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Carter v. Anderson Merchandisers

May 11, 2010

KEVIN CARTER, JUSTINE CLOUSE, AND DEBORAH LANASA, INDIVIDUALLY, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, AND ON BEHALF OF THE GENERAL PUBLIC, PLAINTIFFS,
v.
ANDERSON MERCHANDISERS, LP, AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANTS.
TERRI MASSOUD, JACQUELINE OUGEL, AND JOYCE SPEARS, INDIVIDUALLY, AND ON BEHALF OF OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
ANDERSON MERCHANDISERS, LP, DEFENDANT.



The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge

ORDER GRANTING PLAINTIFFS' APPLICATION FOR ATTORNEY'S FEES, COSTS, AND SERVICE PAYMENTS TO NAMED PLAINTIFFS

ORDER GRANTING PLAINTIFFS' APPLICATION FOR ATTORNEY'S FEES AND COSTS

[Motions filed on March 22, 2010]

The Carter Plaintiffs' Application for Attorney's Fees, Costs, and Service Payments, and the Massoud Plaintiffs' Application for Attorney's Fees and Costs came before the Court for a hearing on April 19, 2010. After reviewing and considering all papers filed in support of the Applications, as well as the arguments advanced by counsel at the hearing, the Court APPROVES both Applications, as set forth below.

I. INTRODUCTION

Plaintiffs in these related wage and hour class actions are current and former full-time, salaried sales representatives (or "representatives") who worked for Defendant Anderson Merchandisers, LP ("Anderson"), in connection with Anderson's supply of various media products to Wal-Mart retail stores nationwide. The procedural history of the two cases is laid out in detail in the Court's concurrently-filed Order granting final approval of the settlement of both actions.

On March 22, 2010, the Carter and Massoud Plaintiffs each filed applications for an award of attorneys' fees and costs, and the Carter Plaintiffs also moved for the approval of recognition payments totaling $5,000 to two named plaintiffs in that action. On March 25, 2010, Anderson filed statements of non-opposition to the applications in both cases.

At the hearing on the applications, the Court directed Class Counsel to file supplemental declarations providing more detail as to the costs for which they seek reimbursement. Class Counsel filed such declarations on April 22, 2010.

II. DISCUSSION

A. Attorneys' Fees

In their applications for attorneys' fees and costs, Plaintiffs seek an award of attorneys' fees equal to 25% of the gross settlement amount, totaling $906,250, as explicitly contemplated by the Settlement Agreement approved by the Court. (Carter Attorneys' Fees Mem. at 1; Massoud Attorneys' Fees Mem. at 1.) The Settlement creates a common fund to resolve both actions, and Plaintiffs seek a joint award of fees for Class Counsel's work in both actions.

Plaintiffs' claims in this case arise under both federal and California law. Under both California and Ninth Circuit precedent, a court may exercise discretion to award attorneys' fees from a common fund by applying either the lodestar method*fn1 or the percentage-of-the-fund method.*fn2 Wershba v. Apple Computer, Inc., 91 Cal. App. 4th 224, 253 (2001); Fischel v. Equitable Life Assurance Soc'y of U.S., 307 F.3d 997, 1006 (9th Cir. 2002), citing Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 2002). "Irrespective of the chosen method, 'the district court should be guided by the fundamental principle that fee awards out of common funds be 'reasonable under the circumstances.'" Alberto v. GMRI, Inc., 252 F.R.D. 652, 667 (E.D. Cal. 2008), citing In re Wash. Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1295 (9th Cir. 1990).

Plaintiffs seek to employ the latter procedure, whereby Class Counsel, the firm of Nichols Kaster, PLLP, would recover 25% of the $3.625 million settlement fund ($906,250) for attorneys' fees. (Carter Stip. ¶¶ 10, 12(d)(2); Massoud Stip. ¶¶ 10, 12(d)(2).) "When assessing whether the percentage requested is reasonable, courts look to factors such as: (a) the results achieved; (b) the risk of litigation; (c) the skill required, (d) the quality of work; (e) the contingent nature of the fee and the financial burden; and (f) the awards made in similar cases." Vasquez v. Coast Valley Roofing, Inc., - F.R.D. -, 2010 WL 892101 (E.D. Cal. Mar. 9, 2010), citing Vizcaino, 290 F.3d at 1047; Six Mexican Workers, 904 F.2d 1301. Applying these six factors, upon examination of Class Counsel's submissions, the Court concludes the fees sought are "reasonable under the circumstances."

Class Counsel has achieved a substantial monetary award for the members of the Settlement Class, totaling $3.625 million, with an average recovery $5,818 for each class member. There were significant risks in pursuing these cases: the ability to maintain class status was uncertain, and the potential application of the Motor Carrier Act, 49 U.S.C. ยงยง 13102, 13501, and "outside sales" exemptions to the FLSA could have defeated Plaintiffs' legal theory. The litigation, and settlement, of the cases, required substantial skill on behalf of Class Counsel, as they involved technical issues of wage and hour law, and three sub-classes with a total of 451 nationwide class members. Class Counsel have performed their work diligently, investigating and developing their claims in a timely fashion; conducting limited, efficient discovery; and presenting cogent, well-researched legal arguments in their briefs. The case was undertaken on a contingency fee basis, and Class Counsel advanced all costs, (Morgan Decl. in Supp. of Carter Appl. for ...


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