PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

SHAWNA BELL, individually and on behalf 

of all others similarly situated,

Plaintiff,

v.

CONSUMER CELLULAR, 

INCORPORATED, an Oregon Domestic 

Business Corporation,

Defendant.

Case No. 3:15-cv-941-SI

OPINION AND ORDER

Alan J. Leiman and Drew G. Johnson, LEIMAN & JOHNSON, LLC, 44 W. Broadway, Suite 326, 

Eugene, OR 97440. Of Attorneys for Plaintiff.

Francis T. Barnwell, Kathryn M. Hindman, and Liani Jeanheh Reeves, BULLARD LAW, 200 SW 

Market Street, Suite 1900, Portland, OR 97201. Of Attorneys for Defendant.

Michael H. Simon, District Judge.

This is a class action under Federal Rule of Civil Procedure 23 brought by Plaintiff 

Shawna Bell (“Plaintiff” or the “Class Representative”) individually and on behalf of current and 

former employees of Defendant Consumer Cellular Incorporated (“Consumer Cellular”). 

Plaintiff alleges that Consumer Cellular failed properly to pay her and others the correct amount 

of overtime wages in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et

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seq., and Oregon wage and hour laws. Before the Court is the parties’ Joint Motion for 

Settlement and Plaintiff’s Motion for Attorney’s Fees. The Court has considered the motions, the 

proposed Settlement Agreement, the papers submitted in connection with both motions, the 

arguments of counsel, the response of the Settlement Class to the Notice of Class Action 

Settlement (“Class Notice”), and the files, records, and proceedings in the above-captioned 

action (“Action”). The final approval hearing was held on April 28, 2017. For the following 

reasons, the parties’ Joint Motion for Settlement and Plaintiff’s Motion for Attorney’s Fees are 

granted. Class Counsel is awarded attorney’s fees in the amount of $250,000 and costs in the 

amount of $24,000. The Class Representative is awarded $2,500 as an incentive award.

STANDARDS

Federal Rule of Civil Procedure 23(e) provides, in part, that “[t]he claims, issues, or 

defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the 

court’s approval.” When a district court evaluates a class action settlement under Rule 23(e), the 

court must determine whether the settlement is fundamentally fair, reasonable, and adequate. In 

re Syncor ERISA Litig., 516 F.3d 1095, 1100 (9th Cir. 2008). “The purpose of Rule 23(e) is to 

protect the unnamed members of the class from unjust or unfair settlements affecting their 

rights.” Id.; see also 2 MCLAUGHLIN ON CLASS ACTIONS § 6:4 (12th ed. 2015) (“In the context of 

reviewing a proposed class action settlement, the district court has a special duty to act as 

guardian for the interests of absent class members because they are not present but will be bound 

by the disposition of the case.”).

The Ninth Circuit has a “strong judicial policy that favors settlements, particularly where 

complex class action litigation is concerned.” Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 

1276 (9th Cir. 1992). “But where, as here, class counsel negotiates a settlement agreement before 

the class is even certified, courts ‘must be particularly vigilant not only for explicit collusion, but 

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also for more subtle signs that class counsel have allowed pursuit of their own self-interests and 

that of certain class members to infect the negotiations.’” Dennis v. Kellogg Co., 697 F.3d 858, 

864 (9th Cir. 2012) (quoting In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 947 

(9th Cir. 2011)). “In such a case, settlement approval ‘requires a higher standard of fairness’ and 

‘a more probing inquiry than may normally be required under Rule 23(e).’” Id. (quoting Hanlon 

v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998)). 

BACKGROUND

On May 30, 2015, Plaintiff filed a collective and class action Complaint in this Court 

alleging that Consumer Cellular failed properly to pay her and other similarly situated customer 

service representatives (“CSRs”) the correct amount of overtime pay in violation of the FLSA

and Oregon state wage and hour laws. Specifically, Plaintiff alleged that Consumer Cellular did 

not include non-discretionary incentive pay and bonuses in the computation of the regular rate of 

pay for the purposes of computing the overtime rate. In its Answer, Consumer Cellular conceded 

that a payroll system error that occurred from approximately September 2014 until March 2015 

may have resulted in the improper calculation of overtime pay for CSRs. Consumer Cellular, 

however, maintains that it acted in good faith to comply with the FLSA, had reasonable grounds 

for believing that it was in compliance with the FLSA, and did not act willfully.

In January 2016, the parties participated in mediation with the Honorable Susa Leeson 

and Richard “Sam” Hall and reached a preliminary settlement. On April 8, 2016, the parties filed 

a joint motion for preliminary approval. The Court denied this motion on May 31, 2016, 

identifying a number of issues, concerns, and deficiencies raised by the proposed settlement 

agreement. After the Court’s denial of the first motion for preliminary approval, the parties 

participated in further negotiations and reached a new settlement (the “Amended Settlement”). 

On September 30, 2016, the parties filed a renewed joint motion for preliminary approval. The 

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Court granted this motion, preliminarily approving the Amended Settlement and Settlement 

Class; appointing Alan J. Leiman and Drew G. Johnson as class counsel; appointing Class 

Action Administration, LLC (“CAA”) as settlement administrator; approving the settlement class 

notices for distribution; and requiring that notice of the Amended Settlement be mailed and 

posted on the web.

The parties propose a gross settlement amount (GSA) of $900,000 less requested 

attorney’s fees of $250,000 (27.8% of the GSA), settlement administration expenses of $24,000, 

and an incentive award to Plaintiff of $2,500. Thus, the remaining Net Settlement Fund (NSF) is 

$626,000. The settlement provides for different award amounts for different subclasses of 

claimants as follows: (1) current Oregon employees will receive $880 each if they submit a claim 

form and $35 each if they do not; (2) former Oregon employees will receive $1,791 each if they 

submit a claim form and $35 each if they do not; and (3) current and former Arizona employees 

will receive $50 each or the amount of recomputed overtime if they submit a claim form and 

nothing if they do not. There are 299 current Oregon employees, 197 former Oregon employees, 

and 232 current and former Arizona employees. Thus, the Settlement Class contains 728 

members (the “Settlement Class Members”).

CAA mailed 728 notice packets to the Settlement Class Members and tracked 65 packets 

that had been returned as undeliverable. CAA re-mailed three of the returned notice packets to 

forwarding addresses provided by USPS and 19 of the returned notice packets to addresses found 

using skip-trace databases. In total, CAA mailed a notice packet to 685 class members, 94% of 

the total, without the packets being returned as undeliverable.

CAA received 342 properly completed claim forms before the deadline to respond, which 

is a response rate of 47%. Only two of the Settlement Class Members timely filed requests for 

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exclusion, and no member filed an objection. Of the 342 Settlement Class Members who 

submitted claim forms, 170 are members of the subclass of current Oregon employees and will 

receive a total of $149,600, 114 are members of the subclass of former Oregon employees and 

will receive a total of $204,174, and 58 are members of the subclass of current and former 

Arizona employees and will receive $3,511.58. Of the 384 Settlement Class Members who did 

not timely submit a claim form or a request for exclusion, 128 are members of the subclass of 

current Oregon employees and will receive a total of $4,480, 82 are members of the subclass of 

former Oregon employees and will receive a total of $2,870, and 174 are members of the 

subclass of current and former Arizona employees and will receive nothing. In total Consumer 

Cellular will pay $364,635.58 to class members, which is 58% of the NSF.

DISCUSSION

A. Certification of the Settlement Class

1. Notice to the Class

The Court granted preliminary approval to the parties’ proposed notice procedure after 

the parties made certain amendments to the notice as requested by the Court. See ECF 19, 23. 

The Court is satisfied that the notice procedure was carried out according to the applicable 

standards. The Court finds that notice of the Amended Settlement was given to the Settlement 

Class by the best means practicable under the circumstances, including mailing the notice and 

claim form to the class members and posting the notice, claim form, settlement agreement, and 

preliminary approval order on a dedicated website.

The Notice provided Settlement Class Members with all required information including, 

among other things: (1) a summary of the lawsuit and the claims asserted; (2) a clear definition 

of the Settlement Class; (3) a description of the material terms of the Amended Settlement; (4) 

the requirement to submit a claim form and instructions as to how to do so and the deadline for 

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doing so; (6) a disclosure of the release of claims should Settlement Class Members choose to 

remain in the Settlement Class; (7) an explanation of Settlement Class Members’ opt-out rights, 

the date by which Settlement Class Members must opt out, and information regarding how to do 

so; (8) instructions about how to object to the Amended Settlement and the deadline for 

Settlement Class Members to submit any objections; (9) the date, time, and location of the Final 

Approval Hearing; (10) the internet address for the settlement website and the toll-free number 

from which Settlement Class Members could obtain additional information about the Amended 

Settlement; (11) contact information for the class counsel, the settlement administration, and the 

court; and (11) information regarding how Class Counsel and the Class Representative would be 

compensated. The Notice is sufficient. See Lane v. Facebook, Inc., 696 F.3d 811, 826 (9th 

Cir. 2012) (reaffirming that a class notice need only “generally describe[] the terms of the 

settlement in sufficient detail to alert those with adverse viewpoints to investigate and to come 

forward and be heard” (alteration in original) (quoting Rodriguez v. W. Publ’g Corp., 563 F.3d 

948, 962 (9th Cir. 2009)).

The form and method of notifying the Settlement Class fairly and adequately advised 

Settlement Class Members of all relevant and material information concerning the Action and 

the terms of the proposed Amended Settlement. The Court finds that the notice fully satisfies the 

requirements of due process and Rule 23. 

2. Final Certification

The parties jointly move to resolve this case as a settlement class. In order to certify a 

settlement class, the requirements of Federal Rule of Civil Procedure 23 must be satisfied. See 

Hanlon, 150 F.3d at 1019. Rule 23 affords this Court with “broad discretion over certification of 

class actions . . . .” Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1021 (9th Cir. 2011). A 

plaintiff seeking class certification must satisfy each requirement of Rule 23(a)—numerosity, 

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commonality, typicality, and adequacy of representation—and at least one subsection of 

Rule 23(b). See, e.g., Lozano v. AT & T Wireless Servs., Inc., 504 F.3d 718, 724 (9th Cir. 2007). 

The parties agreed to certification of the class for settlement purposes, and the Court previously 

evaluated the requisite factors in conditionally certifying the class for settlement purposes in the 

preliminary approval of the Settlement. Having fully reviewed the record, the Court finds no 

reason to alter that assessment. Accordingly, the Court certifies for settlement purposes the 

following Settlement Class:

1. The Arizona Subclass consisting of a total of 232 current and former employees 

of Consumer Cellular, Inc. who worked for Defendant between September 1, 

2014 and March 31, 2015, and who allegedly earned overtime and nondiscretionary incentive pay and/or bonus pay during that time period;

2. The Oregon Current Employee Subclass consisting of a total of 300 current and 

former employees of Consumer Cellular, Inc. who were working for Defendant as 

of January 19, 2016, and who worked for Defendant between September 1, 2014 

and March 31, 2015, and who allegedly earned overtime and non-discretionary 

incentive pay and/or bonus pay during that time period; and

3. The Former Oregon Employee Subclass consisting of a total of 196 former 

employees of Consumer Cellular, Inc. who worked for Defendant between 

September 1, 2014 and March 31, 2015, and who allegedly earned overtime and 

non-discretionary incentive pay and/or bonus pay during that time period.

B. Settlement Agreement

To approve a class action settlement, a court must find that the settlement is “fair, 

reasonable, and adequate.” Fed. R. Civ. P. 23(e); Lane, 696 F.3d at 818. The settlement must be 

considered as a whole, and although there are “strict procedural requirements on the approval of 

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a class settlement, a district court’s only role in reviewing the substance of that settlement is to 

ensure it is ‘fair, adequate, and free from collusion.’” Lane, 696 F.3d at 818-19 (quoting 

Hanlon, 150 F.3d at 1027). A number of factors guide this review, including: (1) the strength of 

plaintiff’s 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. Id. at 819. Courts within the Ninth Circuit “put a good deal 

of stock in the product of an arms-length [sic], non-collusive, negotiated resolution.” 

Rodriguez, 563 F.3d at 965.

Additionally, class action settlements involve “‘unique due process concerns for absent 

class members’ who are bound by the court’s judgments.” Radcliffe v. Experian Info. Sols.

Inc., 715 F.3d 1157, 1168 (9th Cir. 2013) (quoting In re Bluetooth, 654 F.3d at 946). Where the 

settlement agreement is negotiated before formal class certification, as in this case, the district 

court should engage in “an even higher level of scrutiny for evidence of collusion or other 

conflicts of interest than is ordinarily required under Rule 23(e) . . . .” In re Bluetooth, 654 F.3d 

at 946. Evidence of collusion may not be evident on the face of a settlement, and a court should 

consider whether there is evidence of more subtle signs of collusion. Staton v. Boeing Co., 327 

F.3d 938, 958 n.12, 960 (9th Cir. 2003). The Court reviews, in turn, the relevant factors bearing 

on the evaluation of whether the Amended Settlement is fair, reasonable and adequate.

1. The Strength of Plaintiff’s Case 

This factor examines the strength of a plaintiff’s case on the merits balanced against the 

amount offered in the settlement. Ontiveros v. Zamora, 303 F.R.D. 356, 369 (E.D. Cal. 2014). 

The “fairness hearing is not to be turned into a trial or rehearsal for trial on the merits,” and the 

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court is not “to reach any ultimate conclusions on the contested issues of fact and law which 

underlie the merits of the dispute, for it is the very uncertainty of outcome in litigation and 

avoidance of wasteful and expensive litigation that induce consensual settlements.” Officers for 

Justice v. Civil Serv. Comm’n, 688 F.2d 615, 625 (9th Cir. 1982).

The parties state that the settlement agreement was driven by Plaintiff’s claim for penalty 

wages under Or. Rev. Stat. § 652.150 because the amount of unpaid overtime caused by 

Consumer Cellular’s computation error was relatively small and had previously been paid to 

class members who were employed at the time Consumer Cellular corrected the error. In order to 

recover penalty wages for the two Oregon subclasses, Plaintiff would have had to establish that 

Consumer Cellular willfully violated Oregon law, which Plaintiff states would be difficult to 

accomplish. Plaintiff also states that it could face significant challenges in maintaining Rule 23 

class certification on that issue. Thus, the Amended Settlement balances the strengths and 

weaknesses of the parties’ positions on class treatment, liability, and damages, while providing 

significant recovery for the class members. This factor weights in favor of approval.

2. The Risk, Expense, Complexity, and Likely Duration of Further Litigation

The central consideration for this factor is the expense of litigation. Nat’l Rural 

Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 526 (C.D. Cal. 2004). Generally, “unless 

the settlement is clearly inadequate, its acceptance and approval are preferable to lengthy and 

expensive litigation with uncertain results.” Id.

The parties agree that if this case had not settled, they would have had to engage in 

significant additional discovery and to file motions for conditional certification of the FLSA 

Class, certification of the Rule 23 Class, likely cross-motions on summary judgment, and 

Consumer Ceullar’s presumptive motions to decertify the FLSA and Rule 23 classes. These 

litigation steps would have been expensive, complex, and protracted. The Amended Settlement

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avoids these expenditures of resources for all parties and the Court and provides Settlement Class 

Members with “certain and prompt relief,” a “significant benefit that [they] would not receive if 

the case proceeded.” See Barbosa v. Cargill Meat Sols. Corp., 297 F.R.D. 431, 446 (E.D. 

Cal. 2013). This factor weights in favor of approval.

3. The Risk of Maintaining Class Action Status

The parties assert that even though certification of the FLSA collective class was 

probable as a result of the FLSA regular rate computation error, Plaintiff faced the risk that she 

would not be able to certify and to maintain a Rule 23 class for the Oregon employees. In 

addition, even assuming Plaintiff prevailed on class certification, Plaintiff still faced 

decertification on both classes because Consumer Cellular asserted that: (1) Plaintiff’s claims 

suffered from multiple issues making class or collective treatment inappropriate, and (2) Oregon 

rules relating to pre-conditions for class treatment applied and precluded class treatment of the 

Oregon wage penalty claims. The Court finds that resolving the case now guarantees recovery 

for the participating Settlement Class Members. This factor weights in favor of approval.

4. The Amount Offered in Settlement

When considering the fairness and adequacy of a settlement, “it is the complete package 

taken as a whole, rather than the individual component parts, that must be examined for overall 

fairness.” Ontiveros, 303 F.R.D. at 370 (quoting DIRECTV, 221 F.R.D. at 527). “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.

Members of the Arizona Employee Subclass will receive the amount of their actual 

recomputed overtime or $50, whichever is greater. The parties state that the average recovery for 

the 52 participating members of the Arizona Employee Subclass members is $60. Members of 

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the Arizona Employee Subclass who did not return a Claim Form will not receive any benefit, 

but they also do not release any rights under the FLSA or Arizona law.

The proposed settlement provides $364,635.58 (exclusive of attorneys’ fees, costs, and

the incentive payment) to the participating class members and the non-participating members of 

the Oregon Current and Former Employee Subclasses. As discussed, participating Oregon 

current employees will receive $880 each, and participating Oregon former employees will 

receive $1,791 each. The parties assert that the differing recoveries for the Oregon Current and 

Former Employee Subclasses are in recognition of fact that the entitlement of the Oregon 

Current Employee Subclass to a wage penalty pursuant to Or. Rev. Stat. § 652.150 is less certain.

Although the entitlement of the members of the Oregon Former Employee Subclass to this 

penalty is more likely, those subclass members still face uncertainties caused by Consumer 

Cellular’s claim that it did not act willfully and its claim that Plaintiff failed to comply with 

Oregon’s pre-litigation class action notice requirements. Oregon Current and Former Employee 

Subclass members who did not opt-out will receive $35 and release claims under Oregon law,

but will not release any FLSA claims.

Moreover, the Settlement Class Members’ recovery far exceeds their actual damages.

The actual amount of overtime at issue for the Settlement Class Members ranged from $.02 to 

$822, with the next closest amount at $360. 646 of the Settlement Class Members had actual 

overtime amounts at issue under $25. Finally, the fact that there were no objections to the 

Amended Settlement and only two opt-outs suggests that the amount is fair and adequate. See 

Barbosa, 297 F.R.D. at 447 (noting that the lack of objections and single request to opt-out of the 

agreement showed class member support of settlement). This factor weights in favor of approval.

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5. The Extent of Discovery Completed

Formal discovery is not required before a class action settlement. Linney v. Cellular 

Alaska P’ship, 151 F.3d 1234, 1239-40 (9th Cir. 1998). Rather, “[a]pproval of a class action 

settlement is proper as long as discovery allowed the parties to form a clear view of the strengths 

and weaknesses of their cases.” Monterrubio v. Best Buy Stores, L.P., 291 F.R.D. 443, 454 (E.D. 

Cal. 2013). The Court and the parties may also rely on discovery developed in prior or related 

proceedings. Linney, 151 F.3d at 1239-40.

The parties assert that they obtained sufficient discovery to assess the claims and 

defenses in this case. Before the mediation, Plaintiff required Consumer Cellular to produce 

sufficient documentation regarding Consumer Cellular’s claim that the computation error was 

limited to an approximately seven-month period and that Consumer Cellular paid the recomputed 

overtime to the impacted employees still employed by Consumer Cellular when Consumer 

Cellular discovered the error. Consumer Cellular provided this data. In addition, the parties’ use 

of mediation after conducting discovery, and the exchanges of information that occurred during 

and after the mediation, assure that the parties had more than adequate information with which to 

assess their cases and reach a reasonable settlement. This factor weights in favor of approval.

6. The Experience and Views of Counsel

“‘Great weight’ is accorded to the recommendation of counsel, who are most closely 

acquainted with the facts of the underlying litigation.” DIRECTV, 221 F.R.D. at 528 (quoting In 

re Painewebber Ltd. P’ships Litig., 171 F.R.D. 104, 125 (S.D.N.Y. 1997)). “This is because 

‘parties represented by competent counsel are better positioned than courts to produce a 

settlement that fairly reflects each party’s expected outcome in the litigation.’” Id. (alteration 

omitted) (quoting In re Pac. Enters. Sec. Litig., 47 F.3d 373, 378 (9th Cir. 1995)). Absent fraud 

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or collusion, courts can, “and should, rely upon the judgment of experienced counsel for the 

parties,” when assessing a settlement’s fairness and reasonableness. Barbosa, 297 F.R.D. at 447.

Class counsel have extensive experience in representing employees in wage and hour 

litigation. Alan J. Leiman has over 24 years of litigation experience, including 5 years of 

experience representing plaintiffs in wage and hour class and collective actions. Drew G. 

Johnson has six years of legal experience, including 5 years of litigation experience representing 

plaintiffs in wage and hour class and collective actions. Counsel for both parties agree that the 

settlement is fundamentally fair, adequate, and reasonable; is the result of arm’s-length 

negotiations between counsel representing the interests of Plaintiff and Consumer Cellular; was 

facilitated by a skilled mediator; and occurred only after thorough factual and legal investigation. 

This factor weights in favor of approval.

7. The Presence of a Government Participant

The Class Action Fairness Act (CAFA) provides in relevant part:

Not later than 10 days after a proposed settlement of a class action 

is filed in court, each defendant . . . shall serve upon the 

appropriate State official of each State in which a class member 

resides and the appropriate Federal official, a notice of the 

proposed settlement.

* * *

An order giving final approval of a proposed settlement may not be 

issued earlier than 90 days after the later of the dates on which the 

appropriate Federal official and the appropriate State official are 

served with the notice required under subsection (b).

28 U.S.C. § 1715(b), (d). The parties state that they provided notice of the proposed settlement

to the Attorneys General of the United States, Arizona, and Oregon on March 19, 2017.

1

The 90-

 

1

The Court observes that the parties did not comply with the 10-day notice period 

required by Section 1715. Nevertheless, the Court finds that “ the substance of the requirements 

have been satisfied insofar as giving federal and state officials sufficient notice and opportunity 

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day notice period expired on June 19, 2017, with no Attorney General having objected to the 

proposed settlement. This factor weights in favor of approval.

8. The Reaction of the Settlement Class

Of the 693 notice packets successfully mailed to Settlement Class Members, no one 

objected and only two individuals sought to exclude themselves from the Amended Settlement. 

CAA received responses from 344 of the 693 Settlement Class Members who received the notice 

packet, which is a response rate of 50.1%. The participation rate, in combination with the lack of 

any objections to the Amended Settlement, provides a strong presumption that the Amended 

Settlement is fair, reasonable, and adequate. See, e.g., DIRECTV, 221 F.R.D. at 529 (“The 

absence of a single objection to the Proposed Settlement provides further support for final 

approval of the Proposed Settlement.”); OmniVision, 559 F. Supp. 2d at 1043 (“By any standard, 

the lack of objection of the Class Members favors approval of the Settlement.”). Thus, this factor 

weighs in favor of approval.

9. Evidence of Collusion

Courts considering a pre-class certification settlement must examine whether the 

settlement was the result of good faith, arm’s-length negotiations or the result of fraud and 

collusion. Bellinghausen, 306 F.R.D. at 258. The Ninth Circuit has identified three signs of 

collusion: (1) class counsel receives a disproportionate distribution of the settlement, or when the 

class receives no monetary distribution but counsel is amply awarded; (2) the parties negotiate a 

“clear sailing” arrangement providing for the payment of attorneys’ fees separate and apart from 

class funds without objection by a defendant; or (3) the parties arrange for payments not awarded 

 

to be heard concerning the” Amended Settlement. In re Processed Egg Prods. Antitrust 

Litig., 284 F.R.D. 278, 287 n.10 (E.D. Pa. 2012).

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to revert to a defendant rather than to be added to the class fund. In re Bluetooth, 654 F.3d 

at 947.

First, class counsel does not receive a disproportionate distribution of the settlement.

Although Consumer Cellular will pay a total of $364,635.58 to Settlement Class Members,

which is only about 44% more than the requested amount in attorney’s fees, the class still 

receives considerably more than counsel. Greater participation would have increased the spread 

between the requested attorney’s fees and the amounts paid to the class members, but at close 

to 50%, the response rate was reasonable. Moreover, there is no evidence that CAA failed 

adequately to notify the Settlement Class Members.

Second, the parties negotiated a “clear sailing” arrangement whereby Consumer Cellular

agreed not to object to the class counsel’s request for attorney’s fees, but this fact does not 

warrant denying final approval because the Amended Settlement provides that the Court’s 

approval of the attorney’s fees is separate from its approval of the Amended Settlement.

Moreover, the parties engaged in settlement negotiations overseen by a neutral mediator, and 

there have been no objections to the settlement. See Deaver v. Compass Bank, 2015 

WL 8526982, at *9 (N.D. Cal. Dec. 11, 2015) (approving a proposed settlement even though two 

of three factors were present, including a clear sailing provision, because there were no

objections to the settlement and the “parties engaged in settlement talks overseen by a neutral 

mediator before agreeing on this settlement”).

Third, although the Amended Settlement provides for reversion to Consumer Cellular of 

payments not awarded, several factors support reversion, and there is no evidence that the 

reversion is the product of collusion. Actual FLSA overtime underpayments were low, ranging 

from $.02 to $822, with the next closest underpayment at $360. The average amount of unpaid 

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overtime is $11.84. The recoveries provided for in the Amended Settlement, however, are 

substantially greater than the actual underpayments. The Amended Settlement was driven by the 

highly disputed alleged entitled of the Oregon Current and Former Employee Subclass Members 

to penalty wages under Or. Rev. Stat. § 652.150, not fraud or collusion.

Although two of the Bluetooth factors are present, the record contains no evidence of 

fraud or collusion. The parties reached the Amended Settlement only after working with a 

neutral mediator and conducting an additional five months of negotiation after the Court’s denial 

of the initial proposed settlement. Accordingly, this factor weighs in favor of approval.

10. Conclusion

After considering the relevant factors and circumstances, the Court finds that the 

Amended Settlement is fair, reasonable, and adequate to the Settlement Class Members and that 

each Settlement Class Members (except those who have timely submitted a valid request for 

exclusion) shall be bound by the Amended Settlement. The persons who have timely requested

exclusion from the Settlement Class are not Settlement Class Members, shall have no rights or

interests with respect to the Amended Settlement, and shall not be bound by any orders or 

judgments entered in respect to the Amended Settlement.

C. Incentive Award, Attorney’s Fees, and Costs

1. Incentive Award

“Incentive awards are payments to class representatives for their service to the class in 

bringing the lawsuit.” Radcliffe, 715 F.3d at 1163. They are often taken from a common 

settlement fund. Id. Although incentive awards are “fairly typical in class action cases,” 

Rodriguez, 563 F.3d at 958, they should be scrutinized carefully to ensure “that they do not 

undermine the adequacy of the class representatives.” Radcliffe, 715 F.3d at 1163. A court 

should analyze incentive awards individually and, as relevant to this case, should consider 

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factors such as “‘the actions the plaintiff has taken to protect the interests of the class, the degree 

to which the class has benefitted from those actions, [and] the amount of time and effort the 

plaintiff expended in pursuing the litigation . . . .’” Staton, 327 F.3d at 977 (alteration omitted) 

(quoting Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998)).

Plaintiff contributed considerable time and effort and personal resources towards the 

settlement in this case. Before the Plaintiff filed the case, Plaintiff provided the documentation 

that allowed her counsel to discover the regular rate computation error that supports the 

Plaintiff’s theory of the case. Plaintiff assisted with the preparation and review of the Complaint 

before filing it. During the approximately 4.5 month period between filing and the mediation, 

Consumer Cellular provided data and documentation to Plaintiff’s counsel for review and 

analysis, and Plaintiff assisted her counsel by answering questions about incentive pay, bonuses, 

and other issues that counsel was evaluating. 

The parties note Plaintiff also traveled a considerable distance at her own expense to 

attend an all-day mediation in Portland. Plaintiff was an active participant at the mediation, acted 

as an advocate for the employees, and did not appear to be acting in her own self-interest. In 

the 4.5 months that the parties spent negotiating the written settlement agreement after the 

mediation, Plaintiff contacted counsel for updates, reviewed the settlement agreement, and posed

questions about it before signing it. Under these circumstances, Plaintiff’s requested incentive 

award of $2,500 is reasonable.

2. Attorney’s Fees

Requests for attorney’s fees must be made by a motion pursuant to Federal Rules of Civil 

Procedure 54(d)(2) and 23(h), and notice of the motion must be served on all parties and class 

members. Fed. R. Civ. P. 23(h). When settlement is proposed along with a motion for 

certification, notice to class members of the fee motion ordinarily accompanies the notice of the 

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settlement proposal itself. Advisory Committee Notes to Fed. R. Civ. P. 23(h). The deadline for 

class members to object to requested fees must be set after the motion for the fees and documents 

supporting the motion have been filed. In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 

993 (9th Cir. 2010). “Allowing class members an opportunity thoroughly to examine counsel’s 

fee motion, inquire into the bases for various charges and ensure that they are adequately 

documented and supported is essential for the protection of the rights of class members.” Id. 

at 994. Here, the notice and filing of the motion for attorney’s fees complied with In re Mercury, 

providing Settlement Class Members with the opportunity to review Class Counsel’s motion for 

attorney’s fees and supporting documents before the deadline to object.

In considering the amount of attorney’s fees for class counsel where there is a common 

fund, “courts have discretion to employ either the lodestar method or the percentage-of-recovery 

method.” In re Bluetooth, 654 F.3d at 942. Courts typically use the percentage approach when 

awarding attorney’s fees with the lodestar serving as a “cross check” on the reasonableness of 

the percentage. See, e.g., Barbosa, 297 F.R.D. at 448; Franco v. Ruiz Food Prods., Inc., 2012 

WL 5941801, at *18 (E.D. Cal. Nov. 27, 2012). Under either method, the court must exercise its 

discretion to achieve a reasonable result. Because reasonableness is the goal, “mechanical or 

formulaic application of either method, where it yields an unreasonable result, can be an abuse of 

discretion.” Fischel v. Equitable Life Assurance Soc’y of the U.S., 307 F.3d 997, 1007 (9th 

Cir. 2002).

“Under the percentage-of-the-fund method, the district court may award plaintiffs’ 

attorneys a percentage of the common fund, so long as that percentage represents a reasonable 

fee. The Ninth Circuit has set 25% of the fund as a ‘benchmark’ award under the percentage-ofthe-fund method.” Stanger, 812 F.3d at 738 (citation omitted); see also Hanlon, 150 F.3d 

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at 1029. This amount may be adjusted, however, when “special circumstances” warrant a 

departure. In re Bluetooth, 654 F.3d at 942. Courts must place in the record the relevant special 

circumstances. Id. Factors that may be considered in making such a departure include: (1) the 

result obtained; (2) the effort expended by counsel; (3) counsel’s experience; (4) counsel’s skill; 

(5) the complexity of the issues; (6) the risks involved in the litigation; (7) the reaction of the 

class; (8) non-monetary or incidental benefits, including helping similarly situated persons 

nationwide by clarifying certain laws; and (9) comparison with counsel’s lodestar. See Vizcaino 

v. Microsoft Corp., 290 F.3d 1043, 1048-50 (9th Cir. 2002); In re Heritage Bond Litig., 2005 

WL 1594403, at *18 (C.D. Cal. June 10, 2005).

“Under the lodestar method, the Court multiplies a reasonable number of hours by a 

reasonable hourly rate.” Id. at 1006. Because there is a strong presumption that the lodestar 

amount represents a reasonable fee, adjustments to the lodestar ‘are the exception rather than the 

rule.’” Stanger, 812 F.3d at 738 (quoting Fischel, 307 F.3d at 1007). “Once the lodestar has been 

calculated, ‘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.’” Id. at 740 (quoting In re Bluetooth, 654 F.3d at 941-42).

Plaintiff seeks $250,000 in attorney’s fees, which is 27.8% of the $900,000 in the Gross 

Settlement Fund. Thus, the Court considers whether any of the relevant special circumstances 

warrant departure from the 25% benchmark and uses the lodestar as a cross-check.

a. Results Obtained

The most critical factor in granting attorney’s fees is the overall result and benefit to the 

class. Richardson v. THD At-Home Servs., Inc., 2016 WL 1366952, at *8 (E.D. Cal. Apr. 6, 

2016). The Amended Settlement provided a total possible settlement amount of up to $623,500 

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to pay the Settlement Class, with the balance of the amount allocated to the negotiated attorney’s 

fees, incentive award, and settlement administration costs. In addition, the individual unpaid 

overtime actually accrued by class members ranges from a low of $.02 to a high of $822, with 

the next closest amount of $360. Excluding the two individuals who had $360 and $822 in 

overtime, the average amount of unpaid overtime due to the regular rate calculation error is 

$11.84. Further, 646 of the 728 Settlement Class Members had less than $25 of overtime pay at 

issue. Consumer Cellular states that before the commencement of this action, it had also paid 

then current Arizona and Oregon employees the amount of their actual re-computed overtime 

after correcting for the seven-month regular rate calculation error.

The Amended Settlement provides that participating Arizona subclass members receive 

their actual re-computed overtime after correcting for the regular rate computation error or $50, 

whichever is greater. The Oregon Current Employee Subclass will receive $880, and the Oregon 

Former Employee Subclass will receive $1,791. Members of the Oregon subclasses who do not 

return Claim Forms or request exclusion will receive $35. These payments are a positive result to 

the Settlement Class Members relative to the actual damages that they suffered.

b. Risk of Litigation

“The risk of costly litigation and trial is an important factor in determining the fee 

award.” Rosales, 2015 WL 4460635, at *20 (citing Chem. Batik v. City of Seattle, 19 F.3d 1297, 

1299-1301 (9th Cir. 1994)). When considering the risks posed in litigation, “the risk of loss in a 

particular case is a product of two factors: (1) the legal and factual merits of the claim, and (2) 

the difficulty of establishing those merits.” City of Burlington v. Dague, 505 U.S. 557, 562 

(1992). “In cases where recovery is uncertain, an award of one third of the common fund as 

attorneys’ fees has been found to be appropriate.” Franco, 2012 WL 5941801, at *16.

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Plaintiff faced risks on multiple fronts in litigating this hybrid Rule 23 class and 

collective action. Although the FLSA claims were common to the two-state collective, the 

Oregon Rule 23 subclasses had separate issues relating to each subclass’ entitlement to an 

Oregon wage penalty. Hybrid class and collective cases present substantial risks that subclass 

groupings may be decertified after significant time and expense because of the myriad claims 

and issues involved in the dispute. Consumer Cellular also raises a number of defenses that, if 

successful, could significantly devalue or end the case. For instance, Consumer Cellular asserted

that Plaintiff did not provide an ORCP 32H notice of class action that Consumer Cellular 

believes was required. Second, Consumer Cellular disputes the entitlement of the Current 

Oregon Employee subclass members to penalty wages under Or. Rev. Stat. § 652.150. Third, 

Consumer Cellular contended that it did not act “willfully.”

These legal and factual issues presented serious risks to the viability of this case and the 

potential recovery that Plaintiff could receive. Plaintiff’s counsel’s ability to navigate these 

matters and reach a favorable settlement for the class members warrants the 2.8% upward 

departure from the 25% percent benchmark.

c. Counsel’s Skill

“The complexity of issues and skills required may weigh in favor of a departure from the 

benchmark fee award.” Richardson, 2016 WL 1366952, at *9. “FLSA claims involve complex 

mixed questions of fact and law, and issues must be resolved in light of volumes of legislative 

history and over four decades of legal interpretation and administrative rulings.” Barrentine v 

Ark.-Best Freight Sys., Inc., 450 U.S. 728, 743 (1981). Moreover, courts have recognized that 

hybrid Rule 23 class and collective actions are the most complex FLSA cases. See Febus v. 

Guardian First Funding Grp., LLC, 870 F. Supp. 2d 337, 340 (S.D.N.Y. 2012) (observing that 

“courts have recognized that FLSA cases are complex and that ‘[a]mong FLSA cases, the most 

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PAGE 22 – OPINION AND ORDER

complex type is the hybrid action brought here, where state wage and hour violations are brought 

as an opt out class action pursuant to Rule 23 in the same action as the FLSA opt in collective 

action pursuant to 29 U.S.C. ' 216(b).’” (alteration in original) (quoting Johnson v. 

Brennan, 2011 WL 4357376, at *17 (S.D.N.Y. Sept. 16, 2011)).

The materials filed in support of Plaintiff’s Motion for Attorneys’ Fees demonstrate that 

Plaintiff’s counsel have substantial experience in wage and hour class and collective actions. 

Alan Leiman has over 24 years of litigation experience, including five years of experience 

representing plaintiffs in wage and hour class and collective actions. Drew Johnson has six years 

of legal experience, including five years of litigation experience representing plaintiffs in wage 

and hour class and collective actions. Johnson also has a Master’s Degree in Conflict Resolution,

in addition to 15 years of experience as a civil engineer and technical management consultant 

that he applies to his evaluation of complex wage and hour cases. Stacy McKerlie, an associate 

who assisted with this case, has two years of experience and has since left the firm for the 

Oregon Bureau of Labor and Industries. This factor favors an upward departure of 2.8% from 

the 25% benchmark.

d. Contingency Fee Agreement

In cases taken on contingency, courts tend to find above-market-value fee awards 

appropriate to encourage counsel to take on contingency-fee cases for plaintiffs who otherwise 

could not afford to pay hourly fees and to compensate counsel for the risk of non-payment that 

they assume. Deaver, 2015 WL 8526982, at *11 (citing In re WPPSS Sec. Litig., 19 F.3d 1291, 

1299 (9th Cir. 1994)). “This is especially true when class counsel has significant experience in 

the particular type of litigation at issue; indeed, in such contexts, courts have awarded [a] 33 

percent benchmark percentage.” Id.

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Plaintiff’s counsel accepted this case on a contingent basis, covered the costs of litigation, 

and provided their time without a guarantee of compensation. This factor leans slightly in favor 

of the 2.8% upward departure. See Richardson, 2016 WL 1366952, at *9 (“In considering both 

the contingent nature of the work performed by Class Counsel as well as the risk involved in the 

costs advanced, this factor weighs slightly in favor of a departure from the benchmark fee 

award.”).

e. Awards in Similar Cases

Several courts in the Ninth Circuit have held in wage and hour class actions that a 30% or 

higher award is appropriate. See Miller, 2015 WL 4730176, at *8 (noting that courts in the Ninth 

Circuit “usually award attorneys’ fees in the range of 30-40% in wage and hour class actions”

where the common fund is under $10 million). Courts have commonly approved awards of 

approximately 33% in such cases. See, e.g., Deaver, 2015 WL 8526982, at *9; Lusby v. 

GameStop Inc., 2015 WL 1501095, at *4 (N.D. Cal. Mar. 31, 2015); Burden v. SeleciQuote Ins. 

Servs., 2013 WL 3988771, at *5 (N.D. Cal. Aug. 2, 2013); Barbosa, 297 F.R.D. at 450; 

Franco. 2012 WL 5941801, at *18 same); Garcia v. Gordon Trucking, Inc., 2012 WL 5364575 

(E.D. Cal. Oct. 31, 2012); Vasquez, 266 F.R.D. 482 ; Romero v. Producers Dairy Food 

Inc., 2007 WL 3492841, at * 4 (E.D. Cal. Nov. 14, 2007). Plaintiff’s request for an award 

of 27.8% of the common fund is in line with attorney’s fees approved in other wage and hour 

class actions in the Ninth Circuit, which supports the slight upward departure from the 

benchmark.

f. Comparison with Counsel’s Lodestar 

Plaintiff’s counsel calculates the lodestar at $85,265 based on 283.2 billable hours, 

including 50 hours to-be billed after the filing of the motion for attorney’s fees. Plaintiff seeks an 

hourly rate of $325 for Alan J. Leiman, $275 for Drew G. Johnson, and $175 for Stacy 

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PAGE 24 – OPINION AND ORDER

McKerlie. The Court finds these hours and rates reasonable. The award sought by Plaintiff’s 

counsel is 2.9 times the lodestar. “It is an established practice in the private legal market to 

reward attorneys for taking the risk of non-payment by paying them a premium over their normal 

hourly rates for winning contingency cases.” Franco, 2012 WL 5941801, at *21 (quoting 

Fischel, 307 F.3d at 1008). “Multipliers in the 3-4 range are common in lodestar awards for 

lengthy and complex class action litigation.” Miller, 2015 WL 4730176, at *9. The Court finds a 

multiplier of 2.9 reasonable in this case. Thus, the Court grants Plaintiff’s request for an award 

of $250,000 in attorney’s fees.

3. Costs

Plaintiff requests administrative costs of $24,000, which is the amount specified in the 

Amended Settlement and the amount being charged by CAA, the third-party settlement 

administrator retained by Plaintiff=s counsel to administer the settlement. These costs cover the 

creation and hosting of a claims website, the maintenance of a call center and address database, 

the mailing of notices, the processing of forms, and the distribution of benefits. The Court finds 

that the requested costs have been reasonably and necessarily incurred and are recoverable from 

the proceeds of the common fund. See, e.g., Wininger v. SI Mgmt., L.P., 301 F.3d 1115, 1120-21 

(9th Cir. 2002) (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”); In re Media Vision Tech. 

Sec. Litig., 913 F. Supp. 1362, 1366 (N.D. Cal. 1996) (“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.”).

The requested costs are consistent with costs awarded in wage and hour matters, and 

payment of these costs is already factored into the allocation, which has been communicated to 

Plaintiff. See, e.g., Rosales, 2015 WL 4460635, at *32 (approving costs of $36,620.54 in unpaid 

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wages case); Barbosa, 297 F.R.D. at 454 (finding costs of $32,722.74 for travel, mediation fees, 

photocopying, private investigator to locate missing class members, and delivery and mail 

charges). Thus, the Court approves the requested costs of $24,000.

CONCLUSION

Plaintiffs’ Joint Motion for Settlement (ECF 28) is GRANTED. Plaintiff’s Unopposed 

Motion for Attorney Fees (ECF 24) is GRANTED. Class Counsel is awarded attorney’s fees in 

the amount of $250,000 and costs in the amount of $24,000. The named Plaintiff is awarded 

$2,500 as an incentive award.

IT IS SO ORDERED.

DATED this 21st day of June, 2017.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

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