Case 2:15-cv JCC Document 190 Filed 10/11/18 Page 1 of 23 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

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1 Case :-cv-00-jcc Document 0 Filed 0// Page of THE HONORABLE JOHN C. COUGHENOUR 0 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON BALAPUWADUGE MENDIS, MICHAEL FEOLA, ANDREA ARBAUGH, and EDWARD ASH, on their own behalf and on the behalf of all others similarly situated, vs. Plaintiffs, SCHNEIDER NATIONAL CARRIERS, INC., a Nevada corporation, Defendant. NO. :-cv-00-jcc PLAINTIFFS MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS FEES AND COSTS NOTED FOR CONSIDERATION: November, 0 0 ATTORNEYS FEES AND COSTS CASE NO. :-CV-00-JCC TEL FAX 0..0

2 Case :-cv-00-jcc Document 0 Filed 0// Page of 0 0 ATTORNEYS FEES AND COSTS - i CASE NO. :-CV-00-JCC TABLE OF CONTENTS I. INTRODUCTION... II. STATEMENT OF FACTS... III. ARGUMENT AND AUTHORITY... A. The Settlement satisfies the criteria for final approval.... The strength of Plaintiffs case... TEL FAX 0..0 Page. The risk, expense, complexity, and likely duration of further litigation.... The risk of maintaining class action status through trial.... The amount offered in settlement.... The extent of discovery completed and stage of proceedings.... The experience of counsel supports final approval.... The presence of government participant.... The reaction of Settlement Class Members... B. Settlement Class Members received the best notice practicable... C. Plaintiffs request for incentive awards should be granted... D. The Settlement Administration fees and costs should be granted... 0 E. Class Counsel s attorneys fees and costs request should be approved Class Counsel s requested fess are reasonable... 0 a. Lodestar analysis supports Class Counsel s fee request... b. The percentage of the fund analysis supports Class Counsel s fee request.... Class Counsel are entitled to recover reasonable litigation expenses.. IV. CONCLUSION...

3 Case :-cv-00-jcc Document 0 Filed 0// Page of TABLE OF AUTHORITIES Page 0 0 Barovic v. Ballmer, Nos. C-00 JCC, C -00 JCC, 0 WL (W.D. Wash. Jan., 0)..., Churchill Vill., L.L.C. v. Gen. Elec., F.d (th Cir. 00)..., Garner v. State Farm Auto Ins. Co., No. CV 0 CW (EMC), 00 WL (N.D. Cal. April, 00)... Gates v. Deukmejian, F.d (th Cir. )... Hanlon v. Chrysler Corp., 0 F.d 0 (th Cir. )...,, Hill v. Garda CL Northwest Inc., No. --I, 0 WL 0 (Wash. Ct. App. Mar., 0)... In re Bluetooth Headset Prods. Liab. Litig., F.d (th Cir. 0)... In re Immune Response Sec. Litig., F. Supp. d (S.D. Cal. 00)... In re Media Vision Tech. Sec. Litig., F. Supp. (N.D. Cal. )... In re Mego Fin. Corp. Sec. Litig., F.d (th Cir. 000)... In re Mercury Interactive Corp. Sec. Litig., F.d (th Cir. 00)..., In re Omnivision Techs., Inc., F. Supp. d 0 (N.D. Cal. 00)..., In re Online DVD-Rental Antitrust Litig., F.d (th Cir. 0)... ATTORNEYS FEES AND COSTS - ii CASE NO. :-CV-00-JCC TEL FAX 0..0

4 Case :-cv-00-jcc Document 0 Filed 0// Page of 0 0 In re Wash. Pub. Power Supply Sys. Sec. Litig., F.d (th Cir. )... Pelletz v. Weyerhaeuser Co., F.R.D. (W.D. Wash. 00)..., 0 Radcliffe v. Experian Info. Solutions, F.d (th Cir. 0)... 0 Rodriguez v. W. Publ g Corp., F.d (th Cir. 00)..., Shames v. Hertz Corp., No. 0 CV-, 0 WL (S.D. Cal. Nov 0, 0)... Staton v. Boeing Co., F.d (th Cir. 00)... Tadepalli v. Uber Techs., Inc., No. -CV-0-MEJ, 0 WL (N.D. Cal. Apr., 0)... Wininger v. SI Mgmt., L.P., 0 F.d (th Cir. 00)... ATTORNEYS FEES AND COSTS - iii CASE NO. :-CV-00-JCC STATE CASES Berryman v. Metcalf, Wn. App., P.d (0)... Bowers v. Transamerica Title Ins. Co., 00 Wn.d, P.d ()... Burnside v. Simpson Paper Co., Wn. App. 0, P.d ()... Carlson v. Lake Chelan Cmty. Hosp., Wn. App., P.d (00)... Pham v. City of Seattle, Wn. d, P.d (00)... Wash. State Commc n Access Project v. Regal Cinemas, Inc., Wn. App., P.d (0)... Wash. State Physicians Ins. Exch. & Ass n v. Fisons Corp., Wn.d, P.d 0 ()... TEL FAX 0..0

5 Case :-cv-00-jcc Document 0 Filed 0// Page of FEDERAL STATUTES U.S.C.... FEDERAL RULES Fed. R. Civ. P....,, Fed. R. Civ. P. 0(b)()... OTHER AUTHORITIES Manual for Complex Litigation (Fourth) ( MCL th ) (0)..., 0 0 ATTORNEYS FEES AND COSTS - iv CASE NO. :-CV-00-JCC TEL FAX 0..0

6 Case :-cv-00-jcc Document 0 Filed 0// Page of 0 0 I. INTRODUCTION Plaintiffs Balapuwaduge Mendis, Michael Feola, Andrea Arbaugh, and Edward Ash (Plaintiffs) respectfully request that the Court grant final approval of the class action settlement they reached with Defendant Schneider National Carriers, Inc. (Defendant or Schneider). Plaintiffs believe the settlement, which establishes a $,0,000 non-reversionary settlement fund for the benefit of the Class, is fair, adequate, reasonable, and in the best interests of the Settlement Class. Indeed, the Settlement is an excellent result for Settlement Class Members, who will receive payments equal to between and 0 percent of their calculated damages, as explained below. Settlement Administrator CPT Group Class Action Administrators (CPT) has successfully implemented the notice program, providing direct notice to percent of the Settlement Class. CPT has also maintained a toll-free telephone number for Settlement Class Members to call with questions about the settlement and a settlement website through which Settlement Class Members can access case documents and stay apprised of deadlines. The notice program is the best notice practicable under the circumstances, and satisfies due process. For the reasons set forth in this memorandum and in the papers previously submitted in support of settlement approval, the Settlement is fair, adequate, reasonable, and in the best interests of the Class. Accordingly, Plaintiffs respectfully request that the Court grant final approval of the Settlement by: () finding the Settlement to be fair, adequate, and reasonable; () determining that adequate notice was provided to the Class; and () approving the requested Class Representative service awards, settlement administration expenses, and attorneys fees and costs. II. STATEMENT OF FACTS On July 0, 0, this Court granted Plaintiffs motion for preliminary approval of the Settlement the parties reached in this class action lawsuit. Dkt. No.. The Settlement requires Schneider to pay $,0,000 to establish a non-reversionary common fund (the ATTORNEYS FEES AND COSTS - CASE NO. :-CV-00-JCC TEL FAX 0..0

7 Case :-cv-00-jcc Document 0 Filed 0// Page of 0 0 Settlement Fund ) for the benefit of the Settlement Class, which is made up of more than,000 Washington-resident drivers who worked for Schneider since December 0, 0. See Dkt. No. - (Settlement Agreement),. The Settlement Agreement provides that all Settlement Class Members who do not timely opt-out will receive a pro rata share of the Settlement Fund after deducting any Courtapproved service awards, attorneys fees and costs, and settlement administration fees and costs. See Settlement Agreement, 0,. If approved by the Court, Plaintiff Mendis will receive a service award of $,000, and Plaintiffs Feola, Arbaugh, and Ash will each receive an award of $0,000 from the Settlement Fund. Id.. If approved, the Settlement Administrator will receive a payment not to exceed $,000 to administer the Settlement. Id.. Plaintiffs will also ask the Court to approve payment to Class Counsel of $,,00 in attorneys fees and up to $0,000 in costs. Id. 0. Finally, Plaintiffs estimate that a maximum of $,. will be deducted from the Settlement Fund to pay for employer-side taxes. See Declaration of Erika L. Nusser (Nusser Decl.). This amount is higher than the estimated amount set forth in Plaintiffs motion for preliminary approval because it assumes the highest possible tax rate that may be applied to calculate employer-side taxes. Id. The actual rate that will be applied will be provided by Schneider before final Settlement Awards are calculated but will not exceed $,.. Id. The remaining amount of at least $,,. (the Net Settlement Fund ) shall be distributed directly to Settlement Class Members who do not opt out. See Settlement Agreement. Each award will be based on the Member s aggregate proportional share of the Net Settlement Fund as split among the various claims remaining at the time of settlement as follows and as more fully set forth in the Settlement Agreement: () percent of the Net Settlement Fund will be allocated based on the Settlement Class Members pro rata rest break hours worked during the Settlement Class Period; () percent of the Net Settlement Fund will be allocated based on the Settlement Class Members pro rata per diem pay received during the ATTORNEYS FEES AND COSTS - CASE NO. :-CV-00-JCC TEL FAX 0..0

8 Case :-cv-00-jcc Document 0 Filed 0// Page of 0 0 Settlement Class Period; and () percent of the Net Settlement Fund will be allocated based on the Settlement Class Members pro rata overtime hours worked during the Settlement Class Period. Id. The average payment per Class Member is expected to be more than $,00, and the largest single payment is expected to be more than $0,000. See Nusser Decl.. Pursuant to the Class Action Fairness Act ( CAFA ), U.S.C., Schneider sent notice of the settlement to the U.S. Attorney General and the attorneys general of all states in which any Class Member resides. See Dkt. No.. After the Court granted preliminary approval, the Settlement Administrator, CPT commenced the notice program. CPT mailed, court-approved notices to Settlement Class Members. See Declaration of Melinda Yang ( CPT Decl. ) -. Prior to mailing, the names and addresses were updated using a National Change of Address ( NCOA ) database. Id.. As of the time of filing, just Notices have been returned as undeliverable with no forwarding address and where no new address could be found through skip trace. Id. 0-. CPT established a toll-free telephone number dedicated to answering calls from Settlement Class Members. Id.. CPT also established a website dedicated to the settlement. The settlement website provides answers to frequently-asked questions and access to settlement documents and key pleadings. Id. The deadline for opting out of or objecting to the Settlement is October, 0. To date, no Settlement Class Members have objected or opted out. CPT Decl. -. III. ARGUMENT AND AUTHORITY The approval process for a class action settlement takes place in three stages. See Churchill Vill., L.L.C. v. Gen. Elec., F.d, (th Cir. 00) (describing the threestage settlement approval process). The Court has granted preliminary approval of the settlement and notice has been sent. Thus, the first two stages are complete. The Court now See ATTORNEYS FEES AND COSTS - CASE NO. :-CV-00-JCC TEL FAX 0..0

9 Case :-cv-00-jcc Document 0 Filed 0// Page of 0 0 must determine whether, in light of all the information learned during the first two stages, final approval is warranted. See id. This Court has broad discretion to approve or reject a proposed settlement. In re Online DVD-Rental Antitrust Litig., F.d,, (th Cir. 0) (noting standard of review is clear abuse of discretion and emphasizing appellate court s review is extremely limited ). When considering a motion for final approval of a class action settlement under Rule, a court must determine whether the settlement is fundamentally fair. Hanlon v. Chrysler Corp., 0 F.d 0, 0 (th Cir. ). A settlement merits final approval, when the interests of the class as a whole are better served by the settlement than by further litigation. Manual for Complex Litigation (Fourth) ( MCL th ). (0). A. The Settlement satisfies the criteria for final approval. In deciding whether to grant final approval to a class action settlement, courts consider several factors, including: () the strength of the Plaintiffs case; () the risk, expense, complexity, and likely duration of further litigation; () the risk of maintaining class action status throughout the trial; () the amount offered in settlement; () the extent of discovery completed and the stage of the proceedings; () the experience and views of counsel; () the presence of a government participant; and () the reaction of the class members to the proposed settlement. Churchill, F.d at. All of these factors support settlement approval here.. The strength of Plaintiffs case. Plaintiffs continue to believe they have a very strong case but are also pragmatic in their awareness of the risks inherent in litigation. At the time the case settled, the Court had certified the Class and granted Plaintiffs summary judgment on their rest break claim and with respect to the method for determining compliance with Washington s overtime provision for truck drivers, leaving for trial the issues of () rest break damages; () liability and damages on Plaintiffs per diem deduction and overtime claims; and () whether Schneider acted willfully. One of the primary disagreements during the negotiations was the proper hourly rate to use for ATTORNEYS FEES AND COSTS - CASE NO. :-CV-00-JCC TEL FAX 0..0

10 Case :-cv-00-jcc Document 0 Filed 0// Page 0 of 0 0 purposes of calculating overtime compliance, and Plaintiffs faced the risk that a jury would not accept their expert s calculations. Another primary disagreement centered on the legality of Schneider s per diem compensation scheme. Finally, Schneider vehemently denied that its conduct was willful. The reality that Settlement Class Members could end up recovering less in damages than Plaintiffs expert had calculated or losing some claims at trial was significant enough to convince Plaintiffs and their counsel that the Settlement reached with Schneider outweighs the gamble and expense of further litigation.. The risk, expense, complexity, and likely duration of further litigation. Litigation would be lengthy and expensive if this action were to proceed. Although trial was imminent at the time the parties reached the Settlement, the case was far from over. Schneider almost certainly would have appealed any judgment in Plaintiffs favor, and Settlement Class Members would likely not have received any relief for years. Such a delay would have increased the risk that Plaintiffs would lose their rest break claim entirely (and the associated willfulness claim) if lobbyists in the trucking industry were successful in pushing for amendment of the Federal Aviation Administration Authorization Act (FAAAA). For years, that industry has sought an amendment to the FAAAA that would result in state laws on paid rest breaks being preempted by the FAAAA and such amendment having retroactive effect. If such an amendment to the FAAAA became law, Schneider could have argued for retroactive application even if Plaintiffs succeeded at trial. This Settlement avoids these risks and provides immediate and certain relief.. The risk of maintaining class action status through trial. The parties extensively litigated the issue of class certification. See Dkt. Nos.,,,,,,. Schneider has strenuously denied that class certification was appropriate and petitioned the Ninth Circuit for permission to appeal the Court s Order certifying the Class. See Dkt. No.. Indeed, at the time of settlement, Schneider had moved ATTORNEYS FEES AND COSTS - CASE NO. :-CV-00-JCC TEL FAX 0..0

11 Case :-cv-00-jcc Document 0 Filed 0// Page of 0 0 to decertify the Class. See Dkt. No.. While Plaintiffs anticipate the Court would have rejected decertification, there was nevertheless a continued risk of decertification at trial or on appeal.. The amount offered in settlement. The Settlement Agreement requires Schneider to pay $,0,000. The Settlement Fund will be used to pay Settlement Class Members after deducting Class Representative incentive awards, attorneys fees and costs, and settlement administration fees and costs as approved by the Court. If the Court approves, Plaintiff Mendis will receive a service award of $,000, and Plaintiffs Feola, Arbaugh, and Ash will each receive an award of $0,000 from the Settlement Fund. See Settlement Agreement. If approved, Class Counsel will be reimbursed for $,,00 in attorneys fees and up to $0,000 in costs, and the Settlement Administrator will be paid fees and costs in an amount not to exceed $,00. Id. 0,. If approved, the remaining amount of at least $,,. (after a maximum of $,. in employer-side payroll taxes is deducted) shall be distributed directly to Settlement Class Members. Id. -. The amount that of each Settlement Class Members award is based on the Member s aggregate proportional share of the Net Settlement Class Fund as split among the various claims remaining at the time of settlement. See id. All Settlement Class Members who do not timely opt out will receive a payment equal to approximately () percent of their actual damages for the rest break claim; () percent of their actual damages for the per diem claim (to the extent the Class Member is part of the per diem subclass); and () to 0 percent of their actual damages for the overtime claim (to the extent the Class The total amount of the employer-side payroll taxes won t be known until Schneider receives a 0 tax rate notice from the Washington State Employment Security Department. CPT Decl.. For now, the Settlement Administrator has estimated the employer-side taxes figure using the highest possible aggregate rate, which is sixteen percent. Id. Based on Schneider s 0 aggregate rate, which Schneider has provided to Class Counsel, the actual percentage is expected to be less than percent, which will result in a larger payment to the Settlement Class. Nusser Decl.. ATTORNEYS FEES AND COSTS - CASE NO. :-CV-00-JCC TEL FAX 0..0

12 Case :-cv-00-jcc Document 0 Filed 0// Page of 0 0 Member is part of the overtime subclass). These percentages are substantially above the percentage recoveries obtained in settlements approved by other courts. See, e.g., Rodriguez v. W. Publ g Corp., F.d, (th Cir. 00) (approving settlement amounting to 0 percent of the damages estimated by the class expert; court noted that even if the plaintiffs were entitled to treble damages that settlement would be approximately 0 percent of the estimated damages); In re Mego Fin. Corp. Sec. Litig., F.d, (th Cir. 000) (approving a settlement estimated to be worth between / and ½ of the plaintiffs estimated loss); In re Omnivision Tech., Inc., F. Supp. d 0, 0 (N.D. Cal. 00) (approving settlement amounting to nine percent of estimated total damages). Thus, this element supports final approval.. The extent of discovery completed and stage of proceedings. Courts consider the extent of discovery completed and the stage of the proceedings in determining whether a class action settlement is fair, adequate and reasonable. Shames v. Hertz Corp., No. 0 CV-, 0 WL, at * (S.D. Cal. Nov 0, 0). This case settled just before trial after more than three years of hotly-contested litigation during which Plaintiffs conducted written discovery, reviewed thousands of pages of documents, conducted multiple Rule 0(b)() depositisons, certified a class, defended a decertification motion and multiple motions for summary judgment, prevailed on a motion for partial summary judgment, and began preparing for trial. See Dkt. No. -. Entering mediation, both parties were well informed about the strengths and weaknesses of their respective cases, and a settlement was only reached after discussions that followed two formal mediations. Id. Plaintiffs were well informed of the strength and weaknesses of their case, and they agreed to settle only because the Settlement best serves the Class. Id. The percentages of actual damages being recovered were derived from Plaintiffs expert for the per diem and rest break claims. See Dkt. No. - at 0-. For the overtime claim, Plaintiffs expert calculated damages using both the Bureau of Labor Statistics regular rates proposed by Plaintiffs and the $/hour regular rate proposed by Schneider, which explains the range. Dkt. No.. The overtime damage calculations assume a jury would find that the reasonable equivalent percentage is 0 percent of what a driver would have made at the assumed hourly rate. Id.; see also Dkt. No. - at. ATTORNEYS FEES AND COSTS - CASE NO. :-CV-00-JCC TEL FAX 0..0

13 Case :-cv-00-jcc Document 0 Filed 0// Page of 0 0. The experience of counsel supports final approval. Where Class Counsel is qualified and well informed, their opinion that a settlement is fair, reasonable, and adequate is entitled to significant weight. See Pelletz v. Weyerhaeuser Co., F.R.D., (W.D. Wash. 00). Here, Class Counsel are highly experienced class action litigators. Dkt. No. -0. Class Counsel believe the proposed settlement is fair, reasonable, adequate, and in the best interest of the Class. Dkt. No... The presence of a governmental participant. Schneider notified the U.S. Attorney General, Washington State Attorney General, and the Washington State Department of Labor & Industries. See Dkt. No.. Not a single government entity has objected to the settlement or sought to intervene. Thus, this factor weighs in favor of settlement approval. See Garner v. State Farm Auto Ins. Co., No. CV 0 CW (EMC), 00 WL, * (N.D. Cal. April, 00).. The reaction of Settlement Class Members. A positive class response to a settlement as evidenced by a small percentage of optouts and objections supports final approval. See Pelletz, F.R.D. at -; Tadepalli v. Uber Techs., Inc., No. -CV-0-MEJ, 0 WL, at * (N.D. Cal. Apr., 0) (quoting In re Omnivision Techs., Inc., F. Supp. d at 0) (observing the absence of a large number of objections to a proposed class action settlement raises a strong presumption that the terms of a proposed class settlement action are favorable to the class members ). To date, no Settlement Class Members have objected or opted out. The deadline for objecting or opting out of the Settlement is October, 0. If necessary, Plaintiffs will analyze this factor further after the deadline has passed. B. Settlement Class Members received the best notice practicable. In preliminarily approving the Settlement, this Court determined that the notice program in this case meets the requirements of due process and applicable law, constitutes the best notice practicable under the circumstances, and is due and sufficient notice to all individuals ATTORNEYS FEES AND COSTS - CASE NO. :-CV-00-JCC TEL FAX 0..0

14 Case :-cv-00-jcc Document 0 Filed 0// Page of 0 0 entitled thereto. Dkt. No.. This notice program was fully implemented by the independent administrator, CPT. See generally CPT Decl. The class notice and notice process approved by this Court and implemented by CPT adequately informed Settlement Class Members of the nature of the action and these proceedings, the terms of the proposed settlement, the effect of the action and release of these claims, the right to exclude themselves from the action, and their right to object to the proposed settlement, as required for final approval of class under Federal Rule of Civil Procedure and in compliance with In re Mercury Interactive Corp. Sec. Litig., F.d, (th Cir. 00). The notice program successfully reached Settlement Class Members. CPT estimates that notice has reached percent of Settlement Class Members. CPT Decl. -. C. Plaintiffs request for incentive awards should be granted. Plaintiffs requested incentive awards, which promote the public policy of encouraging individuals to undertake the responsibility of representative lawsuits, should be approved. See Rodriguez, F.d at (th Cir. 00) (finding service awards may also be appropriate 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 act as a private attorney general. ). Plaintiffs request incentive awards not to exceed $,000 for Plaintiff Mendis to compensate him for his contributions in stepping forward initially to bring this case and given his service and involvement as the sole Class Representative for more than a year, including through the parties first mediation. Dkt. No.. Plaintiffs request $0,000 each for Plaintiffs Feola, Arbaugh, and Ash to compensate them for their service as Class Representatives through the pendency of this case. Plaintiffs Mendis, Feola, Arbaugh, and Ash all assisted counsel, participated in discovery, including sitting for their depositions, participated in settlement negotiations, and were prepared to testify at trial. Dkt. No.. Plaintiffs support of the settlement is independent of any service ATTORNEYS FEES AND COSTS - CASE NO. :-CV-00-JCC TEL FAX 0..0

15 Case :-cv-00-jcc Document 0 Filed 0// Page of 0 0 award and not conditioned on the Court awarding any particular amount or any award at all. See Radcliffe v. Experian Info. Solutions, F.d, (th Cir. 0) (finding incentive award must not corrupt the settlement by undermining the adequacy of the class representatives and class counsel ). Plaintiffs requested service awards are appropriate and in line with awards approved by this Court. See, e.g., Pelletz v. Weyerhaeuser Co., F. Supp. d, -0 & n. (W.D. Wash. 00) (approving $,00 service awards and collecting decisions approving awards ranging from $,000 to $0,000). D. The Settlement Administration fees and costs should be approved. The Settlement Agreement also provides for payment of settlement administration expenses from the common settlement fund. See Settlement Agreement. CPT is administering the settlement, including providing Class Members notice of the settlement by mail, mailing settlement checks, maintaining the settlement website, and handling all tax reporting duties associated with the settlement. CPT Decl.. CPT has agreed to cap its fee for settlement administration expenses at $,00. Id.. For a settlement of this size, $,00 in administration expenses from the common fund is low, particularly in light of the work required to establish a Settlement Fund, create a settlement website, format settlement notices, mail notices to Class Members, process and mail settlement payments, and handle tax reporting duties. The administration expenses paid from the common fund are reasonable and necessary to inform Class Members of the settlement and ensure the settlement is fairly administered. Thus, Plaintiffs request approval of a settlement administration expense award of $,00. E. Class Counsel s attorneys fees and costs request should be approved.. Class Counsel s requested fees are reasonable. Attorneys fees provisions included in proposed class action settlement agreements are, like every other aspect of such agreements, subject to the determination whether the ATTORNEYS FEES AND COSTS - 0 CASE NO. :-CV-00-JCC TEL FAX 0..0

16 Case :-cv-00-jcc Document 0 Filed 0// Page of 0 0 settlement is fundamentally fair, adequate, and reasonable. Staton v. Boeing Co., F.d, (th Cir. 00) (quoting Fed. R. Civ. P. (e)). Where counsel seek fees from a common fund, courts have discretion to use one of two methods to determine whether the request is reasonable: percentage-of-the-fund or lodestar/multiplier. Id. at -; see also In re Mercury Interactive Corp., F.d at ; Hanlon, 0 F.d at 0. Though courts have discretion to choose which calculation method they use, their discretion must be exercised so as to achieve a reasonable result. In re Bluetooth Headset Prods. Liab. Litig., F.d, (th Cir. 0). Class Counsel s request for fees is reasonable under either analysis. a. Lodestar analysis supports Class Counsel s fee request. Under the lodestar/multiplier method, the district court first calculates the lodestar by multiplying the reasonable hours expended by a reasonable hourly rate. In re Wash. Pub. Power Supply Sys. Sec. Litig., F.d, n. (th Cir. ); see also Staton, F.d at. If circumstances warrant, the court may adjust the lodestar to account for other factors which are not subsumed within it. Staton, F.d at & n.. When examined through the lens of the lodestar calculation method, the payment of $,,00 for attorneys fees is shown to be fair and reasonable. Over the past more than three years, Class Counsel have spent more than,00 hours prosecuting this case on behalf of the Class. See Nusser Decl. ; Declaration of Gregory Wolk (Wolk Decl.). Calculated using their current rates, counsel s lodestar is $,.0. Nusser Decl. ; Wolk Decl.. In addition, Counsel estimate they will incur an additional $,000 in fees to prosecute this case through final settlement approval. Nusser Decl. ; Wolk Decl.. The lodestar calculations of Plaintiff s counsel are based on reasonable hourly rates. Plaintiff s counsel set their rates for attorneys and staff members based on a variety of factors, including among others: the experience, skill and sophistication required for the types of legal services typically performed; the rates customarily charged in the markets where legal services are typically performed; and the experience, reputation and ability of the attorneys and staff ATTORNEYS FEES AND COSTS - CASE NO. :-CV-00-JCC TEL FAX 0..0

17 Case :-cv-00-jcc Document 0 Filed 0// Page of 0 0 members. Nusser Decl. ; Wolk Decl.. The rates charged for attorneys and staff members working on this matter range from $0 to $, with the majority of the work performed by Ms. Nusser at an hourly rate of $00 and Mr. Rekhi at an hourly rate of $0. See Nusser Decl. ; Wolk Decl.. In addition, Class Counsel s rates have been approved in class action cases brought in the Washington U.S. District Courts and state courts. See Nusser Decl. ; Wolk Decl.. Upward adjustments may be appropriate based on the results obtained, the quality of representation, or the delay in payment to class counsel. MCL th., at -. For example, to compensate prevailing parties for any delay in the receipt of fees, courts will often apply current rather than historic rates in order to adjust for inflation and the loss of funds. Gates v. Deukmejian, F.d, 0 (th Cir. ) ( A fee award at current rates is intended to compensate prevailing attorneys for lost income they might have received through missed investment opportunities as well as lost interest. ); see also MCL., at. Under Washington law, courts may adjust the lodestar amount upward to compensate the attorneys for the risk that litigation would be unsuccessful and that no fee would be obtained, or where the quality of services rendered was superior. Burnside v. Simpson Paper Co., Wn. App. 0,, P.d () (quoting Bowers v. Transamerica Title Ins. Co., 00 Wn.d, -, P.d ()), aff d, Wn. d, P.d (); see also Bowers, 00 Wn.d at - (an upward adjustment recognizes the contingent nature of success, and the quality of work performed ). In contingency cases, Washington courts have recognized that the prospect of an upward adjustment is an important tool in encouraging litigation. Wash. State Commc n Access Project v. Regal Cinemas, Inc., Wn. App.,, P.d (0). One court surveyed Washington state court cases in which multipliers were considered, finding that multipliers were most often awarded in cases brought under liberally construed remedial statutes with fee-shifting provisions designed to further the ATTORNEYS FEES AND COSTS - CASE NO. :-CV-00-JCC TEL FAX 0..0

18 Case :-cv-00-jcc Document 0 Filed 0// Page of 0 0 statutory purposes, including three of four cases involving wage claims. Berryman v. Metcalf, Wn. App.,,, P.d (0). An upward adjustment is appropriate in this case on both grounds. The contingency adjustment is based on the notion that attorneys generally will not take high risk contingency cases, for which they risk no recovery at all for their services, unless they can receive a premium for taking that risk. Pham v. City of Seattle, Wn. d,, P.d (00); see also Carlson v. Lake Chelan Cmty. Hosp., Wn. App., -, P.d (00) (affirming a. multiplier where counsel proceeded at considerable risk, defense counsel granted no concessions, and there was no assurance of recovery ). Class Counsel assumed the risk that they would not be compensated for their work on this case, particularly given the unsettled questions regarding the appropriate hourly rate at which to measure compliance with Washington s requirement that truck drivers be paid the reasonable equivalent to overtime. In Hill v. Garda CL Northwest Inc., the Washington Court of Appeals recently affirmed a multiplier of. in a wage and hour case because of the contingent nature of the work and because plaintiffs counsel assumed the risk of no recovery. No. --I, 0 WL 0, at *- (Wash. Ct. App. Mar., 0). Also challenging was Plaintiffs claim that Schneider violated the law by deducting from the wages of drivers using a per-diem payment scheme. The superior quality of Class Counsel s services is demonstrated by their three-year commitment to this case and the excellent result achieved for the Class. The Washington Supreme Court has recognized that quality can be a valid enhancer when the representation is unusually good, taking into account the circumstances of the case and the skill required to litigate it. Wash. State Physicians Ins. Exch. & Ass n v. Fisons Corp., Wn.d, -, P.d 0 () (affirming a. multiplier based upon the fact that part of the fees were contingent upon success, and on the quality of the work performed by plaintiffs attorneys in a difficult case ); see also Barovic v. Ballmer, Nos. C-00 JCC, C -00 JCC, 0 WL ATTORNEYS FEES AND COSTS - CASE NO. :-CV-00-JCC TEL FAX 0..0

19 Case :-cv-00-jcc Document 0 Filed 0// Page of 0 0, at * (W.D. Wash. Jan., 0) (awarding a multiplier of. in recognition of the substantial benefit the plaintiffs counsel achieved for the class and the significant risk they assumed). Schneider pulled no punches in this litigation, appealing class certification, requiring Plaintiffs to file a motion to send notice of certification to the Class, and vigorously litigating every factual and legal issue. Without the dedicated attention of skilled attorneys representing their interests, Class members would have been unable to survive the many challenges of the case and negotiate such a favorable resolution. Plaintiffs request for a fee $,,00, represents a modest. multiplier on Class Counsel s total anticipated lodestar ($,.0 lodestar + $,000 in additional fees through final approval). In recognition of the risk and the high quality work performed, Plaintiffs requested attorneys fee award is reasonable and appropriate and should be granted. See Vizcaino, 0 F.d at 0- (approving multiplier of. and citing survey of class settlements from through 00 showing most multipliers range from.0 to.0). b. The percentage of the fund analysis supports Class Counsel s fee request. The requested attorneys fees are also reasonable under the percentage method. In common fund cases, the benchmark award in the Ninth Circuit is percent of the recovery obtained. See, e.g., Hanlon v. Chrysler Corp., 0 F.d 0, 0 (th Cir. ). Here, Class Counsel request approval of the benchmark amount. Because the fee request is for percent of the common fund, it is reasonable. Id. The fee request is particularly reasonable in light of the risks inherent in a wage and hour class action. Indeed, there was a real possibility that Class Counsel would recover nothing for their work. Counsel took their charge seriously and endeavored to represent the interests of the Class to the greatest extent possible. For these reasons, Class Counsel ask that this Court approve the fee of $,,00, which is percent of the common fund. ATTORNEYS FEES AND COSTS - CASE NO. :-CV-00-JCC TEL FAX 0..0

20 Case :-cv-00-jcc Document 0 Filed 0// Page 0 of 0 0. Class Counsel are entitled to recover reasonable litigation expenses. In a class action, the court may award reasonable litigation costs that are authorized by law or by the parties agreement. Fed. R. Civ. P. (h). Reasonable costs and expenses incurred by an attorney who creates or preserves a common fund are reimbursed proportionately by those class members who benefit from the settlement. In re Media Vision Tech. Sec. Litig., F. Supp., (N.D. Cal. ); see also Wininger v. SI Mgmt., L.P., 0 F.d, 0- (th Cir. 00) (noting that jurisdiction over a fund allows for the district court to spread the costs of the litigation among the recipients of the common benefit ). To date, Class Counsel have incurred out-of-pocket litigation expenses totaling $,0., primarily to cover expenses related to legal research, investigation, discovery, travel, mediation fees, expert fees, and administrative costs such as copying, mailing, and messenger expenses. Nusser Decl. 0; Wolk Decl.. These out-of-pocket costs were necessary to secure the resolution of this litigation and should be recouped. See In re Immune Response Sec. Litig., F. Supp. d, (S.D. Cal. 00) (finding that costs such as filing fees, photocopy costs, travel expenses, postage, telephone and fax costs, computerized legal research fees, and mediation expenses are relevant and necessary expenses in a class action litigation). The requested reimbursement of $0,000 in out-of-pocket expenses is fair and reasonable. IV. CONCLUSION This $,0,000 settlement is fair, adequate, and reasonable in light of the potential obstacles to recover in this case and the risks of continued litigation. Awards of $,000 to Plaintiff Mendis and $0,000 each to Plaintiffs Feola, Arbaugh, and Ash are reasonable given their service to the Class. An award of $,00 for settlement administration expenses from the common fund is also appropriate. Finally, it is appropriate for the Court to grant the benchmark award of percent of the common fund for attorneys fees and $0,000 in reasonable litigation costs given the high quality-work performed and successful resolution achieved. For ATTORNEYS FEES AND COSTS - CASE NO. :-CV-00-JCC TEL FAX 0..0

21 Case :-cv-00-jcc Document 0 Filed 0// Page of 0 these reasons, Plaintiff respectfully request that the Court enter the Proposed Order Granting Final Approval. RESPECTFULLY SUBMITTED AND DATED this th day of October, 0. By: /s Erika L. Nusser, WSBA #0 Toby J. Marshall, WSBA # tmarshall@terrellmarshall.com Erika L. Nusser, WSBA #0 enusser@terrellmarshall.com Telephone: (0) -0 Facsimile: (0) -0 Hardeep S. Rekhi, WSBA # hardeep@rekhiwolk.com Gregory A. Wolk, WSBA # greg@rekhiwolk.com REKHI & WOLK, P.S. Warren Avenue North, Suite 0 Seattle, Washington 0 Telephone: (0) - Facsimile: (0) - Attorneys for Plaintiffs and Class Members 0 ATTORNEYS FEES AND COSTS - CASE NO. :-CV-00-JCC TEL FAX 0..0

22 Case :-cv-00-jcc Document 0 Filed 0// Page of 0 0 CERTIFICATE OF SERVICE I, Erika L. Nusser, hereby certify that on October, 0, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Douglas E. Smith, WSBA # desmith@littler.com Kellie Anne Tabor, WSBA #0 ktabor@littler.com LITTLER MENDELSON, P.C. One Union Square 00 University Street, Suite 00 Seattle, Washington 0- Telephone: (0) -00 Facsimile: (0) - Joel H. Spitz, Admitted Pro Hac Vice jspitz@mcguirewoods.com Michael R. Phillips, Admitted Pro Hac Vice mphillips@mcguirewoods.com McGUIREWOODS LLP West Wacker Drive Chicago, Illinois 00 Telephone: () 0- Facsimile: () -0 Matthew C. Kane, Admitted Pro Hac Vice mkane@mcguirewoods.com McGUIREWOODS LLP 00 Century Park East, th Floor Los Angeles, California 00 Telephone: (0) - Facsimile: (0) -0 Attorneys for Defendant ATTORNEYS FEES AND COSTS - CASE NO. :-CV-00-JCC TEL FAX 0..0

23 Case :-cv-00-jcc Document 0 Filed 0// Page of DATED this th day of October, 0. By: /s/ Erika L. Nusser, WSBA #0 Erika L. Nusser, WSBA #0 enusser@terrellmarshall.com Telephone: (0) -0 Facsimile: (0) -0 Attorneys for Plaintiffs and Class Members 0 0 ATTORNEYS FEES AND COSTS - CASE NO. :-CV-00-JCC TEL FAX 0..0