Case 3:15-cv WHO Document Filed 11/17/17 Page 1 of 24

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1 Case :-cv-0-who Document 0- Filed // Page of Graham S.P. Hollis, Esq. (SBN 0) Vilmarie Cordero, Esq. (SBN 0) Fifth Avenue, Suite 00 San Diego, California 0 Telephone:..000 Facsimile:..0 Attorneys for Plaintiffs Jessica Jimenez, Orlando Mijos, Sara Wright and Aggrieved Employees FIFTH AVENUE SUITE 00 SAN DIEGO, CALIFORNIA 0 0 JESSICA JIMENEZ and ORLANDO MIJOS, individually and on behalf of all other current and former similarly situated California employees of Defendants, v. Plaintiffs, MENZIES AVIATION, INC., MENZIES AVIATION GROUP (USA), INC., and DOES THROUGH 0, inclusive Defendants. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION Case No.: -CV-0-WHO MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS UNOPPOSED MOTION FOR AN AWARD OF ATTORNEYS FEES AND COSTS Date: January, 0 Time: :00 p.m. Judge: Hon. William H. Orrick Location: Courtroom, th Floor Complaint Filed: June, 00 Trial Date: April, 0 0 CASE No. -CV-0-WHO

2 Case :-cv-0-who Document 0- Filed // Page of TABLE OF CONTENTS I. SUMMARY OF ARGUMENT... II. CLASS MEMBERS FAVORABLE RESPONSE TO THE SETTLEMENT... Page III. LEGAL ARGUMENTS... A. THE AWARD OF THE REQUESTED ATTORNEY S FEES IS APPROPRIATE UNDER THE COMMON FUND DOCTRINE... B. A LOADSTAR CROSS-CHECK CONFIRMS THE REASONABLENESS OF CLASS COUNSEL S FEE REQUEST... FIFTH AVENUE SUITE 00 SAN DIEGO, CALIFORNIA 0 0 C. CLASS COUNSEL SATISFIES ALL FACTORS JUSTIFYING THE UPWARD ADJUSTMENT FROM % BENCHMARK...0. The Results Achieved.... The Risk Involved with the Litigation.... Counsel s Skill, Experience, and Quality of Work.... The Contingent Nature of the Fee.... Awards Made in Similar Cases.... The Reaction of the Class.... The Comparison of the Benchmark with Counsel s Lodestar... D. CLASS COUNSEL S COSTS WERE REASONABLY INCURRED... IV. CONCLUSION... 0 i CASE No. -CV-0-WHO

3 Case :-cv-0-who Document 0- Filed // Page of FIFTH AVENUE SUITE 00 SAN DIEGO, CALIFORNIA TABLE OF AUTHORITIES United States Supreme Court Cases ii CASE No. -CV-0-WHO Page(s) Blum v. Stenson U.S.. ()... Boeing Co. v. Van Gemert U.S. (0)..., Central R.R. & Banking Co. v. Pettus U.S. ()... Hensley v. Eckerhart U.S. ()..., 0 Federal Cases In re Activision Sec. Litig. F. Supp. (N.D. Cal. )... Adoma v. University of Phoenix, Inc. F.Supp.d (E.D. Cal. 0)... Antonopulos v. N. Am. Thoroughbreds, Inc. WL (S.D. Cal. May, )... Barani v. Wells Fargo Bank, N.A. No. -cv-, 0 WL, at * (S.D. Cal. Apr., 0).., Beasley v. Wells Fargo Bank Cal. App. d 0 ()... Bell v. Farmers Ins. Exchange Cal. App. th (00)... In re Bluetooth Headset Products Liab. Litig. F.d at..., Collins v. ITT Educ. Servs., Inc. No. -cv- (S.D. Cal. Jan., 0)... Craft v. County of San Bernardino F.Supp.d (C.D. Cal. 00)... Cunningham v. Cnty. of Los Angeles F.d (th Cir.)...

4 Case :-cv-0-who Document 0- Filed // Page of 0 Davis v. The Money Store, Inc., Sacramento County Super. Ct. No. AS0 (Dec., 000)... Dennis v. Kellogg, Co. 0 WL 0, at * (S.D. Cal. Nov., 0)... Dunk v. Ford Motor Co. Cal. App. th ()... Fernandez v. Victoria s Secret Stores 00 WL 0 (C.D. Cal. July, 00)... Fernandez v. Victoria Secret Stores, Inc. Case No. 0-0, 00 U.S. Dist. LEXIS (C.D. Cal. July, 00)... Gentry v. Super. Ct. Cal. th (00)... FIFTH AVENUE SUITE 00 SAN DIEGO, CALIFORNIA 0 0 In re GNC Shareholder Litig. F. Supp. 0 (W.D. Pa. )... Hanlon v. Chrysler Corp. 0 F.d 0 (th Cir. )... In re Heritage Bond Litig. 00 WL 0... In re Immune Response Sec. Litig., F. Supp. d (S.D. Cal. 00)... Ingalls v. Hallmark Mktg. Corp. No. 0-CV--VBF (E), 00 U.S. Dist. LEXIS 0 (C.D. Cal. Oct., 00)... Kerr v. Screen Extras Guild, Inc. F.d (th Cir.)... Knight v. Red Roof Salons, Inc. 00 WL (N.D. Cal. Mar., 0)..., Laffitte v. Robert Half International Inc. Cal.th 0, 0 (0)... Lealao v. Beneficial California, Inc. Cal. App. th (000)...,, LED, LLC v. ebay, Inc. 0 WL, at * (N.D. Cal. June, 0)... iii CASE No. -CV-0-WHO

5 Case :-cv-0-who Document 0- Filed // Page of Mangold v. Cal. Public Util. Comm n. F.d 0 (th Cir. )... McCown v. City of Fontana F.d 0 (th Cir.00)... McKenzie v. Fed. Exp. Corp. F. Supp. d (C.D. Cal. 0)... FIFTH AVENUE SUITE 00 SAN DIEGO, CALIFORNIA In re Media Vision Tech. Sec. Litig. F.Supp. (N.D. Cal.)... In re Mego Fin. Corp. Sec. Litig. F.d (th Cir. 000)... Monterrubio v. Best Buy Stores, L.P. 0 U.S. Dist LEXIS 0 (E.D. Cal. Nov. 0, 0)... Multi-Ethnic Immigrant Workers Org. Network v. City of Los Angeles 00 WL 00 (C.D. Cal. June, 00)... Nat l Rural Telecomm. Coop. v. Direct TV, Inc. F.R.D. (C.D. Cal. 00)... Nichols v. Smithkline Beecham Corp. 00 WL 0, at * (E.D. Pa. April, 00) In re Omnivision Techs, Inc. F. Supp. d 0 (N.D. Cal. Jan., 00)...,,, In re Pacific Enters. Sec. Litig. F.d (th Cir. ) (%)... Paul Johnson, Alston & Hunt F.d at... Powers v. Eichen F.d (th Cir. 000)...0 In re Pub. Serv. Co. of N.M. WL (S.D. Cal. July, )... Richmond v. Dart Indus., Inc. Cal. d ()... Rodriguez v. Disner F.d at fn.... iv CASE No. -CV-0-WHO

6 Case :-cv-0-who Document 0- Filed // Page of 0 Romero v. Producers Dairy Foods, Inc. 00 WL (E.D. Cal. Nov., 00)... Schiller v. David s Bridal, Inc. 0 WL 00 (E.D. Cal. June, 0)... Singer v. Becton Dickinson & Co. No. 0-CV--IEG (BLM), 00 WL 0 (S.D. Cal. June, 00)..., Six Mexican Workers v. Arizona Citrus Growers 0 F.d 0, (th Cir.0), Staton v. Boeing Co. F.d (th Cir. 00)...,, Sutton v. Bernard 0 F.d (th Cir. 00)... FIFTH AVENUE SUITE 00 SAN DIEGO, CALIFORNIA 0 0 Swedish Hosp. Corp. v. Shalala F.d (D.C. Cir. )... In re TFT-LCD (Flat Panel) Antitrust Litig. 0 U.S. Dist. LEXIS (N.D. Cal. Apr., 0)... Tokar v. GEICO, San Diego County Super. Ct. No. GIC 0 (July, 00)... Vasquez v. Coast Valley Roofing, Inc. F.R.D. (E.D. CA 00)..., Vasquez v. Super Ct. Cal. d 00 ()... Vincent v. Hughes Air West, Inc. F.d, (th Cir. )... Vizcaino v. Microsoft 0 F.d 0 (th Cir. 00)... passim In re Wash. Pub. Power Supply System Sec. Litig. F.d (th Cir. )...,, Wininger v. SI Mgmt., L.P. 0 F.d (th Cir.00)... Winterrowd v. Am.Gen. Annuity Ins. Co. F.d.at... v CASE No. -CV-0-WHO

7 Case :-cv-0-who Document 0- Filed // Page of Wright, et al. v. Menzies Aviation, Inc., et al. Case No. BC0... -Eleven Owners for Fair Franchising v. The Southland Corp. Cal.App.th, 0 (000).. Other Authorities Menell, A Note on Private Versus Social Incentives to Sue in a Costly Legal System, J. Legal Stud. ()... Rubenstein, Conte and Newberg, Newberg on Class Actions at :... 0 FIFTH AVENUE SUITE 00 SAN DIEGO, CALIFORNIA 0 0 vi CASE No. -CV-0-WHO

8 Case :-cv-0-who Document 0- Filed // Page of I. SUMMARY OF ARGUMENT After seven years of aggressive litigation and three mediation sessions, Class Counsel successfully negotiated a Class and PAGA Action Settlement and Release ( Settlement ), which provides a common fund of $,0,000.00, to be paid to Settlement Class Members. As part of the 0 Settlement, the parties agreed to an award of attorneys fees of $,., which constitutes / of the common fund. To date, % of the Class Members have received the Class Notice, and no class members objected to the Settlement, and no class member has requested exclusion. The excellent result of this Settlement was due to the commitment and skill of Class Counsel and an award of one-third of the common fund represents fair compensation for Class Counsels significant efforts and high quality of work completed. Representation of Plaintiffs and the Class Members was FIFTH AVENUE SUITE 00 SAN DIEGO, CALIFORNIA 0 entirely contingent on winning their wage and hour claims before seeking an award of attorney s fees. Moreover, Class Counsels fee request is well within the range commonly awarded in comparable cases and is well-justified here, particularly taking into account the excellent results achieved on behalf of the Settlement Class and the amount of work performed by Class Counsel during the past seven years. Class Counsels fee request is also supported by a lodestar multiplier cross-check. GRAHAMHOLLIS APC loadstar to date exceeds $,,.0. Nonetheless, Class Counsel has negotiated the recovery of only $,. in attorney s fees, which represents only % of the value of the services Class 0 Counsel has already rendered in the Actions. Class Counsel is requesting that they also be reimbursed from the common fund for the out-of- pocket expenses reasonably incurred during this litigation. The out-of-pocket expenses Class Counsel seek are routinely reimbursed litigation costs that are typically charged to fee-paying clients, including: court filing fees; copying; postage; computerized factual and legal research charges; attorney/messenger All terms shall have the same meaning as set forth in the Class and PAGA Action Settlement and Release. A true and correct copy of the fully executed Settlement, including all amendments made by the parties, and preliminarily approved by this Court on June, 0 is attached to the Declaration of Graham S.P. Hollis, Esq. in Support of Plaintiffs Unopposed Motion for An Award of Attorney s Fees and Costs ( Hollis Decl. ) as Exhibit A. Actions means the present litigation ( Jimenez litigation ) and the Class Action and PAGA lawsuit filed on July, 00 on behalf of a class of non-exempt employees of Defendants working at the Los Angeles International Airport, in the California Superior Court, County of Los Angles: Wright, et al. v. Menzies Aviation, Inc., et al., Case No. BC0, (the Wright Litigation) CASE No. -CV-0-WHO

9 Case :-cv-0-who Document 0- Filed // Page of 0 service fees; travel expenses to attend mediation meetings; and mediator fees. All of these expenses were incurred in the normal course of Class Counsel s business and are of the sort normally billed to paying clients. Thus, Class Counsel should be reimbursed for these reasonable expenditures. Therefore, this Court should grant Class Counsel s requested attorney s fee of $,. and reimbursement of reasonable litigation costs in the amount of $ because these amounts are justified by (a) the knowledge and skill I and my firm provided in benefit for Plaintiff and the Class; (b) the complexity of the issues involved in this class action litigation; (c) the amount of work involved in achieving an excellent result for the Settlement Classes and bringing the Actions to an efficient resolution prior to the trial, (d) the associated risks to my firm by litigating this class action in a purely contingency basis, and (e) the lack of objections and favorable response of the Settlement Class to the FIFTH AVENUE SUITE 00 SAN DIEGO, CALIFORNIA 0 Settlement. II. CLASS MEMBERS FAVORABLE RESPONSE TO THE SETTLEMENT On June, 0, this Court granted preliminary approval of the Settlement and appointed GRAHAMHOLLIS, A.P.C., as Class Counsel. [Dkt. #.] Furthermore, the Court approved of the form and manner of giving notice of the proposed Settlement to the Settlement Classes. The Settlement Administrator, CPT Group, Inc. ( CPT ) and Class Counsel have been carrying out the requirement of the Court s June, 0 Order granting preliminary approval of the Settlement. (Hollis Decl. 0-.) 0 Specifically, in accordance with the Court s Order, CPT received the data from Defendants pertaining to members of the Classes and promptly performed a skip trace on all Settlement Class Members who were designated to obtain the most current address for each one of the Settlement Class Members and ensure the Notice reached the Settlement Class Members on time. Prior to the mailing of the Notice to the Class Members, CPT ran an Accurint skip trace as well as performed a basic search on the National Change of Address Database to attempt to obtain the best possible address for the Class Members before CPT mailed the notices. (Id. at.) CPT mailed the Class Notice to a total of, Class Members on October, 0. The amount requested in attorney s fees and the estimated amount of litigation costs incurred to date were specifically included in the Class Notice mailed out by the Settlement Administrator to the Class Members on October. (Hollis Decl. ; Exhibit D to Hollis Decl.) In addition, and on that same CASE No. -CV-0-WHO

10 Case :-cv-0-who Document 0- Filed // Page 0 of 0 date, CPT confirmed the creation of website for this matter making the Settlement Agreement accessible to all Settlement Class Members using the following link: (Exhibit C to Hollis Decl.) Plaintiff s Unopposed Motion for an Award of Attorney s Fees and Costs was filed on November, 0, and it was uploaded into the Settlement Administrator s static website. (Id. at 0.) Plaintiff s Unopposed Motion for an Award of Attorney s Fees and Costs is available at the Settlement Administrator s website at no cost for the Class Members to review at any time from November, 0 until the date of Final Approval. Thus, class members will have the opportunity to review Plaintiff s Motion for attorney s fees and costs prior to the close of the exclusion and objection period. As stated above, Class Counsel negotiated for the Settlement Administrator to conduct a skip FIFTH AVENUE SUITE 00 SAN DIEGO, CALIFORNIA 0 trace prior to the mailing of the Class Notice and an additional second in-depth skip trace for the Class Notices that were returned a second time without a forwarding address. As a result of Class Counsel s negotiated skip traces in the Settlement, CPT has accomplished to date the mailing of, of the, Class Notices that were mailed to the Class Members. (Id. at -; Exhibit D to Hollis Decl.) To date, only of the, notices mailed have been returned as undeliverable. Therefore, to date, approximately.% of the Class has received the Notice Packet. (Id. at.) The Settlement has been extremely well received by the Class, as evidenced by lack of 0 objections, and no requests for exclusion. (Exhibit D to Hollis Decl.) Of the, Class Members that received the Class Notice, or % of the Class, not a single Class Member has objected to the terms of the Settlement to date or submitted a request for exclusion. (Exhibit D to Hollis Decl.) The Notice Packets also contain Class Counsel s direct phone number. Class Counsel has spoken with many Class Members who were interested in obtaining more information about the Settlement and has not received any objection to the Settlement or any objections to the Settlement Amounts. (Id. at.) III. LEGAL ARGUMENTS A. THE AWARD OF THE REQUESTED ATTORNEY S FEES IS APPROPRIATE UNDER THE COMMON FUND DOCTRINE Class Counsel seeks, pursuant to the Stipulation, attorney s fees in the amount of $,. for their efforts in achieving the proposed Settlement for the benefit of the Class and future employees. CASE No. -CV-0-WHO

11 Case :-cv-0-who Document 0- Filed // Page of 0 This amount is reasonable when considered under the common fund method for analyzing a fee request. In diversity actions like this one, the Ninth Circuit applies state law to determine the right to fees and the method for calculating fees. Mangold v. Cal. Public Util. Comm n., F.d 0, - (th Cir. ) ( [e]xisting Ninth Circuit precedent has applied state law in determining not only the right to fees, but also in the method of calculating the fees. ) Plaintiff in this case pled California Labor Code claims, thus, the Ninth Circuit applies state law to determine the right to fees and the method for calculating fees. Rodriguez v. Disner, F.d at fn.. citing Mangold v. Cal. Public Util. Comm n., F.d at -; Winterrowd v. Am.Gen. Annuity Ins. Co., F.d.at ( state law [also] establishes the required showing for attorney s fees in an action in diversity. ) In California, the Supreme Court of California has consistently held the amount of attorney fees FIFTH AVENUE SUITE 00 SAN DIEGO, CALIFORNIA 0 typically negotiated in comparable litigation should be considered in the assessment of a reasonable fee in representative and class actions in which a fee agreement is impossible. Lealao v. Beneficial California, Inc., Cal. App. th, (000). Courts may use the lodestar method or the percentage of the benefit bestowed upon the class. Laffitte v. Robert Half International Inc., Cal.th 0, 0 (0). The percentage of the benefit bestowed method is generally preferred in common fund cases because [that] approach is a result-oriented rather than process oriented, [and] it better approximates the workings of the marketplace than the lodestar approach[.] Lafitte, Cal.th at 0; Lealao, Cal. 0 App. th at ; see also Adoma v. University of Phoenix, Inc., F.Supp.d, - (E.D. Cal. 0) (employing percentage of recovery method in wage and hour class action alleging violations of Labor Code). Given the unique reliance of our legal system on private litigants to enforce substantive provisions of law through class and derivative actions, attorneys providing the essential enforcement services must be provided incentives roughly comparable to those negotiated in the private bargaining that takes place in the legal marketplace, as it will otherwise be economic for defendants to increase injurious behavior. Lafitte, Cal.th at 0-0; Lealao, Cal. App. th at citing Deposit Guaranty Nat. Bank v. Roper, U.S., (0); Beasley v. Wells Fargo Bank, Cal. App. d 0, (); Menell, A Note on Private Versus Social Incentives to Sue in a Costly Legal System, J. Legal Stud. (). It has therefore been urged (most persistently by Judge Richard Posner) that in defining a reasonable fee in such representative actions the law should mimic the market. CASE No. -CV-0-WHO

12 Case :-cv-0-who Document 0- Filed // Page of 0 Lealao, Cal. App. th at. Awards of common fund fees are essential to furthering the important societal goal of attracting competent counsel to handle class actions, which California courts recognize as an important, necessary and desirable tool for assuring the effective enforcement of the Labor Code and minimum labor standards. See, e.g., Vasquez v. Super Ct., Cal. d 00, 0 () (class action justified to prevent random and fragmentary enforcement of employer s legal obligations); Richmond v. Dart Indus., Inc., Cal. d, () ( this state has a public policy which encourages the use of the class action device ); Bell v. Farmers Ins. Exchange, Cal. App. th, (00) ( By preventing a failure of justice... the class action not only benefits the individual litigant but serves the public interest in the enforcement of legal rights and statutory sanctions. ) [citation omitted]. Thus, the traditional method for calculating a fee award in a common fund case is to award counsel a percentage FIFTH AVENUE SUITE 00 SAN DIEGO, CALIFORNIA 0 of the total fund. Blum v. Stenson, U.S., 00 at n.. (). The Ninth Circuit have long recognized that when counsel s efforts result in the creation of a common fund that benefits plaintiffs and unnamed class members, counsel have an equitable right to be compensated from that fund for their efforts in creating it. See Boeing Co. v. Van Gemert, U.S., (0) ( lawyer who recovers a common fund... is entitled to a reasonable attorney s fee from the fund as a whole ); Staton v. Boeing Co., F.d, (th Cir. 00); In re Wash. Pub. Power Supply System Sec. Litig., F.d, 00 (th Cir. ) ( those who benefit from the creation of a 0 fund should share the wealth with the lawyers whose skill and effort helped create it ). The fee award must be reasonable. Staton, F.d at -. The fairest way to calculate a reasonable fee when contingency-fee litigation has produced a fixed settlement amount for the Class Members is by awarding Class Counsel a percentage of the total settlement sum. See, e.g., Blum, U.S. at 00 n. ; In re Bluetooth Heaset Products Liab. Litig., F.d, (th Cir. 0). [A] private plaintiff, or his attorney, whose efforts create, discover, increase or preserve a fund to which others also have a claim is entitled to recover from the fund the costs of his litigation, including attorneys fees. Vincent v. Hughes Air West, Inc., F.d, (th Cir. ); Class Plaintiffs v. Jaffe & Schlensinger, P.A., F.d 0, 0 (th Cir. ). The percentage method comports with the realities of legal marketplace, where counsel s success is frequently measured in terms of the results counsel has achieved. See Swedish Hosp. Corp. v. CASE No. -CV-0-WHO

13 Case :-cv-0-who Document 0- Filed // Page of 0 Shalala, F.d, (D.C. Cir. ) (in common fund cases the monetary amount of the victory is often the true measure of the [counsel s] success ). When clients do not pay an ongoing hourly fee to counsel, they typically negotiate an agreement by which counsel s fee is based upon a percentage of any recovery obtained. The percentage of the fund approach mimics this arrangement, and accordingly, reflects the fee that would have been negotiated by the class members in advance, had such negotiations been practicable, given the prospective uncertainties and anticipated risks and burdens of the litigation. See Sutton v. Bernard, 0 F.d, (th Cir. 00) ( In deciding fee levels in common fund cases, we have consistently directed district courts to do their best to award counsel the market price for legal services in light of the risk of nonpayment and the normal rate of compensation in the market at the time. ) (quoting In re Synthroid Mktg. Litig., F.d, (th Cir. 00).) The FIFTH AVENUE SUITE 00 SAN DIEGO, CALIFORNIA 0 market-based percentage approach also helps to provide highly qualified attorneys the incentive necessary to bring such large, complex class actions. Because the percentage approach essentially mirrors what the market would provide, it approximates what an attorney would likely obtain as a fee if such fees were negotiated with each class member in advance. In consideration of the fact that such negotiations are not feasible in large class actions such as this, the percentage approach is a fair and much efficient means of effectively providing what the market otherwise would. The percentage method also promotes judicial economy and efficiency, as it is a far more straightforward and simple 0 method of calculation than other methods. In re Activision Sec. Litig., F. Supp., (N.D. Cal. ). Finally, a percentage approach is favorable because it ensures that the incentives of class members and counsel are aligned; it thus encourages class counsel to spend their time and resources efficiently toward maximizing the size of the class recovery, rather than working just to increase the lodestar hour. Vizcaino v. Microsoft, 0 F.d 0, 00 n. (th Cir. 00) ( it is widely recognized that the lodestar method creates incentives for counsel to expend more hours than may be necessary on litigating a case so as to recover a reasonable fee, since the lodestar method does not reward early settlement. ); In re Activision Sec. Litig., F. Supp. at. The common fund approach is especially suitable where, as here, a readily ascertainable (indeed, fixed) settlement sum is available to the Class Members and the benefits received by the Class can be CASE No. -CV-0-WHO

14 Case :-cv-0-who Document 0- Filed // Page of 0 monetized without undue speculation. Lealao, Cal. App. th at - citing Johnston v. Comerica Mortg. Corp., F.d (th Cir. ); see also Dunk v. Ford Motor Co., Cal. App. th, 0-0 (). The common funds doctrine rests on the commonsense notion that attorneys should normally be paid by their clients, and that unless attorneys fees are paid out of the common fund, those who benefited from the fund without contributing would be unjustly enriched while the client who created the fund faces the possibility of receiving no benefit because his recovery might be consumed by expenses. Boeing Co. v. Van Gemert, U.S., (0) (the United States Supreme Court has recognized consistently that a litigant or lawyer who recovers a common fund... is entitled to a reasonable attorneys fee from the fund as a whole ); Central R.R. & Banking Co. v. Pettus, U.S. () (recognizing common fund doctrine); Staton v. Boeing Co., F.d, (th Cir. FIFTH AVENUE SUITE 00 SAN DIEGO, CALIFORNIA 0 00) (same); see also, Paul Johnson, Alston & Hunt, F.d at ( [I]t is well settled that the lawyer who creates a common fund is allowed an extra reward, beyond that which he has arranged with his client, so that he might share the wealth of those upon whom he has conferred a benefit. ) Importantly here, a fee award under this method would achieve the two underlying goals of the common fund doctrine by () equitably requiring the beneficiaries of the common fund to pay their pro rata share of fees incurred in creating the fund, and () providing an incentive to attract competent counsel to handle wage and hour class actions, which California courts recognize as a fundamental tool 0 to ensure the effective enforcement of the Labor Code and minimum labor standards. See e.g. Gentry v. Super. Ct., Cal. th, - (00) (emphasizing the indispensable value of private enforcement of California s wage-and-hour laws through class actions). Class Counsel requests an award of $,., which constitutes / of the Maximum Settlement Amount to be paid by Defendants into a common fund. In the Ninth Circuit, % of the common fund is the benchmark for an attorneys fee award. See e.g. In re Washington Public Power Supply Sec. Litig., F.d, (th Cir. ). However, The benchmark percentage should be adjusted, or replaced by a lodestar calculation, when special circumstances indicate that the percentage recovery would be either too small or too large in light of the hours devoted to the case or other relevant factors. Six Mexican Workers, 0 F.d at. CASE No. -CV-0-WHO

15 Case :-cv-0-who Document 0- Filed // Page of 0 Courts in the Ninth Circuit frequently award fees greater than the % benchmark. See e.g. In re Mego Fin. Corp. Sec. Litig., F.d, 0 (th Cir. 000) (affirming award of fees equal to onethird of the total recovery); Monterrubio v. Best Buy Stores, L.P., 0 U.S. Dist LEXIS 0 at * (E.D. Cal. Nov. 0, 0) (finding 0% to be reasonable); In re TFT-LCD (Flat Panel) Antitrust Litig, 0 U.S. Dist. LEXIS * (N.D. Cal. Apr., 0) (.%); Singer v. Becton Dickinson & Co., No. 0-CV--IEG (BLM), 00 WL 0, at * (S.D. Cal. June, 00) (court awarded Class Counsel, GrahamHollis, APC then known as GraceHollis, LLP fees equal to /% in a wage and hour class action lawsuit); Ingalls v. Hallmark Mktg. Corp., No. 0-CV--VBF (E), 00 U.S. Dist. LEXIS 0 (C.D. Cal. Oct., 00) (wage and hour class action awarding fees equal to /%); Fernandez v. Victoria Secret Stores, Inc., Case No. 0-0, 00 U.S. Dist. LEXIS (C.D. Cal. FIFTH AVENUE SUITE 00 SAN DIEGO, CALIFORNIA 0 July, 00) (wage and hour class action awarding %); In re Omnivision Techs, Inc., F. Supp. d 0, 0 (N.D. Cal. Jan., 00) ( [I]n most common fund cases, the award exceeds that [%] benchmark. ). Likewise, in the present case the Court should award the requested / % of the common fund as attorney s fees, because, as explained in further detail below, Class Counsel meets all the requirements justifying an upward adjustment of this % benchmark, or replacement by a lodestar calculation, and their efforts resulted in an identifiable and certain amount (a Maximum Settlement 0 Amount of $,0,000) for the Class Members benefit, and the Settlement Agreement provides for payment of Class Counsel s fees from this fund. Each and every settlement Class Member is eligible to receive his or her Settlement share without having to submit a claim. It is only equitable that Class Members should pay their pro rata share of attorney s fees at a reasonable percentage-of-recovery rate to compensate Class Counsel for their efforts in creating the $,0, common fund. This amount is well within the range customarily approved by California courts in comparable California Labor Code and wage and hour class actions. See e.g. Big Lots Overtime Cases, San Bernardino County Super. Ct., JCC Proceeding No. (Feb., 00) (% fee recovery); Tokar v. GEICO, San Diego County Super. Ct., No. GIC 0 (July, 00) (approving award of attorney s fees of -/% of recovery); Davis v. The Money Store, Inc., Sacramento County Super. Ct., No. AS0 (Dec., 000) (.% of $,000,000 settlement); see also Conte & Newberg, Newberg on Class Actions (th ed. 00) CASE No. -CV-0-WHO

16 Case :-cv-0-who Document 0- Filed // Page of FIFTH AVENUE SUITE 00 SAN DIEGO, CALIFORNIA : (studies show that fee awards in class actions average around one-third of the recovery ). Accordingly, it is well within this Court s discretion to award fees to Class Counsel under the common fund doctrine. B. A LOADSTAR CROSS-CHECK CONFIRMS THE REASONABLENESS OF CLASS COUNSEL S FEE REQUEST The lodestar method serves to cross-check the reasonableness of the requested fees. In re Bluetooth Headset Products Liab. Litig., F.d at. [T]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. Hensley v. Eckerhart, U.S., (). An hourly rate is reasonable when in it is consistent with the hourly rates of the lawyers for the region the Complaint was filed and the years of experience of the lawyer. Staton, F.d, at. Though the lodestar figure is presumptively reasonable, Cunningham v. Cnty. of Los Angeles, F.d, (th Cir.), the court may adjust it upward or downward by an appropriate positive or negative multiplier reflecting a host of reasonableness factors, including the quality of representation, the benefit obtained for the Class, the complexity and novelty of the issues presented, and the risk of nonpayment, Hanlon v. Chrysler Corp., 0 F.d 0, 0 (th Cir. ) (citing Kerr v. Screen Extras Guild, Inc., F.d, 0 (th Cir.)). Foremost among these considerations is the benefit obtained for the Class. See Hensley, U.S. at, (); McCown v. City of Fontana, F.d 0, 0 (th Cir.00) (ultimate reasonableness of the fee is determined primarily by reference to the level of success achieved by the plaintiff ). Class Counsel s lodestar may be adjusted upward by employing an upward multiplier reflecting the factors enumerated in Kerr. Hanlon, 0 F.d at 0; In re Bluetooth Headset Products Liab. Litig., F.d at. As detailed in the Hollis Declaration, Class counsel s current adjusted lodestar is $,,.0 taking into account all reasonable hours worked on litigating Plaintiffs and Class Members claims alleged in the Actions for the past seven years. (Hollis Decl. -.) This amount of,,.0 represents a total of,.0 hours, after exercising discretion and removing many hours that were excessive, redundant, or otherwise unnecessary. Hensley, U.S. at. (Id.) The final billable time summary for the Actions does not include the additional hours of attorney time and paralegal time which CASE No. -CV-0-WHO

17 Case :-cv-0-who Document 0- Filed // Page of 0 is anticipated to be incurred in preparation of Plaintiff s Motion for Final Approval of Class Action Settlement, preparation for oral argument at the Final Approval Hearing, traveling to San Jose and attending the Final Approval Hearing, and carrying out post-settlement tasks such as claims administration and contacts with class members. (Id.; Exhibits G and H to Hollis Decl.) These,.0 total hours were then multiplied by the hourly rates which are typical for the geographical location and experience of the attorneys handling this matter. (Hollis Decl. -) Class Counsel s attorney fee request of $,. does not require a multiplier. In fact, Class Counsel negotiated the recovery of only $,. in attorney s fees, which represents only % of the value of the services Class Counsel has already rendered in the Actions. Given the numerous and labor-intensive tasks Class Counsel has performed for the benefit of Plaintiffs and the Classes, as described in the attached FIFTH AVENUE SUITE 00 SAN DIEGO, CALIFORNIA 0 declaration, the hours of work performed by Class Counsel (which have been greatly reduced in the exercise of billing judgment) are extremely reasonable. (Hollis Decl. -; Exhibits G and H to Hollis Decl.) The rates used to calculate the lodestar are also reasonable. Class Counsel s high level of experience, and strong reputations and capabilities, as described in the attached declaration, justifies the rates they charge. Furthermore, these rates are commensurate with the rates charged by other attorneys of comparable skill and experience litigating complex wage and hour class actions. (Id. at -.) These hourly rates have also been approved by multiple other state and federal courts. (Id. -, ; 0 Exhibit B to Hollis Decl.). C. CLASS COUNSEL SATISFIES ALL FACTORS JUSTIFYING THE UPWARD ADJUSTMENT FROM % BENCHMARK Regardless of the approach for awarding attorneys fees, the critical determination is that the award be reasonable. Powers v. Eichen, F.d, (th Cir. 000). The fairness of the fee award requested is supported in this case by the high quality of Class Counsel s work, and the larger than average amount of time, preparation and negotiation that went into litigating the Actions. The Ninth Circuit has identified a number of factors that may be relevant to the Court s determination as to the reasonableness of a requested attorneys fee award, namely: () the results achieved; () the risks of litigation; () the skill required and the quality of work; () the complexity of the issues, () the contingent nature of the fee; () the burdens carried by class counsel; and () the 0 CASE No. -CV-0-WHO

18 Case :-cv-0-who Document 0- Filed // Page of 0 awards made in similar cases. See Vizcaino, 0 F.d at 0-0. These are essentially the same factors that can lead to an upward adjustment of the % benchmark, or replacement by a lodestar calculation, to account for any unusual circumstances in the case. Six Mexican Workers v. Arizona Citrus Growers, 0 F.d 0, (th Cir.0); Vizcaino, supra, 0 F.d at 0. Federal courts consider these factors to arrive at a reasonable multiplier of a lodestar figure. Schiller v. David s Bridal, Inc., 0 WL 00, at * (E.D. Cal. June, 0); Craft v. County of San Bernardino, F.Supp.d, (C.D. Cal. 00); Richardson, supra, 0 WL, at *. Here, those factors are satisfied.. The Results Achieved Absent the Settlement, Plaintiffs and the Class would not see any monetary recovery for years, if FIFTH AVENUE SUITE 00 SAN DIEGO, CALIFORNIA 0 at all. After extensive litigation and formal discovery, this Court ruled on the merits of most of Plaintiffs class action causes of action as part of the parties Motions for Partial Summary Judgment, and agreed with Defendants. The court issued an Order granting Defendants Motion for Partial Summary Judgment on December, 0. [Dkt. #.] Under these circumstances, the Settlement achieved represents a good result for the Settlement Class Members. (Hollis Decl. -.) As Plaintiffs previously detailed in their Motion for preliminary approval, although Plaintiff and Class Counsel compromised to achieve the Settlement, the compromise is extremely fair, adequate and 0 reasonable considering the substantial risks involved with pursuing further litigation. [Exhibit F to Hollis Decl. 0-0; 0-, pp. 0-.] The Settlement here provides substantial and significant recovery to the Classes. For example, the Itemized Wage Statement Class and the Waiting Time Penalties Class will receive % of the Net Settlement Amount, or approximately $,0.00, which closely approximates the full realistic value of the claims. (Hollis Decl., ; Exhibit F to Hollis Decl. -, pp. -.) The courts frequently approve class action settlements where the proportional recovery for the class is lower than in this case. In In re Omnivision Techs., F.Supp.d at 0, the court affirmed a settlement representing % of maximum potential recovery. See also Custom LED, LLC v. ebay, Inc., 0 WL, at * (N.D. Cal. June, 0) (.% to % of maximum recovery approved); Nichols v. Smithkline Beecham Corp., 00 WL 0, at * (E.D. Pa. April, 00) (approving settlement that represented between.% and.% of the claimed damages); Barani CASE No. -CV-0-WHO

19 Case :-cv-0-who Document 0- Filed // Page of 0 v. Wells Fargo Bank, N.A., No. -cv-, 0 WL, at * (S.D. Cal. Apr., 0) (settlement acceptable even if it amounts to only a small percentage of the potential recovery available at trial); Simply put, the fact that a proposed settlement may only amount to a fraction of the potential recovery does not...mean that [it]...should be disapproved. -Eleven Owners for Fair Franchising v. The Southland Corp., Cal.App.th, 0 (000) (citation omitted). Here, each of the Settlement Class Members is eligible to receive their share of the Settlement. Moreover, the estimated amounts will very likely increase because the Settlement mandates that all sums from un-cashed checks sent as part of the Settlement Administrator s first payment distribution shall be maintained by the Settlement Administrator and shall be redistributed as part of the Settlement Administrator s second payment distribution, (if the total amount of the un-cashed checks is equal to or FIFTH AVENUE SUITE 00 SAN DIEGO, CALIFORNIA 0 greater than $0,000) pursuant to the appropriate ratios, to the participating class members who deposited their checks. Therefore, the Class Members will receive timely and substantial monetary recovery as part of the Settlement. This Settlement provides substantial relief to all Class Members without further delay, and without the risks associated with the trials in the Actions and the imminent Appeals in two separate courts. Thus, the results achieved weigh in favor of granting the requested attorneys fees.. The Risk Involved with the Litigation 0 The risk that further litigation might result in no recovery for Plaintiff is an important factor to consider in the award of fees. In re Omnivision Techs., F.Supp.d at 0-; Vizcaino, 0 F.d at 0. As stated above,, this Court ruled on the merits of most of Plaintiffs class action causes of action as part of the parties Motions for Partial Summary Judgment, and agreed with Defendants. The court issued an Order granting Defendants Motion for Partial Summary Judgment on December, 0. [Dkt. #.] Plaintiffs and Class Counsel strongly believe and contend that the legal issues presented as part of the parties Partial Summary Judgment Motions would have been resolved differently if taken on Appeal. However, there is no guarantee that the appellate courts will reverse the trial Court s decision, and Plaintiffs acknowledge that Defendants possessed legitimate defenses to liability in the Actions. Regarding Plaintiffs and Class Members remaining wage statement claims and PAGA civil penalties claims, Plaintiffs and the Class still faced substantial risks of no recovery after CASE No. -CV-0-WHO

20 Case :-cv-0-who Document 0- Filed // Page 0 of 0 trial in the Actions, or that they would receive substantially less amounts that the one negotiated in the Settlement. See e.g. McKenzie v. Fed. Exp. Corp., F. Supp. d, 0 (C.D. Cal. 0). Thus, Plaintiffs and the Class faced significant risks that their wage and hour claims would not prevail at trial, should this litigation continue. Even if they prevailed at trial, the parties will have to engage in expensive and protracted appellate practice, in two separate Courts of Appeals, as Defendants dispute the granting of the class certification ruling for Plaintiffs in the Actions. (Exhibit F to Hollis Decl. -, pp. -.) Thus, this risk factor weighs in favor of and / % fee award.. Counsel s Skill, Experience, and Quality of Work The prosecution and management of a complex class action require unique legal skills and abilities. Knight v. Red Roof Salons, Inc., 00 WL, at * (N.D. Cal. Mar., 0), citing FIFTH AVENUE SUITE 00 SAN DIEGO, CALIFORNIA 0 Edmonds v. United States, F.Supp., (D.S.C. ). Here, Class Counsel has decades of experience in prosecuting complex class actions - in particular class actions for violations of state and federal wage and hour laws - and has achieved settlements amounting to hundreds of millions of dollars on behalf of class members. Class Counsel has been lead or co- lead counsel in over a hundred class action cases in California. (Hollis Decl. -;Ex. B to Hollis Decl.). The Contingent Nature of the Fee Courts have long recognized the public interest is served by rewarding attorneys who assume 0 representation on a contingent basis with an enhanced fee to compensate them for the risk they might be paid nothing at all for their work. See In re Wash. Pub. Power Supply Syst. Sec. Litig., F.d at ( 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. ); Vizcaino, 0 F.d at 0 (courts reward successful class counsel in contingency case by paying them a premium over their normal hourly rates ). Here, Class Counsel prosecuted this case on a purely contingent basis, agreeing to advance all necessary expenses and taking a risk they would not get paid at all if there is no recovery. (Hollis Decl.,.) Class Counsels outlay of time and money in this case has been considerable. Class Counsel have spent many hours investigating, analyzing, researching, litigating, and negotiating a favorable CASE No. -CV-0-WHO

21 Case :-cv-0-who Document 0- Filed // Page of 0 resolution of this case and have incurred a substantial amount of necessary litigation expenses. (Hollis Decl. -.) Class Counsel expended these resources despite the very real risk they may never be compensated at all. Class Counsel s substantial outlay, when there is a risk that that none of it will be recovered, further supports the award of the requested fees here. Omnivision, F. Supp. d at 0. Thus, this factor favors award of the and /% fee.. Awards Made in Similar Cases District courts frequently approve attorneys fees exceeding the % of the settlement fund. [I]n most common fund cases the award exceeds [the %] benchmark. Knight, 00 WL, at *. Other case law surveys suggest that 0% is the upper limit, with 0-0% commonly being awarded in cases in which the common fund is relatively small. See Rubenstein, Conte and Newberg, Newberg on FIFTH AVENUE SUITE 00 SAN DIEGO, CALIFORNIA 0 Class Actions at :. A review of California district court cases reveals that courts usually award attorneys' fees in the 0-0% range in wage and hour class actions resulting in the recovery of a common fund under $0 million. For example in Vasquez v. Coast Valley Roofing, Inc., F.R.D., - (E.D. CA 00), the court approved.% of the common fund in attorneys fees, noting that this percentage is still significantly less than Class Counsel s asserted lodestar. (Here, similarly, Class Counsel s lodestar greatly exceeds the requested fee award.). Other recent wage and hour actions where courts approved the fee awards of 0% or higher 0 include: Collins v. ITT Educ. Servs., Inc., No. -cv- (S.D. Cal. Jan., 0), Dkt. No. at (% of the common fund); Fernandez v. Victoria s Secret Stores, 00 WL 0, at * (C.D. Cal. July, 00) (awarding % of the common fund); Singer v. Becton Dickinson and Co., 00 WL 0, * (S.D. Cal. June, 00) (approving fee award of.% of the common fund and holding that award was similar to awards in three other wage and hour class action cases where fees ranged from 0.% to 0%); Romero v. Producers Dairy Foods, Inc., 00 WL, at *, - (E.D. Cal. Nov., 00) (approving fee award of % of the class recovery in wage and hour class action involving allegations of unpaid wages and missed meal and rest breaks for a class of delivery drivers). The requested award here is similar to those awarded by courts in Southern and Central Districts. See, e.g. In re Pub. Serv. Co. of N.M, WL, at * (S.D. Cal. July, ) (.%); Antonopulos v. N. Am. Thoroughbreds, Inc., WL, at * (S.D. Cal. May, ) (%); see CASE No. -CV-0-WHO

22 Case :-cv-0-who Document 0- Filed // Page of 0 also In re Pacific Enters. Sec. Litig., F.d, (th Cir. ) (%). In sum, the one third fee award sought here, is consistent with other class actions where the recovery is less than $0 million.. The Reaction of the Class The reaction of the class may also be taken into account when determining the reasonableness of a fee request. In re Heritage Bond Litig., 00 WL 0 at *; see also Nat l Rural Telecomm. Coop. v. Direct TV, Inc., F.R.D., (C.D. Cal. 00) ( It is established that 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. ); Richardson, 0 WL, at *. FIFTH AVENUE SUITE 00 SAN DIEGO, CALIFORNIA 0 Here, the court-approved notice, clearly and explicitly states the amount of attorneys fees and costs was mailed to class members on October, 0. (Exhibit C and D to Hollis Decl.) To date, there has been no objection to the Settlement. (Hollis Decl. The absence of any objection to the request of attorneys fees, after notice, indicates its reasonableness. In re Immune Response Sec. Litig., F. Supp. d, (S.D. Cal. 00).. The Comparison of the Benchmark with Counsel s Lodestar Courts often compare an attorney s lodestar with a fee request made under the percentage of the 0 fund method as a cross-check on the reasonableness of the requested fee. See Vizcaino, 0 F.d at 00. Where the lodestar exceeds the benchmark percentage of the fund amount, it is appropriate to consider the lodestar in determining a reasonable upward adjustment of a percentage fee award. Multi- Ethnic Immigrant Workers Org. Network v. City of Los Angeles, 00 WL 00, at * (C.D. Cal. June, 00); see also Dennis v. Kellogg, Co., 0 WL 0, at * (S.D. Cal. Nov., 0) (a fee equaling lodestar is essentially at cost without any multiplier and thus appears reasonable, perhaps even a discount... ). In Vasquez, supra, F.R.D. at -, the court approved.% of the common fund in attorneys fees, noting this percentage was still significantly less than Class Counsel asserted lodestar. Comparison with Class Counsel s lodestar shows the requested fee award is reasonable. CASE No. -CV-0-WHO

23 Case :-cv-0-who Document 0- Filed // Page of 0 D. CLASS COUNSEL S COSTS WERE REASONABLY INCURRED As part of the Settlement Agreement, the parties agreed that Class Counsel shall be entitled to recover their reasonable litigation costs from the Maximum Payment. It is well settled that lawyers whose efforts resulted in creating a common fund for the benefit of the class are entitled to recover reasonable costs incurred in successful prosecution of the action. In re Media Vision Tech. Sec. Litig., F.Supp., (N.D. Cal.) ( Reasonable costs and expenses incurred by an attorney who creates or preserves a common fund are reimbursed proportionately by those class members who benefit by the settlement. ); 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 ). FIFTH AVENUE SUITE 00 SAN DIEGO, CALIFORNIA 0 Here, Class Counsel s actual litigation expenses and costs in this action are $,00.. (Hollis Decl. 0-; Exhibits I and J to Hollis Decl.) These expenses include the amounts paid for court filing fees, mediator fees, deposition transcripts, document copying fees, legal research charges, deposition and mediation travel expenses, and delivery charges, all of which are costs normally billed to and paid by the client. These costs were reasonably incurred in the prosecution of this matter and are authorized by the Settlement. In additional to being reasonable, all of these costs were necessary to prosecute the litigation and were undertaken for the benefit of the class. Accordingly, they are 0 reimbursable. See In re GNC Shareholder Litig., F. Supp. 0, (W.D. Pa. ). Furthermore, no Class Member has objected to the requested costs and expenses. Therefore, Class Counsel request for reimbursement for out-of-pocket litigation costs in the amount of $,00. are fair and reasonable and should be awarded. Class Counsel has attached detailed expenses reports (including copies of the invoices and receipts) for the out of pocket costs incurred by Class Counsel in the Actions. (Exhibits I and J to Hollis Decl.) / / / / / / / / / / / / CASE No. -CV-0-WHO

24 Case :-cv-0-who Document 0- Filed // Page of IV. CONCLUSION For the foregoing reasons, Class Counsel respectfully request the Court issue an Order finally determining and approving the payment of $,. as reasonable attorney s fees and the reimbursement of $,00. for necessary costs and expenses. Respectfully submitted, 0 Dated: November, 0 By: /s/ Graham S.P. Hollis Vilmarie Cordero Graham S.P. Hollis Attorneys for Plaintiffs Jessica Jimenez, Orlando Mijos, Sara Wright and aggrieved employees FIFTH AVENUE SUITE 00 SAN DIEGO, CALIFORNIA 0 0 CASE No. -CV-0-WHO