1 shaun setareh (sbn 204514) …. 59- ntc of... · salamanca v. sprint/ united management company...

Salamanca v. Sprint/ United Management Company Case No. 4:15-cv-05084 (JSW)

Notice of Motion and Motion for Attorney Fees and Expenses

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Shaun Setareh (SBN 204514) [email protected]

Thomas Segal (SBN 222791) [email protected] SETAREH LAW GROUP 9454 Wilshire Boulevard, Ste. 907 Beverly Hills, California 90212 Tel: (310) 888-7771, Fax: (310) 888-0109

Attorneys for Plaintiff, NORA SALAMANCA and the Settlement Class

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

NORA SALAMANCA, on behalf of herself and all others similarly situated,

Plaintiff,

vs.

SPRINT/ UNITED MANAGEMENT COMPANY, a Kansas Corporation and DOES 1-50, inclusive,

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 4:15-cv-05084-JSW

NOTICE OF MOTION AND MOTION FOR ATTORNEY FEES, EXPENSES, SETTLEMENT ADMINISTRATOR EXPENSES AND CLASS REPRESENTATIVE ENHANCEMENT AWARD

Hearing Date: March 2, 2018 Time: 9:00am Courtroom: 5

Submitted Under Separate Cover1. Declaration of Shaun Setareh 2. Declaration of Nora Salamanca 3. Declaration of Tarus Dancy 4. [Proposed] Order5. Request for Judicial Notice

Case 4:15-cv-05084-JSW Document 59 Filed 12/27/17 of 32

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TABLE OF CONTENTS

I. INTRODUCTION……………………………………………………………………..….1

II. FACTS AND PROCEDURE………………………………………………………….….2

A. Overview of the Claims of the Litigation……………………………………….…….2

B. Relevant Procedural History………………………………………………………..…2

C. The Bui and Guilbaud Settlements……………………………………………………3

D. Sprint’s Esposure in This Case………………………………………………………..5

E. Settlement Terms…………………………………….…………………………….….5

F. Allocation Formula…………………………………..………………………….….…6

III. ARGUMENT………………………………………………………………………….….6

A. There is a Strong Public Policy in Favor of Agreements Regarding Attorney Fees.....6

B. Plaintiff’s Request for Attorney Fees in the Amount of Twenty Five Percent of the

Common Fund is Reasonable Under Controlling California Law and Ninth Circuit

Precedent………………………………………………………………………….…..7

C. Plaintiff’s Request for Attorney Fees in the Amount of Twenty Five Percent of the

Common Fund is Reasonable Under Ninth Circuit Precedent………………………..8

D. Other Factors Support Plaintiff’s Fee Request………………………….…………...10

1. The Result of the Litigation Support the Requested Fees……………...………..10

2. The Substantial Contingent Risk, Including the Risk of Further Litigation,

Supports the Requested Fees………………………………………………….…10

3. The Skill of Counsel and Work Performed Support the Requested Fees…….…14

4. The Lodestar “Crosscheck” Supports The Requested Fees…………………..…15

i. The Calculation of Plaintiff’s Lodestar………………………………..….…15

ii. A Multiplier of 2.0 Should Be Applied To The Fee Award…………..….…19

E. The Court Should Not Reduce the Requested Fees Due to Errors in the Settlement

Papers………………………………………………………………………………20


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F. Class Counsel’s Request for Costs is Also a Fair Adequate and Reasonable

Reimbursement………………………...……………………………………….…..21

G. The Requested Incentive Award Should Be Awarded………………………….…21

H. The Settlement Administrator Expenses Should Be Awarded…………………….23

IV. CONCLUSION …………………………………………………………………………23


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TABLE OF AUTHORITIES

Cases:

Accord Vizcaino v. Microsoft Corp.,

290 F.3d 1043, 1047 (9th Cir. 2002)……………………………………………...……………….7

Albrecht v. Rite Aid Corp.,

No. 729219…………………………………………………………………………………..…….8

Anderson v. Nextel Retail Stores, LLC,

2010 U.S. Dist. LEXIS 71598 at 6 (C.D. Cal. filed June 30, 2010)……………….…………….18

Apple iPhone 4 Prods. Liability Litig.,

2012 WL 328432 * 3 (N.D. Cal. 2012.)……………………..…………………………………..20

Apple Inc. Secs. Litig.,

No. 5:06-CV-05208, 2011 U.S. Dist. LEXIS 52685, at *16 (N.D. Cal. May 17, 2011)………...18

Aremissoft Corp. Sec. Litig.,

210 F.R.D. 109, 134–35 (D.N.J. 2002)………………………..…………………………………19

Bargas v. Rite-Aid Corp.,

2017 WL 1156727 *19 (C.D. Cal. Mar. 28, 2017)………………………….…………..……….14

Bellinghausen v. Tractor Supply Co.

306 F.R.D. 245, 264 (N.D. Cal. 2014)…………………...………………………………………19

Blue Tooth Headset Products Liability Litig.,

654 F.3d 935, 942 (9th Cir. 2011)………………………………………………………...………9

Blum v. Stenson,

465 U.S. 886, 902 n.19 (1984)……………………………………………………………...……..7

Boeing Co. v. Van Gemert,

444 U.S. 472, 478 (198)…………………………………………………………………..……….9

Bui v. Sprint Corporation,

Eastern District of California Case No. 2: 14-cv-02461………………………………….……….4


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Burden v. SelectQuote Ins. Servs.,

2013 WL 3988771 *5 (N.D. Cal. 2013)……………………………………………………..……9

Bush v. Cheaptickets, Inc.,

425 F.3d 683, 684 (9th Cir. 2005)……………………………………………………………..….7

City of Burlington v. Daque,

505 U.S. 557, 562-563 (1992)…………………………………………………………..……….14

Chavez v. Netflix, Inc.,

162 Cal.App.4th 43 (2008)………………………………………………………………………..8

Chavez v. PVH Corp.,

2015 U.S.Dist.LEXIS 170422, *27 (N.D. Cal. 2015)………………………...…………………21

Churchill Vill. LLC v. Gen. Elec.,

361 F.3d 566, 575 (9th Cir. 2004)……………………………………………………………….10

Conseco Life Ins. Co. Life Trend Ins. Mktg. & Sales Practice Litig.,

No. C 10-02124 SI, 2014 WL 186375, at *2 (N.D. Cal. Jan. 16, 2014)…………………...…….19

Davis v. City of San Francisco,

976 F.2d 1536, 1546 (9th Cir. 1992)…………………………………………………………….18

Di Giacomo v. Plains All Am. Pipeline,

Nos. 99–4137 & 99–4212, 2001 WL 34633373, at *10–11 (S.D. Fla. Dec. 19, 2001)………….19

Evans v. Jeff D.,

475 U.S. 717,734-35,738, n.30 (1980)……………………………………………………………7

Equity Funding Corp. Secur. Litig.,

438 F.Supp. 1303, 1337 (C.D. Cal. 1977)……………………………………………………….14

Evans v. Jeff D.,

475 U.S. 717,734-35,738, n.30 (1980)…………………………………………………………..7

Garibaldi v. Bank of America Corp.,

2014 WL 172284 *5 (N.D. Cal. Jan. 15, 2014)…………………………………………………13


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Gates v. Deukmejian,

987 F.2d 1392, 1405 (9th Cir. 1992)……………………………………….……………………18

Gaudin v. Saxon Mortg. Servs.,

2015 U.S.Dist.LEXIS 159020, *28 (N.D. Cal. 2015)…………………………….……………..21

Guilbaud et al. v. Sprint Nextel Corporation et al.,

Case No 3:13-cv-04357-VC………………………………………………………………………4

Guippone v. BH S&B Holdings LLC,

No. 09 Civ. 1029, 2011 U.S. Dist. LEXIS 126026, at *20 (S.D.N.Y. Oct. 28, 2011)……….…..23

Heritage Bond Litig.,

2005 WL 1594403 at 5 (C.D. Cal. filed June 10, 2005)…………………………………………15

Holloway v. Best Buy Co.,

C-05-5056-PJH (MEJ) (N.D. Cal.)………………………………………………………..…….19

Hopkins v. Stryker Sales Corp.,

No. 11-CV-02786- LHK, 2013 WL 496358, at *5 (N.D. Cal. Feb. 6, 2013)……………………19

HPL Techs., Inc. Sec. Litig.,

366 F. Supp. 2d 912, 919–20 (N.D. Cal. 2005)…………………………………….……………18

HP Laser Printer Litig.,

2011 WL 3861703 at 5–6 (C.D. Cal. filed Aug. 31, 2011)…………………………..………….18

Karrer v. Best Buy Co., Inc.,

2012 WL 1957586 *8-9 (C.D. Cal. May 24, 2012……………………………………...……….13

Ketchum v. Moses,

24 Cal.4th 1122 (2001)…………………………………………………………………………..11

King Res. Co. Secur. Litig.,

420 F. Supp. 610, 634 (D. Colo. 1976)…………………………………………………………14

Laffitte v. Robert Half Int’l Inc.,

1 Cal.5th 480, 503 (2016)(“Laffitte II”)………………………………………………...…………7


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Laffitte v. Robert Half International Inc.,

231 Cal.App. 4th 860, 871 (2014)……………………………………………………………...….8

Lealoa v. Beneficial California, Inc.,

82 Cal.App.4th 19, 49-50 (2000)…………………………………………………………………20

Leyva v. Medline Indus.,

716 F.3d 510, 515 (9th Cir. 2013)………………………………………………………….……10

Lusby v. GameStop Inc.,

2015 WL 1501095 *4 (N.D. Cal. 2015)…………………………………………………………..9

Mangold v. Calif. Public Utilities Comm’n,

67 F.3d 1470, 1478 (9th Cir. 1995)……………………………………………………….……….7

Maley v. Del Global Techs. Corp.,

186 F. Supp. 2d 358, 369 (S.D.N.Y. 2002)……………………………………………………..19

McAtee v. Capital One, F.S.B.,

479 F.3d 1143, 1147 (9th Cir. 2007)…………………………………………..………………….7

Media Visio Tech. Sec. Litig.,

913 F. Supp. 1362, 1366 (N.D. Cal. 1996)………………..……………………………………..21

Milliron v. T-Mobile USA, Inc.,

423 F. App’x 131, 135 (3d Cir. 2011)…………………………………………..……………….19

Paul, Johnson, Alston & Hunt v. Graulty,

886 F.2d 268, 271 (9th Cir. 1989)…………………………………………………..…………….9

Paton v. Advanced Micro Devices, Inc.,

197 Cal.App.4th 1505, 1518……………………………………………………………….…..3, 12

Perfect 10 v. Giganews Inc.,

2015 U.S. Dist. LEXIS 54063 (C.D. Cal. 2015)…………………………………………………18

Pierce v. County of Orange,

905 F. Supp. 2d 1017, 1036 & n.16 (C.D. Cal. 2012)………………………..………………….18


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Pokorny v. Quixtar, Inc.,

2013 WL 3790896 *1 (N.D. Cal. 2013)…………………………………………………………..9

Radcliffe v. Experian Solutions, Inc.,

715 F.3d 1157 (9th Cir. 2013)…………..……………………………………………………….23

Redding v. Fairman,

717 F.2d 1105, 1119 (9th Cir. 1983)………………………...…………………………………..21

Rutti v. Lojack Corp.,

2012 WL 3151077 at 10 (C.D. Cal. filed July 31, 2012)…………………..……………………17

Sobel v. Hertz Corp.,

No. 306-CV-00545-LRH-RAM, 2014 WL 5063397, at *10 (D. Nev. Oct. 9, 2014)……………19

Stuart v. RadioShack Corp.,

No. C-07-4499, 2010 U.S. Dist. LEXIS 92067, at *16 (N.D. Cal. Aug. 9, 2010)……..………..18

Suastez v. Plastic Dress Up Co.,

31 Cal.3d 772 (1982.)………………………………………………………….…….……….3, 12

Spicer v. Chicago Bd. Options Exch., Inc.,

844 F. Supp. 1226, 1264 (N.D. Ill. 1993)………………………………………………………..21

Thomas v. Home Depot, USA, Inc.,

527 F.Supp.2d 1003, 1007-1008 (N.D. Cal. 2007)………………………………………………5

Thornberry v. Delta Air Lines,

676 F.2d 1240, 1244 (9th Cir. 1982)………………….…………………………………………21

Vasquez v. Coast Valley Roofing, Inc.,

266 F.R.D. 482, 491 (E.D. Cal. 2010)…………………………………………….………………9

Villapando v. Exel Direct Inc.,

2016 WL 7740854*2 (N.D. Cal December 12, 2016)………………………….…………………9

Vizcaino v. Microsoft Corp.,

142 F. Supp. 2d, 1299, 1303 (W.D. Wash. 2001)………………………………………………..14

Wang v. Chinese Daily News, Inc.,


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2008 U.S. Dist. LEXIS 123824 at 8–9 (C.D. Cal. filed Oct. 3, 2008)…………………..……….18

Wash. Pub. Power Supply Sec. Litig.,

19 F.3d 1291, 1296 (9th Cir. 1994)……………………………………………………………….9

Williams v. Costco Wholesale Corp.,

2010 U.S. Dist. LEXIS 67731……………………………………………………………...……..6

Williams v. MGM-Pathe Commc’n Co.,

129 F.3d 1026, 1027 (9th Cir. 1997)………………………………………………………….…..6

Wilner v. Manpower, Inc.,

2015 WL 386625 *7 (N.D. Cal. 2015)…………………………………………………..………..9

STATUES:

Cal Lab. Code § 203…………………………………………………………………….………..5

Cal. Lab. Code § 227.3……………………………………………………………………………3

Cal Lab. Code § 2802……………………………………………………………………………4

Cal Lab. Code §226………………………………………………………………………………5


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TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on March 2, 2018 at 9:00am in Courtroom 5 of the Oakland

Courthouse of the U.S. District Court for the Northern District of California, located at 1301

Clay Street, Oakland, CA 94612 Plaintiff Nora Salamanca (“Plaintiff” or “Class

Representative”) will and hereby does move this Court for an order:

1. Approving an award of attorneys’ fees in the amount of $450,000;

2. Approving an award of litigation expenses in the amount of $15,000;

3. Approving a class representative enhancement payment of $15,000 consisting of a

$5,000 class representative service award and a $10,000 payment in exchange for a

general release and no rehire agreement; and

4. Approving an award of $40,000 to the settlement administrator CPT Group, Inc.

Good cause exists for the granting of this motion in that Class Counsel obtained a settlement

fund in the amount of $1.8 million and an award of the requested attorney fees is justified under

either a lodestar analysis or a percentage of the benefit analysis. Class Counsel is entitled to

recover the expenses incurred in connection with litigating this case. The requested class

representative enhancement payment is justified by the risk Plaintiff took, her service to the

class and her execution of a general release and no rehire agreement. The settlement

administration expenses are also reasonable.

Dated: December 27, 2017 SETAREH LAW GROUP

BY: /s/ Shaun SetarehSHAUN SETAREH Attorney for Plaintiff Nora Salamanca and the Settlement Class


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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

The settlement in this action is a $1.8 million non-reversionary, non-claims made

settlement where all class members who did not opt out (only one did) will receive a check

directly.1 The $1.8 million common fund is 64% of the total potential class damages (excluding

interest). As of the filing of this motion, no class members have objected and only one has filed

a request for exclusion. The settlement will have a 99.8% participation rate.

This settlement is an excellent one particularly in light of the fact that the issue, whether

Defendant Sprint’s floating holidays constitute vacation which is not subject to forfeiture, is an

issue of first impression. The three district court cases to consider similar floating or personal

holiday programs ruled that those programs were not vacation (although Plaintiff believes those

cases are distinguishable).

The requested attorneys’ fees are 25% of the settlement fund, which is consistent with

the Ninth Circuit benchmark, and lower than would be permissible under the state case law

applicable to this diversity case. The requested litigation expenses are reasonable. Plaintiff

should be awarded the requested class representative enhancement payment.

II. FACTS AND PROCEDURE

A. Overview of the Claims of the Litigation.

Plaintiff Nora Salamanca worked for Sprint as an hourly sales representative from

October 2006 to August 2014. When her employment ended in August 2014 she was not paid

for all “floating holidays” that she had accrued.

Because Sprint retail and call center employees often work on days that are legal

holidays, Sprint provides them with “floating holidays.” During the applicable time period in

this case, Sprint had a written policy that floating holidays were subject to a 1.5 accrual cap i.e.

if an employee was entitled to 5 floating holidays in a year, they could never accrue more than

1 The operative settlement agreement can be found at ECF No. 55.1 and is also attached as Exhibit A to the Declaration of Shaun Setareh in support of this motion.


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7.5 floating holidays total. Plaintiff’s analysis of data indicates that in addition to the written 1.5

cap, there was a de facto “use it or lose it” policy for floating holidays and that Plaintiff and

other class members did not receive all their accrued floating holidays, even assuming that the

1.5 cap was legal.

It is well settled that under California law, vacation pay is not subject to forfeiture. Cal.

Lab. Code § 227.3. Suastez v. Plastic Dress Up Co., 31 Cal.3d 772 (1982.) Floating holidays are

treated as vacation days not subject to forfeiture unless tied to a specific event such as

bereavement or illness. DLSE March 3 1992 Opinion Letter. See also Paton v. Advanced Micro

Devices, Inc., 197 Cal.App.4th 1505, 1518 (distinguishing vacation from “paid time off that is

conditioned upon the occurrence of a specific event or granted for a particular purpose.”)

B. Relevant Procedural History.

The Complaint in this Action was filed on August 14, 2015 in the Superior Court for the

State of California County of Alameda. ECF No. 1-2. It asserted causes of action for Failure to

Provide Accurate Written Wage Statements (Lab. Code § 226(a)), Unfair Competition (Bus. &

Prof. Code § 17200; and Failure to Timely Pay all Final Wages Labor Code §§ 201-203. The

claims were based on allegations regarding improper forfeiture of vacation pay. Id. at ¶¶ 39-41.

Sprint removed the action to this Court on November 5, 2015. ECF No. 1. On February 1, 2016,

this Court granted the parties’ stipulation to stay the action pending mediation. ECF No. 21.

On July 27, 2016, the parties participated in mediation before the Honorable Edward

Infante (ret.). Setareh Decl. ¶ 9. Prior to the mediation, Defendant produced time and payroll

data for a sampling of the class. Id. The parties retained experts to assess the potential damages.

Id. Plaintiff’s expert James Toney is a former payroll manager at Boeing and Rockwell. Id. ¶ 12.

The parties exchanged detailed mediation briefs. Id. ¶ 9. The mediator made a mediator’s

proposal which the parties accepted. Id. ¶ 10.

After Plaintiff filed a motion for preliminary approval, the Court entered an Order

requesting supplemental briefing and corrections to the settlement papers. ECF No. 46. The

parties submitted supplemental briefing on June 1, 2017. ECF No. 47. On July 20, 2017, the

parties submitted a supplemental brief and amended settlement agreement to address an increase


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in the class size related to the fact that the class period ends upon preliminary approval. ECF

No. 49. The Amended Settlement Agreement provided for a 75% reduction in settlement

payment to class members who had been paid floating holiday by Sprint. Settlement Agreement

¶ 5.6.4. On July 25, 2017, the Court entered a further order requesting corrections. ECF No. 50.

On August 4, 2017, the Court entered a further order requesting corrections. ECF No. 54. On

September 8, 2017, this Court granted preliminary approval. ECF No. 58.

C. The Bui and Guilbaud Settlements.

There were two prior settlements that overlapped with the class in this case. The first

was Bui v. Sprint Corporation, Eastern District of California Case No. 2: 14-cv-02461 -TLN-

AC. Request for Judicial Notice (“RJN”) Exh. 1 ¶ 1.20. That case resulted in a common fund of

$4.85 million for California employees. It resolved: “[A]ny and all causes of action, claims . . .

at any time through the Final Approval Date, including (a) any claim based on the alleged

failure by Sprint to pay wages, minimum wages, or overtime wages . . . (b) any claim based on

the alleged failure to provide meal or rest breaks [various derivative claims ] . . . (f) any claim

for reimbursement of mileage, uniform, or other reimbursable expense subject to California

Labor Code Section 2802 . . . .” Id. ¶ 1.33.

The second was Guilbaud et al. v. Sprint Nextel Corporation et al., Case No 3:13-cv-

04357-VC. It resulted in an opt-in FLSA settlement fund for a national class of $3,370,000 with

$536,4002 allocated to California employees. RJN Exh. 2 ¶ 20. It resolved claims relating to:

“claims that the Releasees failed to timely or properly pay all wages due or owing, failed to pay

the applicable minimum wage, failed to provide timely accurate final paychecks, failed to

timely or properly pay compensation, engaged in recordkeeping violations, failed to provide

2 The Guilbaud settlement agreement provided that California employees would receive 27% of the Net Settlement Fund (RJN Exh. 2 ¶ 37), which in turn was defined as the Gross Settlement Fund (or $3,370,000, id. at ¶ 20) less the amount of attorneys’ fees and costs (or $1,123,333.33 for fees and up to $125,000 for costs, id. at ¶ 31), enhancement payment awarded to the Class Representatives (or $10,000 for each of the four named plaintiffs, id. at ¶ 32), PAGA payment to the LWDA (), and Settlement Administrator’s fees and costs (or up to $95,000, id. ¶ 33)—or $1,986,666.67. 27% of the $1,986,666.67 Net Settlement Fund is $536,400.


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accurate itemized wage statements, failed to provide meal breaks, failed to authorize and permit

rest breaks [and] failed to reimburse for business expenses.” Id. at 26:10-14.

Defense counsel has represented that of the 5,579 settlement class members, 4,211 of the

settlement class members in this case previously released their Labor Code section 203 claims

in the Bui and/or Guilbaud settlements.

Neither Bui nor Guilbaud contained a claim regarding vacation pay or floating holiday.

D. Sprint’s Exposure in This Case.

The total class in this case is 5,579 Sprint former employees. Based on Mr. Toney’s

calculations, the total potential damages without interest are $2,802,408.98. Setareh Decl. ¶ 12.

(With interest, the total potential damages are $3,502,213.57. Id.) As to wage statement

penalties, there was one potential wage statement violation per class member for the last

paystub which did not include accrued floating holiday pay to be paid out. Therefore, the wage

statement penalties are $50 per class member or $278,950. Labor Code § 226(e)(1). As to Labor

Code § 203 penalties, the potential Labor Code § 203 penalties are $5,834,246.403. Setareh

Decl. ¶ 12. As to PAGA penalties, based on the 5,579 “aggrieved employees” there was one

PAGA violation for each employee (the failure to pay accrued floating holiday pay upon

termination of employment) leading to PAGA penalties of $557,900. Labor Code § 2699(f)(2).

However, PAGA has a one year statute of limitations. E.g., Thomas v. Home Depot, USA, Inc.,

527 F.Supp.2d 1003, 1007-1008 (N.D. Cal. 2007). From 2014 through preliminary approval,

there are 3,316 class members. Setareh Decl. ¶ 13. Therefore, the potential PAGA penalties are

$331,600.

E. Settlement Terms.

The Gross Settlement Amount is One Million Eight Hundred Thousand Dollars

($1,800,000). ECF No. 55-1, Settlement Agreement ¶ 1.23. Court approved Attorney Fees and

3 4,211 of the settlement class members in this case previously released their Labor Code section 203 claims in the Bui and/or Guilbaud settlements. To ensure a fair settlement allocation, this settlement distinguishes between class members who did and did not release Labor Code § 203 claims in the Bui and Guilbaud settlements.


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Costs, Administrative Costs, payment to the Labor and Workforce Development Agency and

Class Representative Enhancement Payment will be deducted from the Gross Settlement

Amount to calculate the Net Settlement Amount. Id. ¶ 1.26. The Settlement is non-claims made,

checks will be mailed directly to class members. Id. ¶¶ 5.7.7-5.7.8. The funds from any

uncashed checks will go to the Unclaimed Property Division of the California State Controller’s

office. Id. ¶ 5.7.9.

The Settlement Administrator CPT Group, Inc. has advised that it is preferable to send the

residue from uncashed checks to the Department of Industrial Relations Unclaimed Wages

Fund. Declaration of Tarus Dancy ¶ 20.

F. Allocation Formula.

Seventy five percent (75%) of the Net Settlement Amount is allocated as Floating

Holiday Pay. ECF No. 55-1, Settlement Agreement ¶ 1.22. Twenty Five Percent (25%) of the

Net Settlement Amount is allocated as “Waiting Time Penalties” Pay. Id. ¶ 1.42. Class

Members who were part of the Bui and Guilbaud settlements will receive a pro rata share of the

Floating Holiday Pay and not of the Waiting Time Pay. Id. ¶ 5.6.3. Class Members who were

not members of the Bui and Guilbaud settlements will receive a pro rata share of Floating

Holiday Pay and Waiting Time Holiday Pay. Settlement. Id. ¶ 5.6.4. However a subset of these

class members who Sprint has identified as having already received accrued floating holiday

pay will have their Individual Settlement Payment reduced by 75%. Id. That money will be

redistributed to the other class members. Id.

III. ARGUMENT

A. There is A Strong Public Policy in Favor of Agreements Regarding Attorney

Fees.

The Supreme Court has indicated that the parties to a class action properly may

negotiate not only the settlement of the action itself, but also the payment of attorneys’ fees.”

E.g., Williams v. MGM-Pathe Commc’n Co., 129 F.3d 1026, 1027 (9th Cir. 1997); accord, e.g.,

Williams v. Costco Wholesale Corp., 2010 U.S. Dist. LEXIS 67731 (S.D. Cal. July 7, 2010)


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(“Parties to a class action may appropriately negotiate the payment of attorneys’ fees and costs

in conjunction with the settlement of the action itself.”). Thus, the Supreme Court has ruled that

the parties to a class action properly may negotiate not only the settlement of the action itself,

but also the payment of attorneys’ fees. See Evans v. Jeff D., 475 U.S. 717,734-35,738, n.30

(1980). Indeed, in Hensley v. Eckerhart, 461 U.S. 424,437 (1983), the Court held that

negotiated, agreed-upon attorneys’ fee provisions are the ideal towards which the parties should

strive: “[a] request for attorney’s fees should not result in a second major litigation. Ideally, of

course, litigants will settle the amount of a fee.” Id. The Court has also stressed that the trial

court “has a responsibility to encourage agreement” on fees. Blum v. Stenson, 465 U.S. 886,

902 n.19 (1984).

B. Plaintiff’s Request for Attorney Fees in the Amount of Twenty Five Percent

of the Common Fund is Reasonable Under Controlling California Law and

Ninth Circuit Precedent.

Class actions removed under the Class Action Fairness Act of 2005 (CAFA) are

diversity actions. See Bush v. Cheaptickets, Inc., 425 F.3d 683, 684 (9th Cir. 2005) (CAFA

“broadens diversity jurisdiction for certain qualifying class actions and authorizes their removal

. . . .”). As the Ninth Circuit observed, “even after CAFA’s enactment, Erie-related doctrines

ensure that, for the most part, removal of a CAFA case from state to federal court produces a

change of courtrooms and procedure rather than a change of substantive law.” McAtee v.

Capital One, F.S.B., 479 F.3d 1143, 1147 (9th Cir. 2007).

In diversity actions, federal courts apply state law in determining both the right to and

the calculation of attorneys’ fees. Mangold v. Calif. Public Utilities Comm’n, 67 F.3d 1470,

1478 (9th Cir. 1995) (“Ninth Circuit precedent has applied state law in determining not only the

right to fees, but also in the method of calculating the fees.:) Accord Vizcaino v. Microsoft

Corp., 290 F.3d 1043, 1047 (9th Cir. 2002).

As the California Supreme Court has held, California law expressly authorizes the

percentage method for awarding fees in common fund cases. See Laffitte v. Robert Half Int’l

Inc., 1 Cal.5th 480, 503 (2016)(“Laffitte II”) (holding that the trial court “may determine the


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amount of a reasonable fee by choosing an appropriate percentage of the fund created.”). While

Plaintiff’s counsel here requests a twenty five percent (25%) fee award, California courts have

routinely awarded fees in excess of that percentage.4 See, e.g., Laffitte v. Robert Half

International Inc., 231 Cal.App. 4th 860, 871 (2014)(“Laffitte I”) (“33 1/3 percent of the

common fund is consistent with and in the range of, awards in other class action lawsuits.”);

Chavez v. Netflix, Inc., 162 Cal.App.4th 43 (2008) 66 n11. In Laffitte II, the California Supreme

Court affirmed an award in the amount of one third of the common fund.

C. Plaintiff’s Request for Attorney Fees in the Amount of Twenty Five Percent

of the Common Fund is Reasonable Under Ninth Circuit Precedent.

Although the fee award in this diversity case is governed by California law, the fee

request is also appropriate under federal law and Ninth Circuit precedent. “[A] litigant or lawyer

who recovers a common fund for the benefit or persons other than himself or his client is

4 See also, Albrecht v. Rite Aid Corp., No. 729219 (San Diego Super. Ct.) (35% award); Weber v. Einstein Noah Restaurant Group, Inc., No. 37-2008-00077680 (San Diego Super. Ct.) (40% award); Kenemixay v. Nordstroms, Inc., No. BC318850 (L.A. Super. Ct.) (50% award); Leal v. Wyndham Worldwide Corp., No. 37-2009-00084708 (San Diego Super. Ct.) (38% award); Gomez and LaGaisse v. 20 20 Communications, No. RIC 528973 (Riverside Super. Ct.) (33% award); Acheson v. Express LLC, No. 109CV135335 (Santa Clara Super. Ct.) (33% award); Chin v. Countrywide Home Loans, Inc., No.: 39-2010-00252741-CU-OE-STK (San Joaquin Super. Ct.) (30% award); Ethridge v. Universal Health Servs., No. BC391958 (L.A. Super. Ct.) (33% award); Magee v. Am. Residential Servs. LLC, No. BC423798 (L.A. Super. Ct.) (33% award); Blue v. Coldwell Banker Residential Brokerage Co., No. BC417335 (L.A. Super. Ct.) (33% award); Silva v. Catholic Mortuary Servs., Inc., No. BC408054 (L.A. Super. Ct.) (33% award); Mares v. BFS Retail & Comm. Operations LLC, No. BC375967 (L.A. Super. Ct.) (33% award); Blair et al. v. Jo-Ann Stores, Inc., No. BC394795 (L.A. Super. Ct.) (33% award); Perez and Comeaux v. Standard Concrete, No. 30-2008-00211820 (Orange County Super. Ct.) (33% award); Ward v. Doyon Sec. Servs., LLC, No. BS 9000517 (San Bernardino Super. Ct.) (33% award); Barrett v. The St. John Companies, No. BC354278 (L.A. Super. Ct.) (33% award); Clymer and Benton v. Candle Acquisition Co., No. BC328765 (L.A. Super. Ct.) (33% award); Dunlap v. Bank of America, N.A., No. BC328934 (L.A. Super Ct.) (33% award); Taylor v. Ross Stores, Inc., No. RCV 065453, JCCP 4331 (San Bernardino Super. Ct.) (33% award); Case et al. v. Toyohara America Inc., No. BC328111 (L.A. Super. Ct.) (33% award); Sunio v. Marsh USA, Inc., No. BC328782 (L.A. Super Ct.) (33% award); Chalmers v. Elecs. Boutique, No. BC306571 (L.A. Super. Ct.) (33% award); Boncore v. Four Points Hotel ITT Sheraton, No. GIC807456 (San Diego Super. Ct.) (33% award); Vivens v. Wackenhut Corp., No. BC290071 (L.A. Super. Ct.) (31% award); Crandall v. U-Haul Int’l., Inc., No. BC178775 (L.A. Super. Ct.) (40% award).


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entitled to a reasonable attorney’s fee from the fund as a whole.” Boeing Co. v. Van Gemert,

444 U.S. 472, 478 (198).

The federal common fund doctrine applies when: (1) the class of beneficiaries is

sufficiently identifiable; (2) the benefits can be accurately traced; and (3) the fee can be shifted

with some certainty to those benefiting. Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268,

271 (9th Cir. 1989). Those criteria are met, where, as here, “each [class member] has an

undisputed and mathematically ascertainable claim to part of a lump-sum settlement recovered

on his behalf.”

A district court has discretion to apply either the lodestar method or the percentage

method proposed here. In re Wash. Pub. Power Supply Sec. Litig., 19 F.3d 1291, 1296 (9th Cir.

1994). Where, as here, fees are requested from a defined common fund, the percentage method

is appropriate. See In re Blue Tooth Headset Products Liability Litig., 654 F.3d 935, 942 (9th

Cir. 2011).

In non-diversity actions, the Ninth Circuit has established 25% as the “benchmark” for

attorneys fees. Vizcaino, 290 F.3d 1047. The “benchmark” is the starting point for analysis. Id.

at 1048. The “exact percentage [awarded] varies depending upon 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). Pokorny v. Quixtar, Inc., 2013 WL

3790896 *1 (N.D. Cal. 2013): “The Ninth Circuit uses a 25% baseline in common fund class

actions, and “in most common fund cases, the award exceeds that benchmark” with a 30%

award the norm.”

Multiple decisions from the Northern District have awarded one third of the common

fund. Lusby v. GameStop Inc., 2015 WL 1501095 *4 (N.D. Cal. 2015) (awarding one third of

common fund); Wilner v. Manpower, Inc., 2015 WL 386625 *7 (N.D. Cal. 2015) (awarding

30% of fund); Burden v. SelectQuote Ins. Servs., 2013 WL 3988771 *5 (N.D. Cal. 2013);

Villapando v. Exel Direct Inc., 2016 WL 7740854*2 (N.D. Cal December 12, 2016) (awarding

one third of fund.)

//


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D. Other Factors Support Plaintiff’s Fee Request.

In addition to the results achieved and awards in comparable cases, courts in this Circuit

have considered additional factors including: (1) the risks of further litigation; (2) the contingent

nature of the fee; (3) the skill of counsel; and (4) a lodestar cross-check. Churchill Vill. LLC v.

Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004). While no one factor is dispositive, each supports

the request for attorney fees in the amount of twenty five percent of the common fund whether

on a percentage of the fund basis or by application of a multiplier to the lodestar.

1. The Results of the Litigation Support the Requested Fees.

Here, Plaintiff obtained a $1.8 million recovery from the class. That is 64% of the total

class damages (without interest or penalties).5 Notably, in the two prior class actions filed

against Sprint in California, the Plaintiff’s counsel either did not find this issue or determined

that the case was too risky to pursue.

Plaintiff’s success also furthers the important public policy of enforcing workplace

protection legislation:

The California Labor Code protects all workers regardless of their immigration status or financial resources. In light of the small size of the putative class members’ potential individual monetary recovery, class certification may be the only feasible means for them to adjudicate their claims.

Leyva v. Medline Indus., 716 F.3d 510, 515 (9th Cir. 2013). By obtaining a significant recovery

for the class, Plaintiff’s counsel have vindicated the rights of employees and enforced

compliance with wage laws.

2. The Substantial Contingent Risk, Including the Risk of Further

Litigation, Supports the Requested Fees.

The contingent risk that counsel assumed in litigating the case supports the requested

attorney fees and costs. Class counsel took on this case on a contingency fee basis. Setareh

5 The Ninth Circuit has held that the reasonableness of a settlement should be evaluated in relation to the potential compensatory damages, not including any penalties that might be awarded. Rodriguez v. West Publishing Corp., 563 F.3d 948, 964 (9th Cir. 2009); see also Miller v. CEVA Logistics U.S. Inc., 2015 WL 729638, *7 (N.D. Cal. Feb. 15, 2015) (accepting settlement valuation based on damages exclusive of interest and penalties).


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Decl. ¶ 29. Class counsel had no guarantee of being paid for the approximately four hundred

and fifteen (415) hours they spent litigating this case or the $15,762.14 in costs they reasonable

incurred to date.

As the Ninth Circuit has recognized “attorneys whose compensation depends on their

winning must make up in compensation in the cases they win for the lack of compensation in

the cases they lose.” Vizcaino, 290 F.3d at 1051. In Ketchum v. Moses, 24 Cal.4th 1122 (2001),

the California Supreme Court instructed courts to upwardly adjust fee compensation to ensure

that the fees account for contingency risk:

A lawyer who bears the risk of not being paid and provides legal services is not receiving the fair market value of his work if he is paid only for the second of these functions. If he is paid no more, competent counsel will be reluctant to accept fee award cases. Ketchum, 24 Cal.4th at 1133.

Similarly, in In re Washington Pub. Power Supply, the Ninth Circuit underscored the

importance of rewarding attorneys who take cases on a contingency fee basis:

It is an established practice in the private legal market to reward attorneys for taking the risk of non-payment by paying them a premium over their normal hourly rates for winning contingency cases. See Richard Posner, Economic Analysis of Law § 21.9, 534-35 (3 ed. 1986). Contingent fees that may far exceed the market value of the services if rendered on a non-contingent basis are accepted in the legal profession as a legitimate way of assuring competent representation for plaintiffs who could not afford to pay on an hourly basis regardless whether they win or lose.

In re Washington Pub. Power Supply, 19 F.2d 1299, 1300-01 (“in the common fund

context, attorneys whose compensation depends upon their winning the case, must make up in

compensation in the cases they win for the lack of compensation in the cases they lose.”)

As Ketchum and In re Washington instruct, attorneys accepting contingent fee cases

should be compensated in amounts greater than those earned by attorneys who bill and receive

payment by the hour, as this fact reflects the risk undertaken in a contingent practice. If a

contingent fee attorney were awarded fees at the same level as an hourly attorney, it would be

economically irrational to accept a contingent fee case. See Posner, Economic Analysis of Law

(4th ed. 1992), pp. 534, 567 (“A contingent fee must be higher than a fee for the same legal

services paid as they are performed. The contingent fee compensates the lawyer not only for the


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legal services he renders but for the loan of those services. The implicit interest rate on such a

loan is higher because the risk of default (the loss of the case, which cancels the debt of the

client to the lawyer) is much higher than that of conventional loans.”); Leubsdorf, The

Contingency Factor in Attorney Fee Awards (1981) 90 Yale L.J. 473, 480 (“A lawyer who both

bears the risk of not being paid and provides legal services is not receiving the fair market value

of his work if he is paid only for the second of these functions. If he is paid no more, competent

counsel will be reluctant to accept fee award cases.”); ABA Model Code Prof. Responsibility,

DR 2-106(B)(8) (recognizing the contingent nature of attorney representation as an appropriate

component in considering whether a fee is reasonable).

And, this is a case where there was considerable risk that Plaintiff would not prevail on

the merits. To be sure, Plaintiff believes that the case is a strong one. Under California law,

vacation pay is not subject to forfeiture. Cal. Lab. Code § 227.3; Suastez v. Plastic Dress Up

Co., 31 Cal.3d 772 (1982). The California Court of Appeal has held that paid time off which

accrues over time is vacation pay unless it is tied to a specific event such as a death in the

family or illness. See Paton v. Advanced Micro Devices, Inc., 197 Cal.App.4th 1505, 1519

(2011). There is also guidance from the Division of Labor Standard Enforcement that floating

holidays are to be treated as vacation pay which is not subject to forfeiture. As the DLSE has

explained: “ Floating holidays . . . would be considered vacation time under the Suastez

decision.” DLSE Opinion Letter 1986.10.28. The DLSE explained in a later opinion letter that:

“In the event that the time off is not contingent upon a particular event (a holiday, sickness,

bereavement, etc.) the time is treated as a vacation subject to the doctrine in Suastez.” DLSE

Opinion Letter 1992.03.03.6

However, there is no binding authority on whether floating holidays are vacation pay. Paton

supra at 1523 involved a paid sabbatical program (and the Court of Appeal did not hold that it

was vacation but that there was a triable issue of fact on the question). At the time of the

6 DLSE Opinion Letters are not binding. E.g., Washington v. Joe’s Crab Shack, 271 F.R.D. 629, 639 n2 (N.D. Cal. 2010).


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mediation at least two district court case had held that a similar floating holiday program was

not vacation. Karrer v. Best Buy Co., Inc., 2012 WL 1957586 *8-9 (C.D. Cal. May 24, 2012);

Garibaldi v. Bank of America Corp., 2014 WL 172284 *5 (N.D. Cal. Jan. 15, 2014). And very

recently, Plaintiff’s counsel was involved in another case where a district court held that a

“designated personal holiday” program was not vacation. RJN Exh. 3, December 15, 2017

Opinion in Perez v. Performance Food Group, Central District of California Case No. 2:17-cv-

00357 JAK-SK. Therefore, there is a controlling case Paton which is favorable to Plaintiff, but

which involves a very different type of paid time off. And, there are three non-controlling cases,

unfavorable to Plaintiff Karrer, Garibaldi and Perez involving a very similar type of paid time

off.

Plaintiff believes that Karrer, Garibaldi and Perez are distinguishable from this case. In

Karrer, supra at *8 “the days off were not earned in proportion to length of employment, nor

were they conditioned only upon rendering services for Best Buy over a period of time.”

Sprint’s floating holidays were accrued in proportion to length of employment. Sprint Holiday

Policy p. 2 of 5, ECF No. 47-9 at ECF page no. 13. Further, in Karrer, supra at *8-9 the floating

holidays were provided when the employee worked on a company designated holiday such as

the Fourth of July. In this case, while the floating holidays are intended to make up for that fact

that Sprint’s stores are open on holidays such the Fourth of July, the holidays are provided

without regard to whether an employee worked on such a holiday. In Perez and Garibaldi, like

this case, the disputed holidays accrued over the course of the year. However, the paid days off

in were also tied to a specific occurrence such as the employee working on a company holiday

which is an important distinction from this case. Nonetheless it is possible that this Court or the

Ninth Circuit could have disagreed with Plaintiff’s analysis and found Karrer, Perez and

Garibaldi controlling.

Also, Paton supra at 1519 states that a defining characteristic of vacation pay is that the

employer: “usually does not impose conditions upon the employee’s use of the time away from

work.” Sprint argues that it does impose conditions specifically that the floating holiday not be

combined with other paid time off.


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It is also worth noting that it is very likely that due to the uncertainty in the law, this

Court or a jury would have determined that Sprint had a “good faith defense” to the imposition

of Labor Code § 203 waiting time penalties. E.g., Bargas v. Rite-Aid Corp., 2017 WL 1156727

*19 (C.D. Cal. Mar. 28, 2017) (declining to impose penalties where defense was not frivolous

or unreasonable).

Due to the lack of controlling authority, and uncertain legal landscape, it is uncertain

whether Plaintiff and the class would have prevailed on the merits. Assuming that Plaintiff

prevailed on a motion for summary judgment, the case would go to a jury which would need to

find unanimously in Plaintiff’s favor. Fed. R. Civ. P. 48(a). Any favorable verdict would be

appealed by Sprint. And, of course, there is always a risk that a class would not have been

certified.

3. The Skill of Counsel and Work Performed Support the Requested Fees.

The skill and experience of counsel and nature of work performed also weigh in favor of

Plaintiff’s fee request. See City of Burlington v. Daque, 505 U.S. 557, 562-563 (1992). Class

counsel are seasoned attorneys with considerable experience in wage and hour class actions.

Class counsel regularly litigates wage and hour claims through certification and on the merits

and have considerable experience settling wage and hour class actions. Setareh Decl. ¶ 28. Class

counsel thoroughly investigated Plaintiff’s claims and made skillful use of documents and data

provided by Defendants to assess its potential exposure and to bring the litigation to a

successful resolution.

Additionally, the caliber of Defendant’s Counsel in this case shows that the requested

attorneys’ fees are fair, adequate, and reasonable. In assessing the reasonableness of a fee award

under the percentage-of-the-fund method, the caliber of opposing counsel is another important

factor in assessing the quality of Plaintiff’s counsels’ work. Vizcaino v. Microsoft Corp., 142 F.

Supp. 2d, 1299, 1303 (W.D. Wash. 2001); In re Equity Funding Corp. Secur. Litig., 438

F.Supp. 1303, 1337 (C.D. Cal. 1977); In re King Res. Co. Secur. Litig., 420 F. Supp. 610, 634

(D. Colo. 1976). Here, Defendant was represented zealously by highly experienced employment


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litigators. Despite facing such a tenacious adversary, Class counsel achieved a favorable result

in this case.

4. The Lodestar “Crosscheck” Supports The Requested Fees.

When setting a fee award, a United States District Court can apply the alternative

lodestar method to provide “perspective on the reasonableness of a given percentage award.”

Vizcaino, 290 F.3d 1043, 1050. According to the Ninth Circuit, “[c]alculation of the lodestar,

which measures the lawyers’ investment of time in the litigation, provides a check on the

reasonableness of the percentage award.” Id.

“Lodestar calculations are determined by multiplying the number of hours reasonably

expended during the litigation by a reasonable hourly rate.” In re Heritage Bond Litig., 2005

WL 1594403 at 5 (C.D. Cal. filed June 10, 2005). It is “common for a counsel’s lodestar figure

to [then] be adjusted upward by some multiplier reflecting a variety of factors such as the effort

expended by counsel, the complexity of the case, and the risks assumed by counsel.” Id. at 22

(citing In re Linerboard Antitrust Litig., 2004 WL 1221350 at 16 (E.D. Pa. filed June 2, 2004)

(recognizing that the average multiplier approved in common-fund cases is 3.89), disapproved

on other grounds as stated in In re ATM Fee Antitrust Litig., 686 F.3d 741, 755 n.7 (9th Cir.

2011)).

i) The calculation of Plaintiff’s Lodestar:

Plaintiff’s lodestar to date is $272,522.50. Setareh Decl. ¶ 27. The lodestar is calculated

as set forth below.

The attorneys who worked on this matter are (i) Shaun Setareh, a 1999 graduate of

Loyola Law School; (ii) Tuvia Korobkin, a 2009 graduate of UCLA Law School; (iii) Thomas

Segal, a 2002 graduate of UC Hastings Law School; (iv) Farrah Grant, a 2013 graduate of

UCLA Law School; (v) Alice Kim, a 2012 graduate of Southwestern University Law School;

and (vi) Stacey Shim, a 2015 graduate of Loyola Law School. Setareh Decl. ¶¶ 19-24.

The Court ordered that time spent responding to its July 25, 2017 Order not be used to

support fees. ECF No. 50 at 3 n2. As such, Plaintiff’s counsel has run two reports in its time-

keeping system. The first report is from the inception of this litigation through July 24, 2017.


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The second report is from September 8, 2017 (the date that the Court granted preliminary

approval) through the present (and including anticipated time to prepare for, travel to and attend

the upcoming hearings). Setareh Decl. ¶¶ 25-27.

Here, based on Class Counsel’s time records, Class Counsel’s unadjusted lodestar (i.e.,

with no multiplier) is computed as a function of the following hours and rates:

Time through July 24, 2014

Attorney Bar Date Billing Rate Hours Total

Thomas Segal 2002 $625.00 149.25 $93,281.25

Alice Kim 2013 $400.00 19.10 $7,640.00

Shaun Setareh 1999 $750.00 126.80 $95,100.00

Tuvia Korobkin 2009 $550.00 2.00 $1,100.00

Farrah Grant 2013 $425.00 7.90 $3,357.50

Stacey Shim 2015 $300 0.5 $150.00

September 8, 2017 through present and estimated future

Attorney Bar Date Billing Rate Hours Total

Thomas Segal 2002 $625.00 38.50 $24,062.50

Shaun Setareh 1999 $750 54.00 $40,500.00

Farrah Grant 2013 $425.00 17.25 $7,331.25

The categories that this work is broke down into are set forth in the chart below:

Hours Billed Per Category (Excludes time entries between July 24 and September 8, 2017)

Category Hours Billed

Draft and Revise

(E.g. Initial Case

Memorandum, PAGA notice

200.15


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letter, Complaint, First

Amended Complaint,

Mediation Data Request,

Mediation Brief, Motion for

Preliminary Approval,

Supplemental Preliminary

Approval Papers, Final

Approval Motion, Motion for

Attorney’s Fees and

Expenses)

Review and Analyze 79.60

Research 48.50

Communicate (counsel, in

firm, client, and other)

16.10

Appear and Attend 17.50

Plan and Prepare For 25.25

File 1.00

Calendar 0.95

Miscellaneous 26.25

Total Hours Billed 415.30

Both the rates noted above and the associated hours are reasonable. As to the rates,

“‘[t]he proper reference point in determining an appropriate fee award is the rate[] charged by

private attorneys in the same legal market as prevailing counsel.’” Rutti v. Lojack Corp., 2012

WL 3151077 at 10 (C.D. Cal. filed July 31, 2012) (quoting Trevino v. Gates, 99 F.3d 911, 925

(9th Cir. 1996)). The rate charged by private attorneys in the same legal market, in turn, is the


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“‘prevailing market rate[] in the relevant community,’” Davis v. City of San Francisco, 976

F.2d 1536, 1546 (9th Cir. 1992) (quoting Blum v. Stenson, 465 U.S. 886, 895 (1984)), vacated

in part on other grounds by 984 F.2d 345 (9th Cir. 1993)), and the relevant community is “‘the

forum district’—[here], the Central District of California,” Anderson v. Nextel Retail Stores,

LLC, 2010 U.S. Dist. LEXIS 71598 at 6 (C.D. Cal. filed June 30, 2010) (quoting Gates v.

Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992)). When setting rates, courts should use the

attorneys’ “current” rates, i.e., their rates at the time of the fee application. See In re HPL

Techs., Inc. Sec. Litig., 366 F. Supp. 2d 912, 919–20 (N.D. Cal. 2005) (hereinafter, “In re

HPL”) (explaining that the use of current rates “simplifies the calculation and accounts for the

time value of money in that lead counsel ha[ve] not been paid contemporaneously”).

Further, fees based upon the requested rates have been approved recently by courts

within the Northern District and elsewhere in California. Setareh Decl. ¶¶ 19-20.

According to recent case authority, the above rates are within the range of rates

approved by courts in Northern and Southern California for complex class actions, including

wage-and-hour actions. See, e.g., Wang v. Chinese Daily News, Inc., 2008 U.S. Dist. LEXIS

123824 at 8–9 (C.D. Cal. filed Oct. 3, 2008) (in a wage-and-hour action, approving 2008 rates

of up to $800 per hour), vacated on other grounds, 132 S. Ct. 74 (2011); Rutti, 2012 WL

3151077 at 11 (in a wage-and-hour action, approving 2012 rates of up to $750 per hour); Pierce

v. County of Orange, 905 F. Supp. 2d 1017, 1036 & n.16 (C.D. Cal. 2012) (approving 2012

rates of up to $850 per hour); In re HP Laser Printer Litig., 2011 WL 3861703 at 5–6 (C.D.

Cal. filed Aug. 31, 2011) (approving rates of up to $800 per hour); Perfect 10 v. Giganews Inc.,

2015 U.S. Dist. LEXIS 54063 (C.D. Cal. 2015) (approving 2015 rates of $750 for an 18 year

attorney, $640 for a 12 year attorney, and $640 for a 7 year attorney, and $505 for a 3 year

attorney); Stuart v. RadioShack Corp., No. C-07-4499, 2010 U.S. Dist. LEXIS 92067, at *16

(N.D. Cal. Aug. 9, 2010) (finding rates ranging between $600 and $1,000 reasonable); In re

Apple Inc. Secs. Litig., No. 5:06-CV-05208, 2011 U.S. Dist. LEXIS 52685, at *16 (N.D. Cal.

May 17, 2011) (approving hourly rate of $836); In re TFT-LCD (Flat Panel) Antitrust Litig.,

2013 WL 1365900, at *9 (approving hourly rates up to $1000); In re Conseco Life Ins. Co. Life


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Trend Ins. Mktg. & Sales Practice Litig., No. C 10-02124 SI, 2014 WL 186375, at *2 (N.D.

Cal. Jan. 16, 2014) (approving hourly rates up to $850); Kearney v. American Honda Motor

Am. 2013 U.S. Dist. LEXIS 91636 *24 (approving hourly rates of $650-$800 for senior

attorneys in consumer class action); Holloway v. Best Buy Co., C-05-5056-PJH (MEJ) (N.D.

Cal.) (approving 2011 partner rates of $825 to $700 an hour). Class counsel’s present fee

request is therefore reasonable.

ii) A multiplier of 2.0 should be applied to the fee award.

Typically, district courts apply a positive multiplier to the actual lodestar. See, e.g.,

Bellinghausen v. Tractor Supply Co. 306 F.R.D. 245, 264 (N.D. Cal. 2014) (54 percent of

lodestar multipliers fall within the 1.5 to 3.0 range, and 83 percent of multipliers fell within the

1.0 to 4.0 range); Hopkins v. Stryker Sales Corp., No. 11-CV-02786- LHK, 2013 WL 496358,

at *5 (N.D. Cal. Feb. 6, 2013) (multiplier of 2.86); In re TFT-LCD (Flat Panel) Antitrust Litig.,

2013 WL 1365900, at *8 (multipliers ranging on average between 2.4 – 2.6); Pokorny, 2013 WL

3790896, at *2 (multiplier of 2.2); see also Milliron v. T-Mobile USA, Inc., 423 F. App’x 131,

135 (3d Cir. 2011) (approving district court’s use of 2.2 multiplier); Di Giacomo v. Plains All

Am. Pipeline, Nos. 99–4137 & 99–4212, 2001 WL 34633373, at *10–11 (S.D. Fla. Dec. 19,

2001) (5.3 multiplier); Maley v. Del Global Techs. Corp., 186 F. Supp. 2d 358, 369 (S.D.N.Y.

2002) (4.65 multiplier); In re Aremissoft Corp. Sec. Litig., 210 F.R.D. 109, 134–35 (D.N.J.

2002) (4.3 multiplier); Sobel v. Hertz Corp., No. 306-CV-00545-LRH-RAM, 2014 WL

5063397, at *10 (D. Nev. Oct. 9, 2014) (multiplier of 2.0).

Under Ketchum, a court determining whether to apply a multiplier should consider all

relevant factors including “(1) the novelty and difficulty of the questions presented; (2) the skill

displayed in presenting them; (3) the extent to which the nature of the litigation precluded other

employment by the attorneys, (4) the contingent nature of the fee award.” Ketchum supra at

*822.

A positive lodestar multiplier would be appropriate in this case for a number of reasons.

Counsel took the case on a contingent basis with no guarantee of payment. Setareh Decl. ¶ 29.

The case involved a real risk that the class would receive nothing. The case involved questions


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of first impression and counsel presented them with sufficient skill to convince Sprint to pay

$1.8 million. Additionally, an enhancement would be appropriate to bring the fee award in line

with fees that would be awarded in the market place under a contingency fee contract. Absent

an enhancement, the fee award would be much less than would be awarded under a contingency

fee contract. Indeed the requested twenty five percent (25%) is still less than the 33 1/3% or

40% under a standard contingency fee contract. Therefore a multiplier would be appropriate.

Lealoa v. Beneficial California, Inc., 82 Cal.App.4th 19, 49-50 (2000) (multiplier appropriate to

“ensure that the fee awarded is within the range of fees freely negotiated in the legal market

place in comparable litigation”); accord In re Apple iPhone 4 Prods. Liability Litig., 2012 WL

328432 * 3 (N.D. Cal. 2012.)

E. The Court Should Not Reduce The Requested Fees Due to Errors in the

Settlement Papers.

In its August 4, 2017 Order the Court asked that Plaintiff’s counsel address why the

Court should not factor in the issue identified by the Court in determining “the amount of fees

to which counsel may be entitled.” ECF No. 54 at 6. Plaintiff’s counsel, as directed by the

Court, is not using time between July 25 and September 8, 2017 to support this application.

Setareh Decl. ¶¶ 25-26, 30. Plaintiff’s counsel believes this settlement is an excellent one for the

class. It involves an issue which was overlooked by the two prior class action lawsuits on behalf

of Sprint’s California employees. The settlement of $1.8 million is 64% of the maximum

potential damages (exclusive of interest) incurred by class members. As set forth above, a Court

weighs various factors in determining what fee award is appropriate. Plaintiff’s counsel is

seeking 25% of the common fund, an amount consistent with the Ninth Circuit benchmark for

cases arising under federal law, and less than the one third which is typical in diversity cases.

Plaintiff’s counsel is chagrined that there were issues with the preliminary approval

papers that could have been avoided. But these issues did not affect the settlement amount. For

example, if Plaintiff’s counsel had missed a deadline to file an important motion, or to oppose

an important motion, it could be inferred that the amount offered was affected as a result. That

is not the situation here.


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F. Class Counsel’s Request for Costs is Also a Fair Adequate and Reasonable

Reimbursement.

Attorneys in a common fund case may be reimbursed for reasonable out-of- pocket

expenses. In common fund cases, Ninth Circuit courts frequently award litigation costs and

expenses in addition to a percentage-of-the recovery award of attorneys’ fees. E.g., In re Media

Visio Tech. Sec. Litig., 913 F. Supp. 1362, 1366 (N.D. Cal. 1996) (“An attorney who has created

a common fund has the right to reimbursement ....”).

Here, Plaintiffs’ Counsel has incurred for Fifteen Thousand Seven Hundred and Sixty

Two Dollars and Fourteen Cents ($15,762.14) in expenses. Since the Settlement Agreement

limits the costs award to $15,000, Plaintiff requests that $15,000 be awarded. Settlement

Agreement ¶ 1.3.

The out-of pocket expenses devoted to this case are the kind of expenses that courts

routinely have deemed to be compensable. In this case, these are the types of expenses shown

herewith. See Setareh Decl. ¶30; Expenses, Exh. B.); see also Media Vision, 913 F. Supp. at

1371 (court fees); Id. at 1367-68 (photocopying, telephone, and postage charges); Thornberry v.

Delta Air Lines, 676 F.2d 1240, 1244 (9th Cir. 1982), remanded on other grounds, 461 U.S. 952

(1983) and Redding v. Fairman, 717 F.2d 1105, 1119 (9th Cir. 1983) (travel); Spicer v. Chicago

Bd. Options Exch., Inc., 844 F. Supp. 1226, 1264 (N.D. Ill. 1993) (technology services).

Plaintiff’s Counsel has excluded costs incurred between July 25 and September 8, 2017.

Setareh Decl. ¶ 30. Those costs were PACER charges and court running service costs for

courtesy copies. Id. ¶ 30.

G. The Requested Incentive Award Should Be Awarded.

It is common in class action cases to provide incentive awards to named plaintiffs. See

Newberg § 11:38 (4th ed. 2008). “The Ninth Circuit has established $5,000 as a reasonable

benchmark award for representative plaintiffs.” Chavez v. PVH Corp., 2015 U.S.Dist.LEXIS

170422, *27 (N.D. Cal. 2015) ; Gaudin v. Saxon Mortg. Servs., 2015 U.S.Dist.LEXIS 159020,

*28 (N.D. Cal. 2015) (“[m]any courts in the Ninth Circuit have also held that a $5,000 incentive

award is `presumptively reasonable'”). Plaintiff has been a diligent class representative working


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to provide her attorneys with information, and attending the mediation in this matter.

Declaration of Nora Salamanca (“Salamanca Decl.”) ¶ 6. In this case, the requested service

enhancement is justified in light of the reputational risk Plaintiff assumed in bringing a wage

and hour class action against her employer. See Guippone v. BH S&B Holdings LLC, No. 09

Civ. 1029, 2011 U.S. Dist. LEXIS 126026, at *20 (S.D.N.Y. Oct. 28, 2011) (“Even where there

is not a record of actual retaliation, notoriety, or personal difficulties, class representatives merit

recognition for assuming the risk of such for the sake of absent class members.”). Courts have

recognized that present day employers can easily learn via the internet whether an employee or

prospective employee has filed a lawsuit and that information is often used to evaluate a

prospective employee. See Id. at *4 (noting “the fact that a plaintiff has filed a federal lawsuit is

searchable on the internet and may become known to prospective employers when evaluating

the person.”). A Google search for Nora Salamanca as of December 14, 2017 reveals that of the

first ten results, five including the first five are about this lawsuit.

As to the general release payment, Plaintiff opted out of the Bui and Guilbaud actions.

In order to continue as a class representative in this case, she did not cash a settlement check for

$1,040 that was sent to her in connection with the settlement of the Guilbaud case. Salamanca

Decl. ¶ 7. Therefore, Plaintiff in enacting a general release is releasing claims that other class

members either released for compensation in the Bui or Guilbaud actions or that some class

members have not released at all. Therefore, she is not receiving a benefit that other class

members would be entitled to but are not getting. It should further be noted that Plaintiff is

agreeing to an extremely broad no-rehire agreement that provides inter alia that Plaintiff not

only can never be employed by Sprint but also “any company location, Sprint affiliated store,

Sprint store within-a-store location, Sprint dealer store or Sprint third party retailer or with any

entity that she knows or reasonably should know is a subsidiary, affiliate, successor or assign.”

Settlement Agreement § 18. Therefore, Plaintiff cannot only not apply for work at Sprint stores,

or independent Sprint retailers, and if another cellphone provider is acquired by or merges with


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Sprint, Plaintiff will not be able to work there either.7 Plaintiff’s counsel is aware of no

authority that these provisions would make Plaintiff an inadequate class representative. In

Radcliffe v. Experian Solutions, Inc., 715 F.3d 1157 (9th Cir. 2013) the Ninth Circuit

disapproved a settlement where the incentive award was conditioned upon the class

representative supporting the settlement reasoning that this creates a conflict of interest. But,

here, neither the incentive award nor the general release payment is conditioned on Plaintiff

supporting the class settlement.

H. The Settlement Administrator Expenses Should Be Awarded.

The request for $40,000 in administration costs to the Settlement Administrator, CPT

Group, Inc., is fair and reasonable. As documented in the Declaration of Tarus Dancy, all of

these costs were necessary in administering the Settlement. Moreover, the administration costs

benefit the class in a very significant way. Without administration of the Settlement, Class

Members could not be paid their share of the Settlement. They also would not receive proper

notice of the Settlement or of their ability to opt out or object to the Settlement. Thus, the

requested award of administration costs to CPT Group, Inc. should be approved.

IV. CONCLUSION

For the reasons set forth herein, Plaintiff respectfully requests that this Court grant the

instant motion for attorney’s fees, expenses, settlement administrator expenses and class

representative enhancement award and enter the proposed Judgment and Order in the form

submitted concurrently.

Respectfully submitted,

Dated: December 27, 2017 SETAREH LAW GROUP

BY: /s/ Shaun SetarehSHAUN SETAREH Attorney for Plaintiff Nora Salamanca and the Settlement Class

7 The broadness of this is illustrated by the recently proposed although currently abandoned Sprint T-Mobile Merger. See Sprint shuffles the management deck in wake of T-Mobile merger breakdown, Kansas City Star, November 20, 2017.


1 shaun setareh (sbn 204514) …. 59- ntc of... · salamanca v. sprint/ united management company...

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