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Motion for Attorneys’ Fees, Costs and Enhancement Awards Case No. 2:12-CV-01689-CAS (PJW)
MARLIN & SALTZMAN, LLP Marcus J. Bradley, Esq. (SBN 174156) Kiley L. Grombacher, Esq. (SBN 245960) 29229 Canwood Street, Suite 208 Agoura Hills, California 91301 Telephone: (818) 991-8080 Facsimile: (818) 991-8081 [email protected] [email protected] THE CULLEN LAW FIRM, APC Paul T. Cullen, Esq. (SBN 193575) 29229 Canwood Street, Suite 208 Agoura Hills, California 91301 Telephone: (818) 360-2529; (818) 338-8915 Facsimile: (866) 794-5741 [email protected] Attorneys for Plaintiffs individually on behalf of themselves, and all others similarly situated, and the general public
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
TYRONE SMITH, GREG VILLANUEVA, and JOHN CAUDILL, individuals, on behalf of themselves, all others similarly situated, and the general public, Plaintiffs, v. BIMBO BAKERIES USA, INC., a Delaware corporation; and DOES 1 to 10, inclusive, Defendants.
CASE NO. 2:12-CV-01689-CAS (PJW)(Hon. Christina A. Snyder) CLASS ACTION PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR APPROVAL OF ATTORNEYS’ FEES, COSTS AND ENHANCEMENT AWARDS DATE: January 26, 2015 TIME: 10:00 a.m. DEPT: 5 JUDGE: Hon. Christina A. Snyder
Case 2:12-cv-01689-CAS-PJW Document 124 Filed 12/02/14 Page 1 of 29 Page ID #:2514
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Motion for Attorneys’ Fees, Costs & Enhancement Awards Case No. 2:12-CV-01689-CAS (PJW)
TABLE OF CONTENTS MEMORANDUM OF POINTS & AUTHORITIES .................................................. 1
I. INTRODUCTION ............................................................................................. 1
II. STATEMENT OF FACTS ................................................................................ 2
A. Nature of the Case ................................................................................... 2
B. Litigation History .................................................................................... 3
1. Initial and Subsequent Pleadings .................................................. 3
2. Discovery and Investigation ......................................................... 3
3. Defendant’s Aggressively Litigated This Action and Brought an Early Motion for Summary Judgment ....................... 4
4. Collective Action Certification ..................................................... 5
5. Mediation ...................................................................................... 5
III. LEGAL STANDARDS APPLICABLE TO FEE REQUESTS ........................ 6
IV. FEE ANALYSIS ............................................................................................... 9
A. Common Fund ......................................................................................... 9
1. The Results Achieved Provide a Clear Benefit to the Class ....... 10
2. Class Counsel Litigated the Case on a Contingency Basis and Faced Considerable Risk ...................................................... 10
3. The Skill and Quality of the Work Performed by Class Counsel Merits an Award of 30% in Attorneys’ Fees ................ 11
4. An Award of 33 1/3% of the Common Fund to Compensate Class Counsel is Reasonable in Comparison to Awards in Similar Cases ............................................................................... 12
B. Lodestar Cross Check ............................................................................ 13
1. The Hourly Rate Sought Is Reasonable ...................................... 15
Case 2:12-cv-01689-CAS-PJW Document 124 Filed 12/02/14 Page 2 of 29 Page ID #:2515
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Motion for Attorneys’ Fees, Costs & Enhancement Awards Case No. 2:12-CV-01689-CAS (PJW)
2. The Hours Expended By Class Counsel are Reasonable ............ 16
3. Multiplier .................................................................................... 17
V. THE COSTS SOUGHT TO BE REIMBURSED ARE REASONABLE ....... 18
VI. THE PROPOSED $7,500 SERVICE AWARD TO EACH OF THE NAMED PLAINTIFFS IS REASONABLE ................................................... 19
VII. CONCLUSION ................................................................................................ 21
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Motion for Attorneys’ Fees, Costs & Enhancement Awards Case No. 2:12-CV-01689-CAS (PJW)
TABLE OF AUTHORITIES
Federal Cases
Ashendorf & Assocs. v. SMI-Hyundai Corp., 2011 WL 3021533 (C.D.Cal. 2011) ................................................................ 16
Bademyan v. Receivable Mgmt. Servs. Corp., 2009 WL 605789 (C.D. Cal. 2009) ………………………………………..16 Birch v. Office Depot, Inc.,,
2007 U.S. Dist. LEXIS 102747 (S.D. Cal. 2007) ............................................ 20
Boeing Co. v. Van Gemert, 444 U.S. 472 (1980)........................................................................................... 7
Cf. Barbosa v. Cargill Meat Solutions Corp.,, 2013 U.S. Dist. LEXIS 93194 (E.D. Cal. 2013) ...................................... 12, 19
Cicero v. DirecTV, Inc.,, 2010 U.S. Dist. LEXIS 86920 (C.D. Cal. 2010) ............................................. 10
Cook v. Niedert, 142 F.3d 1004 (7th Cir. 1998) ......................................................................... 20
Costa v. Comm'r of Soc. Sec. Admin., 690 F. 3d 1132 (9th Cir. 2012) ................................................................. 16, 17
Espinoza v. Domino's Pizza, LLC,, 2012 U.S. Dist. LEXIS 160641 (C.D. Cal. 2012) ........................................... 20
Florida v. Dunne, 915 F.2d 542 (9th Cir. 1990) ............................................................................. 9
Franco,, 2012 U.S. Dist. LEXIS 169057 ................................................................ 10, 11
Garcia v. Gordon Trucking, Inc.,, 2012 U.S. Dist. LEXIS 160052 (E.D. Cal. 2012) ........................................... 19
Gardner v. GC Services, LP, 2012 WL 1119534 ........................................................................................... 13
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Motion for Attorneys’ Fees, Costs & Enhancement Awards Case No. 2:12-CV-01689-CAS (PJW)
Gonzalez v. City of Maywood, 729 F. 3d 1196 (9th Cir. 2013) ........................................................................ 15
Heritage Bond Litig.,, 2005 U.S. Dist. LEXIS 13555 (C.D. Cal. 2005) ............................................. 11
In re Bluetooth, 654 F. 3d at 942 ................................................................................................. 9
In re Equity Funding Corp. Sec. Litigation, 438 F. Supp. 1303 (C.D. Cal. 1977) ................................................................ 12
In re Immune Response Secs. Litig., 497 F. Supp. 2d 1166 (S.D. Cal. 2007) .................................................... 18, 19
In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454 (9th Cir. 2000) ........................................................................... 19
In re Omnivision Techs., 559 F. Supp. 2d 1036 (N.D. Cal. 2007) ...................................................... 9, 10
In re Quantum Health Resources, Inc. Sec. Litig., 962 F. Supp. 1254 ............................................................................................ 18
In re Washington Public Power Supply System Securities Litig., 19 F. 3d 1291 (9th Cir. 1994) .......................................................................... 14
Ingalls v. Hallmark Retail, Inc.,, 2009 U.S. Dist. LEXIS 131078 (C.D. Cal. 2009) ........................................... 20
Knight v. Red Door Salons, Inc., No. 08-01520 SC, 2009 WL 248367 (N.D.Cal. 2009) .................................... 10
Paul, Johnson, Alston & Hunt v. Gaulty, 886 F.2d 268 (9th Cir. 1989) .........................................................................8, 9
POM Wonderful, LLC v. Purely Juice Inc., 2008 WL 4351842 (9th Cir. 2009) .................................................................. 16
Rodriguez v. West Publishing, 9 Corp., 563 F.3d 948 (9th Cir. 2009) ........................................................................... 19
Romero v. Producers Dairy Foods, Inc.,, 2007 U.S. Dist. LEXIS 86270 (E.D. Cal. 2007) ............................................. 13
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Schwarz v. Sec. of Health & Human Servs., 73 F. 3d 895 (9th Cir. 1995) ............................................................................ 15
Singer v. Becton Dickinson and Co., 2010 WL 2196104 ........................................................................................... 13
Singer v. Becton Dicksinson & Co.,, 2010 U.S. Dist. LEXIS 53416 (S.D. Cal. 2010) .............................................. 13
Staton v. Boeing, 327 F.3d 938 (9th Cir. 2003) ........................................................................... 20
Sure Safe Indus. Inc. v. C & R Pier Mfg., 152 F.R.D. 625 (S.D. Cal. 1993) ..................................................................... 19
Trustees v. Greenough, 105 U.S. 527 (1881)........................................................................................... 8
United States v. City of Twin Falls, Idaho, 806 F.2d 862 (9th Cir. 1986) ........................................................................... 19
Vasquez v. Coast Valley Roofing, Inc., 266 F.R.D. 482 (E.D. Cal. 2010) ..................................................................... 10
Vincent v. Hughes Air West, Inc., 557 F.2d 759 (9th Cir. 1977) ............................................................................. 8
Viveros v. Donahue, 2013 WL 1224848 (C.D. Cal. 2013)…………………………………………..15, 16 Vizcaino v. Microsoft Corp.,
290 F.3d 1043 (9th Cir. 2002) .................................................................... 9, 10
State Cases
Building a Better Redondo, Inc. v. City of Redondo Beach, 203 Cal. App. 4th 852 (2012) .......................................................................... 15
Clifford v. American Drug Stores, 2005 WL 2002376 (Ct. App. Cal. 2005) ......................................................... 16
ComputerXpress, Inc. v. Jackson, 93 Cal. App. 4th 993 (2001) ............................................................................ 15
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In re Vitamin Cases, 2004 WL 5137597 (Cal. Sup. Ct. 2004) ................................................... 13, 17
Ketchum v. Moses, 24 Cal. 4th. 1122 (2001) ........................................................................... 16, 17
Lealao v. Beneficial Cal., Inc., 82 Cal. App.4th 19 (2000) ...................................................................... 8, 9, 14
PLCM Grp. V. Drexler, 22 Cal. 4th 1084 (2000) ................................................................................... 15
Poon v. Poon, 2007 WL 4427844 (Cal. Ct. App. Dec. 19, 2007) ............................................ 9
Statutes and Rules
29 U.S.C. §§ 201, et seq., ............................................................................................. 3
California Business and Professions Code § 17200, et seq. ........................................... 3
Federal Rule of Civil Procedure 23 ................................................................................ 6
Federal Rule of Civil Procedure 56 ............................................................................. 4
Miscellaneous A. Conte, Attorney Fee Awards, 2nd Ed. 1993, 104……………………………….. 9
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Motion for Attorneys’ Fees, Costs & Enhancement Awards Case No. 2:12-CV-01689-CAS (PJW)
TO: ALL PARTIES HEREIN AND TO THEIR COUNSEL OF RECORD:
PLEASE TAKE NOTICE that on January 26, 2015, at 10:00 a.m., or as soon
thereafter as the matter can be heard in Courtroom 5 of this Court, located at
312 North Spring Street, Los Angeles, California, 90012, Plaintiffs Tyrone Smith,
Greg Villanueva, and John Caudill (“Plaintiffs”) will move for Court approval of
attorneys’ fees in the amount of $441,750.00, reimbursement in the amount of
$30,450.50 and service awards of $7,500 (collectively $22,500) for each named
Plaintiff-Tyrone Smith, Greg Villanueva, and John Caudill. Defendant does not
oppose this Motion.
Said Motion shall be based upon this Notice of Motion, the accompanying
Memorandum of Points & Authorities filed herewith, the Declarations of Marcus J.
Bradley and Paul Cullen, the Settlement Agreement entered into by the Plaintiffs and
Defendant (collectively the “Parties”), and upon such further evidence, both
documentary and oral, as may be presented at the hearing of said motion. DATED: December 2, 2014 BRADLEY & SALTZMAN, LLP THE CULLEN LAW FIRM, APC By: /s/ Kiley Lynn Grombacher Marcus J. Bradley, Esq. Kiley Lynn Grombacher, Esq. Attorneys for Plaintiffs
Case 2:12-cv-01689-CAS-PJW Document 124 Filed 12/02/14 Page 8 of 29 Page ID #:2521
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Motion for Attorneys’ Fees, Costs & Enhancement Awards Case No. 2:12-CV-01689-CAS (PJW)
MEMORANDUM OF POINTS & AUTHORITIES
I. INTRODUCTION
On October 7, 2014, this Court granted Plaintiffs’ Unopposed Motion for
Preliminary Approval of Class Action Settlement. The Settlement negotiated by the
Parties settles plaintiffs’ wage-and-hour class action for $1,470,500 and confers
substantial benefits on the members of the class. The Settlement will provide a cash
payment to all class members. This result is particularly beneficial given that,
although a class was conditionally classified under the Fair Labor Standards Act, the
settlement was achieved before plaintiffs filed a motion for class certification, thus
mitigating the costs of further expensive and protracted litigation.
By this motion, the law firms of Marlin & Saltzman, LLP and The Cullen Law
Firm APC (“Class Counsel”) respectfully seek compensation for their past work and
future efforts, on behalf of the class. Per the Settlement Agreement, Class Counsel
seeks an award of 30% of the Settlement Fund, or $441,750.00, in attorneys’ fees.
Class Counsel also seeks an award of $30,450.50 in costs that were reasonably
incurred in litigating this case. As discussed below, the fee requested is reasonable
when considered under the applicable standards and is well within the normal range of
awards made in contingent-fee consumer class actions in this Circuit. This is
particularly true given the result achieved and the considerable risks attendant in
bringing and pursuing this litigation. Indeed, under a lodestar calculation, the
requested award of fees and expenses represents a negative multiplier applying
Plaintiffs’ Counsel’s customary hourly rates.
Finally, Plaintiffs seek service awards of $7,500 (collectively $22,500) for each
named Plaintiff-Tyrone Smith, Greg Villanueva, and John Caudill. Joint Stipulation
of Class and Collective Action Settlement and Release (“Joint Stipulation”) entered
into by the Parties [ECF NO 119] ¶XI. These service awards are appropriate given the
significant time and effort expended by the named Plaintiffs, and the invaluable
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Motion for Attorneys’ Fees, Costs & Enhancement Awards Case No. 2:12-CV-01689-CAS (PJW)
assistance they provided to Class Counsel throughout this case.
As demonstrated below, the $441,750.00 fee award requested by Class Counsel
is warranted by the fair and appropriate results achieved early in the case, is consistent
with other cases in this Circuit, and is reasonable in comparison to Class Counsel’s
current lodestar of $654,175. Declaration of Marcus J. Bradley (“Bradley Decl.”) ¶15.
II. STATEMENT OF FACTS1
A. Nature of the Case
Defendant Bimbo Bakeries USA, Inc. (“Defendant” or “BBU”) is one of the
largest bakery companies in the United States, with over 70 bakeries across the
country. Plaintiffs and the members of the Settlement Class are bakery sales/delivery
drivers for BBU who are/were employed in the State of California in the job positions
of “Route Sales Representatives,” “Route Service Representatives,” “Vacation
Relief,” or other similarly tilted positions (“RSRs”). The terms and conditions of
Plaintiffs’ employment and the employment of other RSRs they seek to represent are
governed by various collective bargaining agreements (“CBAs”).
In this Action, the Parties contest the exact duties of the RSRs. Plaintiffs
characterize RSRs as delivery people employed by for specific, well-defined tasks.
Defendant, by contrast, portrays RSRs as independent salespeople, many of whom are
exempt from the provisions of the FLSA and California Labor laws by reason of their
sales duties.
/ / /
1 Plaintiffs’ Counsel’s Declarations are an integral part of this submission. Plaintiffs respectfully refer the Court to these Declarations for additional detailed description of the factual and procedural history of the litigation, the claims asserted, the extensive investigation and discovery undertaken, the settlement negotiations, Plaintiffs’ Counsel’s experience and work performed, and the numerous risks and uncertainties presented in this litigation.
Case 2:12-cv-01689-CAS-PJW Document 124 Filed 12/02/14 Page 10 of 29 Page ID #:2523
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Motion for Attorneys’ Fees, Costs & Enhancement Awards Case No. 2:12-CV-01689-CAS (PJW)
B. Litigation History
1. Initial and Subsequent Pleadings
On February 28, 2012, Plaintiff Tyrone Smith commenced the Action on behalf
of himself and all other individuals allegedly similarly situated to them with respect to
the claims asserted. In the Action, Plaintiffs alleged that Defendant failed to provide
Plaintiffs and other “Route Sales Representatives,” “Route Service Representatives,”
“Vacation Relief,” or other similarly tilted positions employed by Defendant between
February 28, 2008, and the Preliminary Approval Date minimum, regular/straight-
time and overtime wages to which they were entitled, in violation of the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq., and/or the California Labor Code.
Plaintiffs also alleged that Defendant failed to provide such employees with meal and
rest periods in violation of the California’s Labor Code, failed to furnish accurate
itemized wage statements, failed to pay wages timely upon separation, engaged in
unfair competition in violation of California Business and Professions Code section
17200, et seq., and also asserted other claims under the Private Attorneys General Act
and the Declaratory Judgment Act.
After protracted meet and confer efforts on behalf of both Parties, on
August 17, 2012, Plaintiffs Tyrone Smith, Greg Villanueva, and John Caudill filed the
operative Third Amended Complaint. Defendant answered the Third Amended
Complaint in the Action. Defendant denied the material allegations; maintained that
the Court should not certify the proposed class and collective action; asserted that
Plaintiffs and the proposed Class were properly paid all wages due under the FLSA
and California Labor Code; maintained that Defendant bore no liability to Plaintiffs or
the proposed Class for wages, penalties, or otherwise; and raised other defenses.
2. Discovery and Investigation
Prior to mediation, the Parties engaged in very active discovery. Plaintiffs
propounded requests for production of written documentation that related to
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Motion for Attorneys’ Fees, Costs & Enhancement Awards Case No. 2:12-CV-01689-CAS (PJW)
Defendant’s policies and procedures, as well as interrogatories. Defendant produced
thousands of pages of documents and personnel data that were reviewed and analyzed
by Plaintiffs’ Counsel. These documents proved crucial in regard to the investigation
of the claims raised in the litigation, and in making ultimate determinations as to the
alleged violations of law and potential damages. In addition to obtaining responses to
written discovery, Plaintiffs’ Counsel took a Federal Rule 30(b)(6) deposition on
several topics including, inter alia, RSR job duties and responsibilities, Defendant’s
policies regarding payment of overtime wages, and Defendant’s policies and practices
regarding the payment of commissions to RSRs. Likewise, Defendant deposed each
of the named Plaintiffs and select opt-in plaintiffs on issues related to this Action.
In addition to the written discovery and depositions, Plaintiff conducted surveys
and interviews of numerous opt-in plaintiffs and class members. Many class members
spoke English as a second language and preferred to communicate in Spanish. As
such Class Counsel had to devote resources to ensure that they had sufficient staff
members to conduct the interviews and translate the class members’ responses for
further analysis. Class Counsel devoted more than 1,000 hours to class member
contact.
The information obtained during discovery was critical in allowing Class
Counsel to properly evaluate the potential claims being raised, and was used
extensively for mediation and in connection with the ongoing settlement discussions
thereafter.
3. Defendant’s Aggressively Litigated This Action and Brought
an Early Motion for Summary Judgment
On April 1, 2013, Defendant filed a motion for partial summary judgment
pursuant to Federal Rule of Civil Procedure 56(c) and (d). [ECF No. 44] Therein
Defendant argued: (1) that the Federal Aviation Administration Authorization Act of
1994 (“FAAAA”) expressly preempts Plaintiffs’ meal and rest break claims.
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Motion for Attorneys’ Fees, Costs & Enhancement Awards Case No. 2:12-CV-01689-CAS (PJW)
Defendant further argued that claims derivative upon Plaintiffs’ meal and rest break
claims (e.g. waiting time penalties) were also barred by the FAAAA.
Given the complexity and novel nature of the arguments raised, Plaintiffs’
counsel reviewed extensive materials including detailed legislative history of the
FAAAA as well as relevant case law and secondary authorities. After hearing, this
Court denied summary judgment finding that disputed issues of material fact
precluded the granting of summary judgment in Defendant’s favor. [ECF No. 58]
4. Collective Action Certification
Plaintiffs filed their motion for collective action certification on May 31, 2013,
and sought certification of the FLSA claim forth in the Complaint. (Dkt No.64). On
June 21, 2013, Defendant opposed the motion, (Dkt No. 72), and Plaintiffs filed their
reply on July 12, 2013. (Dkt No. 88). On August 19, 2013, this Court granted
Plaintiffs’ motion for conditional certification. (Dkt No. 93.)
The certified class was defined as: All current and former Route Sales Representatives and/or Route Service Representatives (i.e. RSRs and similarly titled employees) who, within three years preceding the date of their decision to opt in to this action, were employed by Bimbo Bakeries USA Inc., in the state of California and who operate or operated, trucks weighing 10,000 lbs. or less. (Dkt at 93)
Pursuant to this Court’s June 2014 Scheduling Order (Dkt No. 115), at the time
of mediation, deadlines for the Parties dueling motions to decertify the FLSA class
and certify the state law claims under Rule 23 had been set by the Court. Accordingly
at the time of settlement, the Parties had conducted additional discovery and were
about to begin a number of depositions related to issues underlying Rule 23
certification.
5. Mediation
On April 8, 2014, the Parties attended a mediation conducted by Mark Rudy,
Esq., a highly respected mediator in San Francisco, California. Attorneys Marcus J.
Bradley and Kiley Lynn Grombacher of the Marlin & Saltzman firm and Paul Cullen
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Motion for Attorneys’ Fees, Costs & Enhancement Awards Case No. 2:12-CV-01689-CAS (PJW)
of The Cullen Law Firm were present on behalf of the Plaintiffs and the Class.
Defendant was represented by Michael Puma of Morgan, Lewis & Bockius LLP.
Plaintiffs had provided the mediator with their analysis of Defendant’s potential
liability and Defendant had provided the mediator with the same. Despite the Parties’
inability to reach a comprehensive settlement the day of the in-person mediation,
substantial progress was made. During the ensuing weeks after the mediation, Class
Counsel was in communication with mediator Mark Rudy to continue negotiations.
After weeks of telephonic conferences and written exchanges, the Parties were able to
reach the settlement that was preliminarily approved by this Court.
Class Counsel then spent significant time negotiating and revising the
Settlement Agreement, the class notice and claims form, discussing the settlement
with members of the settlement class and taking other steps to ensure court approval
of the Settlement. Bradley Decl. Ex. 1.
On October 7, 2014, the Court granted Plaintiffs’ unopposed motion for
preliminary approval of the Settlement. ECF No. 122. Since then, Class Counsel has
worked with the Claims Administrator to effectuate the terms of the Settlement
Agreement, and has responded to numerous phone calls from class members regarding
the settlement. Bradley Decl. Ex. 1.
III. LEGAL STANDARDS APPLICABLE TO FEE REQUESTS
Awards of attorneys’ fees in class action cases are governed by Federal Rule of
Civil Procedure 23(h), which provides that after a class has been certified, the Court
may award reasonable attorneys’ fees and nontaxable costs. The fees sought relate to
all efforts expended by Class Counsel for the complete handling of this case, including
any additional work remaining to be performed by Class Counsel in securing final
Court approval of the Settlement, and making sure that the Settlement is fairly
administered and fully implemented. Together with the analysis of all the factors
governing attorney fee awards, class counsel believes that the effort and result justify
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Motion for Attorneys’ Fees, Costs & Enhancement Awards Case No. 2:12-CV-01689-CAS (PJW)
this fee request.
Both Marlin & Saltzman and The Cullen Law Firm APC have significant
experience not only in class actions generally and employment litigation, but
specifically in wage and hour class actions. . From the efforts of Class Counsel
in this action that were detailed above, it is clear that an enormous amount of work
went into achieving what is a substantial and beneficial resolution on behalf of the
Class. The discovery, analysis, investigation and motion practice performed in this
case was more extensive and comprehensive than in most complex litigation. Further,
since reaching the settlement, substantial additional work has been required to enable
Counsel to obtain preliminary approval, and to make the motion for final approval of
the settlement that will be heard contemporaneously with this Motion.
In cases like this, a percentage of the fund award of fees is appropriate, and
even desirable. As stated in Newberg on Class Actions, Fourth Edition, vol. 4, p. 556,
§14.6:
Unlike the lodestar method which can encourage class counsel to devote
unnecessary hours to generate a substantial fee, under the POR
[percentage of recovery] method, the more the attorney succeeds in
recovering money for the client, and the fewer legal hours expended to
reach that result, the higher dollar amount of fees the lawyer earns. Thus,
one of the primary advantages of the POR method is that it is thought to
equate the interests of class counsel with those of the class members and
encourage class counsel to prosecute the case in an efficient manner.
See, Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980).
/ / /
The percentage of recovery or “Common Fund Doctrine” provides that when a
litigant’s efforts create or preserve a fund from which others derive benefits, the
litigant may require the passive beneficiaries to compensate those who created the
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fund. The purpose of this equitable doctrine is, in part, to spread litigation costs
proportionally among all the beneficiaries so that the active beneficiary does not bear
the entire burden alone. See, Vincent v. Hughes Air West, Inc. 557 F.2d 759, 769 (9th
Cir. 1977). Ever since the Common Fund Doctrine found its genesis in Trustees v.
Greenough, 105 U.S. 527 (1881), courts have awarded fees on a percentage basis.
Indeed, both State and Federal courts in California have embraced the Common
Fund Doctrine. Vincent, 557 F.2d at 769. Specifically, courts have historically and
consistently recognized that class litigation is increasingly necessary to protect the
rights of individuals whose injuries and/or damages are too small to economically
justify individual representation. In Paul, Johnson, Alston & Hunt v. Gaulty, 886 F.2d
268 (9th Cir. 1989) the Ninth Circuit embraced this principle when it stated:
[I]t is well settled that the lawyer who creates a common fund is allowed an extra reward, beyond that which he has arranged with his client, so that he might share the wealth of those upon whom he has conferred a benefit. The amount of such a reward is that which is deemed ‘reasonable’ under the circumstance. Id. at 271.
Attorneys must be encouraged to incur the enormous risks of time and money
necessary to vindicate the public interest, and to protect the public policies underlying
the wage and hour laws. To fulfill this policy, California law provides that attorney
fee awards should be equivalent to fees paid in the legal marketplace to compensate
for the result achieved and risk incurred. See, Lealao v. Beneficial Cal., Inc., 82 Cal.
App.4th 19 (2000).
Accordingly, in the determination of a reasonable common fund fee award,
courts award fees to serve as economic incentive for lawyers to bring class actions in
order to achieve increased access to the judicial system for meritorious claims and to
enhance deterrents to wrongdoing. See, A. Conte, Attorney Fee Awards, 2nd Ed.
1993, 104, p.6. In this case, it would have been difficult, if not impossible, for the
more than 2,000 current and former Bimbo employees to bring separate actions for the
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wages they will recover in this matter.
Where a court uses the percentage-of-the-fund analysis, it may also apply a
lodestar crosscheck, which “measures the lawyers’ investment of time in the litigation,
[and] provides a check on the reasonableness of the percentage award.” Vizcaino v.
Microsoft Corp., 290 F.3d 1043, 1050 (9th Cir. 2002). “The ultimate goal under
either method of determining fees is to reasonably compensate counsel for their efforts
in creating the common fund.” In re Omnivision Techs., 559 F. Supp. 2d 1036, 1046
(N.D. Cal. 2007); Florida v. Dunne, 915 F.2d 542, 545 (9th Cir. 1990) (holding that
the ultimate inquiry is whether fees are “reasonable under the circumstances”).
IV. FEE ANALYSIS
A. Common Fund
Under the percentage-of-recovery method, courts typically calculate 25% of the
fund as a benchmark for a reasonable fee award. See Lealao v. Beneficial California,
Inc., 82 Cal. App 4th. 19, 341 n. 1 (commenting that studies show that 25% is within
the range followed by most courts); Poon v. Poon, 2007 WL 4427844, at *10 (Cal. Ct.
App. Dec. 19, 2007) (noting that 25% is the amount that courts often use as a
benchmark to determine the reasonableness of a fee award); see accord In re
Bluetooth, 654 F. 3d at 942 (“courts typically calculate 25% of the fund as the
‘benchmark’ for a reasonable fee award”). The percentage can range, however, and
Courts have awarded more than 25% of the fund as attorneys’ fees when they have
deemed a higher award to be reasonable. Indeed, the Ninth Circuit has held that an
award of attorneys’ fees up to 33 1/3% of the fund can be reasonable. Paul, Johnson,
Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir. 1989).
/ / /
In fact, in California, “[district] courts usually award attorneys’ fees in the 30-
40% range in wage-and-hour class actions that result in recovery of a common fun[d]
under $10 million.” Cicero v. DirecTV, Inc., 2010 U.S. Dist. LEXIS 86920, *17 (C.D.
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Cal. July 27, 2010) (citing three cases awarding fees in this range after surveying other
California fee awards in wage-and-hour class actions); see also Vasquez v. Coast
Valley Roofing, Inc., 266 F.R.D. 482, 492 (E.D. Cal. 2010) (citing five wage-and-hour
class actions in which courts awarded fees ranging from 30 to 33%).
The exact percentage to be awarded varies depending on the facts of the case,
and in “most common fund cases, the award exceeds that benchmark.” Vasquez v.
Coast Valley Roofing, Inc., 266 F.R.D. 482, 491 (E.D.Cal., 2010), citing Knight v. Red
Door Salons, Inc., No. 08-01520 SC, 2009 WL 248367 (N.D.Cal. Feb. 2, 2009).
“Selection of the benchmark or any other rate must be supported by findings that take
into account all of the circumstances of the case.” Vizcaino v. Microsoft Corp., 290
F.3d 1043, 1048 (9th Cir. 2002). Here, a departure from the benchmark is warranted.
In assessing whether the percentage requested is fair and reasonable, courts
generally consider the following factors: (1) the results achieved; (2) the risk of
litigation; (3) the skill required; (4) the quality of work performed; (5) the contingent
nature of the fee and the financial burden by the plaintiff; and (6) the awards made in
similar cases. Franco, 2012 U.S. Dist. LEXIS 169057, at *44 (citing Vizcaino, 290
F.3d at 1047). As shown below, all six factors are met and support the requested fee
award.
1. The Results Achieved Provide a Clear Benefit to the Class
“The overall result and benefit to the class from the litigation is the most critical
factor in granting a fee award.” In re Ominivision Techs, 559 F. Supp. 2d at 1046.
This award will result in the payment of thousands of dollars in cash awards to class
members to compensate them for the alleged unpaid wages. Class Counsel’s ability to
achieve this result early in the case demonstrates that the legal strategy pursued in this
case was appropriate and beneficial to the class.
2. Class Counsel Litigated the Case on a Contingency Basis and
Faced Considerable Risk
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The second and fifth Vizcaino factors, the risk of litigation and the contingent
nature of the fee, also favors the requested fee award. Although Class Counsel
believed that Plaintiffs’ claims were strong, there was some risk that the Court would
not certify all of the claims, or that Plaintiffs would lose at summary judgment or trial.
Indeed, as set forth in Plaintiffs’ Motion for Preliminary Approval, Defendant
vigorously contested both liability and the propriety of class certification. In addition,
Class Counsel litigated the case on a contingency fee basis, Bradley Decl. ¶16, which
“necessarily presented considerable risk.” Franco, 2012 U.S. Dist. LEXIS 169057, at
*47 (citation omitted). As of the filing of this motion, Class Counsel has spent a total
of 1,040.75 hours performing work to advance plaintiffs’ claims. Bradley Decl. ¶¶12,
14. This includes hundreds of hours of analyzing documents, communicating with
class members, engaging in motion practice, and researching Plaintiffs’ claims.
Bradley Decl ¶12, Ex1. Class Counsel performed this work without any guarantee of
payment. Moreover, Class Counsel risked losing the roughly $30,450.50 in costs
incurred to date, a number which likely would have doubled by the time of trial.
“Courts consistently recognize that the risk of non-payment or reimbursement of
expenses is a factor in determining the appropriateness of counsel’s fee award.” In re
Heritage Bond Litig., 2005 U.S. Dist. LEXIS 13555, *68 (C.D. Cal. June10,2005).
Here, Class Counsel’s pursuit of plaintiffs’ case on a contingency fee basis,
with the accompanying risk of foregoing any compensation in the event of a judgment
in favor of Bimbo, supports an award of 30% of the common fund in attorneys’ fees.
3. The Skill and Quality of the Work Performed by Class
Counsel Merits an Award of 30% in Attorneys’ Fees
The third and fourth Vizcaino factors examine the experience and ability of
class counsel, and the quality of class counsel’s work. Here, Class Counsel has
extensive experience in wage-and-hour class actions, as well as other types of
complex civil litigation. Bradley Decl. ¶4; Cullen Decl. ¶10 (setting forth the
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experience of Class Counsel). The partners at Marlin & Saltzman LLP have
combined more than 50 years of litigation experience between them, and have
consistently been recognized in the Los Angeles legal community for their
outstanding work and their dedication to work in the public interest. Defense counsel
in this case were also highly skilled, and Defendant is a multibillion dollar company
that presumably used extensive resources to defend itself against the claims in this
case. Cf. In re Equity Funding Corp. Sec. Litigation, 438 F. Supp. 1303, 1337 (C.D.
Cal. 1977) (“[P]laintiffs’ attorneys in this class action have been up against
established and skillful defense lawyers, and should be compensated accordingly.”).
Class Counsel performed high quality work in this case, aggressively but
efficiently pursuing the litigation. In re Equity Funding Corp. Sec. Litigation, 438 F.
Supp. at 1337 (holding that courts should “reward[] the use of efficient methods to
expedite the case”).
Moreover, Class Counsel effectively pursued discovery and investigation of the
facts in the case. Class Counsel engaged in aggressive discovery efforts, which
yielded hundreds of pages of discovery and other data from Defendant that a less-
skilled Plaintiffs’ counsel likely would not have obtained. Bradley Decl. ¶12, Ex1.
This preparation was crucial to the settlement results achieved, and further
demonstrates that the requested fees are appropriate. Cf. Barbosa v. Cargill Meat
Solutions Corp., 2013 U.S. Dist. LEXIS 93194, *50 (E.D. Cal. July 2, 2013)
(recognizing counsel’s active pursuit of the litigation and the extensive discovery
conducted in awarding 33% in fees).
/ / /
/ / /
4. An Award of 33 1/3% of the Common Fund to Compensate
Class Counsel is Reasonable in Comparison to Awards in
Similar Cases
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The sixth and final Vizcaino factor – comparable awards in similar cases – also
supports Class Counsel’s request for 30% of the common fund. Numerous other
district courts have awarded class counsel 30% or more of the common fund in wage-
and-hour class actions similar to this one. E.g., Barbosa, 2013 U.S. Dist. LEXIS
7 93194 at *48 (awarding 1/3 of the settlement fund to class counsel 1.5 years after
case was filed and before class certification where the majority of class members
were Spanish-speaking); Singer v. Becton Dicksinson & Co., 2010 U.S. Dist. LEXIS
53416 (S.D. Cal. June 1, 2010) (awarding 1/3 of the settlement fund in wage-and-hour
class action where plaintiffs’ counsel took on the case on a contingency basis and
settlement negotiations were hard fought); Romero v. Producers Dairy Foods, Inc.,
2007 U.S. Dist. LEXIS 86270 (E.D. Cal. Nov. 14, 2007) (awarding 1/3 of the
settlement fund where plaintiffs’ counsel’s small firm devoted extensive resources to
litigating the wage-and-hour class action). For all of these reasons, Class Counsel
respectfully requests that the Court award the requested 30% of the common fund.
See In re Vitamin Cases, 2004 WL 5137597, at * 15 (Cal. Sup. Ct. April 12, 2004)
(listing cases where courts have awarded fee awards that are higher than 25% of the
common fund); see accord Singer v. Becton Dickinson and Co., 2010 WL 2196104, at
* 8 (finding an award of 33.3% percent of the common fund to be reasonable because
class counsel took case on a contingent basis and litigated for two years, awards
usually range from 20% to 50%, and no class member objected to the award);
Gardner v. GC Services, LP, 2012 WL 1119534, at *7 (finding that a departure from
the 25% benchmark was reasonable when 1) the results achieved for the class were
very favorable, 2) the risks of litigation were substantial, and 3) the case was
complex).
B. Lodestar Cross Check
To determine attorneys’ fees under the lodestar method a court must first
calculate the lodestar by “multiplying the number of hours reasonably expended by
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counsel by a reasonable hourly rate” and “[o]nce the court has fixed the lodestar, it
may increase or decrease that amount by applying a positive or negative ‘multiplier’
to take into account a variety of other factors . . .” Lealao v. Beneficial California, 82
Cal. App. 4th. 19, 26 (Cal. Ct. App. July 10, 2000); accord In re Washington Public
Power Supply System Securities Litig., 19 F. 3d 1291, 1294 n.2 (9th Cir. 1994)
(“Under the lodestar/multiplier method, the district court first calculates the “lodestar”
by multiplying the reasonable hours expended by a reasonable hourly rate. The Court
may then enhance the lodestar with a ‘multiplier,’ if necessary, to arrive at a
reasonable fee.”) (citations omitted).
In this case, Class Counsel has kept extensive contemporaneous records of its
time. These records show that counsel has spent a combined $654,175 hours in the
litigation of this case. A breakdown of the total hours by biller is provided below:
Biller Hours Rate Total Billed
Marcus Bradley,
partner Marlin &
Saltzman LLP
185 $700 $129,500
Paul Cullen, partner
Cullen Law APC
518.25 $590.78
(blended)
$306,175
Kiley Grombacher,
associate Marlin &
Saltzman LLP
337 $500 $168,500
$654,175
Significantly, the $654,175 lodestar amount does not include Class Counsel’s
ongoing work in the case, including the preparation of the instant motion, drafting the
Motion for Final Approval of Settlement, responding to any objections or future
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appeals, overseeing the distribution of settlement funds and responding to future
phone calls from class members. Class Counsel anticipates that, by the time this case
is finally resolved, the lodestar will in fact exceed the requested fee.
In short, the reasonableness of the fee award requested by Class Counsel is
supported by a lodestar crosscheck, and Class Counsel respectfully requests that the
Court award all of the requested fees.
1. The Hourly Rate Sought Is Reasonable
“The reasonable hourly rate is that prevailing in the community for similar
work.” PLCM Grp. V. Drexler, 22 Cal. 4th 1084, 1095 (2000) (citations omitted); see
Building a Better Redondo, Inc. v. City of Redondo Beach, 203 Cal. App. 4th 852, 870
(2012); accord Gonzalez v. City of Maywood, 729 F. 3d 1196, 1200 (9th Cir. 2013)
(“T]he court must compute the fee award using an hourly rate that is based on the
‘prevailing market rates in the relevant community.’”) (citation omitted); Viveros v.
Donahue, CV 10-08593 MMM (Ex), 2013 WL 1224848, at *2 (C.D. Cal. 2013) (“The
court determines a reasonable hourly rate by looking to the prevailing market rate in
the community for comparable services.”). The relevant community is the community
in which the court sits. See Schwarz v. Sec. of Health & Human Servs., 73 F. 3d 895,
906 (9th Cir. 1995). The burden is on the applicant to show that its requested rates are
reasonable. See ComputerXpress, Inc. v. Jackson, 93 Cal. App. 4th 993, 1020 (2001);
accord Gonzalez, 729 F. 3d at 1206 (“Importantly, the fee applicant has the burden of
producing ‘satisfactory evidence’ that the rates he requests meet these standards.”). In
an applicant fails to meet its burden, the Court may exercise its discretion to determine
reasonable hourly rates based on its experience and knowledge of prevailing rates in
the community. See, e.g., Viveros, 2013 WL 1224848, at *2; Ashendorf & Assocs. v.
SMI-Hyundai Corp., CV 11-02398 ODW (PLAx), 2011 WL 3021533, at *3 (C.D.Cal.
July 21, 2011); Bademyan v. Receivable Mgmt. Servs. Corp., CV 08-00519 MMM
(RZx), 2009 WL 605789, at *5 (C.D. Cal. Mar. 9, 2009).
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The billing rates included in Plaintiffs’ submissions in support of their motion
for attorneys’ fees varied by firm and even within the various firms, the rates varied
by attorneys. The rate for Marlin and Saltzman is as follows:
The blended rate for attorneys at The Cullen Law Firm, APC is $590.78.
Billing rates that span from approximately $200 to $820 are reasonable because they
prevail in both the Central District of California, and California at large, for the type
of work involved in a class action. See, e.g., POM Wonderful, LLC v. Purely Juice
Inc., 2008 WL 4351842, at *4 (9th Cir. 2009) (“Based on the Court's familiarity with
the rates charged by other firms in the Los Angeles legal community, the hourly rates
of $700, $750, and $685, $525, $475, and $450 for partners and $425, $400, $360,
$335, $325, and $275 for associates are reasonable.”); Clifford v. American Drug
Stores, 2005 WL 2002376 (Ct. App. Cal. Aug 22, 2005) (confirming attorneys’ fees
award with attorney hourly rate of $800 per hour). Additionally, Counsel has provided
the court with declarations from attorneys that have experience with litigation
involving wage and hour class actions who attest to the reasonableness of the rates
included in the submissions to the court. See Bradley Decl ¶4; Cullen Decl ¶10.
2. The Hours Expended By Class Counsel are Reasonable
With regard to the hours expended, “an attorney fee award should ordinarily
include compensation for all the hours reasonably spend, including those relating
solely to the fee.” See Ketchum v. Moses, 24 Cal. 4th. 1122, 1133 (2001). However,
inefficient or unnecessarily duplicative efforts do not merit compensation. Id. at 1132
(citation omitted); accord Costa v. Comm’r of Soc. Sec. Admin., 690 F. 3d 1132, 1135
(9th Cir. 2012) (noting that “hours that are excessive, redundant, or otherwise
unnecessary” should be excluded).
Here, the more than 1,000 hours for which Counsel dedicated to the litigation of
this case and for which they seek compensation are reasonable considering the
procedural stature of the case and the work that went into litigating this matter thus
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far. First, this case originated in early 2012 and, has thus, been litigated for more than
two years. Plaintiffs battled a summary judgment motion and certified a class under
the FLSA. Class Counsel attests that this litigation was time-consuming and required
exceptional skill. Additionally, Counsel spent many hours preparing for mediation—
which included reviewing documents and interviewing Defendant’s employees— and
then working through the settlement terms before the execution of the Settlement
Agreement. Bradley Decl. Ex. 1.
3. Multiplier
When considering a lodestar adjustment, the relevant considerations include:
“(1) the novelty and difficulty of the questions involved, (2) the skill displayed in
presenting them, (3) the extent to which the nature of the litigation precluded other
employment by the attorneys, [and] (4) the contingent nature of the fee award.”
Ketchum, 24 Cal. 4th at 1132. Courts also look at the risks presented by the litigation,
the experience and ability of the attorneys who performed the services, the skill
required in the litigation, and the results obtained for the class. See In re Vitamin
Cases, 2004 WL 5137597, at *9 (Cal. Sup. Ct. April 12, 2004).
Here, the total lodestar of the two firms combined is $654,175. Bradley Decl.
¶15. Plaintiffs are requesting a fee award of $441,750.00, which is significantly less
than the lodestar value. Given that no multiplier is necessary to justify the award
sought (and, in fact, a negative multiplier would need to be applied to reach the fee
award) the amount requested is particularly reasonable.
As discussed above, Counsel has obtained a fair result for the Class Members
considering the weaknesses in their case and the risks of continued litigation. There
were many risks presented by this litigation that include the risk of Defendant
prevailing on many of its potential defenses or the Court denying class certification.
These, and other, risks, as well as the skill with which Counsel litigated on behalf of
the Class weigh in favor of a lodestar multiplier.
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Additionally, Class Counsel portrayed great skill and produced good quality
work and are deserving of a multiplier to compensate them for their effort. Class
Counsel also so notes that they took on this matter on a contingency basis and, thus,
have litigated this matter for years without any compensation. Bradley Decl. ¶16; see
In re Quantum Health Resources, Inc. Sec. Litig., 962 F. Supp. 1254, 1257 (“Because
payment is contingent upon receiving a favorable result for the class, an attorney
should be compensated both for services rendered and for the risks of loss or
nonpayment assumed by accepting and prosecuting the case.”) (citations omitted).
Moreover, the number of hours used to calculate the lodestar, do not account,
and indeed cannot account, for what will inevitably be a substantial amount of work in
overseeing the remaining claims administration and payment of claims, work which,
in other matters, can span a period of many months. Bradley Decl. ¶11.
V. THE COSTS SOUGHT TO BE REIMBURSED ARE REASONABLE
Class Counsel incurred reasonable costs in litigating this case that were
necessary to successfully advance Plaintiffs’ claims. Attorneys who succeed in
creating a common fund may seek reimbursement of reasonable and necessary costs
from the fund. See In re Immune Response Secs. Litig., 497 F. Supp. 2d 1166, 1177
(S.D. Cal. 2007).
Here, Class Counsel seeks reimbursement of $30,450.50 in costs, which is
reasonable given the nature and extent of this class action litigation. Bradley Decl.
¶¶13, 14. The costs for which Class Counsel seeks reimbursement include expenses
for photocopies, legal research, postage, court filing fees, mediation fees, deposition
transcripts, investigator to locate class members and travel related to the litigation.
Each of these categories represents an integral component in Class Counsel’s
successful litigation strategy. Many courts have found that reimbursement for such
costs is reasonable and permitted. See Barbosa, 2013 U.S. Dist. LEXIS 93194, at *64
(finding that costs associated with “travel, mediation fees, photocopying, private
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investigator to locate missing Class Members, and delivery and mail charges” were
routine costs that should be reimbursed); Garcia v. Gordon Trucking, Inc., 2012 U.S.
Dist. LEXIS 160052, *30-31 (E.D. Cal. Oct. 29, 2012) (same); United States v. City of
Twin Falls, Idaho, 806 F.2d 862, 864 (9th Cir. 1986) (awarding costs sought for the
retention of expert testimony that is “crucial or indispensable” to the litigation at
hand); Sure Safe Indus. Inc. v. C & R Pier Mfg., 152 F.R.D. 625, 626 (S.D. Cal. 1993)
(costs for computerized legal research are reasonable); In re Immune Response Secs.
Litig., 497 F. Supp. 2d at 1178 (awarding costs paid for the retention of a mediator).
Therefore, Class Counsel respectfully submits that the reimbursement of
$30,450.50 in costs is reasonable and should be granted.
VI. THE PROPOSED $7,500 SERVICE AWARD TO EACH OF THE
NAMED PLAINTIFFS IS REASONABLE
It is within the Court’s discretion to grant service awards to plaintiffs in class
action litigation. See In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 463 (9th Cir.
2000). Incentive awards “are intended to compensate class representatives for work
done on behalf of the class, to make up for financial or reputational risk undertaken in
bringing the action, and, sometimes, to recognize their willingness to pact as a private
attorney general.” Rodriguez v. West Publishing, 9 Corp., 563 F.3d 948, 959 (9th Cir.
2009).
In assessing the propriety of a service award, a court may consider “the actions
the plaintiff has taken to protect the interests of the class, the degree to which the class
has benefited from those __actions, . . . the amount of time and effort the plaintiff
expended in pursuing the litigation and reasonabl[e] fear [of] workplace retaliation.”
Staton v. Boeing, 327 F.3d 938, 977 (9th Cir. 2003) (quoting Cook v. Niedert, 142
F.3d 1004, 1016 (7th Cir. 1998)). Plaintiffs request service awards not to exceed
$7,500 each to named plaintiffs Tyrone Smith, Greg Villanueva, and John Caudill for
their substantial contributions in securing a fair and beneficial outcome for the class.
Case 2:12-cv-01689-CAS-PJW Document 124 Filed 12/02/14 Page 27 of 29 Page ID #:2540
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Motion for Attorneys’ Fees, Costs & Enhancement Awards Case No. 2:12-CV-01689-CAS (PJW)
Courts have found that service awards of $10,000 are reasonable. See Espinoza
v. Domino’s Pizza, LLC, 2012 U.S. Dist. LEXIS 160641, *10 (C.D. Cal. Nov. 7,
2012) ($10,000 service awards were reasonable); Ingalls v. Hallmark Retail, Inc.,
2009 U.S. Dist. LEXIS 131078, *6 (C.D. Cal. Oct. 16, 2009) (same); Birch v. Office
Depot, Inc., 2007 U.S. Dist. LEXIS 102747, 7 (S.D. Cal. Sept. 28, 2007) (granting
service awards of $15,000 and $10,000 to named plaintiffs). The facts here support the
requested service awards.
First, all three Plaintiffs contributed substantial time and effort in responding to
Defendant’s extensive discovery. Plaintiffs answered Defendant’s Special
Interrogatories, searched for responsive documents. Smith Decl. ¶¶19-20; Villaneuva
Decl. ¶19; Caudill Decl. ¶19.2 Each of the three Plaintiffs sat for a full day of
deposition. Smith Decl. ¶¶21; Villaneuva Decl. ¶20; Caudill Decl. ¶18. Each of these
tasks took copious preparation and consultation with Class Counsel to complete.
Further, the named Plaintiffs have been integral to the investigation of the
claims in this case. Since the inception of Class Counsel’s investigation, Plaintiffs
have been instrumental in encouraging other class members to get in touch with Class
Counsel. Bradley Decl. ¶17. The named Plaintiffs have remained in regular contact
with Class Counsel, providing updates on current working conditions and encouraging
current and former employees of the company to contact Class Counsel regarding this
lawsuit. Smith Decl. ¶¶19-20; Villaneuva Decl. ¶19; Caudill Decl. ¶19. In fact, each
of them spent approximately 35 to 40 hours engaged in the litigation. Smith Decl.
¶26; Villaneuva Decl. ¶25; Caudill Decl. ¶23.
Collectively, Plaintiffs bring over 50 years of experience working for BBU.
Smith Decl. ¶¶4-8; Villaneuva Decl. ¶4-8; Caudill Decl. ¶4. Their knowledge of
2 ECF No. 119-4, 119-5, 119-6.
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Motion for Attorneys’ Fees, Costs & Enhancement Awards Case No. 2:12-CV-01689-CAS (PJW)
working conditions, company policies and practices, and relationships with co-
workers was essential in advancing and protecting the class claims. An award of
$7,500 to each named Plaintiff thus constitutes just compensation for any risk that the
named Plaintiffs have undertaken in this litigation, time spent responding to
Defendant’s discovery requests and preparing for deposition, and in aiding in the
investigation and litigation of class claims.
VII. CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court award
Class Counsel $441,750.00 in attorneys’ fees, reimbursement of $30,450.50 in costs,
and $7,500 service awards to each of the named Plaintiffs, Tyrone Smith, Greg
Villanueva, and John Caudill (collectively $22,500). DATED: December 2, 2014 BRADLEY & SALTZMAN, LLP THE CULLEN LAW FIRM, APC By: /s/ Kiley Lynn Grombacher Marcus J. Bradley, Esq. Kiley Lynn Grombacher, Esq. Attorneys for Plaintiffs
Case 2:12-cv-01689-CAS-PJW Document 124 Filed 12/02/14 Page 29 of 29 Page ID #:2542
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Sandy Laranjo
From: [email protected]: Tuesday, December 02, 2014 8:05 PMTo: [email protected]: Activity in Case 2:12-cv-01689-CAS-PJW Tyrone Smith v. Bimbo Bakeries USA Inc et al
Motion for Attorney Fees
This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply.
UNITED STATES DISTRICT COURT for the CENTRAL DISTRICT OF CALIFORNIA
Notice of Electronic Filing The following transaction was entered by Grombacher, Kiley on 12/2/2014 at 8:05 PM PST and filed on 12/2/2014 Case Name: Tyrone Smith v. Bimbo Bakeries USA Inc et alCase Number: 2:12-cv-01689-CAS-PJW
Filer: John Caudill Tyrone Smith Greg Villanueva
Document Number: 124
Docket Text: NOTICE OF MOTION AND MOTION for Attorney Fees Costs and Enhancement Awards filed by plaintiffs John Caudill, Tyrone Smith, Greg Villanueva. Motion set for hearing on 1/26/2015 at 10:00 AM before Judge Christina A. Snyder. (Attachments: # (1) Declaration of Marcus J. Bradley ISO Motion, # (2) Exhibit 1 to Declaration of Marcus J. Bradley, # (3) Exhibit 2 to Declaration of Marcus J. Bradley, # (4) Declaration of Paul T. Cullen ISO Motion)(Grombacher, Kiley)
2:12-cv-01689-CAS-PJW Notice has been electronically mailed to: Christina A Humphrey [email protected], [email protected] John S Battenfeld [email protected], [email protected] Kiley Lynn Grombacher [email protected], [email protected] Leslie Joyner [email protected], [email protected]
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Marcus J Bradley [email protected], [email protected] Michael J Puma [email protected], [email protected], [email protected] Paul T Cullen [email protected], [email protected], [email protected] Stanley D Saltzman [email protected], [email protected] 2:12-cv-01689-CAS-PJW Notice has been delivered by First Class U. S. Mail or by other means BY THE FILER to :
The following document(s) are associated with this transaction:
Document description:Main Document Original filename:\\ms32\users\Sandy\Desktop\Bimbo Motion\Motion for Attorneys' Fees, Costs and Enhancement Awards.pdf Electronic document Stamp: [STAMP cacdStamp_ID=1020290914 [Date=12/2/2014] [FileNumber=18577461-0 ] [35ff41d43821f7a0c6974e05cd651c5e783f97259a37da839aed12d8f700f095a2a 88fee5eac5f3bb4ad97df5d5c5bfd319dbe4dbab690358ea33261cd37a711]] Document description:Declaration of Marcus J. Bradley ISO Motion Original filename:\\ms32\users\Sandy\Desktop\Bimbo Motion\Declaration of Marcus J. Bradley ISO Motion for Attorneys Fees Costs Enhancement Awards.pdf Electronic document Stamp: [STAMP cacdStamp_ID=1020290914 [Date=12/2/2014] [FileNumber=18577461-1 ] [903011ee32310077f7980fea6710ecc063a712e9686183dbf0888342bb56d46be33 cf1095a3e43d4cfeac71d1b651fefa54b2ee6324be6f4f3124a84303feb1f]] Document description:Exhibit 1 to Declaration of Marcus J. Bradley Original filename:\\ms32\users\Sandy\Desktop\Bimbo Motion\Exhibit 1 to Declaration of Marcus J. Bradley.pdf Electronic document Stamp: [STAMP cacdStamp_ID=1020290914 [Date=12/2/2014] [FileNumber=18577461-2 ] [3b4b6b4a9ac6a274ae8a9ba797193cd412ab5c84483197fc556550f9738539afe6a eae2d81bf82de74c26152b1a5fdbf5ca63a83ca9d01d440369f9c748eb7db]] Document description:Exhibit 2 to Declaration of Marcus J. Bradley Original filename:\\ms32\users\Sandy\Desktop\Bimbo Motion\Exhibit 2 to Declaration of Marcus J. Bradley.pdf Electronic document Stamp: [STAMP cacdStamp_ID=1020290914 [Date=12/2/2014] [FileNumber=18577461-3 ] [93e8e1380767e203c6d705888a31616c460a55cb266f9df895c9a3d7bfae7b1b9bf 9150c2a885235ec5236190058eec82be8b567b1a330ddab807904630b6260]] Document description:Declaration of Paul T. Cullen ISO Motion Original filename:\\ms32\users\Sandy\Desktop\Bimbo Motion\Declaration of Paul Cullen ISO Motion for Attorneys' Fees, Costs, Enhancements.pdf Electronic document Stamp: [STAMP cacdStamp_ID=1020290914 [Date=12/2/2014] [FileNumber=18577461-4 ] [0a67e409eb592a975ef7d4bfb93ef06a8be4c55e0deb94fc95353197d157c190e68 5a25d0537771dcf464089eb845db973254cdff04d4f7708be490e62585087]]
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