1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 NICHOLAS DER-HACOPIAN, Case No. 18-cv-06726-HSG

8 Plaintiff, ORDER GRANTING MOTION FOR

FINAL APPROVAL OF CLASS

9 v. ACTION SETTLEMENT AND

GRANTING IN PART AND DENYING

10 DARKTRACE, INC., IN PART MOTION FOR ATTORNEYS’

FEES AND INCENTIVE AWARD

11 Defendant. Re: Dkt. Nos. 60, 61 12

13 14 Pending before the Court are Plaintiff’s motions for final approval of class action 15 settlement and for attorneys’ fees and a class representative incentive award. Dkt. Nos. 60, 61. 16 The Court held a final fairness hearing on September 10, 2020. Dkt. No. 66. As noted in the 17 motion for final approval and as discussed during the hearing, notice pursuant to the Class Action 18 Fairness Act (“CAFA”) was not mailed until August 27, 2020. The Court therefore directed the 19 parties to file a status report regarding whether the parties received any response to the CAFA 20 notice, and held the motions in abeyance during the interim. See Dkt. Nos. 66, 67. Having 21 received the parties’ status report, Dkt. No. 68, and for the reasons detailed below, the Court 22 GRANTS Plaintiff’s motion for final approval. The Court further GRANTS IN PART AND 23 DENIES IN PART Plaintiff’s motion for attorneys’ fees and an incentive award. 24 I. BACKGROUND 25 A. Factual Background 26 Plaintiff brings this consumer class action against Defendant Darktrace, Inc. alleging that 27 Defendant violated the Fair Credit Reporting Action (“FCRA”), 15 U.S.C. §§ 1681 et seq. See 1 application process, it requires consumer reports, known as background checks, to evaluate 2 prospective employees. See id. at ¶ 13. According to Plaintiff, Defendant (1) included a release of 3 future liability in the authorization that it required employment applicants to sign authorizing a 4 background check; and (2) used the background checks to make adverse employment decisions 5 without timely providing the prospective employee with a copy of the report and a summary of his 6 or her rights under the FCRA. See id. at ¶¶ 15–27, & Ex. A. But Section 1681b(b)(2) requires 7 consumer report authorizations to consist “solely of the disclosure that a consumer report may be 8 obtained for employment purposes.” 15 U.S.C. § 1681b(b)(2)(A)(i). And § 1681b(b)(3) requires 9 that “in using a consumer report for employment purposes, before taking any adverse action based 10 in whole or in part on the report, the person intending to take such adverse action shall provide to 11 the consumer to whom the report relates” a copy of the report and a written description of the 12 consumer’s rights under the FCRA. See 15 U.S.C. § 1681b(b)(3)(A)(i), (ii). 13 Plaintiff thus brought two causes of action under Sections 1681(b)(2) and (b)(3) of the 14 FCRA. See FAC at ¶¶ 45–58. Plaintiff also sought to represent two classes of consumers based 15 on each claim, defined as: 16 All natural persons residing within the United States and its 17 Territories regarding whom, beginning five (5) years prior to the filing of this Complaint and continuing through the conclusion of this 18 action, the Defendant procured or caused to be procured a consumer report for employment purposes using a written disclosure containing 19 language substantially similar in form to the Employee Authorization to Release Records form provided to Plaintiff; and 20 All natural persons residing in the United States who (i) within five 21 (5) years prior to the filing of the Complaint, (ii) applied for employment with Defendant, (iii) were the subject of a consumer 22 report used by Defendant for employment purposes, (iv) were the subject of an adverse employment action by Defendant, and (iv) were 23 not provided with a copy of the report and/or a written summary of their rights under the FCRA prior to the adverse action. 24 25 See id. at ¶ 38. 26 B. Procedural History 27 Plaintiff initially filed this action on November 6, 2018. See Dkt. No. 1. Plaintiff then 1 motions practice, and instead, on April 24, 2019, the parties engaged in an all-day mediation. See 2 Dkt. No. 39. Although the parties did not reach settlement that day, they continued settlement 3 discussions. See Dkt. No. 40. The parties ultimately entered into a settlement agreement on 4 November 21, 2019. See Dkt. No. 47-1. Plaintiff subsequently filed a motion for preliminary 5 settlement approval. See Dkt. No. 43 (refiled at Dkt. No. 47). 6 On March 31, 2020, the Court requested supplemental briefing from the parties regarding 7 the scope of the settlement release. See Dkt. No. 52. The Court raised concerns that although the 8 allegations were relatively narrow, the release of claims in the settlement agreement as then 9 written was more expansive. Id. (citing Hesse v. Sprint Corp., 598 F.3d 581, 590 (9th Cir. 2010)). 10 In response, the parties narrowed the scope of the release of claims. See Dkt. No. 53. They 11 submitted a revised Settlement Agreement, Dkt. No. 53-1, Ex. A (“SA”), and a revised Notice of 12 Settlement, Dkt. No. 53-2, Ex. B. With these changes, the Court granted the motion for 13 preliminary approval. See Dkt. No. 54. 14 C. Settlement Agreement 15 The key terms of the parties’ settlement are as follows: 16 Class Definition: The Settlement Class is defined as:

17 [A]ll applicants for employment with and employees of DarkTrace from whom DarkTrace obtained the individual’s consent to procure 18 a consumer report using a form document substantially similar to the authorization form signed by Plaintiff; and procured or caused to be 19 procured a consumer report, as defined by the FCRA, between November 5, 2016 and the date the Final Judgment and Order 20 approving this Settlement Agreement is entered by the Court. 21 SA at ¶ III.C. 22 Settlement Benefits: The parties have agreed to both non-monetary and monetary relief. 23 Moving forward, Defendant will comply with the disclosure, authorization, and notice practices 24 relating to obtaining consumer reports and the provision of consumer reports and summaries of 25 rights referenced in §§ 1681b(b)(2)(A)(i) and 1681b(b)(3) of the FCRA. See id. at ¶ IV.H. 26 Additionally, Defendant will pay each class member $300 in a settlement check mailed via regular 27 mail to each class member. See id. at ¶ IV.B.1; see also ¶ VII.A. The checks will become void 60 1 the class representative; class counsel’s requested attorneys’ fees; and the costs Defendant will 2 bear in serving notice to the class of the settlement and for administering the settlement payments. 3 See id. at ¶¶ IV.B.2, IV.B.3, VI.J.E. 4 Cy Pres Distribution: Settlement checks that are undeliverable or not cashed within 60 5 days of mailing will be void and those funds will be donated to “a recipient to be agreed to by the 6 parties.” SA at ¶¶ IV.B.4, VII.B. Following the hearing on the motion for preliminary approval, 7 the parties submitted a supplemental declaration identifying the National Consumer Law Center 8 (“NCLC”) as the stipulated cy pres recipient. See Dkt. No. 51. 9 Release: All settlement class members will release:

10 any and all claims the Class Member Releasing Parties have under 15 U.S.C. § 1681b(b)(2)(A)(i) and/or 15 U.S.C. §§ 1681b(b)(3)(A)(i) 11 and 16818b(b)(3)(A)(ii). 12 SA at ¶ XII.A. In addition, class members:

13 shall be deemed to have expressly waived and relinquished, with respect solely to claims the Class Member has or may have under 15 14 U.S.C. § 1681b(b)(2)(A)(i) and/or 15 U.S.C. §§ 1681b(b)(3)(A)(i) and 1681b(b)(3)(A)(ii), the provisions, rights and benefits of Section 15 1542 of the California Civil Code, or any other similar provision under federal or state law, which provides: 16

A GENERAL RELEASE DOES NOT EXTEND TO

17 CLAIMS, THAT THE CREDITOR OR RELEASING

PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN

18 HIS OR HER FAVOR AT THE TIME OF EXECUTING

THE RELEASE AND THAT, IF KNOWN BY HIM OR

19 HER, WOULDHAVE MATERIALLY AFFECTED HIS OR

HER SETTLEMENT WITH THE DEBTOR OR

20 RELEASED PARTY. 21 Id. The class representative further agrees to release Defendant from:

22 any and all manner of claims, grievances, controversies, allegations, accusations, demands, judgments, causes of action, actions, suits, 23 whether class, representative, individual or otherwise in nature, damages whenever incurred, liabilities of any nature whatsoever as 24 well as all forms of relief, including all remedies, costs, losses, liabilities, damages, debts, expenses, penalties, interest, and 25 attorneys’ and other professionals’ fees and related disbursements, whether known or unknown, foreseen or unforeseen, suspected or 26 unsuspected, asserted or unasserted, whether (a) claiming compensation, money damages, equitable or other type of relief; (b) 27 based on any federal, state, or municipal statute, law, ordinance, or equity, statutory or common law, or any other causes of action that 1 the Class Representative Releasing Party, whether directly, representatively, derivatively, or in any other capacity, ever had, now 2 has, or hereafter can, shall, or may have against the Released Parties accruing on or before the Effective Date (collectively, the “Class 3 Representative Released Claims”). It is expressly intended and understood by the parties that this Agreement is to be construed as a 4 complete settlement, accord, and satisfaction of the Class Representative Released Claims. 5 6 Id. at ¶¶ XII.B, XII.C. 7 Class Notice: A third-party settlement administrator will mail the “Notice of Proposed 8 Class Action Settlement and Hearing” (the “Notice”) to class members by regular mail within 30 9 days of the Court’s order preliminarily approving the settlement. See id. at ¶¶ V.B, V.C. The 10 settlement administrator will make reasonable efforts to locate class members whose notices are 11 returned as undeliverable such as using the USPS National Change of Address database and 12 commercially available address verification resources. Id. 13 The notice will include: the nature of the action, a summary of the settlement terms, and 14 instructions on how to object to and opt out of the settlement, including relevant deadlines. See 15 Dkt. No. 53-2, Ex. B. 16 Opt-Out Procedure: The deadline for a class member to submit a request for exclusion is 17 60 days after the date of the Notice mailing. SA at ¶ III.K. Those wishing to do so may mail their 18 request to the settlement administrator. See Dkt. No. 53-2, Ex. B. 19 Incentive Award: Plaintiff as class representative may apply for incentive award of no 20 more than $15,000. SA at ¶ IV.B. 21 Attorneys’ Fees and Costs: Class Counsel may file an application for attorneys’ fees not to 22 exceed $150,000. Id. 23 II. ANALYSIS 24 A. Final Settlement Approval 25 i. Class Certification 26 Final approval of a class action settlement requires, as a threshold matter, an assessment of 27 whether the class satisfies the requirements of Federal Rule of Civil Procedure 23(a) and 1 would affect these requirements have changed since the Court preliminarily approved the class on 2 April 17, 2020, this order incorporates by reference its prior analysis under Rules 23(a) and (b) as 3 set forth in the order granting preliminary approval. See Dkt. No. 54 at 6–9. 4 ii. The Settlement 5 “The claims, issues, or defenses of a certified class may be settled . . . only with the court’s 6 approval.” Fed. R. Civ. P. 23(e). The Court may finally approve a class settlement “only after a 7 hearing and on finding that it is fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2); Officers 8 for Justice v. Civil Serv. Comm’n of the City and County of San Francisco, 688 F.2d 615, 625 (9th 9 Cir. 1982) (“The district court’s role in evaluating a proposed settlement must be tailored to fulfill 10 the objectives outlined above. In other words, the court’s intrusion upon what is otherwise a 11 private consensual agreement negotiated between the parties to a lawsuit must be limited to the 12 extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or 13 overreaching by, or collusion between, the negotiating parties . . . ”). To assess whether a 14 proposed settlement comports with Rule 23(e), the Court “may consider some or all” of the 15 following factors: (1) the strength of plaintiff’s case; (2) the risk, expense, complexity, and likely 16 duration of further litigation; (3) the risk of maintaining class action status throughout the trial; 17 (4) the amount offered in settlement; (5) the extent of discovery completed, and the stage of the 18 proceedings; (6) the experience and views of counsel; (7) the presence of a governmental 19 participant; and (8) the reaction of the class members to the proposed settlement. Rodriguez v. 20 West Publ’g Corp., 563 F.3d 948, 963 (9th Cir. 2009); see also Hanlon, 150 F.3d at 1026. “The 21 relative degree of importance to be attached to any particular factor” is case specific. Officers for 22 Justice, 688 F.2d at 625. 23 In addition, “[a]dequate notice is critical to court approval of a class settlement under Rule 24 23(e).” Hanlon, 150 F.3d at 1025. As discussed below, the Court finds that the proposed 25 settlement is fair, adequate, and reasonable, and that class members received adequate notice. 26 a. Adequacy of Notice 27 Under Federal Rule of Civil Procedure 23(e), the Court “must direct notice in a reasonable 1 Rule 23(c)(2)(B) requires “the best notice that is practicable under the circumstances, including 2 individual notice to all members who can be identified through reasonable effort.” The notice 3 must “clearly and concisely state in plain, easily understood language” the nature of the action, the 4 class definition, and the class members’ right to exclude themselves from the class. Fed. R. Civ. 5 P. 23(c)(2)(B). Although Rule 23 requires that reasonable efforts be made to reach all class 6 members, it does not require that each class member actually receive notice. See Silber v. Mabon, 7 18 F.3d 1449, 1454 (9th Cir. 1994) (noting that the standard for class notice is “best practicable” 8 notice, not “actually received” notice). 9 The Court finds that the notice and notice plan previously approved by the Court was 10 implemented and complies with Rule 23(c)(2)(B). See Dkt. No. 54 at 5, 14–15. The Court 11 ordered the third-party settlement administrator, American Legal Claims Services (“ALCS”), to 12 send class notice via U.S. mail based on a class list Defendant provided. Id. at 5, 15. ALCS 13 represents that class notice was provided as directed. Dkt. No. 61-1, Ex. A at ¶¶ 3–6. ALCS 14 verified the mailing addresses from the class list with the National Change of Address Database. 15 Id. ¶ 3. A total of 274 Class Notices were sent out, and 47 were initially returned as undeliverable. 16 Id. at ¶¶ 4–5. ALCS performed an address trace to find more current addresses and was able to 17 re-mail 30 of the returned Class Notices. Id. ¶ 5. Only one of these re-mailed Class Notices was 18 returned. Id. at ¶¶ 5–6 Thus, as of August 19, 2020, only 18 of the 274 Class Notices were 19 undeliverable. Id. at ¶ 6. During the final fairness hearing, the parties confirmed that ALCS did 20 not receive any further forwarding addresses. Therefore, 256 class members, or approximately 21 93.4%, are assumed to have received the Class Notice. 22 In light of these facts, the Court finds that the parties have sufficiently provided the best 23 practicable notice to the class members.1 24 b. Fairness, Adequacy, and Reasonableness 25 Having found the notice procedures adequate under Rule 23(e), the Court next considers 26 1 The Court notes that following the final fairness hearing, the parties confirmed that ALCS 27 oversaw the dissemination of CAFA Notice to Attorneys General. See Dkt. No. 68. Notices were 1 whether the entire settlement comports with Rule 23(e). 2 1. Strength of Plaintiff’s Case and Litigation Risk 3 Approval of a class settlement is appropriate when plaintiffs must overcome significant 4 barriers to make their case. Chun-Hoon v. McKee Foods Corp., 716 F. Supp. 2d 848, 851 (N.D. 5 Cal. 2010). Courts “may presume that through negotiation, the Parties, counsel, and mediator 6 arrived at a reasonable range of settlement by considering Plaintiff’s likelihood of recovery.” 7 Garner v. State Farm Mut. Auto. Ins. Co., No. 08-cv-1365-CW, 2010 WL 1687832, at *9 (N.D. 8 Cal. Apr. 22, 2010). Additionally, difficulties and risks in litigating weigh in favor of approving a 9 class settlement. Rodriguez, 563 F.3d at 966. “Generally, unless the settlement is clearly 10 inadequate, its acceptance and approval are preferable to lengthy and expensive litigation with 11 uncertain results.” Ching v. Siemens Indus., Inc., No. 11-cv-04838-MEJ, 2014 WL 2926210, at *4 12 (N.D. Cal. June 27, 2014) (quotations omitted). 13 The Court finds that the amount offered in settlement is reasonable in light of the 14 complexity of this litigation and the substantial risk Plaintiff would face in litigating the case given 15 the nature of the asserted claims. See Dkt. No. 61 at 9–10. In particular, to receive statutory or 16 punitive damages in this case, Plaintiff would have to establish that Defendant acted willfully and 17 not merely carelessly. See Safeco Insurance Co. of America v. Burr, 551 U.S. 47, 57–60, 68–69 18 (2007). Defendant also indicated that it would appeal any decision in Plaintiff’s favor, including 19 any order certifying a class. See Dkt. No. 61 at 9. In reaching a settlement, however, Plaintiff has 20 ensured a favorable recovery for the class. See Rodriguez, 563 F.3d at 966 (finding litigation risks 21 weigh in favor of approving class settlement). Accordingly, these factors weigh in favor of 22 approving the settlement. See Ching, 2014 WL 2926210, at *4 (favoring settlement to protracted 23 litigation). 24 2. Risk of Maintaining Class Action Status 25 In considering this factor, the Court looks to the risk of maintaining class certification if 26 the litigation were to proceed. Certifying a class of 274 individuals would likely present complex 27 issues, and Defendant has indicated that it would have argued vigorously against class 1 ascertainability and whether class members suffered any damages as a result of any alleged FCRA 2 violations (which could impact the superiority and manageability calculus). See id. Accordingly, 3 this factor also weighs in favor of settlement. 4 3. Settlement Amount 5 The amount offered in the settlement is another factor that weighs in favor of approval. 6 Based on the facts in the record and the parties’ arguments at the final fairness hearing, the Court 7 finds that paying each class member $300, a settlement amount of approximately $76,800,2 falls 8 “within the range of reasonableness” in light of the risks and costs of litigation. See Dkt. No. 61 at 9 10–11; see, e.g., Villanueva v. Morpho Detection, Inc., No. 13-cv-05390-HSG, 2016 WL 1070523 10 *4 (N.D. Cal. March 18, 2016) (citing cases). Under the FCRA, statutory damages may range 11 from $100 to $1,000. See 15 U.S.C. § 1681n(a)(1)(A). Thus, the settlement amount constitutes 12 approximately 30% of the maximum statutory recovery for class members. In addition to the 13 individual payments, Defendant will pay approximately $15,000 to the ALCS for the settlement 14 administration fees and costs. In addition to the monetary relief, Defendant has agreed to revise its 15 disclosure, authorization, and notice requirements when running background checks on 16 prospective employees. This factor therefore weighs in favor of approval. 17 4. Extent of Discovery Completed and Stage of Proceedings 18 The Court finds that Class Counsel had sufficient information to make an informed 19 decision about the merits of the case. See In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 459 20 (9th Cir. 2000). The parties settled only after they engaged in discovery to understand the 21 potential strengths and weaknesses of Plaintiff’s case. Dkt. No. 61 at 11. Even after reaching an 22 impasse during the mediation, the parties continued their settlement discussions and ultimately 23 reached an agreement under which class members would receive the $300 settlement without 24 having to submit a claim. The Court finds that the parties reviewed materials and engaged in 25 discussion sufficient to allow them to assess the likelihood of success on the merits. This factor 26 weighs in favor of approval. 27 1 5. Reaction of Class Members 2 The reaction of the class members supports final approval. “[T]he absence of a large 3 number of objections to a proposed class action settlement raises a strong presumption that the 4 terms of a proposed class settlement action are favorable to the class members.” Nat’l Rural 5 Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 528–29 (C.D. Cal. 2004); In re Linkedin 6 User Privacy Litig., 309 F.R.D. 573, 589 (N.D. Cal. 2015) (“A low number of opt-outs and 7 objections in comparison to class size is typically a factor that supports settlement approval.”). 8 Class notice, which was served in accordance with the method approved by the Court, 9 advised the class members of the requirements to object to or opt out of the settlement. The 10 deadline to object to or opt out of the settlement was July 28, 2020. Dkt. No. 59. ALCS received 11 no objections and no requests for exclusion. See Dkt. No. 61-1, Ex. A at ¶¶ 7–8. During the final 12 fairness hearing, the parties confirmed that they did not receive any objections or requests for 13 exclusion even after this deadline passed. ALCS also confirmed that it did not receive any 14 responses from the Attorneys General served with the CAFA notice. See Dkt. No. 68. The Court 15 finds that the lack of objections and opt-outs in comparison to the size of the class indicate 16 overwhelming support among the class members and weigh in favor of approval. See, e.g., 17 Churchill Village LLC v. Gen. Elec., 361 F.3d 566, 577 (9th Cir. 2004) (affirming settlement 18 where 45 of approximately 90,000 class members objected); Rodriguez v. West Publ. Corp., Case 19 No. CV05–3222 R, 2007 WL 2827379, at *10 (C.D. Cal. Sept. 10, 2007) (finding favorable class 20 reaction where 54 of 376,301 class members objected). 21 * * * 22 After considering and weighing the above factors, the Court finds that the settlement 23 agreement is fair, adequate, and reasonable, and that the settlement class members received 24 adequate notice. Accordingly, Plaintiff’s motion for final approval of the class action settlement is 25 GRANTED. 26 B. Attorneys’ Fees, Costs and Expenses, and Class Representative Enhancement 27 Payment 1 attorneys’ fees and costs. Dkt. No. 60 at 1–10. Class Counsel also seeks a $15,000 incentive 2 award for the named Plaintiff. Id. at 10–11. 3 i. Attorneys’ Fees 4 a. Legal Standard 5 “In a certified class action, the court may award reasonable attorney’s fees and nontaxable 6 costs that are authorized by law or by the parties’ agreement.” Fed. R. Civ. P. 23(h). Moreover, 7 those who violate the FCRA are liable for reasonable attorney’s fees and costs as determined by 8 the Court. See 15 U.S.C. §§ 1681n(a)(3), 1681o(a)(2). Class Counsel is entitled to recover “those 9 out-of-pocket expenses that would normally be charged to a fee paying client.” Harris v. 10 Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994) (quotations omitted). Nevertheless, “[a]ttorneys’ fees 11 provisions included in proposed class action settlement agreements are, like every other aspect of 12 such agreements, subject to the determination whether the settlement is ‘fundamentally fair, 13 adequate, and reasonable.’” Staton v. Boeing Co., 327 F.3d 938, 963 (9th Cir. 2003) (quoting Fed. 14 R. Civ. P. 23(e)). 15 Under the lodestar method, a “lodestar figure is calculated by multiplying the number of 16 hours the prevailing party reasonably expended on the litigation (as supported by adequate 17 documentation) by a reasonable hourly rate for the region and for the experience of the lawyer.” 18 In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011) (citing Staton, 327 19 F.3d at 965). “[T]he established standard when determining a reasonable hourly rate is the rate 20 prevailing in the community for similar work performed by attorneys of comparable skill, 21 experience, and reputation.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008) 22 (quotation omitted). Generally, “the relevant community is the forum in which the district court 23 sits.” Id. (citing Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997)). Typically, “affidavits of 24 the plaintiffs’ attorney and other attorneys regarding prevailing fees in the community, and rate 25 determinations in other cases . . . are satisfactory evidence of the prevailing market rate.” United 26 Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). “In addition to 27 affidavits from the fee applicant, other evidence of prevailing market rates may include affidavits 1 v. Law Office of Rory W. Clark, 314 F.R.D. 673, 687 (N.D. Cal. 2016). Any award must be 2 supported “by findings that take into account all of the circumstances of the case.” Vizcaino v. 3 Microsoft Corp., 290 F.3d 1043, 1048 (9th Cir. 2002). 4 b. Discussion 5 Class Counsel here seeks $150,000 in fees and costs. See Dkt. No. 63 at 1–10. Class 6 Counsel calculate their lodestar as follows: Francis Mailman Soumilas, P.C. incurred 176 hours of 7 attorney and paralegal time, or $104,602.50, as well as $13,815.90 in unreimbursed costs; 8 SmithMarco, P.C. incurred 186.2 hours of attorney and paralegal time, or $90,917.50; and Tatar 9 Law Firm, which served as local counsel, incurred 13.2 hours of attorney time, or $6,600. Thus, 10 in total, Class Counsel spent over 375 hours on this action, totaling $202,120, and incurred 11 $19,019 in expenses, for a total of fees and costs of $221,139. 12 With respect to hourly rates, the rates requested are between $145 and $225 for paralegal 13 time, $400 for associates, and $500 to $775 for partners. See Dkt. No. 63-1 ¶ 6; Dkt. No. 60-2, 14 Ex. 3; Dkt. No. 60-6, Ex. 8; Dkt. No. 60-7, Appendix 2; Dkt. No. 60-9, Ex. B. The Court finds 15 that the billing rates used by Class Counsel to calculate the lodestar are reasonable and in line with 16 prevailing rates in this district for personnel of comparable experience, skill, and reputation. See, 17 e.g., Hefler v. Wells Fargo & Co., No. 16-CV-05479-JST, 2018 WL 6619983, at *14 (N.D. Cal. 18 Dec. 18, 2018) (rates from $650 to $1,250 for partners or senior counsel, $400 to $650 for 19 associates); In re Volkswagen “Clean Diesel” Mktg., Sales Practices, & Prod. Liab. Litig., No. 20 2672 CRB (JSC), 2017 WL 1047834, at *5 (N.D. Cal. Mar. 17, 2017) (billing rates ranging from 21 $275 to $1600 for partners, $150 to $790 for associates, and $80 to $490 for paralegals reasonable 22 “given the complexities of this case and the extraordinary result achieved for the Class.”). The 23 time spent in this action also appears reasonable over the course of the approximately two years of 24 litigation. 25 The Court also recognizes that Class Counsel obtained significant results for the class. The 26 settlement amount represents approximately 30% of class members’ maximum statutory recovery. 27 Moreover, no class member objected to the settlement or requested exclusion, suggesting strong 1 this action on a contingency fee basis, and incurring costs, with “no guarantee that they would 2 receive any remuneration for the many hours [] they spent litigating.” Dkt. No. 60 at 8. With 3 respect to the quality of litigation, the successful result involved significant commitment, 4 persisting even after the parties did not initially settle the case during mediation. 5 Accordingly, the Court GRANTS attorneys’ fees and costs totaling $150,000. 6 ii. Incentive Award 7 Lastly, Class Counsel also requests an incentive award of $15,000 for the named Plaintiff. 8 See Dkt. No. 60. District courts have discretion to award incentive fees to named class 9 representatives. See In re Mego Fin. Corp. Secs. Litig., 213 F.3d 454, 463 (9th Cir. 2000). 10 However, the Court shares the Ninth Circuit’s concerns that “if class representatives expect 11 routinely to receive special awards in addition to their share of the recovery, they may be tempted 12 to accept suboptimal settlements at the expense of the class members whose interests they are 13 appointed to guard.” See Staton v. Boeing Co., 327 F.3d 938, 975 (9th Cir. 2003); Radcliffe v. 14 Experian Information Sols. Inc., 715 F.3d 1157, 1163–64 (9th Cir. 2013) (noting that the Ninth 15 Circuit has “expressed disapproval of these incentive agreements” and that “in some cases 16 incentive awards may be proper but . . . awarding them should not become routine practice”). The 17 Ninth Circuit has cautioned that “district courts must be vigilant in scrutinizing all incentive 18 awards to determine whether they destroy the adequacy of the class representatives . . . .” 19 Radcliffe, 715 F.3d at 1165 (quotations omitted). This is particularly true where “the proposed 20 service fees greatly exceed the payments to absent class members.” Id. 21 The Court has concerns about the requested incentive award in this case where the amount 22 named Plaintiff would receive is disproportionate to the monetary award that other class members 23 would receive. Class Counsel requests an incentive award for named Plaintiff that is fifty times 24 more than the settlement award other class members would receive. Nevertheless, given the 25 benefit Plaintiff helped obtain for the class, the Court finds an award of $1,500 to be adequate and 26 appropriate. The Court accordingly GRANTS IN PART the request for an incentive award. 27 III. CONCLUSION 1 and GRANTS IN PART the motion for attorneys’ fees and incentive award. The Court approves 2 the settlement amount of $300 per class member; settlement administrator costs in the amount of 3 $15,000; attorneys’ fees and costs in the amount of $150,000. The Court further awards named 4 Plaintiff an incentive award of $1,500. 5 The parties and settlement administrator are directed to implement this Final Order and the 6 settlement agreement in accordance with the terms of the settlement agreement. The parties are 7 || further directed to file a short stipulated final judgment of two pages or less within 21 days from 8 the date of this order. The judgment need not, and should not, repeat the analysis in this order. 9 IT IS SO ORDERED. 10 || Dated: 12/10/2020 11 7 Harpucerd ZB Ld, □□

HAYWOOD S. GILLIAM, JR.

12 United States District Judge

15 16

= 17

Z 18

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