IN THE UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

SHAWNA BELL, individually and on behalf CASE NO.: 3:15-cv-0094I-SIof all others similarly situated,Plaintiff, PLAINTIFF’S UNOPPOSED

v. MOTION FOR ATTORNEYS’

FEES; INCENTIVE AWARD;

CONSUMER CELLULAR, AND COSTS OF SETTLEMENTINCORPORATED, an Oregon Domestic ADMINISTRATION.Business Corporation,Defendant.

CERTIFICATION OF CONFERRAL

Pursuant to L.R. 7-1(a), counsel for Plaintiff conferred with attorney Francis C. Barnwell,

counsel for Defendant, who pursuant to the terms of the Amended Settlement (Doc. 20-3) doesnot oppose this motion.

INTRODUCTION

Plaintiff Shawna Bell (“Plaintiff’) and Defendant Consumer Cellular, Incorporated,

(“Defendant”) (collectively, “Parties”), reached a proposed settlement of Plaintiffs unpaidovertime claim arising under the Fair Labor Standards Act (“ELSA”) and Oregon wage-and-hour

laws. The proposed settlement was subsequently amended and the Amended Settlement was

1- PLAINTIFF’S UNOPPOSED MOTION FOR ATTORNEYS’ FEES, INCENTIVE

AWARD, AND COSTS OF SETTLEMENT ADMINISTRATION
requests the Court approve her request for attorneys’ fees and costs incurred in the prosecution

and settlement of this case, and to allow her to recover a modest incentive award for her time and

efforts on behalf of the putative class.

PROCEDURAL AND FACTUAL HISTORY

Plaintiff incorporates by reference the facts, procedural history, and settlement terms in

the Parties’ Renewed Joint Motion for Preliminary Settlement Approval. (Doe. 20). Plaintiffseeks approval of attorneys’ fees in the amount of 27.8% of the 5900.000 Gross Settlement Fundcreated in this case, equaling $250,000. (Leiman DecI. c7j. and settlement administration costs

of 524.000, (Leiman Decl.. Ex. 4.). Plaintiff is also seeking a 52.500 incentive award tocompensate her for her efforts as the class representative. These amounts are reasonable for thiscase, and the Court should approve Plaintiffs request.

ARGUMENT

I. THE COURT SHOULD APPROVE THE REQUESTED ATTORNEYS’ FEES

In certified class and collective actions, courts may award attorneys’ fees and costs when

approving a negotiated settlement. See Fed. R. Civ. P. 23(h); 29 U.S.C. § 216(b). For class

action settlements that include attorneys’ fees, the court must evaluate the requested fees in theoverall context of the settlement and ensure the fee award is reasonable. Derner v. CompassBank, 2015 WL 8526982, at *10 (N.D. Cal. Dec. 11. 2015) (citing Knislev v. Netii’orkAssocs.,312 F.3d 1123, 1126 (9th Cir. 2002)); In re Bluetooth Headset Prod Lkth. Ling., 654 F.3d 935,

941 (9th Cir. 2011). Where the settlement results in a common ftind shared by the class, the

Ninth Circuit has approved the percentage method and lodestar method for awarding attorneys’

fees. In re Bh,etooth Headset Prod. Liab. Litig., 654 F.3d at 942. The percentage method

2- PLAINTIFF’S UNOPPOSED MOTION FOR ATTORNEYS’ FEES, INCENTIVE

AWARD, AND COSTS OF SETTLEMENT ADMINISTRATION
In common fund cases, “the primary basis of the fee award remains the percentage

method.” Vizcaino v. Microsoft Corp., 290 F.3d 1043. 1050 (9th Cir. 2002). Courts typically

use the percentage approach when awarding attorneys’ fees with the lodestar serving as a “cross

check” on the reasonableness of the percentage. See. e.g.. Barbosa v. Cargill Meat Sols. Corp.,297 F.R.D. 431, 448 (E.D. Cal. 2013); Franco v. Rznz Food Prod., Thc 2012 WL 5941801, at

*18 (E.D. Cal. Nov. 27, 2012). In SLy (6) Mexican Workers v Arizona Citrus Growers. 904

F.2d 1301,1311(9111 Cir. 1990) the Ninth Circuit held that attorneys for a successful class mayrecover a fee based on the entire common fund created for the class, even if some class membersdo not claim funds and money is returned to defendants.

A. The Court Should Award the Requested Attorneys’ Fees Using the Percentageof-the-Fund MethodFor well over a century. federal and state courts have recognized that when counsel’s

efforts result in the creation of a common fund that benefits plaintiff and unnamed class

members, counsel have an equitable right to be compensated from that fund as a whole for theirsuccessful efforts in creating it. See, e.g.. Boeing Co. v. Van Gemert. 444 U.S. 472. 478 (1980)

(stating that the Supreme Court “has recognized consistently that a litigant or a lawyer who

recovers a common fund . . . is entitled to a reasonable attorney’s fee from the fund as a whole”);

Staton i Boeing Co., 327 F.3d 938, 967 (9th Cir. 2003) (recognizing common fund doctrines).

The common fund doctrine rests on the understanding that, in class action litigation,

many class members benefit from the common find, but they may not have played a large role inthe litigation that led to the fund. Van Gemert, 444 U.S. at 478. To avoid unjustly enrichingsome class members, attorneys’ fees are assessed against the entire fund, “thus spreading feesproportionately among those benefited by the suit.” Id. Awarding a percentage of the total fund

3 -PLAINTIFF’S UNOPPOSED MOTION FOR ATTORNEYS’ FEES, INCENTIVE

AWARD, AND COSTS OF SETTLEMENT ADMINISTRATION
judgment recovered on his behalf” Sw/on, 327 F.3d at 972 (quoting Van Gemeut. 444 U.S. at

479); accord Rauhosa 297 F.R.D. at 448 (“Here. the Settlement Agreement applies a formula

pursuant to which each Class Member will receive a mathematically ascertainable payment;application of the percentage of the common ftmd doctrine is appropriate.”); Franco, 2012 WL

5941801, at *]5 (stating that “the Settlement applies a distribution formula pursuant to which

each Class Member . . . will receive a mathematically ascertainable payment. application of the

percentage of common fund doctrine is appropriate”); Vasquezv. Coast Valley Roofing, Inc., 266

F.R.D. 482, 491 (E.D. Cal. 2010) (where settlement agreement “applies distribution formulas

pursuant to which each Class Member who submits a valid claim will receive a mathematicallyascertainable payment, application of the percentage of common fund doctrine appropriate”).

The percentage of the fund method is appropriate for a number of ve1l-recognized

reasons. One of the most important reasons is that the percentage method accomplishes feespreading in a manner that comports with the legal marketplace. where counsel’s success is

frequently measured in terms of the results counsel has achieved. See Siiz’dish Hosp. Cop. i’.

Shalala. I F.3d 1261. 1269 (D.C. Cir. 1993) (in common fund cases “the monetan’ amount of the

victory’ is often the true measure of [counsel’s] success”): Vizealno. 290 F.3d at 1047

(recognizing that “the size of the recovery constitutes a suitable measure of the attorneys’

performance”) (internal quotations omitted). By assessing the amount of the fee in terms of the

amount of the benefit conferred on the class, the percentage method “more accurately reflects the

economics of litigation practice” which, “given the uncertainties and hazards of litigation, mustnecessarily be result-orients.” Swedish Hosp. Coup, I F.3d at 1269 (internal quotation marks and

citation omitted).

4- PLAINTIFF’S UNOPPOSED MOTION FOR ATTORNEYS’ FEES, INCENTIVE

AWARD, AND COSTS OF SETTLEMENT ADMINISTRATION
had such negotiations been feasible, given the prospective uncertainties and anticipated risks andburdens of the litigation. See, e.g., PauL Johnson, Aiston & Hunt. 886 F.2d at 271 (“[lIt is wellsettled that the lawyer who creates a common fund is allowed an extra reward, beyond thatwhich he has arranged with his client, so that he might share the wealth of those upon whom he

has conferred a benefit”); In re Continental Illinois Sec. Litig., 962 F.2d 566, 572 (7th Cir. 1992)(noting that in a common fund case. the object “is to give the lawyer what he would have gottenin the way of a fee in an arm’s length negotiation, had one been feasible”).

Here, the percentage-of-the-fund method is appropriate. First, as mentioned, the creation

of a common fund favors use of the percentage method. See, eg., Vizcaino, 290 F.3d 1043,

1050; Dearer. 2015 WL 8526982, at *10 (“Because this case involves a common settlement

fund with an easily quantifiable benefit to the class, the Court will primarily determine attorneys’

fees using the benchmark method but will incorporate a lodestar cross-check to ensure the

reasonableness of the award.”). Second, Plaintiffs Counsel secured a settlement with a common

fund of up to a gross amount of 5900,000, of which Defendant is obligated to pay up to S625.000

to participating and non-participating Oregon subclass members.’ The gross settlement amount

includes the requested attorneys’ fees, incentive award, and costs of settlement administration,

and the Amended Settlement provides for fixed monetary payments to all participating members

of all three subclasses, and to non-participating members of both Oregon subclasses. Pursuantto the terms of the preliminarily approved Amended Settlement, the amount that participatingclass members and non-participating Oregon subclass members receive will not be impacted by

1 The actual amount claimed remains a variable at this time because the time during which to

return a Claim form is still running.

5 -PLAINTIFF’S UNOPPOSED MOTION FOR ATTORNEYS’ FEES, INCENTIVE

AWARD, AND COSTS OF SETTLEMENT ADMINISTRATION
with Plaintiffs Counsel, and it is appropriate that an award of fees should be shared by eachclass member who receives benefit from the settlement. Fourth, the common fund is appropriatebecause Plaintiffs Counsel took this case on a contingency basis. See, e.g., Bhrnz, 465 U.S. at

900 n.16. The fee agreement between Plaintiff and her counsel specified a 33% contingency

which Plaintiffs Counsel voluntarily reduced by $50,000 at the settlement mediation to therequested 27.8%. (Leiman DecI. ¶7.). Plaintiff’s Counsel have not been paid for their time orexpenses by Plaintiff or the class since the case started over a year ago, while bearing the riskthat the litigation would be unsuccessful. It is therefore appropriate that an award of attorneys’fees would mirror the fee that Plaintiffs Counsel might be paid in a contingency arrangementnegotiated with individual plaintiffs. See In re Continental Illinois Sec Litig., 962 F.2d at 572.

B. The Court Should Approve the Request of 27.8% in Attorneys’ FeesIn the Ninth Circuit, the typical range of attorneys’ fee awards from a common fund

recovery is 20 to 33.33 percent, with 25 percent considered the benchmark. Powers i’. Eichen,229 F.3d 1249, 1256 (9th Cir. 2000). But “in most common fund cases, the award exceeds thatbenchmark.” Knight v. Red Door Salons, Inc., No. 08-01520 SC. 2009 WL 248367, at *3 N.D.Cal. Feb. 2, 2009); see also Miller v. CEVA Logistics USA, Inc., 2015 WL 4730176, at *8 (E.D.Cal. Aug. 10, 2015) (noting other courts in this circuit “usually award attorneys’ fees in the rangeof 30—40% in wage and hour class actions that result in the recovery of a common fund under

$10 million”); Vanden’ort i’. Balboa Capital Coip., 8 F. Supp. 3d 1200, 1209 (C.D. Cal. 2014)(“[un smaller cases—particularly where the common fund is under $10 million—awards morefrequently exceed the benchmark.”); Craft v City. of San Bernardino, 624 F. Supp. 2d 1113,

1127 (C.D. Cal. 2008) (“Cases of under $10 Million will often result in fees above 25%.”).

6- PLAINTIFF’S UNOPPOSED MOTION FOR ATTORNEYS’ FEES, INCENTIVE

AWARD, AND COSTS OF SETTLEMENT ADMINISTRATION
Vizcaino, 290 F.3d at 1047).

1. Results Achieved

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

class. Richardson i& THD At-Home Servs., Inc., 2016 WL 1366952, at *8 (E.D. Cal. Apr. 6,2016). Here, the Amended Settlement provided a total gross settlement amount of up to

$623,500 to pay the Settlement Class, with the balance of the gross settlement amount allocated

to the negotiated attorneys’ fees, incentive award, and settlement administration costs requestedherein.

The Amended Settlement as preliminarily approved provides for a putative Settlement

Class of 728 class members divided into three subclasses. Data provided in settlementnegotiations showed that the individual unpaid overtime pay at issue ranges from a low of $.02

to a high of $822, with the next closest amount of $360. (Leiman Dccl., Ex. I.) Not including the

two individuals at $360 and $822, the average amount of unpaid overtime due to the regular ratecalculation error that took place over a seven-month period is $11.84. (Id) 646 of the 728putative class members had less than $25 of overtime pay at issue. (Id.) Defendant has

represented to the Court that prior to the commencement of this action it had also paidthen current Arizona and Oregon employees the amount of their actual re-computedovertime after correcting for the seven-month regular rate calculation error. (Id.)

The Amended Settlement provides that participating Arizona subclass members receive

their actual re-computed overtime after correcting for the regular rate computational error, or $50whichever is greater. Participating Oregon employees who worked for Defendant as of June 29,2015 (the “Oregon Current Employee Subclass”) are to receive $880, and participating Oregon

7-PLAINTIFF’S UNOPPOSED MOTION FOR ATTORNEYS’ FEES, INCENTIVE

AWARD, AND COSTS OF SETTLEMENT ADMINISTRATION
excellent result for Plaintiff and the putative class members.

While this recovery is significant for the Settlement Class Members themselves relative

to their actual damages. it also compares favorably with other wage and hour settlements inwhich courts have awarded higher than benchmark attorneys fees. See. e.g., Deaver. 2015 WL

8526982, at *11 (approving attorneys’ fees in wage and hour case of one-third the common fund

where plaintiffs faced “significant challenges” maintaining class certification and prevailing at

trial and settlement resulted in average payout of $700); Barbosa. 297 F.R.D. at 449, 454 (E.D.

Cal. 2013) (noting wage and hour claims resulting in a little over $600 per person was goodresult and awarding one-third of common fund).

2. Risk ofLitigation

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

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

1297. 1299—1301 (9th Cir. 1994)). In considering the risks posed in litigation, the Supreme

Court explained “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.” CitjofBurlingron

v. Dague, 505 U.S. 557, 562, (1992). “In cases where recovery is uncertain, an award of onethird of the common fund as attorneys’ fees has been found to be appropriate.” Franco, 2012 WL5941801, at *16; see also In re Mego Fin. Corp. Sec Litig., 213 F.3d 454, 463 (9th Cir. 2000); In

re Heritage Bond Litig., 2005 WL 1594403, at *19 n.14 (C.D. Cal. June 10, 2005) (discussing

Ninth Circuit cases awarded attorney fees of one-third of the total recovery).

Plaintiff faced legitimate risks on multiple fronts in litigating this “hybrid” Rule 23 class

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

8-PLAINTIFF’S UNOPPOSED MOTION FOR ATTORNEYS’ FEES, INCENTIVE

AWARD, AND COSTS OF SETTLEMENT ADMINISTRATION
p

number of defenses that if successful could have significantly devalued or ended the case.Defendant claims that Plaintiff did not provide an ORCP 32H notice of class action thatDefendant believes was required. Defendant also disputes the entitlement of the 299 CurrentOregon Employee subclass members to an ORS 652.150 final paycheck penalty for failure to

pay all wages when due. Defendant also contends that it did not act “willfully”. (Id, §0, ¶ 2(b),p. 12-13).

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

the potential recovery Plaintiff could receive. Plaintiffs Counsel’s ability to navigate thesematters and reach a very favorable settlement for the Settlement Class Members warrants theslight (2.8%) upward departure from the 25% percentage method benchmark to 27.8% of thetotal common fund.

3. Skill Required and Quality of Work Performed

“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 complexmixed questions of fact and law, and issues must be resolved in light of volumes of legislativehistory and over four decades of legal interpretation and administrative rulings.”). Barrentine v

Arkansas—Best Freight Sys., Inc., 450 U.S. 728, 743 (1981). Moreover, “[tjhe prosecution and

management of a complex national class action requires unique legal skills and abilities.” In reHeritage Bond Litig., 2005 WL 1594403, at *19 (internal quotations omitted). Both of thesecomplexities are exacerbated when taken together, as hybrid Rule 23 class/collective actions arethe most complex type of FLSA cases. Febus v. Guardian First Funding Group, LLC, 870 F.

Supp. 2d 337, 340 (S.D.N.Y. 2012) (“[Cjourts have recognized that FLSA cases are complex and

9- PLAINTIFF’S UNOPPOSED MOTION FOR ATTORNEYS’ FEES, INCENTIVEAWARD, AND COSTS OF SETTLEMENT ADMINISTRATION
Plaintiffs Counsel, Leiman & Johnson, LLC, have substantial experience in representing

employees in wage and hour class and collective actions and the firm focuses its practice onwage and hour litigation. Alan J. Leiman has over 24 years of litigation experience, including 5years of experience representing Plaintiffs in wage and hour class and collective actions.(Leiman Decl. ¶J1-4.) Drew 0. Johnson has six years of legal experience, including 5 years of

litigation experience representing Plaintiffs in wage and hour class and collective actions. He

also has a Masters Degree in Conflict Resolution in addition to 15 years of experience as a civilengineer and technical management consultant that he applies to his work evaluating complexwage and hour cases. (Id. ¶5.) Stacy McKerlie, the associate attorney who worked on thematter, has 2 years experience and has left the firm to work for the Oregon Bureau of Labor andIndustries. (Id. ¶6.) Using their combined experience and expertise in wage and hour class andcollective cases they were able to recognize an FLSA violation that impacted over 700employees and which otherwise would have gone undiscovered, and secure the excellent resultfor Plaintiff and the putative settlement class in this case. See Barbosa, 297 F.R.D. at 449(holding class counsel’s specialized skill in wage and hour law was generally an asset to the class

that favored higher percentage of common fund). The Court should approve the requested

upward deviation (2.8%) from the common fund benchmark.

4. Contingent Nature ofthe Fee and the Financial Burden

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

appropriate to encourage counsel to take on contingency-fee cases for plaintiffs who otherwisecould not afford to pay hourly fees. Deaver, 2015 WL 8526982, at *11 (citing In re WPPSS Sec.

Litig., 19 F.3d 1291, 1299 (9th Cir. 1994)). “This is especially true where class counsel has

10-PLAINTIFF’S UNOPPOSED MOTION FOR ATTORNEYS’ FEES, INCENTIVE

AWARD, AND COSTS OF SETTLEMENT ADMINISTRATION
Indeed, in contingency cases lasting lengthy periods of time, the risk of non-payment after years

of litigation justifies a significant fee award. Id.

Plaintiffs Counsel took this case on a contingent basis, fronting the costs of litigation and

providing their time without any guarantee they would be compensated. Given these risks, the

slight upward departure from the percentage method benchmark is justifiable. 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 infavor of a departure from the benchmark fee award.”)

5. A wards Made in Shnllar Cases

Particularly in wage and hour class actions, many courts in this circuit have held that a

thirty (30) percent or higher award was appropriate. See Miller. 2015 WL 4730176, at *8

(stating courts in the Ninth Circuit “usually award attorneys’ fees in the range of 3040% inwage and hour class actions” where the common fund is under $10 million): see also Deai’er.2015 WL 8526982. at *9 (approving attorneys’ fees of 33% of common fund): Lusb i’.

GaineSrop Inc., 2015 WL 1501095, at *4 (ND. Cal. Mar. 31, 2015) (approving attorneys’ fees of33% of common fund); Burden v. SeleciQuote Ths Sen’s., 2013 WL 3988771, at *5 (ND. Cal.

Aug. 2, 2013) (same); Barbosa, 297 F.R.D. at 450 (same); Franco. 2012 WL 5941801, at *18

(approving attorneys’ fees of 33% of common fund); Garcia v. Gordon Ti-itcking, Inc., 2012 WL

5364575 (E.D. Cal. Oct. 31, 2012) (same); Vasquez, 266 F.R.D. 482 (approving attorneys’ fees

of 33.3% of common fund); Ronwro v. Producers Dairy Food 1nc, 2007 WL 3492841, at * 4(E.D. Cal. Nov. 14, 2007) (same). Plaintiffs request for 27.8% of the common fund comports

11- PLAINTIFF’S UNOPPOSED MOTION FOR ATTORNEYS’ FEES, INCENTIVE

AWARD. AND COSTS OF SETTLEMENT ADMINISTRATION
check” method. A “lodestar cross-check calculation need entail neither mathematical precision

nor bean-counting.” Tore/na v. IVW Grainger, Inc.. 2014 WL 7399230. at *25 (E.D. Cal. 2014)(quowig In Rite Aid Corp. Sec. Litig., 396 F.3d 294. 306 (3d Cir. 2005)); see also In I.e

Inunune Response Sec. Litig., 497 F. Supp. 2d 1166. 1176 (S.D. Cal. 2007) (“Although counsel

have not provided a detailed cataloging of hours spent, the Court finds the information provided

to be sufficient for purposes of lodestar cross-check.”). “Three figures are salient in a lodestarcalculation: (1) counsel’s reasonable hours, (2) counsel’s reasonable hourly rate and (3) a

multiplier thought to compensate for various factors (including unusual skill or experience of

counsel, or the cx ante risk of nonrecovery in the litigation).” Franco, 2012 WL 5941801, at *18

(quoting In re HPL Tech., Inc. Sec. Litig., 366 F. Supp. 2d 912, 919 (N.D. Cal. 2005)). The

lodestar multiplier, which is the ratio of the proposed percentage fee to the computed lodestar

fee, is assessed for reasonableness. Id.

Here. Plaintiffs Counsel calculates that their fees under the lodestar method would be

S85.265.00. (Leiman Dccl. ‘8; Ex. 3.) That amount is based on 283.2 hours of billable workrecorded to date, and includes the anticipated expenditure of a total of 50 additional hours

devoted to settlement administration, preparation of the Joint Motion for Final Approval of

Amended Settlement, attendance at the Fairness Hearing, and post-approval file closing

activities. Plaintiffs calculation is based on the following hourly rates: S325 for Alan J. Leiman;S275 for Drew G. Johnson, and; Sl75 for Stacy McKerlie (Id.) Because these hours are

reasonable for a case of this magnitude, and the rates are reasonable in light of rates awarded incomparable matters in this District, Plaintiffs’ lodestar should be accepted. Further, because the

12- PLAINTIFF’S UNOPPOSED MOTION FOR ATTORNEYS’ FEES, INCENTIVE

AWARD, AND COSTS OF SETTLEMENT ADMINISTRATION
expended was reasonable. Richardson, 2016 WL 1366952, at *10 (citing Fischer v SUB-PD.Inc., 214 F.3d 1115, 1119 (9th Cir. 2000)). The hours billed should reflect the number of hours

that would reasonably be billed to a private client. Deaver, 2015 WL 8526982, at *13 (citing

Gonzalez v. Cily ofMaywood, 729 F.3d 1196, 1202 (9th Cir. 2013)). When the lodestar is used

to cross-check a fee award, the court is not required to perform an “exhaustive cataloguing and

review of counsel’s hours.” Richardson, 2016 WL 1366952, at *10.

Here, Plaintiffs Counsel billed 233.2 hours since they were retained by Plaintiff to

investigate and prosecute her claims, and anticipate spending not less than an additional 50 hours

to complete work on the case. Plaintiffs Counsel often work collaboratively, but make an effortto avoid duplicate billings for certain types of billing events, and some but not all attorney office

conferences. In this case, Plaintiffs Counsel conducted a thorough pre-filing investigation andprepared and filed a detailed Complaint. (Leiman DecI. ¶9.) After filing the Complaint, the

Parties negotiated and entered into a Tolling Agreement. (Id.) Even though Defendant did not

dispute that Plaintiffs Counsel had discovered a regular rate computational error in Plaintiffspay, Plaintiffs Counsel had to engage Defendant for over four months until Defendant had

provided sufficient data from which Plaintiffs counsel could reasonably conclude that the error

was limited to the seven-month period that Defendant was claiming. (Id.) Plaintiffs Counselspent time: analyzing Defendant’s personnel policies, compensation and bonus plans, and payrolldata; researching and assessing legal and factual issues for settlement; assessing potential claimsand defenses, and; drafting a detailed substantive mediation statement. (Id.) Plaintiffs Counselalso prepared for and participated in the mediation, and spent over four additional monthscontinuing to negotiate and draft the settlement agreement. Plaintiffs Counsel will also need to

13- PLAINTIFF’S UNOPPOSED MOTION FOR ATTORNEYS’ FEES, INCENTIVE

AWARD. AND COSTS OF SETTLEMENT ADMINISTRATION
2. Reasonable Hourly Rate

Attorneys’ fees should be calculated according to the “prevailing market rates in the

relevant community.” Rosales, 2015 WL 4460635, at *24 (citing Blurn, 465 U.S. at 895). Forpurposes of determining the prevailing market rate, the relevant community is the forum inwhich the district court sits. Id. (citing Ca,nacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9thCir. 2008)). Evidence of prevailing market rates may be from a declaration from the attorneyrequesting the fee or other area attorneys, or examples from other awards in previous cases. See

Deaver, 2015 WL 8526982, at *12.

Here, Plaintiffs Counsel’s seek an hourly rate of $175 per hour for its Associate

Attorney, $275 for its six-year level partner, and $325 for its 25-year level partner. (Leiman

DecI., ¶8.) The majority of the hours billed, and thus the hourly rates most necessary forexamination, were for Mr. Leiman, and for Mr. Johnson (See Leiman DecI., Ex. 3.) Asmentioned, Mr. Leiman has 24 years of litigation experience, while Mr. Johnson has 6 years oflegal experience and a Masters Degree in conflict resolution. Both Messrs. Leiman and Johnsonhave spent the last five years focusing their firm’s practice on wage and hour class and collectivelitigation. (Leiman DecI., ¶12.) Given Plaintiffs Counsel’s experience and specialty in wageand hour class and collective actions, their rates are consistent with those that courts have foundreasonable for law firms that served as plaintiffs’ counsel in other class actions in thisdistrict. See Taylor v UniversalAuto Group I, Inc, C13-05245 KLS (W.D. Wash.) (Nov. 2015)(awarding fees based on rates of up to $650/hour); Chesbro v Best Buy Stores, L.P., C 10-774RAJ (W.D. Wash.) (Sept. 2014) (same); Pelletz & Weyerhaeuser Co., 592 F. Supp. 2d 1322,

1326—27 (W.D. Wash. 2009) (awarding fees based on rates of up to $760/hour); Global Ethic.

14- PLAINTIFF’S UNOPPOSED MOTION FOR ATTORNEYS’ FEES, INCENTIVE

AWARD, AND COSTS OF SETTLEMENT ADMINISTRATION
of David A. Schuck, an attorney practicing Wage and Hour law in the District of Oregon. (SeeLeiman DecI., Ex. 2.) Mr. Schuck is a partner at Schuck and Associates, LLC in Vancouver,

Washington, and a member of the Oregon State Bar whose practice has included litigating

hundreds of wage and hour class and collective cases. (Id.) Based on his experience in similarwage cases in this forum, a reasonable hourly rate for partner-level class counsel is between $275and $425 while a reasonable hourly rate for an associate is between $175 and $225. (Id.)Plaintiffs Counsel’s hourly rates are within these ranges, further supporting their rates arereasonable.

3. Lodestar Multiplier

“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 winningcontingency cases.” Franco, 2012 WL 5941801, at *21 (quoting Fischel i’. Equitable Life Assur.

Society of US, 307 F.3d 997. 1008 (9th Cir. 2002)). The court awarding attorneys’ fees has

discretion to apply a multiplier to the fee calculation to compensate for the risk of nonpayment.

Id. “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 27.8% requested from the common fund is equal to Plaintiffs lodestar with an

approximate 2.9 times multiplier and is comparable or lower than multipliers approved in otherclass actions. See Steiner v Am. Broadcasting Co., Inc., 248 Fed. Appx. 780, 783 (9th Cir. 2007)(approving multiplier of 6.85); Vizcaino, 290 F.3d at 105 1—52 (affirming fee award with a

lodestar multiplier of 3.65 and citing cases with comparable or higher multipliers); Craft, 624 F.Supp. 2d at 1125 (approving percentage of the fund equal to 5.2 lodestar multiplier); Van

15 -PLAINTIFF’S UNOPPOSED MOTION FOR ATTORNEYS’ FEES, INCENTIVE

AWARD, AND COSTS OF SETTLEMENT ADMINISTRATION
II. THE COURT SHOULD APPROVE THE REQUESTED EXPENSES

Taxable costs are available to the prevailing party and governed by 28 U.S.C. § 1920 and

Federal Rules of Civil Procedure Rule 54. Rosales, 2015 WL 4460635, at 32. “Attorneys may

recover reasonable expenses that would typically be billed to paying clients in non-contingencymatters.” Id. (citing Harris i’. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994)). Under the terms ofthe Settlement Agreement, Plaintiffs’ Counsel is requesting approval of $24,000 in settlementadministration costs. (Leiman Decl. ¶10, Ex. 4.) This is the amount specified in the Amended

Settlement, and the amount being charged by JND Class Action Administration, Inc. (“CAA”),

the third-party settlement administrator retained by Plaintiff’s counsel to administer thesettlement. This amount is consistent with costs awarded in wage and hour matters, and paymentof 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 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 mailcharges). Plaintiffs’ Counsel requests, and Defendant does not oppose, reimbursement of$24,000 in settlement administration costs.ILl. THE COURT SHOULD APPROVE THE REQUESTED INCENTLVE AWARD

A District Court at its discretion may award an incentive payment to the named

plaintiff(s) in a FLSA collective action to compensate them for work done on behalf of theclass. See, Selk v. Pioneers Memorial Healthcare District, 159 F. Supp. 3d 1164, 1181 (S.D.CA 2016). “In reviewing whether an incentive award is appropriate, the court should consideramong other things, ‘the actions the plaintiff has taken to protect the interests of the class, the

16- PLAINTIFF’S UNOPPOSED MOTION FOR ATTORNEYS’ FEES, INCENTIVE

AWARD, AND COSTS OF SETTLEMENT ADMINISTRATION
resources towards the settlement that was reached in this case. Before the case was filed,Plaintiff provided the documentation that allowed her counsel to discover the regular ratecomputational error on which the case was brought. (Leiman Dccl. ¶11.) Plaintiff assisted withthe preparation and review of the Complaint before it was filed. (Id.) During theapproximately 4.5 month period between filing and the mediation, during which timeDefendant provided data and documentation to Plaintiffs counsel for review and analysis,Plaintiff assisted her counsel by answering questions about incentive pay, bonuses, and otherissues that were being evaluated. (Id.) Plaintiff traveled a considerable distance at her own

expense to attend an all day mediation in Portland. Plaintiff was an active participant at themediation, where she acted as an advocate for the employees and did not appear to be acting inher own self-interest. (Id.). In the over four months the Parties spent negotiation the writtensettlement agreement after the mediation, Plaintiff.would contact her counsel for updates, andshe reviewed the settlement agreement and asked questions about it before she signed it. (Id.)The incentive award of $2,500 requested by Plaintiff is reasonable and should be approved.

CONCLUSION

Plaintiffs requested attorneys’ fees, costs of settlement administration, and requested

incentive award are reasonable in light of the favorable settlement obtained, the risks associated

with pursuing the case, and the time and expenses incurred to bring about a settlement. TheCourt should approve Plaintiffs motion for attorneys’ fees and costs in its entirety.

17-PLAINTIFF’S UNOPPOSED MOTION FOR ATTORNEYS’ FEES, INCENTIVE

AWARD, AND COSTS OF SETTLEMENT ADMINISTRATION
Oregon State Bar No.: 980746

44 W. Broadway, Suite 326

Eugene, OR 97401

Telephone: (541) 345-2376

Facsimile: (541) 345-2377Of Attorneys for Plaintiff

Is Drew G. Johnson

Drew G. Johnson

E-mail: drew@leimanlaw.com

Oregon State BarNo.: 114289

44 W. Broadway, Suite 326

Eugene, OR 97401

Telephone: (541) 345-2376

Facsimile: (541) 345-2377Of Attorneys for Plaintiff

18- PLAINTIFF’S UNOPPOSED MOTION FOR ATTORNEYS’ FEES. INCENTIVE

AWARD, AND COSTS OF SETTLEMENT ADMINISTRATION