United States District Court, N.D. California
ORDER APPROVING CLASS SETTLEMENT; APPROVING IN PART MOTION FOR ATTORNEYS' FEES; APPROVING MOTION FOR COSTS AND ENHANCEMENT AWARDS TO NAMED PLAINTIFFS Re: ECF Nos. 78 & 79.
JON S. TIGAR, District Judge.
The Court previously issued its preliminary approval of the settlement of this class action and conditionally certified classes pursuant to Rule 23 of the Federal Rules of Civil Procedure. ECF No. 74 ("Previous Order"), as amended by ECF No. 77. Since that time, notice was provided to class members, and no class members objected to the settlement. The Court held a Final Fairness Hearing on April 24, 2014, and no one appeared at the hearing to object to the settlement. Therefore, the Court re-affirms its conclusions that the proposed settlement is fair, reasonable and adequate and that the class is certifiable under Rule 23, and therefore issues its final approval of the parties' Settlement Agreement.
Plaintiff's counsel moves for attorney's fees in the amount of $1, 155, 000, or 33% of the gross settlement award. ECF No. 78. Counsel also seeks $53, 455 as reimbursement for the costs of suit, an $8, 000 enhacement payment to Plaintiff Carl Cordy and a $1, 500 enhancement payment to Subclass Representative Donald Jones. Id.
II. ATTORNEY'S FEES
A. Legal Standard
"In a certified class action, the court may award reasonable attorney's fees and nontaxable costs that are authorized by law or by the parties' agreement." Fed.R.Civ.P. 23(h). "Where a settlement produces a common fund for the benefit of the entire class, courts have discretion to employ either the lodestar method or the percentage-of-recovery method." In re Bluetooth Headset Products Liab. Litig. , 654 F.3d 935, 942 (9th Cir. 2011) "The lodestar figure is calculated by multiplying the number of hours the prevailing party reasonably expended on the litigation (as supported by adequate documentation) by a reasonable hourly rate for the region and for the experience of the lawyer." Id.
"Because the benefit to the class is easily quantified in common-fund settlements, " courts can "award attorneys a percentage of the common fund in lieu of the often more time-consuming task of calculating the lodestar." Id . "Applying this calculation method, courts typically calculate 25% of the fund as the benchmark' for a reasonable fee award, providing adequate explanation in the record of any special circumstances' justifying a departure." Id . (quoting Six Mexican Workers v. Ariz. Citrus Growers , 904 F.2d 1301, 1311 (9th Cir. 1990)). In considering whether to adjust the presumptive 25% award upward, the Ninth Circuit has approved of district courts taking into account "[e]xceptional results, " the "risk" of non-recovery assumed by counsel, any "benefits beyond the case settlement fund" that counsel achieved for the class, counsel's "reasonable expectations, ... based on the circumstances of the case and the range of fee awards out of common funds of comparable size, " and any unusual burdens born by counsel. Vizcaino v. Microsoft Corp. , 290 F.3d 1043, 1048-50 (9th Cir. 2002).
"Even though a district court has discretion to choose how it calculates fees... it abuses that discretion when it uses a mechanical or formulaic approach that results in an unreasonable reward.'" In re Bluetooth , 654 F.3d at 944 (quoting In re Mercury Interactive Corp., 618 F.3d 998, 992 (9th Cir. 2010)). "Thus, even though the lodestar method may be a perfectly appropriate method of fee calculation, " the Ninth Circuit has "also encouraged courts to guard against an unreasonable result by cross-checking their calculations against a second method." In re Bluetooth , 654 F.3d at 944.
The Court begins with a presumption of awarding Class Counsel 25 percent of the common-fund settlement amount, but considers each of the Vizcaino factors in considering Class Counsel's request for a larger recovery. See 290 F.3d at 1048-50.
After careful review of Class Counsel's declarations and filings, the Court concludes that several special circumstances justify adjusting the 25 percent benchmark upward, including but not limited to the vigorousness of the litigation, the result achieved, the risk of non-recovery, the injunctive relief achieved, the special burdens borne by Class Counsel, and the fact that no member of the Class has objected to the requested award. The Court concludes that 30 percent of the common fund, or $1, 050, 000, is an appropriate award.
The Court also "cross-checks" this award against lodestar recovery. The Court has reviewed the documentation which supports Class Counsel's calculation of an anticipated $1, 100, 000 lodestar, and concludes that this estimate is fair. 30 percent of the common fund would be a.95 ...