Litigation
§ 14.121 (4th ed. 2013) ...................................................................................................... 18
Newberg, Attorney Fee Awards
§ 2.19 (1987) ...................................................................................................................... 21
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1965 Market Street, San Francisco, CA 94103
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KELLER GROVER LLP
1965 Market Street, San Francisco, CA 94103
Tel. 415.543.1305 | Fax 415.543.7861
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I.
INTRODUCTION
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Plaintiffs Clay Tripp, Karen Solberg and Gayle Smith (“Plaintiffs” or “Settlement Class
3
Representatives”) move this Court for an award of reasonable attorneys’ fees, costs and litigation
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expenses for Class Counsel’s work in achieving a non-reversionary $1,400,000 class action
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settlement of claims against Defendants CROSSMARK, INC. and CHI Management Group, LP
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(collectively “Defendants” or “CROSSMARK”) for violations of certain California Labor Code
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provisions and Business and Professions Code §§ 17200, et seq., which the Court preliminarily
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approved on January 26, 2015.1
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Plaintiffs seek an award of $350,000.00 for Class Counsel’s attorneys’ fees, which
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represents 25% of the total settlement fund, and reimbursement of up to $18,566.80 in out-of-
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pocket costs and litigation expenses incurred by Class Counsel litigating this action, which are
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less than the amounts set forth in the Settlement Agreement and Release (“Settlement
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Agreement”) that is attached as Exhibit A to the Grover Declaration.2
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methodology is appropriate because the settlement class members will receive an ascertainable
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monetary benefit upon the Court’s final approval of the proposed settlement, which enables the
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Court to determine a reasonable, percentage-based fee with “some exactitude.”3 The requested
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fee amount of 25% of the total settlement amount is the presumptively reasonable “benchmark”
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within the Ninth Circuit.4
The common fund
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Although Plaintiffs are not seeking a fee award above the 25% benchmark, the factors
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considered for such an increase strongly support Plaintiffs’ fee request: the results obtained, the
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risk of further litigation, the skill required and quality of work performed, and the contingent
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nature of this litigation, which all demonstrate the reasonableness of Plaintiffs’ fee request.
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1
Docket (“Dkt.”) No. 47.
All “Ex.” references are to exhibits attached to the Grover Declaration (“Grover Decl.”) unless
stated otherwise. All capitalized terms used herein are defined in the Settlement Agreement.
3
Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 271 (9th Cir. 1989).
4
Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1048-50 (9th Cir. 2002).
2
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MEMORANDUM IN SUPPORT OF MOTION
FOR ATTORNEYS’ FEES AND COSTS, ETC.
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CASE NO. 3:13-CV-03480-WHO
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1965 Market Street, San Francisco, CA 94103
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Moreover, the percentage recovery requested is consistent with, or lower than, numerous other
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common fund awards in similar class action settlements.
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A lodestar “cross-check” confirms the reasonableness of Plaintiffs’ fee request. Class
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Counsel’s hourly rates are reasonable in light of their significant experience, skill, and expertise.5
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Moreover, the rates are consistent with those of attorneys of similar qualifications practicing in
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the Bay Area and California as a whole, and have been approved by courts in other settled class
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actions.6 The number of hours expended by Class Counsel is also reasonable. Class counsel has
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provided a summary of Class Counsel’s hours spent litigating this action and hourly rates.7
9
Plaintiffs also seek the Court’s approval of modest service award/general release
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payments to each of the Settlement Class Representatives for the contributions each made to the
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litigation of this matter, including initiating this lawsuit on behalf of the settlement class,
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safeguarding class members’ interests throughout the litigation, and assisting in the settlement.
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Plaintiffs seek payment of the reasonable amount of $8,000 each for Settlement Class
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Representatives Tripp and Solberg and $5,000 for Settlement Class Representative Smith, as set
15
forth in the Settlement Agreement,8 in acknowledgment of the time and efforts each spent seeking
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enforcement of the class members’ rights, including seeking experienced counsel and
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participating in the investigation and preparation of the two operative complaints. Further details
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are contained the declarations of Tripp, Solberg and Smith filed herewith.
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Plaintiffs also request that the Court approve payment of up to $50,000 to CPT Group for
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the fees it has incurred to date and will incur administering this settlement. The maximum
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amount requested is the amount set forth in the Settlement Agreement.9 Tim Cunningham of
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CPT Group has submitted a declaration detailing the worked performed by CPT Group to date.
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Grover Decl. at ¶¶ 2-4, 40-43; Westrick Decl. at ¶¶ 2-6.
Grover Decl. at ¶¶ 39, 44-45.
7
Id. at ¶¶ 36-43; Westrick Decl. at ¶¶ 19-27.
8
Ex. A at ¶ 3.3
9
Ex. A at ¶ 3.2.
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CPT Group will provide a supplemental declaration in connection with the final approval motion
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to be filed on May 13, 2015 that will include CPT Group’s final invoice.
3
II.
PROCEDURAL HISTORY AND SUMMARY OF CLAIMS
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On June 4, 2013, Plaintiffs Tripp and Solberg commenced an action (the “First Action”)
5
by filing a proposed class action complaint (“Tripp/Solberg Complaint”) captioned Clay Tripp
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and Karen Solberg v. Crossmark, Inc., et al., in Alameda County Superior Court. Defendants
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removed the First Action on July 26, 2013.10
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On October 9, 2013, Plaintiff Gayle Smith commenced an action (the “Second Action”)
9
by filing a proposed class action complaint (“Smith Complaint”) captioned Gayle Smith v.
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Crossmark, Inc., et al., in Los Angeles County Superior Court. Defendants removed the Second
11
Action to the Central District of California on November 23, 2013.11 The Second Action was
12
later transferred to the Northern District and consolidated with the First Action in this Court for
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the purpose of the settlement proceedings.12
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Defendants vigorously denied all of the allegations in their entirety.13 To date, no class
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has been certified and no court has made any findings that Defendants engaged in any
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wrongdoing or in any wrongful conduct or otherwise acted improperly or in violation of any state
17
law, rule or regulation, with respect to the issues presented in the litigation.14
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A.
Class Counsel’s work litigating and settling the actions.
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Prior to the filing of this action, Class Counsel expended time and effort in investigating,
20
researching, and preparing this case for litigation.15 Prior to the agreement to mediate, Class
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Counsel drafted and propounded targeted written discovery, including interrogatories, requests
22
for admission, and document requests.16 Class Counsel reviewed Defendant’s written discovery
23
24
10
Ex. A at ¶ B; Grover Decl. at ¶ 5.
Ex. A at ¶ C; Grover Decl. at ¶ 6.
12
Grover Decl. at ¶ 6.
13
Ex. A at ¶ H; Grover Decl. at ¶ 7.
14
Grover Decl. at ¶ 7.
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Grover Decl. at ¶¶ 8, 36; Westrick Decl. at ¶¶ 11, 19.
16
Grover Decl. at ¶¶ 9, 36; Westrick Decl. at ¶ 12.
11
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responses and Initial Disclosures.17 Class Counsel prepared for and defended the depositions of
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Named Plaintiffs Tripp and Solberg.18
3
As the discovery progressed, Class Counsel engaged in discussions with counsel for
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Defendants regarding potential settlement and eventually agreed to exchange additional
5
information informally and schedule a mediation session.19 Class Counsel drafted a detailed
6
statement of the information needed for a productive mediation and presented that statement to
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counsel for Defendants.20
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mediation.21
Defendants produced the requested information prior to the
9
On July 29 2014, the Parties participated in a mediation session with Michael E.
10
Dickstein, Esq.22 In preparation for that mediation session, Class Counsel prepared an extensive
11
mediation brief that was submitted to the mediator and Defendants.23 Although a settlement was
12
not reached that day, the Parties continued further negotiations, with the assistance of
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Mr. Dickstein, until an agreement to settle both Actions was reached in October 2014.24
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After the Parties reached a tentative settlement, Class Counsel drafted a detailed,
15
formalized settlement agreement and exhibits and negotiated the language and terms with
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Defense Counsel until the Settlement Agreement setting forth all of the settlement terms and the
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exhibits were finalized.25
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approval of the proposed class settlement and supporting papers.26
Class Counsel also drafted and filed the motion for preliminary
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21
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22
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23
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25
26
27
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Grover Decl. at ¶¶ 9, 36.
Id.
19
Grover Decl. at ¶ 10; Westrick Decl. at ¶ 13.
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Id.
21
Id.
Grover Decl. at ¶ 11; Westrick Decl. at ¶ 14.
23
Id.
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Id.; Ex. A at ¶ F.
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Grover Decl. at ¶ 12; Westrick Decl. at ¶ 15; see also, Ex. A.
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Grover Decl. at ¶ 13; Westrick Decl. at ¶ 16; Dkt. No. 44.
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MEMORANDUM IN SUPPORT OF MOTION
FOR ATTORNEYS’ FEES AND COSTS, ETC.
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1965 Market Street, San Francisco, CA 94103
Tel. 415.543.1305 | Fax 415.543.7861
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Class Counsel will spend additional time working with the Claims Administrator on the
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remaining claims process, speaking with Class Members, finalizing this motion, preparing and
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filing the final approval motion, and preparing for and attending the final fairness hearing.27
4
B.
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Plaintiffs actively participated in the litigation of this matter. Prior to bringing this action,
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Plaintiffs provided substantive information to Class Counsel regarding their claims.28 Before the
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complaints were filed, Plaintiffs discussed their claims and the underlying circumstances with
8
their counsel.29 After the complaints were filed, Plaintiffs regularly communicated with Class
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Counsel regarding the progress of the litigation and the settlement. Plaintiffs assisted in the
10
discovery process, including the initial disclosures.30 In addition, Plaintiffs Tripp and Solberg
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were deposed by Defendants.31
C.
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15
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The status of the claims process.
The Court granted preliminary approval of the settlement and Settlement Agreement on
13
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The Named Plaintiffs’ participation in the action.
January 26, 2015.32 The notice procedure set forth in the Settlement Agreement and approved in
the Court’s preliminary approval order required that notice of the class settlement be provided in
via U.S. mail notification and a settlement website.33 The Court also issued an order on March
24, 2015 approving the Parties’ revision to the definition of Settlement Class 1 and minimum
settlement payments, which are described below.34
19
20
21
27
22
28
23
29
24
25
26
27
28
Grover Decl. at ¶¶ 14, 37; Westrick Decl. at ¶¶ 17, 20.
Grover Decl. at ¶¶ 59-60; Westrick Decl. at ¶¶ 35-36.
Grover Decl. at ¶ 60; Westrick Decl. at ¶ 36; see generally, Declaration of Clay Tripp (“Tripp
Decl.”), Declaration of Karen Solberg (“Solberg Decl.”), and Declaration of Gayle Smith (“Smith
Decl.”), submitted herewith.
30
Id.
31
Grover Decl. at ¶ 62.
32
Dkt. No. 47.
33
See Ex. A at ¶ 6.1; Dkt. No. 47.
34
Dkt. No. 50.
MEMORANDUM IN SUPPORT OF MOTION
FOR ATTORNEYS’ FEES AND COSTS, ETC.
5
CASE NO. 3:13-CV-03480-WHO
KELLER GROVER LLP
1965 Market Street, San Francisco, CA 94103
Tel. 415.543.1305 | Fax 415.543.7861
Case3:14-cv-04461-WHO Document29 Filed04/10/15 Page14 of 31
1
Pursuant to the Court’s January 26 and March 24, 2015 orders, on March 27, 2015, CPT
2
Group, the Court-approved Claims Administrator, mailed out the class notice and published the
3
settlement website (at the URL www.CROSSMARKwagesettlement.com).35
4
The deadline to electronically file or postmark a claim, opt out of the settlement, or submit
5
an objection is May 26, 2015.36 To date, CPT Group has received no objections to the settlement
6
and no opt outs.37 As of April 9, 2015, CPT Group has received a total of 313 claims.38
7
CPT Group will provide a supplemental declaration with the final approval motion setting
8
for the final claims data. Once the claims period closes and the Court grants final approval of the
9
settlement, CPT Group will calculate the settlement payments based on the number of total valid
10
and timely claims received.
11
III.
THE PROPOSED SETTLEMENT
12
A.
13
The Settlement Agreement defines two settlement classes. Settlement Class 1 (the Hourly
14
The settlement classes and class periods.
Class) is defined as:
All hourly California employees of Defendants who worked in one or
more of approximately 34 job codes covering the data collector, event
specialist and retail representative job positions between June 4, 2009 and
October 31, 2014, inclusive.39
15
16
17
Settlement Class 2 (the Labor Code Section 212 Paycheck Class) is defined as:
18
All California employees of Defendants who worked at any time between
June 4, 2009 and March 25, 2013, inclusive, and who received at least one
physical paycheck.40
19
20
21
During the process of finalizing the class data and estimated settlement payments as part
22
of the class notice process, it was discovered that a number of CROSSMARK employees who
23
24
25
26
27
28
35
Cunningham Decl. at ¶¶ 8, 9.
Cunningham Decl., Ex. 1 at pp.5-6; Grover Decl. at ¶ 24.
37
Cunningham Decl. at ¶¶ 11, 13.
38
Id. at ¶ 12.
39
Ex. A at ¶ 1 (w).
40
Ex. A at ¶ 1 (x).
36
MEMORANDUM IN SUPPORT OF MOTION
FOR ATTORNEYS’ FEES AND COSTS, ETC.
6
CASE NO. 3:13-CV-03480-WHO
KELLER GROVER LLP
1965 Market Street, San Francisco, CA 94103
Tel. 415.543.1305 | Fax 415.543.7861
Case3:14-cv-04461-WHO Document29 Filed04/10/15 Page15 of 31
1
met the literal definition of “Settlement Class 1 (Hourly Class) Member” did not work even one
2
Eligible Shift. In addition, a number of Settlement Class 1 Members had estimated pre-tax
3
settlement payments of less than $50 based on their number of Eligible Shifts.41
4
The Parties met and conferred and agreed to clarify the definition of Settlement Class 1 to
5
exclude from the definition any hourly employee who otherwise met the original definition of
6
Settlement Class 1 but who did not work at least one shift of six or more hours during the
7
Settlement Class 1 Period, June 4, 2009 through October 31, 2014. Such individuals are not be
8
part of Settlement Class 1 and will have no rights extinguished as a result of the settlement. To
9
the extent such individuals also fall within the definition of Settlement Class 2, only the limited
10
Settlement Class 2 release will apply.42
11
Settlement Class 1 definition in its March 24, 2015 order.43
The Court approved the parties’ revision to the
12
Additionally, the Parties agreed – and the Court approved in the March 24, 2015 order –
13
that regardless of the number of Eligible Shifts worked, each Settlement Class 1 Member who
14
files a valid and timely claim will receive a pre-tax settlement payment of at least $50.44
15
The members of Settlement Class 1 and 2 are referred to collectively in this memorandum
16
as the “Class Members.” The “Class Period” defined by the Settlement Agreement is June 4,
17
2009 through October 31, 2014, inclusive. The relevant period for Settlement Class 2, however,
18
is limited to June 4, 2009 through March 25, 2013, inclusive.45 The proposed Settlement Classes
19
encompass the classes and sub-classes alleged in the Tripp/Solberg Complaint and the Smith
20
Complaint.46
21
B.
The settlement fund.
22
The Settlement requires Defendants to pay $1,400,000, which is referred to as the
23
24
25
26
27
28
41
Grover Decl. at ¶ 17.
Grover Decl.at ¶ 18.
43
Dkt. No. 50; see also, Grover Decl. at ¶ 20.
44
Id.
45
Ex. A at ¶¶ 1(w), (x).
46
See Dkt. Nos. 44-2 (Tripp/Solberg Complaint at ¶¶ 19-22) and 44-3 (Smith Complaint at ¶ 14).
42
MEMORANDUM IN SUPPORT OF MOTION
FOR ATTORNEYS’ FEES AND COSTS, ETC.
7
CASE NO. 3:13-CV-03480-WHO
KELLER GROVER LLP
1965 Market Street, San Francisco, CA 94103
Tel. 415.543.1305 | Fax 415.543.7861
Case3:14-cv-04461-WHO Document29 Filed04/10/15 Page16 of 31
1
Common Fund, plus the employers’ share of payroll taxes.47
2
approval, the Common Fund will be used to cover all payments to Class Members, payment to
3
the California Labor and Workforce Development Agency (“LWDA”), the cost of administering
4
the settlement, attorneys’ fees and costs, and the named Plaintiffs’ service award/general release
5
payments.48
Subject to the Court’s final
6
The Parties agreed to the Common Fund amount based on Defendants’ representation that
7
there are no more than 1,200,000 Eligible Shifts at issue.49 The actual number of Eligible Shifts
8
has now been calculated at 739,372.50
9
As noted, the Parties have agreed that, regardless of the number of Eligible Shifts worked
10
by members of Settlement Class 1, the minimum pre-tax settlement payment would be $50. In
11
order to provide for that minimum payment without reducing the payment to any Settlement
12
Class 1 member with an estimated pre-tax settlement payment over $50, Class Counsel agreed to
13
reduce the maximum attorneys’ fees request from 30% ($420,000) of the Gross Settlement
14
Amount to 25% ($350,000) and reallocate the $70,000 difference to the Settlement 1 Class
15
Members.51
16
C.
Settlement payments to the Class Members.
17
Pursuant to the Settlement Agreement, Class Members will be paid from the Net
18
Settlement Fund, which consists of the $1,400,000 Common Fund minus the LWDA’s PAGA
19
payment, the Court-approved attorneys’ fees and costs, administration costs, and the named
20
Plaintiffs’ service awards/general release payments.52 The Parties originally estimated that the
21
Net Settlement Fund would be approximately $877,750.53 After the reallocation of $70,000 from
22
23
24
25
26
27
28
47
Ex. A at ¶ 3.1.
Ex. A at ¶¶ 3.1, 3.5.
49
Ex. A at ¶ 1(t)(1).
50
Ex. A at ¶ 1(t)(1).
51
Grover Decl. at ¶ 19.
52
Ex. A at ¶¶ 3.1, 3.5.
53
Ex. A at ¶ 3.5.
48
MEMORANDUM IN SUPPORT OF MOTION
FOR ATTORNEYS’ FEES AND COSTS, ETC.
8
CASE NO. 3:13-CV-03480-WHO
KELLER GROVER LLP
1965 Market Street, San Francisco, CA 94103
Tel. 415.543.1305 | Fax 415.543.7861
Case3:14-cv-04461-WHO Document29 Filed04/10/15 Page17 of 31
1
potential attorneys’ fees to funds to be paid out to members of Settlement Class 1, the new
2
estimated Net Settlement Fund is $947,750.54
3
The Settlement Agreement allocates up to $150,720 of the Net Settlement Fund to
4
Settlement Class 2 (Labor Code Section 212 Paycheck Class) claims.55 Each Settlement Class 2
5
member who files a claim will receive the sum of $3 for each physical paycheck received
6
between June 4, 2009 and March 25, 2013. In the event valid and timely claims of Settlement
7
Class 2 Members do not exhaust the allocated $150,720, any remaining amount shall be used to
8
pay the claims of Settlement Class 1 (Hourly Class) Members who file valid and timely claims.56
9
Based on the class data, the average value of each Settlement 2 Class Member claim is $50.93.57
10
The remaining approximately $824,030 of the Net Settlement Fund is allocated to
11
Settlement Class 1 and must be paid entirely to members of Settlement Class 1 who submit valid
12
and timely claims.58 Participating members of Settlement Class 1 will receive a pro rata share of
13
the amount allocated to Settlement Class 1 based on the number of Eligible Shifts he or she
14
worked. If all Settlement Class 1 Members file claims, each participating Settlement Class 1
15
Member will receive a settlement payment of, on average, $136.12. If fewer Class Members file
16
claims, the average amount of each settlement payment will be higher.59
17
The Settlement Agreement requires that all of the Net Settlement Fund must be paid out to
18
settlement Class Members who submit valid claims and do not opt out.60 There is no reversion to
19
Defendants of any amount of the Common Fund.61
20
D.
Settlement of the PAGA penalties claims.
21
The Parties have agreed to allocate $15,000 to the Settlement of the claims for penalties
22
23
54
24
55
25
26
27
28
Grover Decl. at ¶ 30.
Ex. A at ¶ 3.6
56
Ex. A at ¶ 3.6; see also, Grover Decl. at ¶¶ 31, 33.
57
Cunningham Decl. at ¶ 15.
58
Ex. A at ¶ 3.7.
59
Ex. A at ¶ 3.7; see also, Grover Decl. at ¶ 33.
60
Ex. A at ¶ 3.12.
61
Ex. A at ¶ 3.12.
MEMORANDUM IN SUPPORT OF MOTION
FOR ATTORNEYS’ FEES AND COSTS, ETC.
9
CASE NO. 3:13-CV-03480-WHO
KELLER GROVER LLP
1965 Market Street, San Francisco, CA 94103
Tel. 415.543.1305 | Fax 415.543.7861
Case3:14-cv-04461-WHO Document29 Filed04/10/15 Page18 of 31
1
under PAGA.62 75% must be provided to the California LWDA and 25% must be provided to the
2
Class.63 The Class Members’ portion of the PAGA settlement payment has been included in the
3
amount of the Settlement Class 1 Members settlement payments.64
4
E.
5
The Settlement Agreement provides that Plaintiffs may seek attorneys’ fees of $420,000,
6
which is 30% of the total Common Fund, and reimbursement of out-of-pocket costs not to exceed
7
$20,000.65 Plaintiffs actually are seeking a lower fee amount of $350,000, which represents 25%
8
of the total Common Fund and up to $18,566.80 in costs.66 The fee amount is intended to
9
compensate Class Counsel for the benefits achieved for the class, the efficient and fair resolution
10
of the class claims, the risk of taking on a complex class action on a contingency basis, the
11
preclusion of accepting other work, plus all of the work that Class Counsel already performed in
12
litigating this action and will perform in documenting the settlement, securing approval of the
13
settlement, making sure that the settlement is fairly administered and implemented, and obtaining
14
dismissal of the action.67
F.
15
18
19
20
21
22
23
24
25
26
27
28
Settlement Class Representatives’ service award/general release payments.
The Settlement Agreement provides for modest service award/general release payments to
16
17
The Settlement Agreement clearly states the attorneys’ fees and costs.
the named Plaintiffs and Settlement Class Representatives, subject to the Court’s approval.68
Plaintiffs request a service award/general release payment to Plaintiffs Tripp and Solberg in the
amount of $8,000 each and to Plaintiff Smith in the amount of $5,000.69 Each named Plaintiff
has provided a declaration, which is submitted with this motion, explaining his or her efforts in
the litigation and settlement this action.70
62
Lab. Code § 2699(f); Ex. A at ¶ 1(q).
Ex. A at ¶ 1(q); Cal. Lab. Code § 2699(i).
64
Ex. A at ¶¶ 1(q), 3.9; Grover Decl. at ¶ 34.
65
Ex. A at ¶ 3.2.
66
Grover Decl. at ¶¶ 19, 35-58.
67
Id.
68
Ex. A at ¶ 3.3.
69
See id.
70
See generally, Tripp Declaration, Solberg Declaration, and Smith Declaration.
63
MEMORANDUM IN SUPPORT OF MOTION
FOR ATTORNEYS’ FEES AND COSTS, ETC.
10
CASE NO. 3:13-CV-03480-WHO
Case3:14-cv-04461-WHO Document29 Filed04/10/15 Page19 of 31
1
G.
2
The Settlement Agreement provides that the Claims Administrator may be paid fees not
3
to exceed $50,000.71 CPT Group, the Court-approved Claims Administrator, has performed and
4
will continue to perform tasks necessary to the administration of the settlement, including
5
providing mail notice to the Class Members, setting up a settlement website, receiving Claim
6
Forms and requests for exclusion, processing all returned mail, handling inquiries from Class
7
Members, and mailing reminder postcards.
8
settlement payments and issuing and mailing settlement payments.72
KELLER GROVER LLP
CPT Group also will be calculating individual
CPT Group will provide a supplemental declaration in connection with the final approval
9
1965 Market Street, San Francisco, CA 94103
Tel. 415.543.1305 | Fax 415.543.7861
Claims administration fees.
10
motion specifying the exact dollar amount at or below $50,000 that it is seeking.73
11
Settlement Agreement provides that, if the administration costs are less than $50,000, the
12
difference will be held as a contingency for unanticipated items for 60 days after the Settlement
13
Effective Date.74 The Claims Administrator will distribute any funds left after that time to any
14
later discovered Settlement Class Members or Settlement Class Members who submit late but
15
otherwise valid claims based on the settlement formula in the Settlement Agreement.75 If there
16
are no such recipients or if any funds remain after such further distribution, all remaining amounts
17
will be paid to the LWDA.76
18
IV.
The
ARGUMENT
19
A.
20
District Courts may award attorneys’ fees and costs to a prevailing plaintiff where “(1) fee
21
shifting is expressly authorized by the governing statutes; (2) the [defendant] acted in bad faith or
22
willfully violated a court order; or (3) the successful litigants have created a common fund for
Plaintiffs seek a fee award under the percentage of the common fund method.
23
24
71
25
26
27
28
Ex. A at ¶ 4.
Ex. A at ¶ 4.
73
See Cunningham Decl. at ¶ 16.
74
Ex. A at ¶ 4.1.
75
Ex. A at ¶ 4.1.
76
Ex. A at ¶ 4.1.
72
MEMORANDUM IN SUPPORT OF MOTION
FOR ATTORNEYS’ FEES AND COSTS, ETC.
11
CASE NO. 3:13-CV-03480-WHO
KELLER GROVER LLP
1965 Market Street, San Francisco, CA 94103
Tel. 415.543.1305 | Fax 415.543.7861
Case3:14-cv-04461-WHO Document29 Filed04/10/15 Page20 of 31
1
recovery or extended substantial benefit to the class.”77 In the class action context, courts
2
generally award attorneys’ fees and costs pursuant to the common fund or statutory fee-shifting
3
methodologies.78 Where there is a common fund, “the primary basis of the fee award remains the
4
percentage method.”79 The Ninth Circuit has consistently awarded attorneys’ fees under the
5
common fund method, reasoning that “a lawyer who recovers a common fund for the benefit of
6
persons other than himself or his client is entitled to a reasonable attorney’s fee from the fund as a
7
whole.”80 “The common fund doctrine is properly applied, however, only if (1) the class of
8
beneficiaries is sufficiently identifiable, (2) the benefits can be accurately traced, and (3) the fee
9
can be shifted with some exactitude to those benefiting.”81 These requirements are met where
10
“each member of a certified class has an undisputed and mathematically ascertainable claim to
11
part of a lump-sum [settlement] recovered on his behalf.”82
12
In the Ninth Circuit, 25% of the common fund represents the “benchmark.”83 The 25%
13
benchmark is considered presumptively reasonable and can be adjusted upward or downward to
14
account for any unusual circumstances in a particular case.84 The benchmark may be adjusted
15
upward or downward based on several factors, including: (1) the results achieved; (2) the risk of
16
litigation; (3) the skill required; (4) the quality of work; (5) the contingent nature of the fee and
17
the financial burden; and (6) the awards made in similar cases.85
18
19
20
21
22
23
24
25
26
27
28
77
In re Bluetooth Headset Products Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011) (“In re
Bluetooth”) (citing Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 275 (1975)).
78
In re Bluetooth, 654 F.3d at 941.
79
Vizcaino, 290 F.3d at 1050; In re Bluetooth, 654 F.3d at 942.
80
Staton v. Boeing Co., 327 F.3d 938, 967 (9th Cir. 2003) (quoting Boeing Co. v. Van Gemert,
444 U.S. 472, 478 (1980)).
81
Paul, 886 F.2d at 271 (internal quotations omitted).
82
Id., quoting Boeing, 444 U.S. at 478-79.
83
Vizcaino, 290 F.3d at 1048-50.
84
In re Bluetooth, 654 F.3d at 942; Ko v. Natura Pet Products, Inc., No. C 09-02619 SBA, 2012
WL 3945541, at *14-15 (N.D. Cal. Sept. 10, 2012) (recognizing that the Ninth Circuit considers
25% to be “presumptively reasonable”).
85
Vizcaino, 290 F.3d at 1048-50; Wren v. RGIS Inventory Specialists, No. C-06-05778 JCS, 2011
WL 1230826, at *27-28 (N.D. Cal. Apr. 1, 2011).
MEMORANDUM IN SUPPORT OF MOTION
FOR ATTORNEYS’ FEES AND COSTS, ETC.
12
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Case3:14-cv-04461-WHO Document29 Filed04/10/15 Page21 of 31
1
2
In the settlement approval context, the class members’ reaction to the requested fee also is
a relevant factor.86 The “usual range” of common fund awards is 20-30%.87
1.
KELLER GROVER LLP
1965 Market Street, San Francisco, CA 94103
Tel. 415.543.1305 | Fax 415.543.7861
3
The requested fee matches the benchmark in this circuit.
4
Class Counsel respectfully requests that the Court approve the requested fees and costs to
5
be paid in this action. Class Counsel seeks an award of 25% of the common fund.88 Courts have
6
long recognized the ”common fund” or “common benefit” doctrine, under which attorneys who
7
create a common fund or benefit for a group of persons may be awarded their fees and costs to be
8
paid out of the fund.89 The percentage of common fund is particularly appropriate “‘when each
9
member of a certified class has an undisputed and mathematically ascertainable claim to part of a
10
lump-sum judgment recovered on his behalf.’”90 Here, the Settlement Agreement set forth a
11
specific lump sum allocation to the Class, as well as a distribution formula through which each
12
Class Member who does not opt out of the Settlement and files a valid claim will receive a
13
mathematically ascertainable payment, making the percentage of common fund doctrine
14
appropriate.91
15
The typical range of acceptable attorneys’ fees in the Ninth Circuit is 20% to 30% of the
16
total settlement value, with 25% considered the benchmark.92 Here, Plaintiffs are requesting a fee
17
award equivalent to 25% of the total settlement value, directly in line with the accepted
18
benchmark and less than the 30% provided in the Settlement Agreement.
19
20
21
22
23
24
25
26
27
28
86
In re Heritage Bond Litig., No. 02-ML-1475-DT(RCX), 2005 WL 1594389, at *15 (C.D. Cal.
June 10, 2005) (“absence of objections from the class is also a factor in determining the proper
fee award”).
87
Vizcaino, 290 F.3d at 1047-50
88
Grover Decl. at ¶¶ 19, 35-54.
89
See e.g., Hanlon v. Chrysler Corp., 150 F.3d 1011, 1029 (9th Cir. 1998); Staton, 327 F.3d at
972 (“[A] lawyer who recovers a common fund for the benefit of persons other than himself or
his client is entitled to a reasonable attorney’s fee from the fund as a whole,” quoting Boeing ,
444 U.S. at 478); In re Activision Sec. Litig., 723 F. Supp. 1373, 1378-79 (N.D. Cal. 1989).
90
Staton, 327 F.3d at 972, quoting Boeing, 444 U.S. at 478-79.
91
See Ex. A at ¶¶ 3.1, 3.4, 3.5.
92
Hanlon, 150 F.3d at 1029 (“[t]his circuit has established 25% of the common fund as a
benchmark award for attorneys’ fees.”); Staton, 327 F.3d at 952.
MEMORANDUM IN SUPPORT OF MOTION
FOR ATTORNEYS’ FEES AND COSTS, ETC.
13
CASE NO. 3:13-CV-03480-WHO
Case3:14-cv-04461-WHO Document29 Filed04/10/15 Page22 of 31
KELLER GROVER LLP
1965 Market Street, San Francisco, CA 94103
Tel. 415.543.1305 | Fax 415.543.7861
1
2.
The circumstances of this case support a 25% fee award.
2
Although Plaintiffs are not seeking a fee award above the benchmark, the factors courts
3
consider when deciding whether a higher percentage is warranted demonstrate that the fee
4
requested here is reasonable. The factors include the results achieved; the risk of litigation; the
5
skill required and the quality of work; the contingent nature of the fee and the financial burden
6
carried by the plaintiffs; and the awards made in similar cases.93
7
Class Counsel provided experienced, competent representation and obtained significant
8
results for the Class Members, all while prosecuting the case on a contingency basis, which
9
presented considerable risk for Counsel. As articulated by one Southern District of New York
10
court:
No one expects a lawyer whose compensation is contingent on the
success of his services to charge, when successful, as little as he
would charge a client who in advance of the litigation has agreed
to pay for his services, regardless of success. Nor, particularly in
complicated cases producing large recoveries, is it just to make a
fee depend solely on the reasonable amount of time expended.94
11
12
13
14
a.
The contingent nature of this case .
15
From the outset of the case to the present, prosecution of this action has involved
16
significant financial risk for Class Counsel.95 Class Counsel undertook this matter solely on a
17
contingent basis, with no guarantee of recovery. Class Counsel placed at risk their own resources
18
to prosecute this action with no guarantee of success.96 The risks of this case are apparent in the
19
expected battles over class certification and on the merits of the action. Even if Plaintiffs would
20
have succeeded at certification, there was no assurance that they would succeed at trial. Despite
21
such challenges, Class Counsel were able to persuade Defendants that they faced significant
22
exposure such that they were willing to pay $1,400,000 to settle Plaintiffs’ claims.
23
24
25
93
Vizcaino, 290 F.3d at 1047.
In re Sumitomo Copper Litig. 74 F. Supp. 2d 393, 396-398 (S.D.N.Y. 1999) (describing the
overwhelming weight of federal authority in favor of the percentage fee method).
95
Grover Decl. at ¶¶ 35, 49-50; Westrick Decl. at ¶¶ 7, 18, 28-29, 33.
96
Grover Decl. at ¶¶ 35, 54; Westrick Decl. at ¶¶ 18, 28-29.
94
26
27
28
MEMORANDUM IN SUPPORT OF MOTION
FOR ATTORNEYS’ FEES AND COSTS, ETC.
14
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Case3:14-cv-04461-WHO Document29 Filed04/10/15 Page23 of 31
1
b.
2
3
4
5
6
7
Class Counsel is experienced in complex class litigation including numerous privacy
related class actions.97 Class Counsel’s skills in developing the factual record and persuading
Defendant of the costs and risks of prolonged litigation were helpful in achieving the Settlement.
Through their skill and experience, Class Counsel was able to obtain a settlement that provides an
outstanding result for the Class Members.
c.
8
KELLER GROVER LLP
1965 Market Street, San Francisco, CA 94103
Tel. 415.543.1305 | Fax 415.543.7861
11
12
13
14
15
16
17
considered in making a fee award.98 In light of some of the hurdles imposed by the prior Mitchell
settlement, Class Counsel achieved an exceptional result in this case, under all the circumstances.
The parties reached a non-collusive, arms-length settlement, with the assistance of a respected
mediator, after formal and informal discovery and contested litigation.99 Moreover, Defendant
strongly denied liability and challenged Plaintiffs’ ability to certify the class and prove the alleged
violations. Continued litigation of this lawsuit presented Plaintiffs with substantial legal risks of
certifying the class, proving liability and defeating any appeals relating to liability, damages or
class certification.100
The Class Members’ support for the results achieved by Class Counsel is demonstrated
18
19
The results achieved.
Courts have consistently recognized that the result achieved is a major factor to be
9
10
The experience, reputation, and ability of Class Counsel, and the
skill they displayed in litigation.
by the absence, to date, of any objections to either the Settlement or to Class Counsel’s request
20
21
22
23
24
25
26
27
28
97
See Grover Decl. at ¶¶ 2-4, 40-43, 51; Westrick Decl. at ¶¶ 2-6, 23-26, 30.
Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 1941 (1983) (“most critical factor is
the degree of success obtained”); In re King Resources Co. Sec. Litig., 420 F. Supp. 610, 630 (D.
Colo. 1976) (“the amount of the recovery, and end result achieved are of primary importance, for
these are the true benefit to the client”); Behrens v. Wometco Enters., Inc., 118 F.R.D. 534, 54748 (S.D. Fla. 1988) (“The quality of work performed in a case that settles before trial is best
measured by the benefit obtained.”), aff'd, 899 F.2d 21 (11th Cir. 1990).
99
Grover Decl. at ¶¶ 9-12, 52-54; Westrick Decl. at ¶¶ 12-14.
100
Grover Decl. at ¶ 50; see also, Dkt. No. 44-1 (Grover Declaration submitted with the
preliminary approval motion, at ¶¶ 18, 32, 37-38); Westrick Decl. at ¶¶ 28-29.
98
MEMORANDUM IN SUPPORT OF MOTION
FOR ATTORNEYS’ FEES AND COSTS, ETC.
15
CASE NO. 3:13-CV-03480-WHO
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1965 Market Street, San Francisco, CA 94103
Tel. 415.543.1305 | Fax 415.543.7861
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1
for fees, both of which were described clearly in the Notice.101 Also, as of the date that this
2
application is being filed, not a single Class Members has opted out of the Settlement.102
3
Class Counsel in this case negotiated a settlement which ensured that class members who
4
submit a simple claim form will receive a significant cash benefit. Each Class Member who does
5
not opt and files a valid claim will receive a pro rata share of the Net Settlement Fund based on
6
the distribution formula set forth in the Settlement Agreement.103 As of April 9, 2015, 313 Class
7
Members have filed claims.104
8
The settlement provides the participating Class Members with a real monetary benefit at
9
this juncture, avoiding the very real risk of not succeeding at the certification or liability phase,
10
which likely would take years to determine. These are significant benefits for the Class Members
11
and the efficiency with which this litigation was conducted and resolved should be rewarded.105
12
d.
Size of the total settlement value.
13
Even in light of the Mitchell settlement, Class Counsel negotiated a total Common Fund
14
of $1,400,000 plus the employer’s share of the payroll taxes.106 Fee award percentages generally
15
are higher in cases where the common fund is relatively small, i.e., below $10 million.107 In
16
settlements of this size, fee percentages above the 25% benchmark are commonly awarded.108
17
Thus, given the size of the total common fund in this case, the 25% requested is reasonable.
18
19
101
20
21
22
23
24
25
26
27
28
See Cunningham Decl. at ¶ 11, Ex. 1; Grover Decl. at ¶¶ 25, 53.
Cunningham Decl. at ¶ 13.
103
Ex. A at ¶¶ 3.1, 3.4, 3.5, 3.6.
104
Cunningham Decl. at ¶ 12.
105
Cunningham Decl. at ¶ 15; Grover Decl. at ¶¶ 51-52; see also, e.g., Heritage Bond, 2005 U.S.
Dist. LEXIS 13627, at *27-28 (median amounts recovered in settlement of shareholder class
actions were between 2%-3% of possible damages).
106
Ex. A at ¶ 3.1.
107
Van Vranken v. Atlantic Richfield Co., 901 F. Supp. 294, 297-98 (N.D. Cal. 1995)
(percentages of more than 30% tended to be awarded in cases with class funds of less than $10
million); Craft v. Cnty. of San Bernardino, 624 F. Supp. 2d 1113, 1127 (C.D. Cal. 2008) (“Cases
of under $10 Million will often result in result in fees above 25%.”).
108
Van Vranken, 901 F. Supp. at 297-98.
102
MEMORANDUM IN SUPPORT OF MOTION
FOR ATTORNEYS’ FEES AND COSTS, ETC.
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e.
2
Class Counsel’s commitment to this litigation should not be overlooked in assessing the
3
reasonableness of the fee request. Class Counsel was forced to forego other employment in order
4
to devote the time necessary to pursue this litigation.109
5
3.
KELLER GROVER LLP
6
1965 Market Street, San Francisco, CA 94103
Tel. 415.543.1305 | Fax 415.543.7861
Preclusion of other employment.
As of this date, there have been no objections to the requested
attorneys’ fees.
7
Plaintiffs’ intention to request payment of Class Counsel’s attorneys’ fees was clearly
8
disclosed to each Class Member in the Court-approved Class Notice and in information found on
9
the Settlement Website.110 As of the filing of this brief, there has been no objection to the request
10
for attorneys’ fees.111 The lack of objections signifies the Class Members’ approval of the
11
requested attorneys’ fees.
12
B.
13
A cross-check under the lodestar method confirms the reasonableness of the
fee requested.
Courts may “cross-check” the percentage of the common fund against the lodestar to
14
ensure reasonableness of the fee award.112 The goal of both the lodestar and percentage of the
15
common fund methodologies is the determination of a reasonable fee that is consistent with
16
market rates.113
17
18
19
20
21
22
23
24
25
26
27
28
109
See Grover Decl. at ¶ 54; Westrick Decl. at ¶¶ 18, 28, 33.
See Dkt. No. 47 (Exhibits 1, 2a, 2b, 2c, 3).
111
Cunningham Decl. at ¶ 11; Grover Decl. at ¶¶ 25, 53.
112
Glass v. UBS Fin. Servs., Inc., 331 F. App’x 452, 456 (9th Cir. 2009) (approving the district
court’s “informal lodestar cross-check” for confirming the reasonableness of the percentage
award); Vizcaino, 290 F.3d at 1050 (similar).
113
In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litig., 109 F.3d 602,
607 (9th Cir. 1997) (“Reasonableness is the goal, and mechanical or formulaic application of
either method, where it yields an unreasonable result, can be an abuse of discretion.”); Matter of
Cont’l Illinois Sec. Litig., 962 F.2d 566, 568 (7th Cir. 1992) (a court should “determine what the
lawyer would receive if he were selling his services in the market rather than being paid by court
order.”); Vizcaino v. Microsoft Corp., 142 F. Supp. 2d 1299, 1304 (W.D. Wash. 2001) aff’d, 290
F.3d 1043 (9th Cir. 2002) (same).
110
MEMORANDUM IN SUPPORT OF MOTION
FOR ATTORNEYS’ FEES AND COSTS, ETC.
17
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KELLER GROVER LLP
1965 Market Street, San Francisco, CA 94103
Tel. 415.543.1305 | Fax 415.543.7861
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1
A “lodestar” calculation multiplies the number of hours reasonably expended on the
2
litigation by counsel’s reasonable hourly rates.114 That lodestar calculation, however, is only the
3
starting point for determining an appropriate fee.115 A court may reduce or enhance the lodestar
4
figure based on several “reasonableness” factors, including the following: 1) the quality of the
5
representation; 2) the benefit obtained for the class; 3) the complexity and novelty of the issues
6
presented; and 4) the risk of non-payment.116 The lodestar approach has been criticized, however,
7
as burdensome and incentivizing wasteful litigation: “It may encourage attorneys to delay
8
settlement or other resolution to maximize legal fees, and it places a great deal of pressure on the
9
judicial system, as the courts must evaluate the propriety of thousands of billable hours.117 As the
10
Ninth Circuit recently recognized, “California law requires that ‘an attorney fee award should
11
ordinarily include compensation for all the hours reasonably spent, including those relating solely
12
to the fee.’”118
13
Class Counsel invested over 1,046 hours of attorney time litigating this class action to
14
date.119 Class Counsel calculates its unadjusted lodestar through April 9, 2015 be $556,224.50
15
based on reasonable hourly rates.120 This amount does not include the additional lodestar time
16
17
114
In re Bluetooth, 654 F.3d at 941.
Id.; Staton, 327 F.3d at 965; City of Burlington v. Dague, 505 U.S. 557, 562 (1992).
116
In re Bluetooth, 654 F.3d at 942, citing Hanlon, 150 F.3d at 1029; see also, Gonzalez v.
Southern Wine & Spirits of Am., Inc., No. 12-55808, 2014 WL 636807, at *1 (9th Cir. Feb. 19,
2014) (applying California substantive law to the calculation of the attorney fee award and factors
affecting adjustments to the lodestar figure).
117
In re Ikon Office Solutions, Inc., Sec. Litig., 194 F.R.D. 166, 193 (E.D. Pa. 2000); see also,
David F. Herr, Manual for Complex Litigation § 14.121 (4th ed. 2013) (“In practice, the lodestar
method is difficult to apply, time-consuming to administer, inconsistent in result, and capable of
manipulation. In addition, the lodestar creates inherent incentive to prolong the litigation until
sufficient hours have been expended.”); In Re Oracle Secs. Litig., 131 F.R.D. 688, 689 (N.D. Cal.
1990) (noting that “the lodestar and its variants create incentives for wasteful litigiousness by
both sides.”); In Re Activision Secs. Litig., 723 F. Supp. 1373, 1375 (N.D. Cal. 1989) (“Where
attorneys must depend on a lodestar approach there is little incentive to arrive at an early
settlement.”).
118
Gonzalez, 2014 WL 636807, at *1, quoting Ketchum v. Moses, 24 Cal.4th 1122, 1133 (2001).
119
Grover Decl. at ¶¶ 36-38; Westrick Decl. at ¶¶ 19-21.
120
Grover Decl. at ¶¶ 38-43, 46-48; Westrick Decl. at ¶¶ 21-27.
115
18
19
20
21
22
23
24
25
26
27
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FOR ATTORNEYS’ FEES AND COSTS, ETC.
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attorneys at Keller Grover LLP and Kawahito Shraga & Westrick will expend finalizing and
2
filing this motion, preparing filing and attending the final fairness hearing, speaking with Class
3
Members and making sure that the settlement is properly administered.121 The $350,000 fee
4
award requested represents less than Class Counsel’s lodestar – approximately 63% of the total
5
lodestar through April 9, 2015.122
6
reasonable hours worked, in addition to the substantial benefits obtained for the class, the quality
7
of representation and risk of non-payment, the $350,000.00 fee request is reasonable.
4.
KELLER GROVER LLP
1965 Market Street, San Francisco, CA 94103
Tel. 415.543.1305 | Fax 415.543.7861
8
In light of Class Counsel’s reasonable hourly rates and
Class Counsel’s hourly rates are reasonable.
9
Under the lodestar method, courts should apply rates commensurate with hourly rates for
10
private attorneys conducting non-contingent litigation of the same type.123 Ordinarily, reasonable
11
hourly rates are based on each attorney’s current hourly rates.124
12
Class Counsel’s hourly rates are summarized in the Grover Declaration and Westrick
13
Declaration filed in support of this application.125 Rate determinations from other cases are
14
satisfactory evidence of the prevailing market rate.126 Class Counsel’s hourly rates are well
15
within the range of those found permissible for attorneys practicing class action litigation in the
16
Northern District/San Francisco area market.127 In fact, this Court recently found the rates of
17
121
18
19
20
21
22
23
24
25
26
27
28
Grover Decl. at ¶¶ 37, 48; Westrick Decl. at ¶ 20.
Grover Decl. at ¶¶ 38, 46-48; see also, Westrick Decl. at ¶¶ 21, 27.
123
Camacho v. Bridgeport Financial, Inc., 523 F.3d 973, 979 (9th Cir. 2008).
124
Vizcaino, 290 F.3d at 1051 (“calculating fees at [current hourly rates]…compensate[s] for
delay in receipt of payment”).
125
Grover Decl. at ¶¶ 38-43; Westrick Decl. at ¶¶ 21-26.
126
United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990).
127
See e.g., Gonzalez, 2014 WL 636807, at *1 (reversing district court’s order reducing attorneys’
hourly rates without considering evidence of “prevailing hourly rates for comparable legal
services in the community”); Williams v. SuperShuttle Int'l, Inc., No. 12-CV-06493-WHO, 2015
WL 685994, at *2 (N.D. Cal. Feb. 12, 2015) (finding similar range of hourly rates for class
counsel experienced in complex class actions to be reasonable); Steinfeld v. Discover Fin. Servs.,
No. C 12-01118 JSW, 2014 WL 1309692, at *2 (N.D. Cal. Mar. 31, 2014) (similar); Vedachalam
v. Tata Consulting Serv. Ltd., No. C 06–0963 CW, 2013 WL 3941319, at *3 (N.D. Cal. July 18,
2013) (similar); Bolton v. U.S. Nursing Corp., No. C 12–4466 LB, 2013 WL 5700403, at *5
(N.D. Cal. Oct. 18, 2013) (similar); Greko v. Diesel U.S.A., Inc., No. 10-CV-02576 NC, 2013 WL
1789602, at *10 (N.D. Cal. Apr. 26, 2013); Wren v. RGIS Inventory Specialists, No. C–06–05778
122
(Cont’d)
MEMORANDUM IN SUPPORT OF MOTION
FOR ATTORNEYS’ FEES AND COSTS, ETC.
19
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KELLER GROVER LLP
1965 Market Street, San Francisco, CA 94103
Tel. 415.543.1305 | Fax 415.543.7861
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1
Keller Grover LLP to be “consistent with market rates and reasonable in light of Class Counsel’s
2
skill, experience, and expertise.”128
3
All of the attorneys that contributed work to this action specialize in complex class actions
4
and regularly litigate cases in California federal and state courts.129 The partners managing the
5
litigation have an extensive history of success in litigating complex class action cases.130 Class
6
Counsel’s years of class action experience and expertise led to Plaintiffs’ success in resolving the
7
action relatively early in the litigation.131 Reaching a settlement in the face of Defendant’s hard
8
fought opposition to the class claims is evidence of Class Counsel’s skill and high quality of
9
representation.
10
5.
Class Counsel’s hours are reasonable.
11
Class Counsel has spent approximately 1,046 hours litigating this case to date.132
12
Reasonable hours include, in addition to time spent during litigation, the time spent before the
13
action was filed, including time spent interviewing the clients, investigating the facts and the law,
14
preparing the initial pleadings and litigating the case.133 The summaries set forth in the Grover
15
and Westrick Declarations describe the work performed by Class Counsel, which included fact
16
investigation, drafting the complaint, propounding and responding to written discovery, defending
17
named Plaintiffs Tripp and Solberg’s depositions, engaging in motion practice, drafting mediation
18
briefs, preparing for and attending a mediation, negotiating the settlement, working with the
19
Claims Administrator, among other tasks necessary to this litigation.134
20
21
22
23
24
25
26
27
28
_______________________
JCS, 2011 WL 1230826, *18-22 (N.D. Cal. April 01, 2011) (similar); see also, Grover Decl. at ¶
45 (noting the range of hourly rates approved in recent Bay Area fee orders).
128
Grover Decl. at ¶ 44, Ex. B (Order in Becerra, et al. v. RadioShack Corporation, USDC ND
Case No. 11-cv-3586 YGR, Docket No. 83).
129
Grover Decl. at ¶¶ 2-4, 40-43, 51; Westrick Decl. at ¶¶ 2-6, 23-26.
130
Grover Decl. at ¶¶ 2-4; 40, 51; Westrick Decl. at ¶¶ 2-6, 23.
131
Grover Decl. at ¶¶ 2-4; 40, 51; Westrick Decl. at ¶¶ 2-6, 23, 30-31.
132
Grover Decl. at ¶¶ 36, 38; Westrick Decl. at ¶¶ 19, 21.
133
Webb v. Board of Educ., 471 U.S. 234 (1985). In addition, the fee award should include time
spent to establish and the attorneys’ fee claim. Serrano v. Priest (“Serrano IV”), 32 Cal.3d 621,
639 (1982).
134
See Grover Decl. at ¶¶ 8-13, 36; Westrick Decl. at ¶¶ 11-16, 19.
MEMORANDUM IN SUPPORT OF MOTION
FOR ATTORNEYS’ FEES AND COSTS, ETC.
20
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KELLER GROVER LLP
1965 Market Street, San Francisco, CA 94103
Tel. 415.543.1305 | Fax 415.543.7861
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Class Counsel expects to spend another 40 hours preparing the final approval motion,
2
preparing for and attending the Final Approval Hearing, speaking with Class Members, and
3
dealing with claims administration issues, both pre- and post-final approval.135 Those additional
4
hours are not included in the lodestar calculations.
5
Thus, the lodestar cross-check supports that the 25% fee award requested is reasonable.
6
C.
7
In the course of this litigation, Class Counsel has incurred out-of-pocket costs of
8
$17,216.80 to date.136 Class Counsel expects to incur additional costs totaling between $850 and
9
$1,350 before the conclusion of the matter.137 “Class counsel is entitled to reimbursement of
10
reasonable expenses.”138 As demonstrated in the Grover and Westrick Declarations submitted
11
herewith, the incurred costs included mediation fees, filing fees, court courier charges, legal
12
research fees, mailing charges, parking costs, travel costs, meal costs, and federal express costs.139
13
Such costs are appropriate for cost reimbursement in these types of cases.140
Class Counsel’s request for costs is also reasonable.
14
Class Counsel is seeking reimbursement of up to $18,566.80, which is less than the
15
$20,000 amount provided in the Settlement Agreement and included in the Class Notice, to which
16
no Class Member has objected as of this date.141
17
The costs incurred by Class Counsel in this litigation benefited Class Members. In light
18
of the litigation costs that Class Counsel needed to incur to prosecute this action and the positive
19
20
21
135
Grover Decl. at ¶¶ 14, 37; Westrick Decl. at ¶¶ 17, 20.
Grover Decl. at ¶¶ 55-57, Ex. C; Westrick Decl. at ¶ 34.
137
Grover Decl. at ¶¶ 55-56; Westrick Decl. at ¶ 34.
138
Fed.R.Civ.P. 23(h); see e.g., Greko v. Diesel U.S.A., Inc., 10-CV-02576 NC, 2013 WL
1789602, at *12 (N.D. Cal. Apr. 26, 2013) (approving reasonable costs in class action
settlement); Van Vranken v. Atl. Richfield Co., 901 F.Supp. 294, 299 (N.D.Cal.1995) (same).
139
Grover Decl. at ¶ 55, Ex. C; see also, Westrick Decl. at ¶ 34.
140
See e.g., In re United Energy Corp. Sec. Litig,. MDL No. 726, 1989 WL 73211, at *6 (C.D.
Cal. 1989) (quoting Newberg, Attorney Fee Awards, § 2.19 (1987)); see also, In re GNC
Shareholder Litig, 668 F. Supp. 450, 452 (W.D. Pa. 1987).
141
Grover Decl. at ¶ 57, Cunningham Decl. at ¶ 11; see Dkt. No. 47 (Exhibit 1, 2a, 2b, 2c, 3).
136
22
23
24
25
26
27
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MEMORANDUM IN SUPPORT OF MOTION
FOR ATTORNEYS’ FEES AND COSTS, ETC.
21
CASE NO. 3:13-CV-03480-WHO
KELLER GROVER LLP
1965 Market Street, San Francisco, CA 94103
Tel. 415.543.1305 | Fax 415.543.7861
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1
reaction of Class Members, the request for reimbursement of up to $18,566.80 in Class Counsel’s
2
costs is reasonable and should be granted.
3
D.
The requested service awards for the Class Representatives are reasonable.
4
Service awards are common in class action cases.142 An award to the named plaintiff is
5
“intended to compensate class representatives for work done on behalf of the class, to make up
6
for financial or reputational risk undertaken in bringing the action, and, sometimes, to recognize
7
their willingness to act as a private attorney general.”143 A service award is appropriate as an
8
incentive to the named plaintiff to participate in the suit.144
9
The approval of service awards falls squarely within the discretion of the Court.145 In
10
exercising that discretion, district courts are “to scrutinize carefully the awards so that they do not
11
undermine the adequacy of the class representatives.”146
12
incentive award in the range of $5,000 is considered “presumptively reasonable.”147 The service
13
award/general release payments requested in this case are either slightly above or right at that
14
“presumptively reasonable” mark and fairly reflect Class Representatives’ efforts in the action.148
15
Settlement Class Representatives also are providing a general release of their claims that is much
16
broader than the release applicable to the other Class Members.149
17
18
19
20
21
22
23
24
25
26
27
28
Within the Northern District, an
142
Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 958 (9th Cir. 2009) (“Incentive awards are fairly
typical in class action cases.”); In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 458 (9th Cir.
2000); Van Vranken v. Atl. Richfield Co., 901 F. Supp. 294, 299 (N.D. Cal. 1995); Ingram v. The
Coca-Cola Co., 200 F.R.D. 685, 694 (N.D. Ga. 2001) (“Courts routinely approve incentive
awards to compensate named plaintiffs for the services they provided and risks they incurred
during the course of the class action litigation”).
143
Rodriguez, 563 F.3d at 958-59.
144
Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998).
145
See In re Mego Fin. Corp. Sec. Litig., 213 F.3d at 463; Van Vranken, 901 F. Supp. at 299.
146
Radcliffe v. Experian Info. Solutions Inc., 715 F.3d 1157, 1163 (9th Cir. 2013).
147
See Burden v. Select Quote Ins. Servs., No. C10-5966 LB, 2013 WL 39887771, at *6 (N.D.
Cal. Aug. 2, 2013) (approving $5,000 incentive award) (citing Jacobs v. California State Auto
Ass’n Inter-Ins. Bureau, No. C 07-00362 MHP, 2009 WL 3562871, at *5 (N.D. Cal. Oct. 27,
2009).
148
See Ex. A at ¶ 3.3; Tripp Decl. at ¶¶ 4-16; Solberg Decl. at ¶¶ 4-13; Smith Decl. Decl. at ¶¶ 314, 16-18; Grover Decl. at ¶¶ 59-62; Westrick Decl. at ¶¶ 35-38.
149
Grover Decl. at ¶ 62; see Ex. A at ¶¶ 1(t), 3.3.
MEMORANDUM IN SUPPORT OF MOTION
FOR ATTORNEYS’ FEES AND COSTS, ETC.
22
CASE NO. 3:13-CV-03480-WHO
KELLER GROVER LLP
1965 Market Street, San Francisco, CA 94103
Tel. 415.543.1305 | Fax 415.543.7861
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1
E.
2
The maximum requested fees of the Claims Administrator in this case are also reasonable.
3
CPT Group is requesting payment of up to $50,000 for its fees incurred in administering this
4
settlement.150 CPT Group will provide a detailed supplemental declaration setting forth its actual
5
fee request in connection with the final approval motion.151
6
V.
The Claims Administrator’s requested fees are reasonable.
CONCLUSION
7
For the foregoing reasons, Plaintiffs respectfully request that the Court (1) grant this
8
motion and approve (1) a payment of $350,000.00 to Class Counsel for attorneys’ fees and up to
9
$18,566.80 for Class Counsel’s out-of-pocket costs incurred in the litigation of this action, (2)
10
payment of service award/general release payments of $8,000 each to Plaintiffs and Class
11
Representatives Tripp and Solberg and $5,000 to Plaintiff and Class Representative Smith, and
12
(3) payment of CPT Group’s claims administration fees of up to $50,000.
13
14
Dated: April 10, 2015
Respectfully submitted,
15
KELLER GROVER LLP
16
17
Eric A. Grover
By: /s/
ERIC A. GROVER
Attorneys for Plaintiffs
18
19
20
21
22
23
24
25
26
27
150
151
28
Cunningham Decl. at ¶ 16.
Id.
MEMORANDUM IN SUPPORT OF MOTION
FOR ATTORNEYS’ FEES AND COSTS, ETC.
23
CASE NO. 3:13-CV-03480-WHO