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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JON VALLIERE, et al.,

Plaintiffs,

v.

TESORO REFINING & MARKETING 

COMPANY LLC, et al.,

Defendants.

Case No. 17-cv-00123-JST 

ORDER GRANTING MOTION FOR 

ATTORNEY’S FEES AND MOTION 

FOR FINAL APPROVAL

Re: ECF Nos. 120, 123

Before the Court is Plaintiffs’ unopposed motion for final approval of class action 

settlement, ECF No. 123, and unopposed motion for a service award, attorney’s fees, and costs, 

ECF No. 120. The Court will grant the motions. 

I. BACKGROUND

A. Parties and Claims

In this putative class action, Plaintiffs allege that Defendants Tesoro Refining and 

Marketing Company LLC and Tesoro Logistics GP, LLC (collectively, “Tesoro”) violated the 

California Labor Code and the Unfair Competition Law. First Amended Complaint (“FAC”), 

ECF No. 89. Plaintiffs are or were employed as operators at Tesoro’s oil refineries and facilities 

in Martinez, Carson, Long Beach, Signal Hill, or Wilmington, California. Id. ¶ 10. Plaintiffs 

allege that they were scheduled for 8-hour, 10-hour, or 12-hour shifts during which Tesoro 

uniformly required them to stay on duty the entire shift. Id. ¶ 21. Because they were required to 

monitor their radios and respond to emergencies at all times during their shifts, they did not 

receive off-duty rest breaks for every four-hour work period, as required by California law. Id. 

¶¶ 22-23. Plaintiffs further allege that Tesoro failed to maintain complete and accurate payroll 

records. Id. ¶ 26. Plaintiffs’ operative complaint seeks damages, an injunction, and declaratory 

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relief. Id. at 16-17. 

B. Procedural History

Plaintiffs Chris Azpeitea, Eileen Foster, Antonio Garcia, and Samantha Scott filed this suit 

on January 10, 2017. ECF No. 1. On March 21, 2017, Tesoro filed a motion to dismiss, ECF No. 

16, which was mooted by the filing of an amended complaint, ECF No. 21. On March 22, 2017, 

Jinetra Bonner filed suit in Sacramento Superior Court, alleging the same claims and an additional 

claim for meal break violations. Bonner v. Tesoro Refining & Marketing Co., LLC, Case No. 17-

cv-3850-JST, ECF No. 1. On May 3, 2017, Defendants removed Bonner to the United States 

District Court for the Eastern District of California. Id. On June 12, 2017, Bonner filed a motion 

to change venue to the Northern District of California. Bonner, ECF No. 6. Pursuant to 

stipulation, the Bonner Court dismissed Bonner’s meal break claims to limit her complaint to the 

same claims alleged in this action. Bonner, ECF No. 12. The Bonner Court then granted the 

motion to change venue. Bonner, ECF No. 14. 

This Court related the two actions on July 25, 2017. Bonner, ECF No. 22. On Plaintiffs’ 

motion, ECF No. 49, the Court consolidated the two cases and appointed Hadsell Stormer & 

Renick, LLP as interim lead counsel. ECF No. 52. Plaintiffs filed a consolidated complaint, ECF 

No. 56, and Defendants answered, ECF No. 57. On November 23, 2018, Plaintiffs filed a notice 

of settlement. ECF No. 75. On May 7, 2019, Plaintiffs filed the operative FAC, ECF No. 89, 

followed by a motion for preliminary approval of class action settlement, ECF No. 90. The Court 

denied the motion. ECF No. 106. 

On November 18, 2019, Plaintiffs filed an unopposed renewed motion for preliminary 

settlement approval and requested that the Court conditionally certify the class, approve the 

proposed Notice of Settlement, and set a hearing for final approval. ECF No. 107. The Court 

granted the motion on June 26, 2020. ECF No. 117. On September 4, 2020, Plaintiffs filed an 

unopposed motion for attorney’s fees, costs, and service award. ECF No. 120. On November 6, 

2020, Plaintiffs filed an unopposed motion for final approval of settlement. ECF No. 121.1 

1 Plaintiffs submitted a corrected motion for settlement, ECF No. 123, on November 10, 2020.

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Tesoro submitted a statement of non-opposition to Plaintiffs’ motion for final approval on 

November 23, 2020. ECF No. 124. 

C. Terms of the Settlement

The proposed settlement agreement (“Settlement”) resolves claims between Tesoro and the 

settlement class, defined as follows: 

[A]ll current and former employees of Defendants (or any of their 

affiliates or successors) who worked a rotating 8-hour, 10-hour, or 12-

hour shift in operations at any time during the Class Period at the i) 

Martinez Refinery or Chem Plant in Martinez, California; ii) the Los 

Angeles Refinery, Carson Operations, in Carson and Long Beach, 

California; iii) the Los Angeles Refinery, Wilmington Operations, in 

Wilmington, California; iv) the Tesoro Logistics terminal facilities at 

the Martinez Refinery; and v) the Long Beach Terminal, T2, Berth 

121, and East Hynes in Long Beach, Carson, Signal Hill, and/or 

Wilmington, California. 

ECF No. 121-2 ¶ 23. “Class Period” is defined as the period from July 19, 2013 through the date 

of preliminary approval, June 26, 2020. Id. ¶ 24. 

Under the Settlement, Defendants agree to pay $15,250,000 (the “Settlement Amount”), as 

well as the employer’s share of any payroll taxes on individual settlement payments. Id. ¶ 32. 

The Settlement Amount includes the individual payments to participating class members, the 

statutory Private Attorneys General Act (“PAGA”) payment, service awards to the class 

representatives, attorney’s fees and costs, and administrative costs. Id. The parties agree to seek 

approval for a payment of $50,000 to resolve Plaintiffs’ PAGA claims, 75% of which ($37,500) 

shall be paid to the State of California Labor Workforce Development Agency, with the remainder 

($12,500) distributed to class members. Id. ¶¶ 39, 59. Defendants agree not to oppose a service 

award to each of the named plaintiffs in an amount not to exceed $7,500 apiece. Id. ¶ 58. The 

amount awarded to class counsel shall be left to the Court’s discretion and Defendants agree only 

that they will not oppose a reasonable request for attorney’s fees and costs.2 Id. ¶ 51. Finally, the 

Settlement originally estimated $45,000 for administrative costs.3Id. ¶ 18. No portion of the 

2 Class Counsel seek attorney’s fees in the amount of $3,812,500.00 or 25% of the Settlement 

Amount and $49,093.73 in costs. ECF No. 120 at 9. 

3 As of November 10, 2020, CAC Services Group, LLC, the settlement administrator, estimates 

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Settlement Amount shall revert to Defendants. Id. ¶ 32. 

After the above deductions, Plaintiffs estimate that the net settlement to be distributed to 

class members is $11,293,409.44. ECF No. 121-11 ¶ 16. Each class member’s payment will be 

calculated on a pro rata basis, based on the number of qualifying shifts worked by each class 

member during the Class Period. ECF No. 121-2 ¶ 88. After removal of two individuals who 

submitted requests for exclusion, there are 1,561

4

class members who will receive individual 

settlement payments ranging from approximately $161.09 to $14,110.24. ECF No. 121-11 ¶ 16. 

The average net payment to class members is $7,239.37. Id. If there are unclaimed funds due to 

the inability to locate a class member or a class member’s failure to cash a settlement check, the 

funds will be awarded cy pres to the Loyola Law School Clinical and Experiential Learning 

Programs. ECF No. 121-2 ¶ 106. 

In exchange, class members will release the following claims against Defendants: 

[T]hose claims that were alleged in the Action and that arose during 

the Class Period, including in the original complaint filed in the 

Valliere action on January 10, 2017; the complaint filed in the Bonner 

action on March 22, 2017; the First Amended Class Action 

Complaint; the Second Amended Class Action Complaint; the 

original Consolidated Class Action Complaint filed on October 12, 

2017; the First Amended Consolidated Class Action Complaint;

claims for the failure to provide an off-duty rest period (Cal. Lab. 

Code §§ 226.7, 512, 558), failure to furnish timely and accurate wage 

statements arising from the failure to provide rest periods (Cal. Lab. 

Code §§ 226 and 226.3), all claims in connection with rest periods 

arising under the California Labor Code, California Industrial 

Welfare Commission Wage Order No. 1-2001, and California’s 

Unfair Competition Law (California Bus. & Prof. Code § 1700 -

17208, et seq.), all claims in connection with rest periods and 

inaccurate wage statements arising under PAGA, California Labor 

Code §§ 2698, 2699, et seq., for violations of the California Labor 

Code, including §§ 226, 226.3, 558, 226.7 and Wage Order 1-2001, 

all claims for attorneys’ fees and costs arising from the prosecution of 

all of the above claims, and all claims for restitution, disgorgement, 

and injunctive relief.

Amendment to Settlement, ECF No. 121-2 at 53-54. In addition, each of the named plaintiffs, 

Valliere, Foster, Garcia, West, and Bonner, will release a broader scope of individual claims:

the administrative costs to be $19,996.83. ECF No. 123 at 11; ECF No. 121-11 ¶ 17. 

4 At the final approval hearing, Plaintiffs’ counsel indicated that an additional member of the class 

had been identified, bringing the total from 1,560 to 1,561. 

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[A]ny and all claims, demands, rights, liabilities and causes of action 

each has had or ever had against any of the Released Parties, whether 

for economic damages, noneconomic damages, punitive damages, 

penalties, restitution, injunctive or declaratory relief, interest, 

attorneys’ fees, costs or any other forms of monetary or non-monetary 

relief in any way arising out of or relating to any facts, transactions, 

events, policies, occurrences, acts, disclosures, statements, omissions 

or failures to act at any time on or before the Effective Date, including, 

but not limited to, any claims arising from or related to their 

employment or separation of employment, contractual, and/or quasicontractual relationship with the Defendants and the Released Parties, 

or any of them; any allegations as to disputed wages, remuneration

and/or other compensation due by operation of statute, ordinance,

contract, or quasi-contract; any federal, state, or local law prohibiting

discrimination or retaliation on the basis of age, race, color, ancestry,

religion, disability, sex, national origin, or citizenship or any other

protected category, including, without limitation, claims under Title

VII, the California Fair Employment and Housing Act, the California

Labor Code, FLSA, the California IWC Orders, the Employee

Retirement Income Security Act, and the Americans With Disabilities

Act or any other similar statutes whatever the city, county, state, or

country of enactment; any claims under the Family and Medical

Leave Act of 1993 and/or the California Family Rights Act; and any

transactions, occurrences, acts, statements, disclosures, or omissions,

occurring during the Class Period. Plaintiffs’ General Release

specifically excludes claims for workers’ compensation.

ECF No. 121-2 ¶ 114. 

II. FINAL APPROVAL OF SETTLEMENT

A. Legal Standard

“The claims, issues, or defenses of a certified class may be settled . . . only with the court’s 

approval.” Fed. R. Civ. P. 23(e). “Adequate notice is critical to court approval of a class 

settlement under Rule 23(e).” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1025 (9th Cir. 1998). In 

addition, Rule 23(e) “requires the district court to determine whether a proposed settlement is 

fundamentally fair, adequate, and reasonable.” Id. at 1026. Under Ninth Circuit precedent, the 

district court must balance several factors in this analysis: 

(1) the strength of the plaintiffs’ case; (2) the risk, expense, 

complexity, and likely duration of further litigation; (3) the risk of 

maintaining class action status throughout the trial; (4) the amount 

offered in settlement; (5) the extent of discovery completed and the 

stage of the proceedings; (6) the experience and views of counsel; (7) 

the presence of a governmental participant; and (8) the reaction of the 

class members to the proposed settlement.

Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004). There is no governmental 

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participant in this case, so the Court does not consider that factor.5 

Settlements that occur before formal class certification also “require a higher standard of 

fairness.” In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 458 (9th Cir. 2000). In reviewing such 

settlements, in addition to considering the above factors, the court also must ensure that “the 

settlement is not the product of collusion among the negotiating parties.” In re Bluetooth Headset 

Prods. Liab. Litig., 654 F.3d 935, 946-47 (9th Cir. 2011) (internal quotation marks, alteration, and

citation omitted).

B. CAFA Compliance 

This action is subject to the requirements of the Class Action Fairness Act of 2005 

(“CAFA”) which requires that, within ten days of the filing of a proposed settlement, each 

defendant serve a notice containing certain required information upon the appropriate State and 

Federal officials. 28 U.S.C § 1715(b). CAFA also prohibits a court from granting final approval 

until ninety days have elapsed since notice was served under § 1715(b). Id. § 1715(d). The 

parties mailed the CAFA notices on May 17, 2019 and again on November 22, 2019. See ECF 

No. 121-2 at 73-83. 

C. Discussion

For the reasons that follow, the Court will grant final approval of the settlement.

1. Adequacy of Notice

A court must “direct notice [of a proposed class settlement] in a reasonable manner to all 

class members who would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1). The parties must 

provide class members with “the best notice that is practicable under the circumstances, including 

individual notice to all members who can be identified through reasonable effort.” Fed. R. Civ. P. 

5 The 2018 amendments to Rule 23 require the district to court to consider a similar list of factors, 

including the adequacy of representation by class representatives and class counsel, whether the 

proposal was negotiated as arm’s length, and the adequacy of the relief and equitable treatment of 

class members. Fed. R. Civ. P. 23(e)(2). These factors were “not intended ‘to displace any factor 

[developed under existing circuits’ precedent], but rather to focus the court and the lawyers on the 

core concerns of procedure and substance that should guide the decision whether to approve the 

proposal.’” Hefler v. Wells Fargo & Co., No. 16-cv-05479-JST, 2018 WL 6619983, at *4 (N.D. 

Cal. Dec. 18, 2018) (quoting Fed. R. Civ. P. 23(e)(2) advisory committee’s note to 2018 

amendment).

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23(c)(2)(B). “[T]he class must be notified of a proposed settlement in a manner that does not 

systematically leave any group without notice.” Officers for Just. v. Civ. Serv. Comm’n of City & 

Cnty. of S.F., 688 F.2d 615, 624 (9th Cir. 1982). 

The Court approved the parties’ proposed notice plan when it granted preliminary 

approval. See ECF No. 117 at 12. Under the approved notice plan, Plaintiffs retained CAC 

Services Group, LLC (“CAC”) as Claims Administrator. ECF No. 121-11 ¶ 4. As of November 

6, 2020, CAC has performed the following services for this action. Starting with the contact 

information of 1,557 potential class members provided by Defendant, CAC updated the class list 

using the National Change of Address system. Id. at ¶¶ 6(a), (b). On August 7, 2020, CAC 

mailed the Notice Packets via first-class mail, and posted the Notice and settlement documents to 

the settlement website.6 Id. ¶¶ 6(d), (e). On September 4, 2020, CAC posted Plaintiffs’ Motion 

for Attorney’s Fees, ECF No. 120, to the settlement website. ECF No. 121-11 ¶ 6(f). The Notice 

informed class members of the deadlines and instructions to dispute the number of qualifying 

shifts and to object to or opt out of the settlement. See ECF No. 121-12 at 7-9. 

Twelve individuals who were not part of the original mailing communicated with CAC or 

Plaintiffs’ counsel with requests to be added to the class. ECF No. 121-11 ¶ 6(g). The names of 

these individuals were submitted to Defendants for investigation, and it was determined that five 

of the twelve should be added as potential class members. Id. One of the five supplemental class 

members opted out, so CAC sent the additional four Notice Packets via first-class mail on 

November 4, 2020. Id. ¶ 6(h). The seven members who were not added as class members were 

sent denial letters. Id. ¶ 6(g). 

Of the 1,561 Notice Packets mailed by CAC, 35 were returned by USPS. Id. ¶ 9. For 22 

of those 35, CAC was able to locate new addresses, and the Notice Packets were successfully remailed. Id. Thus, in total, only 13 Notice Packets were ultimately undeliverable. Id. 

The deadline for class members to dispute their individual information or to object to or 

opt out of the settlement was October 9, 2020. ECF No. 123 at 17; see also ECF No. 121-12 at 9-

6 The settlement website established for this action is 

www.tesororestbreakclassactionsettlement.com. ECF No. 121-11 ¶ 6(e). 

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10. As of November 6, 2020, CAC had received no objections and only two class members had 

chosen to opt out. ECF No. 121-11 ¶¶ 11-12. CAC received communications from 78 class 

members who disputed their dates worked or qualifying shifts. Id. ¶ 13. In response to these 

disputes, Defendants provided additional qualifying shifts for 429 class members, which included 

adjustments for 71 of those individuals who submitted disputes. Id. ¶¶ 13-14. CAC 

communicated to the 71 people eligible for adjustments and with the remaining 7 people who 

disputed their qualifying shifts stating the results of the investigation. Id. ¶ 14. As a result of the 

new data provided by Defendants, 163 class members who did not file a dispute will be entitled to 

additional qualified shifts and will be compensated based on the adjusted data. Id. The new data

also showed that there were 192 class members whose qualifying shift information decreased; 

however, these individuals will still be compensated based on the original data provided in their 

Notice Packets. Id. 

In light of the above procedures, which adhere to the previously approved notice plan, the 

Court finds that the parties have sufficiently provided notice to the settlement class members. 

2. Fairness, Adequacy, and Reasonableness

a. Adequate Representation of the Class

The Ninth Circuit has explained that “adequacy of representation . . . requires that two 

questions be addressed: (a) do the named plaintiffs and their counsel have any conflicts of interest 

other class members and (b) will the named plaintiffs and their counsel prosecute the action 

vigorously on behalf of the class?” In re Mego, 213 F.3d at 462 (citation omitted). 

During the preliminary approval stage, the Court found no evidence of a conflict between 

the class and the representatives or counsel, ECF No. 117 at 8-9, and no contrary evidence has 

emerged. Indeed, Class Counsel has vigorously prosecuted this case through extensive 

investigation and discovery, and a series of formal mediation sessions. ECF No. 121-1 at 7-8. 

Likewise, class representatives have engaged with fellow class members, including at multiple 

union meetings and two 12-hour days of ratification votes at United Steelworkers Locals 5 and 

675. ECF No. 123 at 30. The Court concludes that this factor weighs in favor of approval. 

//

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b. Strength of Plaintiffs’ Case and Risks of Litigation

Approval of a class settlement is appropriate when “there are significant barriers plaintiffs 

must overcome in making their case.” Chun-Hoon v. McKee Foods Corp., 716 F. Supp. 2d 848, 

851 (N.D. Cal. 2010). Difficulties and risks in litigating weigh in favor of approving a class 

settlement. See Rodriguez v. West Publ’ng Corp., 563 F.3d 948, 966 (9th Cir. 2009). 

Plaintiffs here face significant obstacles if the case were to proceed toward trial, as they 

acknowledge. ECF No. 123 at 21. For example, federal court interpretation of California rest 

break requirements has not always been favorable to Plaintiffs’ position. See id. at 21-22 (citing 

Bell v. Home Depot U.S.A., Inc., No. 2:12-cv-02499 JAM-CKD, 2017 WL 1353779 (E.D. Cal. 

Apr. 10, 2017) and Stewart v. San Luis Ambulance, Inc., 878 F.3d 883, 886–87 (9th Cir. 2017)). 

In addition to this uncertainty, any relief for class members would be substantially delayed if the 

case went forward, based on the likelihood of summary judgment motion practice by Defendants, 

ECF No. 123 at 22, and the inherently complex and lengthy litigation involved in wage and hour 

class actions, id. at 22-23. The Court finds that this factor also weighs in favor of approval. 

c. Effectiveness of Distribution Method, Terms of Attorney’s Fees, 

and Supplemental Agreements

The Court must consider “the effectiveness of [the] proposed method of distributing relief 

to the class.” Fed. R. Civ. P. 23(e)(2)(C)(ii). Under the Settlement, each class member will 

receive a cash payment calculated based on the number and length of qualifying shifts that the 

class member worked during the class period. ECF No. 123 at 28. In the Notice Packet, class 

members were provided with their number of qualifying shifts and estimated settlement share,

ECF No. 121-12 at 4, and were given instructions on how to dispute the information, id. at 7. 

Seventy-eight class members filed disputes, and CAC adjusted the number of qualifying periods 

for 71 of those individuals, as well as for 163 other class members, based on new information 

from Defendants. ECF No. 121-11 ¶¶ 13-14. If the final settlement is approved, CAC will issue 

payments based on these qualifying periods. Id. ¶ 16. This process was a proper and effective

method for the calculation and confirmation of the settlement distribution. 

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fees,” Fed. R. Civ. P. 23(e)(2)(C)(iii), and must determine whether there are supplemental 

“agreement[s] required to be identified under Rule 23(e)(3),” Fed R. Civ. P. 23(e)(2)(C)(iv). As 

discussed below in evaluation of Plaintiffs’ motion for fees and costs, the requested attorney’s fees 

are reasonable. Plaintiffs have not identified any other agreements made in connection with the 

Settlement. These factors weight in favor of approval.

d. Equitable Treatment of Class Members

Consistent with Rule 23’s instruction to consider whether “the proposal treats class 

members equitably relative to each other,” Fed. R. Civ. P. 23(e)(2)(D), the Court considers 

whether the Settlement “improperly grant[s] preferential treatment to class representatives or 

segments of the class,” In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 1079 (N.D. Cal. 

2007) (citation omitted). 

The Settlement uses the same formula to calculate the settlement share for each class 

member, and, accordingly, treats all class members equally. ECF No. 123 at 28; see also ECF No. 

121-2 at 26-27. Accordingly, the Court finds that the Settlement treats class members equitably 

and that this factor supports approval. See Hefler, 2018 WL 6619983, at *8; see also In re 

Extreme Networks, Inc. Sec. Litig., No. 15-cv-04883-BLF, 2019 WL 3290770, at *8 (N.D. Cal. 

Jul. 22, 2019) (finding equitable to class members an allocation based on pro rata distribution).

e. Range of Recovery

“In assessing the consideration obtained by the class members in a class action settlement, 

‘it is the complete package taken as a whole, rather than the individual component parts, that must 

be examined for overall fairness.’” Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 

523, 527 (C.D. Cal. 2004) (quoting Officers for Justice, 688 F.2d at 628). “In this regard, it is 

well-settled law that a proposed settlement may be acceptable even though it amounts to only a 

fraction of the potential recovery that might be available to the class members at trial.” Id. (citing 

Linney v. Cellular Alaska P’ship, 151 F.3d 1234, 1242 (9th Cir. 1998)). 

The Settlement provides that Defendants will pay a total of $15,250,000.00. ECF No. 121-

2 at 12. Based on the records before the parties during the mediation sessions in June 2018, a 

maximum recovery for Plaintiffs’ rest break and derivative claims would have totaled 

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$30,939,490.00. ECF No. 123 at 23. Therefore, the gross settlement recovers approximately 50% 

of the potential damages. Id. This settlement avoids the litigation challenges and delays discussed 

above, and is consistent with or better than settlements approved in similar class actions. See, e.g.,

Dynabursky v. Alliedbarton Sec. Servs., LP, No. SACV 12-2210-JLS (RNBx), 2016 WL 8921915, 

at *5 (C.D. Cal. Aug. 15, 2016) (approving a settlement representing 27.5% of defendants’

maximum potential liability in wage and hour action); Vasquez v. Packaging Corp. of Am., No. 

CV 19-1935 PSG (PLAx), 2020 WL 2559490, at *8 (C.D. Cal. Mar. 27, 2020) (collecting cases 

showing approving settlements for between 25 and 35 percent of total potential liability in wage 

and hour cases). The Court concludes that the Settlement falls within the range appropriate for 

approval. 

f. Extent of Discovery

“[I]n the context of class action settlements, formal discovery is not a necessary ticket to 

the bargaining table where the parties have sufficient information to make an informed decision 

about settlement.” In re Mego, 213 F.3d at 459 (internal quotation marks and citations omitted). 

However, the extent of discovery completed supports approval of a proposed settlement, 

especially when litigation has “proceeded to a point at which both plaintiffs and defendants ha[ve] 

a clear view of the strengths and weaknesses of their cases.” Chun-Hoon, 716 F. Supp. 2d at 852 

(internal quotation marks and citation omitted). 

Here, the parties conducted sufficient discovery to make an informed decision about the 

adequacy of the Settlement. The parties have spent almost four years engaged in this litigation, 

during which Class Counsel exchanged and reviewed extensive discovery, took and defended 

several depositions, and conducted dozens of interviews with putative class members. ECF No. 

123 at 15-16, 24; see also In re Omnivision Techs., Inc., 559 F. Supp. 2d 1036, 1042 (N.D. Cal.

2008) (finding the parties were sufficiently informed about the case prior to settling because they

engaged in discovery, took depositions, briefed motions, and participated in mediation). This

factor weighs in favor of approval.

g. Counsel’s Experience

Class Counsel recommends the proposed settlement be approved as serving the best 

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interests of the class. ECF No. 123 at 24-25. Class Counsel’s advocacy in favor of the Settlement 

supports its approval.7

h. Absence of Collusion and Arm’s Length Negotiations

“Where . . . the parties negotiate a settlement agreement before the class has been certified, 

settlement approval requires a higher standard of fairness,” Roes, 1-2 v. SFBSC Mgmt., LLC, 944 

F.3d 1035, 1048-49 (9th Cir. 2019) (internal quotations omitted), and the Court must examine the 

risk of collusion with “an even higher level of scrutiny for evidence of collusion or other conflicts 

of interest,” In re Bluetooth, 654 F.3d at 946. Signs of potential collusion include: (1) a 

disproportionate distribution of the settlement fund to counsel; (2) negotiation of a “clear sailing 

provision”; and (3) an arrangement for funds not awarded to revert to defendant rather than to be 

added to the settlement fund. Id. at 947. If “multiple indicia of possible implicit collusion” are 

present, the Court has a “special ‘obligat[ion] to assure itself that the fees awarded in the 

agreement [are] not unreasonably high.’” Id. (quoting Staton v. Boeing Co., 327 F.3d 938, 965 

(9th Cir. 2003)). 

These factors do not point to collusion here. Counsel request an award of 25% of the 

common fund, which is the “benchmark award for attorney fees,” Hanlon, 150 F.3d at 1029, and 

an amount that “does not raise any concerns regarding collusion.” Woodard v. Labrada, No.

EDCV 16-00189 JGB (SPx), 2019 WL 4509301, at *11 (C.D. Cal. Apr. 23, 2019); see also In re 

Cathode Ray Tube (CRT) Antitrust Litig., No. 07-cv-05944-JST, 2020 WL 1873554, at *9 (N.D. 

Cal. Mar. 11, 2020) (request for 23.66% award not an indicium of collusion). The settlement 

agreement does contain a clear sailing provision, which provides that “Defendants will not oppose 

a reasonable8request for attorneys’ fees and costs.” ECF No. 121-2 at 16. Nonetheless, “the 

7 As the Court has frequently acknowledged before, it considers this factor but gives it little 

weight. “Although a court might give weight to the fact that counsel for the class or the defendant 

favors the settlement, the court should keep in mind that lawyers who negotiated the settlement 

will rarely offer anything less than a strong, favorable endorsement.” Principles of the Law of 

Aggregate Litigation § 3.05 cmt. a (2010). 

8 The parties’ use of the word “reasonable” in this sentence may actually create an opportunity for 

Defendants to object, but the Court assumes to the contrary in order to give the greatest effect to 

the class-protection policies underlying Bluetooth. 

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Court finds no cause for concern because Class Counsel’s fee will be awarded from the same 

common fund as the recovery to the class.” Cathode Ray Tube, 2020 WL 1873554 at *9. Lastly, 

the settlement does not contain a reversion clause. 

i. Reaction of the Class

Finally, the Court considers the class’s reaction to the Settlement. “[T]he 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.” In re 

Omnivision Techs., 559 F. Supp. 2d at 1043 (citation omitted). 

The class reaction to this settlement was very favorable. No class member filed an 

objection to the Settlement and only two class members requested exclusion. ECF No. 121-11 

¶¶ 11-12. Although three class members submitted objections to Plaintiffs’ first motion for 

preliminary approval on the ground that the Settlement interfered with collective bargaining 

agreements with Defendant, ECF No. 96 at 2, the Court determined in granting preliminary 

approval that “[t]he issue of dues deductions will not be resolved in this forum,” ECF No. 117 at 

12 n.6. The deadline to object to final approval of the Settlement has now passed and the previous 

objectors have not raised their prior or any other objection. ECF No. 121-1 ¶ 24. The Court 

therefore concludes this factor weighs in favor of approval. See Chun-Hoon, 716 F. Supp. 2d at 

852 (finding that a 4.86% opt out rate strongly supported approval).

3. Balance of Factors

All of the above factors support granting final approval. The Court finds that the 

Settlement is fair, adequate, and reasonable, and grants Plaintiffs’ motion for final approval.

III. ATTORNEY’S FEES 

A. Legal Standard

“While attorneys’ fees and costs may be awarded in a certified class action where so

authorized by law or the parties’ agreement, Fed. R. Civ. P. 23(h), courts have an independent

obligation to ensure that the award, like the settlement itself, is reasonable, even if the parties have 

already agreed to an amount.” In re Bluetooth, 654 F.3d at 941. “Where a settlement produces a

common fund for the benefit of the entire class,” as here, “courts have discretion to employ either

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the lodestar method or the percentage-of-recovery method” to assess the reasonableness of the 

requested attorney’s fee award. Id. at 942. “Because the benefit to the class is easily quantified in 

common-fund settlements,” the Ninth Circuit permits district courts “to award attorneys a 

percentage of the common fund in lieu of the often more time-consuming task of calculating the 

lodestar.” Id. The Ninth Circuit maintains a well-established “benchmark for an attorneys’ fee 

award in a successful class action [as] twenty-five percent of the entire common fund.” Williams 

v. MGM-Pathe Commc’ns Co., 129 F.3d 1026, 1027 (9th Cir. 1997). Courts in the Ninth Circuit 

generally start with the 25 percent benchmark and adjust upward or downward depending on:

the extent to which class counsel “achieved exceptional results for the 

class,” whether the case was risky for class counsel, whether 

counsel’s performance “generated benefits beyond the cash 

settlement fund,” the market rate for the particular field of law (in 

some circumstances), the burdens class counsel experienced while 

litigating the case (e.g., cost, duration, foregoing other work), and 

whether the case was handled on a contingency basis.

In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 954-55 (9th Cir. 2015) (quoting Vizcaino 

v. Microsoft Corp., 290 F.3d 1043, 1048-50 (9th Cir. 2002)). In addition, courts often crosscheck 

the amount of fees against the lodestar. “Calculation of the lodestar, which measures the lawyers’

investment of time in the litigation, provides a check on the reasonableness of the percentage 

award.” Vizcaino, 290 F.3d at 1050. “The lodestar figure is calculated by multiplying the number 

of hours the prevailing party reasonably expended on the litigation (as supported by adequate 

documentation) by a reasonable hourly rate for the region and for the experience of the lawyer.”

In re Bluetooth, 654 F.3d at 941. Regardless whether the court uses the lodestar or percentage 

approach, the main inquiry is whether the fee award is “reasonable in relation to what the plaintiffs 

recovered.” Powers v. Eichen, 229 F.3d 1249, 1258 (9th Cir. 2000).

B. Discussion

Class Counsel seeks the Court’s approval of a $3,812,500.00 attorney’s fee award, 

representing 25% of the gross settlement amount. ECF No. 120 at 9. Class Counsel argue that 

this award is reasonable based on the “high caliber skill and expertise of Class Counsel, and 

efficient litigation of the action, [which] resulted in a settlement that confers a substantial benefit 

to the Class.” Id. at 9. In addition, Class Counsel points out the risk of this litigation, taken on a 

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contingency basis, and the potential for lengthy litigation but for the successfully negotiated 

settlement. Id. at 9-10. 

The award requested aligns with the Ninth Circuit’s 25% benchmark attorney’s fee. See In 

re High-Tech Employee Antitrust Litig., No. 11-cv-02509-LHK, 2015 WL 5158730, at *6 (N.D. 

Cal. Sept. 2, 2015) (“Where the percentage-of-recovery method is employed, it is well established 

that 25% of a common fund is a presumptively reasonable amount of attorney’s fees.” (citing In re 

Bluetooth, 654 F.2d at 1311)). The Court finds this request reasonable and sees no reason for a 

downward adjustment. 

The lodestar for this award further confirms its reasonableness. Among the three Class 

Counsel firms, the combined lodestar as of September 4, 2020 was $2,078,203.50. ECF No. 120 

at 21. To reach the requested award, Class Counsel asked the Court to approve a multiplier of 

1.84. Id. However, as of November 10, 2020, at the time the motion for final approval was 

submitted, the updated lodestar totaled $2,203,088.50, bringing the multiplier to 1.73. ECF No. 

123 at 27. Class Counsel have submitted information detailing the hours expended in this action. 

ECF No. 121-1 at 11-12; ECF No. 121-2 at 65; ECF No. 121-3 at 3; ECF No. 121-4; ECF No. 

121-5. They have also demonstrated that the hourly rates used in their calculations are consistent 

with billing rates for similarly experienced attorneys in their legal market. ECF No. 120-1 at 15-

16; ECF No. 120-4 at 9; ECF No. 120-6 at 16. For the purposes of the lodestar cross-check, the

Court finds that the billing rates and hours billed are reasonable. Moreover, awards of between 

one and four times the lodestar are typical in common fund cases. See Vizcaino, 290 F.3d at 1051 

n.6 (finding a multiplier range of 0.6 to 19.6 in a survey of 24 cases, with 83% in the 1.0 to 4.0 

range and 54% in the 1.5 to 3.0 range). The Court approves the $3,812,500.00 attorney’s fee 

award. 

IV. COSTS

An attorney is entitled to “recover as part of the award of attorney’s fees those out-ofpocket expenses that would normally be charged to a fee paying client.” Harris v. Marhoefer, 24

F.3d 16, 19 (9th Cir. 1994) (citation omitted). To support an expense award, plaintiffs should file

an itemized list of their expenses by category and the total amount advanced for each category,

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allowing the court to assess whether the expenses are reasonable. Wren v. RGIS Inventory

Specialists, No. C-06-05778 JCS, 2011 WL 1230826, at *30 (N.D. Cal. Apr. 1, 2011),

supplemented, 2011 WL 1838562 (N.D. Cal. May 13, 2011).

Class Counsel submit that they have incurred $49,093.73 in costs. ECF No. 120 at 24. 

The three firms each submitted a detailed list of expenses. See ECF No. 120-3 at 27-29; ECF No. 

120-5 at 8; ECF No. 120-7 at 22. The Court has reviewed Class Counsel’s expenses and finds 

them reasonable. Therefore, the Court grants the request for reimbursement of costs.

V. SERVICE AWARD

A. Legal Standard

“[Incentive] awards are discretionary and are intended to compensate class representatives

for work done on behalf of the class . . . .” Rodriguez, 563 F.3d at 958 (internal citation omitted).

The Court should consider:

(1) the actions the plaintiff has taken to protect the interests of the 

class; (2) the degree to which the class has benefitted from those 

actions; (3) the duration of the litigation and the amount of time and 

effort the plaintiff expended in purs[uing] it; and (4) the risks to the 

plaintiff in commencing the litigation, including reasonable fears of 

workplace retaliation, personal difficulties, and financial risks. 

Wren, 2011 WL 1230826, at *32 (citations omitted). Indeed, “courts must be vigilant in 

scrutinizing all incentive awards to determine whether they destroy the adequacy of the class 

representatives.” Radcliffe v. Experian Info. Sols., Inc., 715 F.3d 1157, 1164 (9th Cir. 2013). 

B. Discussion

The five named plaintiffs each request an incentive awards of $7,500. ECF No. 123 at 27. 

This award amount exceeds the typical incentive award in the Ninth Circuit, where $5,000 is 

presumptively reasonable. See Harris v. Vector Mktg. Corp., No. 08-cv-5198-EMC, 2012 WL 

381202, at *7 (N.D. Cal. Feb. 6, 2012) (“Several courts in this District have indicated that 

incentive payments of $10,000 or $25,000 are quite high and/or that, as a general matter, $5,000 is 

a reasonable amount.”). Plaintiffs argue, however, that $7,500 is appropriate because each of the 

named plaintiffs “provided relevant and unique information to Class Counsel,” “spent 

considerable time pursuing the litigation,” and because each named plaintiff faced “retaliation and 

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reputational risk . . . by agreeing to be representatives for the Class.” ECF No. 123 at 29-30. The 

aggregate incentive awards account for 0.24% of the gross settlement. Id. at 32. Defendants do 

not oppose the awards, nor have any class members objected. Id. 

To determine the reasonableness of a requested incentive payment, courts consider the 

proportionality between the incentive payment and the range of class members’ settlement awards. 

Burden v. SelectQuote Ins. Servs., No. 10-cv-5966-LB, 2013 WL 3988771, at *6 (N.D. Cal. Aug. 

2, 2013). Here, the 1,557 class members will receive settlement payments of, on average, 

$7,239.37, and the highest individual payment will be approximately $14,110.24. ECF No. 123 at 

29. In other words, the requested incentive awards are roughly equal to the average amount that 

class members will recover, and some class members will receive settlement payments that exceed 

the requested awards. See Wren, 2011 WL 1230826, at *36-37 (approving $5,000 awards to each 

of 24 class representatives, noting that although a majority of class members received less than 

$5,000, many received more than $5,000).

Courts will grant an award that exceeds $5,000 when warranted. See Dyer v. Wells Fargo 

Bank, N.A., 303 F.R.D. 326, 335 (N.D. Cal. 2014). In Dyer, the court awarded two $10,000 

service awards where the defendant would pay incentive awards separately, rather than pulling 

from the common fund, and where the award was within one order of magnitude of the average 

class pay-out. Id. at 336. In Bellinghausen, the court awarded a $15,000 incentive payment, 

which was 2% of the gross settlement fund, where the plaintiff invested 73 hours in the case and 

jeopardized job opportunities to discharge his role as class representative. Bellinghausen v. 

Tractor Supply Co., 306 F.R.D. 245, 267 (N.D. Cal. 2015).

Here, each of the five named plaintiffs provided varied but significant support to this 

matter over the course of the litigation. For example, Plaintiff Valliere estimates having spent 65 

hours on this matter, which included attending two days of mediation and having his deposition 

taken by Defendants. ECF No. 121-6 at 4-5. The remaining named plaintiffs estimate spending 

between 35-45 hours. See ECF No. 121-10 at 5 (Plaintiff Bonner estimates 35 hours, which also 

included having her deposition taken); ECF No. 121-8 at 4 (Plaintiff Garcia estimates 40 hours); 

ECF No. 121-9 at 4 (Plaintiff West estimates 40 hours); ECF No. 121-7 at 4 (Plaintiff Foster 

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estimates 45 hours). Plaintiffs Valliere, Foster, Garcia and West attended multiple union meetings 

and participated in two days with United Steelworkers Locals 5 and 675 to support the ratification 

vote and answer class member questions. Id. at 30. All five named plaintiffs have been involved 

in the matter since 2017, ECF No. 123 at 29, and each of them spent time gathering information 

for Class Counsel, providing information to fellow class members, and reviewing the settlement 

prior to its approval. Id. at 29-30. 

Additionally, Plaintiffs argue that each of these individuals put their reputations at risk by 

associating their names with this litigation. ECF No. 123 at 30. They explain that “the oil 

industry in California has a well-connected network” and that named plaintiffs “took on the 

reputation of employees who will file a lawsuit against their employer, which has the real potential 

of jeopardizing future employment, particularly with a connected pool of likely employers in the 

oil industry.” Id. Plaintiff Bonner contends that she has applied four times for promotions that 

she believes she is qualified for, and has been denied, which she believes may be related to this 

litigation. ECF No. 121-10 at 4. In sum, arguing that “[t]he purpose of service payments is to 

‘compensate class representatives for work done on behalf of the class, to make up for financial or 

reputational risk undertak[en] in bringing the action, and sometimes, to recognize their willingness 

to act as a private attorney general,’” Plaintiffs argue that the requested awards are justified, fair 

and reasonable. ECF No. 123 at 31 (quoting Rodriguez, 563 F.3d at 958-59).

The Court concludes that service awards of $7,500 are reasonable, given the effort 

expended by each of the named plaintiffs; the fact that two of them sat for depositions; the 

potential for, and perhaps even evidence of, adverse consequences to their employment; and the 

low ratio between the service awards and the average recovery by individual class members. The 

Court therefore approves service awards to each of the named plaintiffs in the amount of $7,500. 

CONCLUSION

For the foregoing reasons, the Court hereby orders as follows:

1. For the reasons set forth in its June 26, 2020 order, ECF No. 117, the Court 

confirms its certification of the class for settlement purposes only.

2. The Court grants final approval of the proposed settlement agreement.

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3. The Court awards Class Counsel $3,812,500.00 in attorney’s fees.

4. The Court awards Class Counsel $49,093.73 in costs.

5. The Court grants named plaintiffs Jon Valliere, Eileen Foster, Antonio Garcia, 

Samantha West, and Jinetra Bonner each a service award of $7,500.00. 

6. The individuals who elected to opt out of the settlement are excluded from the 

class.

7. The Court retains continuing jurisdiction over this settlement solely for the 

purposes of enforcing the agreement, addressing settlement administration matters, and addressing 

such post-judgment matters as may be appropriate under the Court rules and applicable law. 

IT IS SO ORDERED.

Dated: December 16, 2020

______________________________________

JON S. TIGAR

United States District Judge

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