TABLE OF CONTENTS...MEMORANDUM OF POINTS AND AUTHORITIES ISO ATTORNEYS’ FEES AND CLASS...
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MEMORANDUM OF POINTS AND AUTHORITIES ISO ATTORNEYS’ FEES AND CLASS REPRESENTATIVE ENHANCEMENT AWARDS
Case No. BC476476
TABLE OF CONTENTS I. INTRODUCTION ...................................................................................................................1
II. OVERVIEW OF THE PROCEEDINGS AND SETTLEMENT ............................................2
III. SUMMARY OF SETTLEMENT ............................................................................................4
IV. ARGUMENT ..........................................................................................................................6
A. PLAINTIFFS’ REQUESTED ATTORNEYS’ FEES ARE JUSTIFIED UNDER BOTH THE “COMMON FUND” AND “LODESTAR” METHODS. .................................................................................................................6
1. THE ATTORNEYS’ FEES REQUEST IS REASONABLE UNDER THE “COMMON FUND” ANALYSIS. .........................................................7
2. THE LODESTAR METHOD DEMONSTRATES THAT CLASS COUNSEL’S FEE REQUEST IS FAIR, REASONABLE AND JUSTIFIED UNDER THE FACTS OF THIS CASE. .....................................9
i. CLASS COUNSEL’S TOTAL HOURS ARE REASONABLE. ....................................................................10
ii. CLASS COUNSEL’S HOURLY RATES ARE REASONABLE. ....................................................................11
B. THE PARTICIPATION OR ENHANCEMENT PAYMENTS TO THE CLASS REPRESENTATIVES ARE REASONABLE. ............................................13
a. THE COURT SHOULD GRANT MR. THOMPSON’S REQUEST FOR A CLASS REPRESENTATIVE ENHANCEMENT OF $7,500. ........14
b. THE COURT SHOULD GRANT THE OTHER CLASS REPRESENTATIVES’ REQUEST FOR A CLASS REPRESENTATIVE ENHANCEMENT OF $3,500. ..................................15
V. CONCLUSION .....................................................................................................................17
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MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR ATTORNEYS’ FEES AND CLASS REPRESENTATIVE ENHANCEMENTS
Case No. BC476476
TABLE OF AUTHORITIES CASES
Apple Computer v. Superior Court (2005) 126 Cal.App.4th 1253 ............................................................................................................. 6
Bell v. Farmers Ins. Exchange (2004) 115 Cal.App.4th 715 ............................................................................................................. 13
Big Lots Overtime Cases (San Bernardino Super. Ct., JCC Proceeding No. 4283, Feb. 4, 2004) .................................. 8
Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976 ............................................................................................................... 11
Bryan v. Pittsburg Plate Glass Co. (W.D.Pa.1973) 59 F.R.D. 616 ....................................................................................................................... 13
Cassaro v. Spaghetti Factory (Orange County Superior Court, Case No. 01CC02500) (January 5, 2004) .......................... 8
Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43 ............................................................................................................. 6, 8
City and County of San Francisco v. Sweet (1995) 12 Cal.4th 105 ........................................................................................................................ 7
Davis v. The Money Store, Inc. (Sacramento Super. Ct., No. 99AS01716, Dec. 26, 2000) ..................................................... 8
Ellmore v. Ditech Funding Corp. (C.D. Cal., No. SAVC 01-0093, Sept. 12, 2002) ................................................................... 8
Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629 ............................................................................................................... 11
Huguley v. Gen. Motors Corp. (E.D.Mich.1989) 128 F.R.D. 81 ....................................................................................................................... 13
In re Activision Sec. Litigation (1989) 723 F.Supp. 1373 .................................................................................................................... 8
In re. Cellphone Fee Termination Cases (2010) 186 Cal.App.4th 1380 ........................................................................................................... 13
Ketchum v. Moss (2001) 24 Cal.4th 1122 .................................................................................................................. 6, 9
Lakin v. Watkins Assoc. Indus. (1993) 6 Cal.4th 644 ........................................................................................................................ 11
Lealao v. Beneficial California (2000) 82 Cal.App.4th 19 ........................................................................................................... 1, 7, 9
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MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR ATTORNEYS’ FEES AND CLASS REPRESENTATIVE ENHANCEMENTS
Case No. BC476476
Maria P. v. Riles (1987) 43 Cal. 3d 1281 ....................................................................................................................... 6
Miskell v. Automobile Club of Southern California (Orange County Super. Ct., No. 01CC09035, May 27, 2003) ............................................... 8
Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094 .................................................................................................................... 16
New York Gaslight Club, Inc. v. Carey (1980) 447 U.S. 54 ........................................................................................................................... 10
PLCM Group, supra, 22 Cal.4th at 1095 ................................................................................................................. 11
Quinn v. State of California (1995) 15 Cal.3d 162 .......................................................................................................................... 7
Roberts v. Texaco, Inc. (S.D.N.Y. 1997) 979 F.Supp. 185 .................................................................................................................... 13
Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172 Cal.App.3d 914 ................................................................................................................ 9
Schiller v. David’s Bridal Inc. 2012 U.S. Dist. LEXIS 80776 ........................................................................................... 6, 7, 8, 12
Serrano v. Priest (1977) 20 Cal.3d 25 .................................................................................................................... 6, 7, 9
Serrano v. Unrah (1982) 32 Cal.3d at 639 .................................................................................................................... 10
Thayer v. Wells Fargo Bank (2001) 92 Cal.App.4th 819 ................................................................................................................. 9
Van Vranken v. Atlantic Richfield Co. (N.D.Cal.1995) 901 F. Supp. 294 ................................................................................................................... 13
Vincent v. Hughes Air West, Inc. (9th Cir. 1977) 557 F.2d 759 ........................................................................................................................... 7
Westside Cmty. for Indep. Living, Inc. v. Obledo (1983) 33 Cal. 3d 348 ......................................................................................................................... 6
Williams v. MGM-Pathe Communs. Co. (9th Cir.1997) 129 F.3d 1026 ......................................................................................................................... 7
STATUTES
California Business and Professions Code section 17200 .................................................................. 2
California Labor Code section 98 ....................................................................................................... 3
California Code of Civil Procedure section 1021 ............................................................................... 2
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MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR ATTORNEYS’ FEES AND CLASS REPRESENTATIVE ENHANCEMENTS
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California Code of Civil Procedure section 1021.5 ............................................................................ 6
California Labor Code sections 218 ................................................................................................... 2
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MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR ATTORNEYS’ FEES AND CLASS REPRESENTATIVE ENHANCEMENTS
Case No. BC476476
Plaintiffs JERRY ANDERSON, et al. (“Plaintiffs”) hereby submit the following
memorandum of points and authorities in support of their unopposed application for attorneys’ fees
and costs and class representative enhancement awards in the above-captioned matter.
I. INTRODUCTION
This is a wage and hour class action brought by Plaintiffs against Defendant THE CITY OF
GARDENA (the “City”) 1 alleging failure to provide meal breaks and rest breaks. Plaintiffs are all
bus drivers employed by the City during the Class Period (January 9, 2008 to August 19, 2013).
The Settlement in this case was preliminarily approved by this Court on August 19, 2013.
At that time, the Court preliminary approved Plaintiffs’ request for attorneys’ fees and Class
Representative Enhancements in its August 19 Order (“Preliminary Approval Order”).
With this motion, Plaintiffs request final approval of Class Counsel’s request for attorneys’
fees and costs in the amount of $92,634.00, or twenty-five percent (25%) of the Gross Settlement
Amount. This request includes all case costs and settlement administration costs.
Class Counsel’s lodestar to date is $114,460.00. Declaration of Mana Barari in support of
Motion for Attorneys’ fees and Costs and Class Representative Awards (“Barari Decl. iso Fees”), ¶
6. This is more than the amount sought. This figure does not include finalizing Plaintiffs’ motion
for final approval, Class Counsel’s appearance at the final approval hearing, or remaining
settlement administration tasks, including calculating the aggregate settlement amounts. Therefore,
by the conclusion of this case Class Counsel’s lodestar will be significantly more than
$114,460.00. The uncontested request for attorneys’ fees is therefore fair and reasonable and
appropriate under either the common fund method or the lodestar approach. See Lealao v.
Beneficial California (2000) 82 Cal.App.4th 19, 32.
Further, Plaintiffs seek final approval of $39,000.00 total ($7,500.00 for Waleed Thompson
and $3,500 for each of the remaining nine Class Representatives) in Class Representative
1 Unless otherwise defined herein, the capitalized terms used in this Motion for Attorneys’ Fees and Class Representative Enhancement Awards (“Motion”) shall have the same meaning as in the Joint Stipulation of Settlement of Class Action and Release (“Settlement” or “Settlement Agreement”), and the Memorandum of Points and Authorities in Support of Motion for Preliminary Approval of Class Settlement, filed on June 28, 2013 (“Motion for Preliminary Approval”).
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MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR ATTORNEYS’ FEES AND CLASS REPRESENTATIVE ENHANCEMENTS
Case No. BC476476
Enhancement awards in recognition of the substantial time and effort expended by the Class
Representatives. Plaintiffs incorporate herein the detailed declarations submitted by the Class
Representatives in support of this request, previously filed with the Court on August 5, 2013. The
City does not oppose these Class Representative Enhancements.
For these reasons, as set forth more fully below, Class Counsel respectfully requests that the
Court approve an award of attorneys’ fees in the amount of $92,634.00.00 and Class
Representative Enhancements in the amount of $39,000.00.
II. OVERVIEW OF THE PROCEEDINGS AND SETTLEMENT
Plaintiffs filed their initial Complaint in this matter on January 9, 2012. The original
complaint alleged claims for meal and rest period violations, failure to provide accurate itemized
wage statements, failure to pay wages due at termination and associated waiting time penalties, and
claims for unfair competition and injunctive relief pursuant to California’s Unfair Competition Law
(“UCL”), Business and Professions Code section 17200 et seq. Plaintiffs also sought to recover
attorneys’ fees and costs pursuant to Code of Civil Procedure section 1021.5 and Labor Code
sections 218.5 and 226. Barari Decl. iso Fees, ¶ 11.
On January 22, 2012, the City implemented new driving schedules and confirmed its meal
and rest break policy in order to ensure compliance with California meal and rest breaks laws.
Barari Decl. iso Fees, ¶ 13.
The City filed its first demurrer on February 24, 2012. Plaintiffs then filed their First
Amended Complaint on April 5, 2012, removing their causes of action for failure to provide
accurate itemized wage statements, failure to pay wages due at termination and associated waiting
time penalties, and claims for unfair competition and injunctive relief pursuant to the UCL. Barari
Decl. iso Fees, ¶ 14.
The City filed its second demurrer on May 10, 2012. In the second demurrer, the City
raised for the first time the existence of a municipal claims presentation requirement. On May 11,
2012, Class Counsel promptly filed municipal claims on behalf of Plaintiffs and the putative class
under the California Government Claims Act, pursuant to the procedure set forth in the Gardena
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MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR ATTORNEYS’ FEES AND CLASS REPRESENTATIVE ENHANCEMENTS
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Municipal Code. Under these statutes, Plaintiffs’ claims were arguably subject to a one year
statute of limitations. Barari Decl. iso Fees, ¶ 15.
The City responded to Plaintiffs’ claims on June 27, 2012, allowing certain claims and
rejecting others. Specifically, the City agreed to pay for potential meal break violations for the
period of May 10, 2011 to January 22, 2012 (the “Municipal Claims Period”), consistent with the
Gardena Municipal Code and the statute of limitations contained therein. The City also agreed to
pay out for potential meal break violations on a class-wide basis, even though class claims are
arguably barred by the Gardena Municipal Code. As such, on or about July 27, 2012, the City
directly paid out to its bus operators $194,537.06 for potential meal break violations. Barari Decl.
iso Fees, ¶ 16.
The Parties then engaged in extensive settlement discussions regarding the remainder of the
claims and the time period prior to the Municipal Claims Period. These discussions included
detailed analyses of the following issues:
a. The application of a one year statute of limitations under the Government Claims
Act and whether the City was estopped from denying four months of Plaintiffs’
claims due to its failure to notify Plaintiffs of the municipal claims presentation
requirement;
b. Potential claims for retaliation under California Labor Code section 98.6, based on
a 5% raise in base pay implemented for City employees during summer 2012, but
deferred for Class Members;
c. The number of bus routes with potential meal break violations;
d. The number of bus routes with potential rest break violations;
e. Whether rest break requirements could be satisfied by accumulating break periods
shorter than ten minutes throughout a driver’s shift;
f. Whether a ten minute break in a bus driver’s route schedule could possibly yield a
ten minute off-duty rest break; and
g. Whether standby bus drivers could also have claims for rest break violations.
Barari Decl. iso Fees, ¶ 17.
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MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR ATTORNEYS’ FEES AND CLASS REPRESENTATIVE ENHANCEMENTS
Case No. BC476476
After extensive arms-length negotiations by and among the Parties, on January 22, 2013,
the Parties reached this Settlement. Barari Decl. iso Fees, ¶ 18.
On August 19, 2013, the Court preliminarily approved the Settlement reached by the
Parties, approved the parties’ proposed Notice procedures, and set deadlines by which class
members could opt out or object to the Settlement (“Preliminary Approval Order”). At that time,
the Court also set a final fairness hearing for December 9, 2013.
Pursuant to the Preliminary Approval Order, Class Counsel was appointed as the claims
administrator. Preliminary Approval Order, ¶ 2. In this role, Class Counsel revised and finalized
the Court-approved Class Notice and mailed the Notice Packets to the 123 identified Class
Members. For the eight (8) Notice Packets that were returned as undeliverable by the post office,
Class Counsel performed an address search using Lexis Nexis and also called these Class Members
to confirm their current addresses. Class Counsel also enlisted the assistance of the Class
Representatives to locate these Class Members. Through these efforts, Class Counsel was able to
re-mail all eight (8) Notice Packets to either a newfound addresses or addresses provided by these
Class Members. Barari Decl. iso Fees, ¶ 19.
Class Counsel has spoken directly to approximately seven Class Members who had
questions or concerns regarding the Class Notice and Settlement. The Class Representatives have
also been responding to Class Members’ questions regarding the Settlement. Barari Decl. iso Fees,
¶ 20.
The deadline for Class Members to request to be excluded from the Class was a postmarked
deadline of November 8, 2013. As of the date of this filing, Class Counsel had received one request
for exclusion and no objections. Barari Decl. iso Fees, ¶ 21.
III. SUMMARY OF SETTLEMENT
The maximum total liability under this Settlement, including all attorneys’ fees, attorneys’
costs, and other payments provided by this Settlement, is three hundred seventy thousand five
hundred and thirty-seven dollars and zero cents ($370,537.00) (the Gross Settlement Amount).
The City does not oppose the proposed award of attorneys’ fees and costs, or the class
representative enhancement awards.
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MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR ATTORNEYS’ FEES AND CLASS REPRESENTATIVE ENHANCEMENTS
Case No. BC476476
The proposed settlement allocation is as follows:
1. The sum of three hundred seventy thousand five hundred and thirty-seven dollars
and zero cents ($370,537.00) that the City agrees to pay to settle this lawsuit shall include
attorneys’ fees and costs, the Class Representative Enhancements, settlement administration costs,
and $194,537.00 previously paid out by the City directly to Class Members for potential meal
break violations occurring during the Municipal Claims Period. Settlement, ¶ 1(m).
2. Reasonable attorneys’ fees and costs for Class Counsel equaling twenty-five percent
(25 %) of the Gross Settlement Amount, which equals ninety-two thousand six-hundred and thirty-
four dollars ($92,634.00). Settlement, ¶ 17(b). This award will also cover settlement
administration costs incurred by Class Counsel in its role as Settlement Administrator. Settlement,
¶ 18(a).
3. Class Representative Enhancement awards, in an amount not to exceed an aggregate
total of fifty thousand dollars ($50,000.00) to be disbursed to the ten Class Representatives for their
services. Plaintiffs are seeking an aggregate of thirty-nine thousand dollars ($39,000.00) in Class
Representative Enhancements.
4. The Net Settlement Amount will be the amount remaining after deducting the
amounts specified in Paragraph 1 through 3 above. The Net Settlement Amount is currently
estimated to be forty-four thousand three hundred and sixty-six dollars ($44,366.00). Class
Members who were employed during the Municipal Claims Period have already received a
payment totaling $194,537.00 related to potential meal break violations occurring during the
Municipal Claims Period.
5. Individual Settlement Payments to Claimants shall be awarded from the Net
Settlement Amount based on whether or not the individual Class Member worked during the
Municipal Claims Period, and, if so, his or her number of workweeks and her or her highest hourly
rate during the Municipal Claims Period. Settlement, ¶ 16(e).
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MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR ATTORNEYS’ FEES AND CLASS REPRESENTATIVE ENHANCEMENTS
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IV. ARGUMENT
A. Plaintiffs’ Requested Attorneys’ Fees are Justified Under Both the “Common Fund” and “Lodestar” Methods.
An attorneys’ fee award is justified where the legal action has produced its benefits by way
of a voluntary settlement. See, e.g., Maria P. v. Riles (1987) 43 Cal. 3d 1281, 1290-91; Westside
Cmty. for Indep. Living, Inc. v. Obledo (1983) 33 Cal. 3d 348, 352-53. Here, Plaintiffs are the
prevailing parties in settlement. They are therefore entitled to attorneys’ fees because this action
has resulted in the enforcement of an important right affecting the public interest. See California
Code of Civil Procedure § 1021.5.
With this motion, Plaintiffs seek $92,634.00 in fees, which is twenty-five percent (25 %) of
the Gross Settlement Amount. This request is reasonable under either the “common fund” or the
“lodestar” analysis, as explained below.
Under the “common fund” method, attorneys’ fees are calculated based on a percentage of
the common benefit bestowed upon the class. Schiller v. David’s Bridal Inc. 2012 U.S. Dist.
LEXIS 80776, *43. Under the “lodestar” and “multiplier” method, the court first computes the
“lodestar” amount by multiplying the number of hours reasonably expended by each attorney or
legal staff member by his or her reasonable hourly rate. See Serrano v. Priest (1977) 20 Cal.3d 25,
48 (Serrano III). The court then may enhance this lodestar figure by a “multiplier” to account for a
range of factors, such as the novelty and difficulty of the case, its contingent nature, and the degree
of success achieved. Id. at 49; see also Ketchum v. Moss (2001) 24 Cal.4th 1122, 1132-1136.
Regardless of whether attorneys’ fees are determined by using the lodestar method or based
on a common fund calculation, “[t]he ultimate goal…is the award of a ‘reasonable’ fee to
compensate counsel for their efforts, irrespective of the method of calculation.” Apple Computer v.
Superior Court (2005) 126 Cal.App.4th 1253, 1270. It is not an abuse of discretion to choose one
method over another as long as the method chosen is applied consistently using percentage figures
that accurately reflect the marketplace. Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 65.
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MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR ATTORNEYS’ FEES AND CLASS REPRESENTATIVE ENHANCEMENTS
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1. The Attorneys’ Fees Request Is Reasonable Under The “Common Fund” Analysis.
A common fund results when “the activities of the party awarded fees have resulted in the
preservation or recovery of a certain or easily calculable sum of money-out of which sum or ‘fund’
the fees are to be paid.” Serrano v. Priest (1977) 20 Cal.3d 25, 34 (Serrano III). Under the
common fund method of calculating attorneys’ fees, the fees are calculated “based on a percentage
of the benefit bestowed upon the class.” Schiller, 2012 U.S. Dist. LEXIS 80776 at * 43.
The purpose of the common fund approach is to “spread litigation costs proportionally
among all the beneficiaries so that the active beneficiary does not bear the entire burden alone.”
Vincent v. Hughes Air West, Inc. (9th Cir. 1977) 557 F.2d 759, 769. In Quinn v. State of California
(1995) 15 Cal.3d 162, 167, the Court stated: “[O]ne who expends attorneys’ fees in winning a suit
which creates a fund from which others derive benefits may require those passive beneficiaries to
bear a fair share of the litigation costs.” Similarly, in City and County of San Francisco v. Sweet
(1995) 12 Cal.4th 105, 110, the California Supreme Court recognized that the common fund
doctrine has been applied “consistently in California when an action brought by one party creates a
fund in which other persons are entitled to share.”
The common fund approach continues to be a preferred method of awarding fees. Since
Serrano III, there has been a “ground swell of support for mandating the percentage-of-the-fund
approach in common fund cases.” Lealao, supra, 82 Cal.App.4th at 27. Common fund awards are
normally based upon the total amount of the fund created, not on the amount of the fund that is
actually claimed by class members. Williams v. MGM-Pathe Communs. Co. (9th Cir.1997) 129
F.3d 1026, 1027.
In this case, there is a defined and clearly traceable monetary benefit to the Class.
Therefore, the Court can base an award of attorneys’ fees on the Class Members’ benefit using a
common fund approach. Under this approach, Class Counsel should be paid their attorneys’ fees
based on the common benefit they have achieved for the class. Lealao, 82 Cal.App.4th at 28-36,
50-51 (nothing that percentage of the fund awards are appropriate in cases where the common
benefit to the class can be quantified); Serrano III, 20 Cal.3d at 35-40.
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MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR ATTORNEYS’ FEES AND CLASS REPRESENTATIVE ENHANCEMENTS
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Since Class Counsel’s litigation of the case resulted in a total benefit to the class of the
benefit of a payment of $370,527.00 (which includes the $194,527.00 paid to class members in
July 2012), this is the common fund in this case. Barari Decl. iso Fees, ¶ 23.
Class Counsel is requesting twenty-five percent (25%) of the common fund of $370,527.00.
A request for 25% of the common fund—especially where it includes case costs and settlement
administration costs as it does here—is below what is typical in other wage and hour class actions.
In 2008, the Court of Appeal in Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 66 reiterated
this basic rule: “Empirical studies show that, regardless whether the percentage method or the
lodestar method is used, fee awards in class actions average around one-third of the recovery.” See
also In re Activision Sec. Litigation (1989) 723 F.Supp. 1373, 1375 (“[W]hatever method is used
and no matter what billing records are submitted... the result is an award that almost always hovers
around 30% of the fund created by the settlement.”)
California courts customarily approve payments of attorney’s fees amounting to one-third
of the common fund in similar cases. See Big Lots Overtime Cases (San Bernardino Super. Ct.,
JCC Proceeding No. 4283, Feb. 4, 2004) (approving award of attorneys’ fees of one-third of the
recovery); Davis v. The Money Store, Inc. (Sacramento Super. Ct., No. 99AS01716, Dec. 26, 2000)
(same); Ellmore v. Ditech Funding Corp. (C.D. Cal., No. SAVC 01-0093, Sept. 12, 2002) (same);
Miskell v. Automobile Club of Southern California (Orange County Super. Ct., No. 01CC09035,
May 27, 2003) (same); Cassaro v. Spaghetti Factory (Orange County Superior Court, Case No.
01CC02500) (January 5, 2004) (awarding thirty-three and one-third percent (33.33%) of settlement
as attorneys’ fees in overtime class action). Federal courts are in accord. See also Schiller, supra,
2012 U.S. Dist. LEXIS 80776 (listing numerous class cases with fee awards amounting to one-
third of the recovery).
In this case, Class Counsel’s fees were wholly contingent. The case presented more risk
than usual contingent fee cases because the defendant is a public entity. There was the prospect of
the enormous cost inherent in class action litigation, as well as a long battle with the City, which
retained reputable counsel with substantial experience in defending public entities. Barari Decl. iso
Fees, ¶ 24.
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MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR ATTORNEYS’ FEES AND CLASS REPRESENTATIVE ENHANCEMENTS
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Class Members have gained substantial benefits under the terms of the settlement, as
explained in detail in Plaintiffs’ Motion for Final Approval of Class Action Settlement, jointly filed
herewith. Therefore, the requested fee is fair compensation for obtaining an excellent result for the
Class and, in doing so, undertaking complex, risky, expensive, and time-consuming litigation on a
contingent basis. Accordingly, the requested fee of 25%, as agreed upon by all Parties pursuant to
the Settlement Agreement, is reasonable given the circumstances of this case. Barari Decl. iso
Fees, ¶ 25.
2. The Lodestar Method Demonstrates that Class Counsel’s Fee Request is Fair, Reasonable and Justified Under the Facts of this Case.
California courts also regularly utilize the “lodestar” approach in awarding attorneys’ fees.
Here, the lodestar approach can be used to cross-check the propriety of the common fund award,
and further demonstrate the fairness of the fee award requested. Lealao, 82 Cal.App.4th at 49;
Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172 Cal.App.3d 914, 954.
Under the lodestar method, the court computes the “lodestar” amount by multiplying the
number of hours reasonably expended by each attorney or legal staff member by his or her
reasonable hourly rate. See Serrano III, 20 Cal.3d at 48. The court then may enhance this lodestar
figure by a “multiplier” to account for a range of factors, such as the novelty and difficulty of the
case, its contingent nature, and the degree of success achieved. See Serrano III, 20 Cal.3d at 49;
see also Ketchum v. Moss (2001) 24 Cal.4th 1122, 1132-1136; Drexler, 22 Cal.4th at 1096; Thayer
v. Wells Fargo Bank (2001) 92 Cal.App.4th 819, 834 (“[t]here is no… rule limiting the factors that
may justify an exercise of judicial discretion to [adjust the] lodestar”).
From the inception of this case to the date of this filing, Class Counsel has worked the
following attorney hours in this case.
Hunter Pyle 54.82 hours x $575 $31,510.00
Mana Barari 210 hours x $395 $82,950.00
2 Mr. Pyle has spent 46.30 hours working directly on this case. He has also spent approximately 8.5 hours supervising Ms. Barari’s work on this case. His total time spent on the case to date is therefore 54.80 hours. Barari Decl. iso Fees, ¶ 29.
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Total $114,460.00
Barari Decl. iso Fees, ¶ 28.
Class Counsel’s lodestar is therefore $114,460.00. This figure does not include finalizing
Plaintiffs’ motion for final approval, Class Counsel’s appearance at the final approval hearing, and
remaining settlement administration tasks, including calculating the aggregate settlement amounts.
Class Counsel estimates that these additional tasks will require approximately 15 hours of attorney
time. This figure also does not include the substantial time spent on the case and on the settlement
administration by Class Counsel’s paralegal. Barari Decl. iso Fees, ¶ 30.
Class Counsel’s case costs to date total approximately $5,000.00. Barari Decl. iso Fees, ¶
32. Class Counsel has submitted a detailed cost report indicating its case costs to date. These costs
were necessarily expended in litigating this case and administrating the settlement. Barari Decl. iso
Fees, ¶ 32 (Exhibit A).
In this case, Class Counsel seeks to recover $92,634.00 for their fees and costs.
Accordingly, Class Counsel is requesting less than their fees and costs to date. Barari Decl. iso
Fees, ¶ 35.
i. Class Counsel’s Total Hours are Reasonable.
In determining a lodestar, reasonable hours include, in addition to time spent during
litigation, the time spent before the action is filed, including time spent interviewing the clients,
investigating the facts and the law, and preparing the initial pleadings. See New York Gaslight
Club, Inc. v. Carey (1980) 447 U.S. 54, 62. Further, the fee award should include fees incurred to
establish and defend the attorneys fee claim. Serrano IV, supra, 32 Cal.3d at 639.
This case was thoroughly litigated. The history of this litigation is set forth above and in
Plaintiffs’ Motion for Final Approval. During the course of the litigation and settlement, Class
Counsel expended significant resources in terms of attorney hours and case costs. Among other
things, Class Counsel:
• Gathered and carefully reviewed all of the bus routes (or “paddles”) in effect during the
Class Period;
• Collected documents and declarations from the ten Class Representatives;
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• Filed individual claims on behalf of each Class Representative in accordance with the
Gardena Municipal Code;
• Met with Class Representatives in person and attended hearings for preliminary approval
in person on two occasions; and
• Is serving as settlement administrator in the case (including mailing the notice packets,
responding to questions and inquiries from Class Members, and calculating the aggregate claim
amounts).
Barari Decl. iso Fees, ¶ 5.
While Class Counsel thoroughly litigated this case, Class Counsel did not over-litigate it.
Rather, Class Counsel conducted only the discovery that was needed in order to calculate damages
and properly assess the claims and defenses in the case. Barari. iso Fees, ¶ 31. Class Counsel’s
hours are therefore reasonable.
ii. Class Counsel’s Hourly Rates are Reasonable.
The hourly rates that Class Counsel has requested are reasonable. Class Counsel requests
that the following hourly rates be applied against the hours worked: $575.00 for Hunter Pyle and
$395.00 for Mana Barari. Barari Decl. iso Fees, ¶ 28.
A reasonable hourly rate is the prevailing rate charged by attorneys of similar skill and
experience in the relevant community. PLCM Group, supra, 22 Cal.4th at 1095. The Court may
consider other factors when determining a reasonable hourly rate, including the attorney’s skill and
experience, the nature of the work performed, the relevant area of expertise and the attorney’s
customary billing rates. Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 632.
The hourly rates sought here are typical of the hourly rates that the attorneys charge on non-
contingency cases, and are consistent with the hourly rates charged by other comparable attorneys
who practice in the same area of law. While there is a scarcity of hourly-fee paying plaintiffs in
class action litigation, a California court provided some guidance in 1993 when it approved an
hourly rate of $450 for wage and hour class litigation in the absence of an agreement by the client
to pay fees on an hourly basis. Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th
976, overruled on other grounds in Lakin v. Watkins Assoc. Indus. (1993) 6 Cal.4th 644, 664. Class
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Counsel’s hourly rates compare favorably to a rate of $450 considered reasonable by courts in
1993.
Class Counsel’s skill and experience also justify the requested rate. Class Counsel has a
substantial amount of experience in employment law actions, especially wage and hour class
actions. Class Counsel’s practice is primarily devoted to litigating employment law violations, and
the many of Class Counsel’s cases are wage and hour class actions. Class Counsel has represented
employees in numerous class action lawsuits involving wage and hour violations and has obtained
favorable settlements for employees. Class Counsel’s extensive experience in litigating
employment wage and hour matters was integral in evaluating the strengths and weaknesses of the
case against the City and negotiating a fair and reasonable settlement. Barari Decl. iso Fees, ¶¶ 36-
44.
Furthermore, given that Class Counsel is the Settlement Administrator in this case, Class
Counsel is expending significant additional time in settlement administration tasks, responding to
the frequent communications Class Counsel receive from Class Representatives and Class
Members, and monitoring compliance with the Settlement Agreement. Barari Decl. iso Fees, ¶ 33.
Settlement Administration for a settlement of this size often comes at a significant cost.
Schiller, 2012 U.S. Dist. LEXIS 80776 at * 5 (Maximum settlement amount of $518,245.00 in a
wage and hour case bore Settlement Administration costs of $28,000). The Settlement
Administrator contacted by Class Counsel estimated that settlement administration in this case
would cost $11,590. Barari Decl. iso Fees, ¶ 34, Exhibit B (Estimate Letter from Kurtzman Carson
Consultants). Therefore, Class Counsel’s role as Settlement Administrator has added an additional
benefit of approximately $11,590 to the Net Settlement Fund. Barari Decl. iso Fees, ¶ 34.
Class Counsel’s lodestar and fees to date are less than they are requesting in fees and costs.
Class Counsel expect to spend significant time and money bringing this case to closure. Class
Counsel is not requesting a multiplier. As such, the uncontested attorneys’ fees and costs request is
fair and eminently reasonable. Barari Decl. iso Fees, ¶ 35.
//
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B. The Participation or Enhancement Payments to the Class Representatives are Reasonable.
The proposed Class Representative Enhancement awards totaling $39,000.00 ($7,500 to
lead Class Representative Waleed Thompson and $3,500 each for the remaining nine Class
Representatives) are intended to recognize their substantial initiative, risk, and effort on behalf of
the Class. Barari Decl. iso Fees, ¶ 45. Plaintiffs previously filed declarations for each of the ten
Class Representatives on August 5, 2013.
Courts routinely approve incentive awards to compensate named plaintiffs for the services
they provide and the risks they incur during class action litigation. See In re. Cellphone Fee
Termination Cases (2010) 186 Cal.App.4th 1380 (approving incentive payments of $10,000 each);
Bell v. Farmers Ins. Exchange (2004) 115 Cal.App.4th 715, 726 (upholding “service payments” to
named plaintiffs for their efforts in bringing the case). See also Van Vranken v. Atlantic Richfield
Co. (N.D.Cal.1995) 901 F. Supp. 294 (approving $50,000 participation award); Huguley v. Gen.
Motors Corp. (E.D.Mich.1989) 128 F.R.D. 81, 85 (finding that it is “entirely fair” that “[n]amed
plaintiffs and witnesses are entitled to more consideration than class members generally because of
the onerous burden of litigation that they have borne”); Bryan v. Pittsburg Plate Glass Co.
(W.D.Pa.1973) 59 F.R.D. 616, 617 (approving “special awards” to class members “who were most
active in the prosecution of this case”).
The “[c]riteria courts may consider in determining whether to make an incentive award
include: 1) the risk to the class representative in commencing suit, both financial and otherwise; 2)
the notoriety and personal difficulties encountered by the class representative; 3) the amount of
time and effort spent by the class representative; 4) the duration of the litigation and; 5) the
personal benefit (or lack thereof) enjoyed by the class representative as a result of the litigation.”
Van Vranken v. Atlantice Richfield Co. (N.D. Cal. 1995) 901 F. Supp. 294, 299.
Courts have also recognized that assuming potentially career-damaging risks for the
vindication of the rights of fellow employees is a factor justifying a substantial enhancement
award. See e.g., Roberts v. Texaco, Inc. (S.D.N.Y. 1997) 979 F.Supp. 185, 201 (“present or past
employee whose present position or employment credentials or recommendation may be at risk by
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reason of having prosecuted the suit, who therefore lends his or her name and efforts to the
prosecution of litigation at some personal peril, a substantial enhancement award is justified.”).
a. The Court Should Grant Mr. Thompson’s Request For A Class Representative Enhancement Of $7,500.
An award of $7,500 is requested for Mr. Thompson due to his indispensable role in the
litigation and the enormous time and effort he has invested in the case.
Mr. Thompson initiated this lawsuit. He complained to his union representative about the
inability to take proper meal and rest breaks. When no action was taken, Mr. Thompson contacted
Class Counsel. Declaration of Waleed Thompson (“Thompson Decl.”), ¶ 5-7. Mr. Thompson
spoke to other bus drivers about their inability to take proper meal and rest breaks. Declaration of
Jerry Anderson, (“Anderson Decl.”), ¶ 5; Thompson Decl., ¶ 8; Declaration of Latasha Mason
(“Mason Decl.”), ¶ 5. Mr. Thompson then organized a conference call between Class Counsel and
all of the bus drivers interested in pursuing the case. Thompson Decl., ¶ 9. Several bus drivers
participated in this meeting and chose to pursue the claims on behalf of the Class in the role of
Class Representatives. Anderson Decl., ¶ 7-8; Declaration of Kimberly Baston (“Baston Decl.”) ¶
6-7; Declaration of Chanita Gardener (“Gardener Decl.”) ¶ 6-7; Mason Decl., ¶ 7-8; Declaration of
Joe Moore (“Moore Decl.”), ¶ 6-7; Declaration of Darryl Roberts (“Roberts Decl.”), ¶ 6-7;
Declaration of Mike Smith (“Smith Decl.”), ¶ 6-7; Declaration of Chukudi Ubani (“Ubani Decl.”),
¶ 6-7; Declaration of Janice Winfrey (“Winfrey Decl.”), ¶ 6-7.
Mr. Thompson also searched for and gathered a full set of bus route schedules (referred to
as “paddles”) and other relevant documents and provided them to Class Counsel so that Class
Counsel could properly assess the claims in the case. Thompson Decl., ¶ 12.
Throughout the course of the case, Mr. Thompson has had dozens of telephone calls with
Class Counsel and hundreds of email exchanges. Thompson Decl., ¶ 18-19, 21. Mr. Thompson
has also assisted Class Counsel in communicating with the other Class Representatives. Thompson
Decl., ¶ 20; Barari Decl. iso Fees, ¶ 50.
Mr. Thompson has also assisted Class Counsel throughout the settlement administration
process. Mr. Thompson helped Class Counsel locate Class Members whose initial Notice Packets
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were returned as undeliverable. Mr. Thompson has also been responding to other Class Members’
questions about the Settlement and the Notice Packet. Barari Decl. iso Fees, ¶ 51.
Furthermore, as the lead Class Representative, Mr. Thompson faces even greater risks of
retaliation by the City than the other Class Representatives. Mr. Thompson is known as the lead
Class Representative who took initiative in this case. Further, Mr. Thompson has less seniority
than many of the other Class Representatives. Additionally, Mr. Thompson, along with two other
Class Representatives, faces greater risks of retaliation because they are part-time drivers and more
easily replaced. Thompson Decl., ¶ 11, 26. Since the filing of this case, Mr. Thompson has been
passed over for full-time positions with the City on two occasions. Barari Decl. iso Fees, ¶ 52.
For the foregoing reasons, an enhancement of $7,500 to Mr. Thompson is justified.
b. The Court Should Grant The Other Class Representatives’ Request For A Class Representative Enhancement Of $3,500.
The remaining nine Class Representatives seek enhancement awards of $3,500 each. These
payments are requested in recognition of the risks incurred, their release of all potential individual
claims against the City, and the time, efforts, and assistance that the Class Representatives have
spent on behalf of the Class.
Like Mr. Thompson, the Class Representatives here all deserve an enhancement payment
because they took on significant risks in participating in this case. As current employees, the Class
Representatives risked—and continue to risk—the real possibility of retaliation for their
participation. The Class Representatives work in a small department of less than 100 bus drivers.
The Class Representatives knew that once they filed their lawsuit, everyone in the department
would know what they had done. The Class Representatives knowingly took the risk that they
could be perceived as non-loyal employees, which could adversely affect their employment with
the City and their employment prospects in the future. Anderson Decl., ¶¶ 8-9, 16; Baston Decl.,
¶¶ 7-8, 14; Gardener Decl., ¶¶ 7-8, 15; Mason Decl., ¶¶ 8-9, 18, Moore Decl., ¶¶ 7-8, 16; Roberts
Decl., ¶¶ 7-8, 17; Smith Decl., ¶¶ 7-8, 13; Ubani Decl., ¶¶ 7-8, 15; Winfrey Decl., ¶¶ 7-8, 15 .
Class Representatives have also undertaken risks with respect to their future employment
prospects. The Class Representatives have sued their employer. Any potential future employer
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who runs a background check on any of the Class Representatives will discover this fact. In a
competitive job market, this factor may weigh heavily against them. Barari Decl. iso Fees, ¶ 55.
Further, the following additional facts support the enhancement awards requested:
All of the Class Representatives provided substantial assistance to Class Counsel. The
Class Representatives communicated with counsel on numerous occasions and assisted Class
Counsel in evaluating the claims. Among other things, all of the Class Representatives: (1)
participated in meetings and conference calls with Class Counsel as part of the investigation and
settlement process; (2) actively communicated with other bus drivers regarding the case and to
answer questions; (3) searched for and provided documents related to the claims in the case; and
(4) have agreed to support the settlement process by communicating with Class Members and
encouraging participation. Anderson Decl., ¶¶ 10-13 ; Baston Decl., ¶¶ 9-12; Gardener Decl., ¶¶ 9-
13; Mason Decl., ¶¶ 10-13, 16; Moore Decl., ¶¶ 9-11, 14; Roberts Decl., ¶¶ 9-12, 15; Smith Decl.,
¶¶ 9-12; Ubani Decl., ¶¶ 9-13; Winfrey Decl., ¶¶ 9-13. The foregoing activities have involved a
significant investment of time and effort.
Four Class Representatives attended the first hearing on preliminary approval on July 8,
2013. Mason Decl., ¶ 14, Moore Decl., ¶ 12; Roberts Decl., ¶ 13; Thompson Decl., ¶ 22.
Furthermore, Plaintiffs’ litigation furthers this State’s public policies, including providing
employees with proper meal and rest periods. See Murphy v. Kenneth Cole Productions, Inc.
(2007) 40 Cal.4th 1094, 1113 (reasoning that, “Employees denied their rest and meal periods face
greater risk of work-related accidents and increased stress, especially low-wage workers who often
perform manual labor.”) These public policies are even more significant when the employees at
issue are public transit bus drivers operating large vehicles on city streets.
Accordingly, a $3,500.00 payment to each Class Representative fairly compensates them
for the substantial assistance they provided to Class Counsel, the services they rendered to the
Class Members, the risk they incurred, and their service in furthering the public policy underlying
the California’s wage statutes and unfair competition laws.
