Dekker v. Vivint Solar, Inc.

[4] 5 UNITED STATES DISTRICT COURT [6] NORTHERN DISTRICT OF CALIFORNIA [8] 9 GERRIE DEKKER, individually and on behalf of all others similarly situated, 10 No. C 19-07918 WHA Plaintiff, [11] v. 12 ORDER RE MOTIONS FOR FINAL VIVINT SOLAR, INC., VIVINT SOLAR APPROVAL AND ATTORNEY’S 13 HOLDINGS, INC., VIVINT SOLAR FEES, COSTS, AND SERVICE DEVELOPER, LLC, and VIVINT SOLAR AWARD 14 PROVIDER, LLC, 15 Defendants. [17] 18 INTRODUCTION 19 In this unfair business practices class action, plaintiff moves for final approval of a class 20 settlement. Because the settlement is fair, reasonable, and adequate, final approval is 21 GRANTED. 22 Separately, plaintiff moves for an award of attorney’s fees in the amount of $1,859,273, 23 costs in the amount of $168,276.05, and a class representative service award in the amount of 24 $15,000. This order finds that attorney’s fees should be reduced to $100,000, with the 25 possibility of more to be awarded later if additional benefit to the class materializes. It further 26 finds that costs should be reduced to $25,427.60, and that the class representative service 27 award should be reduced to $500. To the extent stated herein, the motion for attorney’s fees, 1 This class action began broad and ended narrow in a no-cash settlement that formalized a 2 practice both sides recognize defendants had already implemented. While class counsel 3 invested considerable time, most of that time led to no benefit to the class. Any additional 4 benefit to the class deriving from setting the existing practice in stone remains speculative at 5 this juncture. Accordingly, this order awards attorney’s fees in two steps: $100,000 now and a 6 further amount in the future, if warranted, once we can better assess the full extent of the class 7 benefit. 8 STATEMENT 9 Previous orders described the facts herein (Dkt. Nos. 121, 140, 230). At all relevant 10 times, defendant Vivint Solar, Inc., in its various corporate forms (collectively, “Vivint”), has 11 installed solar panels on customers’ roofs and, as advertised, has sold those customers low12 cost, clean energy pursuant to power purchase agreement (“PPA”) contracts. In exchange for 13 Vivint paying the upfront costs of building and operating their solar photovoltaic systems, 14 customers have agreed to buy the electricity that their systems produce over a twenty-year term 15 from Vivint at a set price. Plaintiff Gerrie Dekker alleges that Vivint’s “Version 1” PPA 16 contracts, issued between 2012 and 2013, contain liquidated damages provisions that impose 17 harsh, unlawful penalties on customers. Ms. Dekker brought this action on behalf of a class of 18 947 customers who are parties to Version 1 PPA contracts.1 19 Originally, the action was much broader. The initial complaint, filed in December 2019, 20 named ten plaintiffs (Dkt. No. 1), but a March 2020 order compelled all but two of those 21 plaintiffs to arbitration (Dkt. No. 47). The exceptions were Ms. Dekker, whose Version 1 PPA 22 contract did not include an arbitration clause, and Juan Bautista, a native Spanish speaker with [23] 1 Both sides refer to 951 class members (Fairness Br. 9 n.5; Fairness ISO Br. 1). But there were [24] 955 potential class members, four opt-outs, and four undeliverable class notices (Fairness Br. 8; Fairness ISO Br. 2). Seeing that those potential class members who opt out and those whose class [25] notices remain undeliverable shall be excluded from the class and not bound pursuant to the provisionally approved settlement agreement, there are actually 947 class members (see Dkt. [26] No. 292-1 ¶ 4.5; see also id. ¶¶ 3.4, 4.2.2). This error may derive from class counsel, yet again, including an outdated settlement agreement in the exhibits to their motion (Dkt. No. 294-2 at 23– [27] 41; see Dkt. No. 291 at 2). The outdated settlement agreement did not reflect that those potential 1 almost no English proficiency who had ostensibly not agreed to arbitrate when he signed his 2 contract. Vivint promptly appealed the March 2020 order, plaintiffs amended their complaint, 3 and the action continued apace (Dkt. Nos. 48, 65). 4 Then, in May 2020, Vivint dropped the ball on meeting its JAMS filing fee deadlines, a 5 material breach of the arbitration agreements under then-recently enacted California Code of 6 Civil Procedure Section 1281.97. Accordingly, an August 2020 order vacated the March 2020 7 order as far as it compelled select plaintiffs to arbitrate, inviting those plaintiffs back into this 8 forum (Dkt. No. 84). Vivint promptly appealed the August 2020 order as well (Dkt. No. 86). 9 Two months later, Sunrun, Inc. acquired Vivint (Dkt. No. 296-11 ¶ 1). 10 In January 2021, our court of appeals dismissed Vivint’s first appeal for lack of 11 jurisdiction, “remand[ing] to the district court for it to determine if Plaintiffs should be granted 12 leave to amend the complaint” (Dkt. No. 111). Leave to amend was ultimately granted, 13 formalizing plaintiffs’ reliance on Class Action Fairness Act (“CAFA”) jurisdiction (Dkt. 14 No. 121). In April 2021, Vivint moved for judgment on the pleadings, which was granted with 15 respect to plaintiffs’ claim under California’s Unfair Competition Law (“UCL”) to the extent 16 that it alleged unfairness based on violations of the Translation Act suffered by Mr. Bautista 17 (Dkt. No. 140). Plaintiffs were subsequently permitted to amend their complaint once more to 18 include a damages claim under California’s Consumers Legal Remedies Act (“CLRA”), but 19 they were denied leave to include a revised UCL claim alleging unfairness based on violations 20 of the Translation Act, as well as a new restitution claim under the CLRA and UCL (Dkt. 21 No. 157). 22 In October 2021, the other shoe dropped when our court of appeals ruled on Vivint’s 23 second appeal, holding that whether Vivint’s failure to pay the JAMS filing fees qualified as a 24 breach of the arbitration agreements fell within the scope of the delegation clauses of the post25 2013, non-Version 1 PPA contracts (Dkt. No. 177). The order compelling plaintiffs who were 26 parties to those contracts to arbitration was hence reinstated (Dkt. No. 178). Some of those 27 plaintiffs opted to settle with Vivint, as did Mr. Bautista (Dkt. No. 185). By November 2021, 1 A class was certified in March 2022 under Rule 23(b)(2) of the Federal Rules of Civil 2 Procedure to include “[a]ll persons in California currently in privity of contract with Vivint 3 Solar because they are subject to Version 1 of the Residential Solar Power Purchase 4 Agreement” (Dkt. No. 230). Despite the fact that damages were previously sought (Dkt. 5 No. 209), plaintiff only sought injunctive and declaratory relief by the class certification stage 6 (Dkt. No. 214). An order regarding partial summary judgment, issued concurrently with the 7 order regarding class certification, held that plaintiff’s claims were not moot, plaintiff did not 8 have an adequate remedy at law, and any order enjoining the enforcement of the alleged 9 liquidated damages provisions would grant private injunctive relief on behalf of individuals 10 with Version 1 PPA contracts, not public injunctive relief on behalf of the general public (Dkt. 11 No. 229). This was in recognition of the fact that, as of December 31, 2021, Vivint no longer 12 engaged in sales activities beyond those with customers who had previously initiated 13 negotiations (id. at 10). 14 The parties attended settlement conferences and, in July 2022, reached an initial 15 settlement agreement (Dkt. No. 274). The trial date was vacated, and plaintiff moved for 16 preliminary approval in September 2022 (Dkt. Nos. 278, 282). At the hearing on preliminary 17 approval, the judge identified several deficiencies in the proposed settlement agreement and 18 class notice, and ordered the submission of revisions (Dkt. No. 285). The submitted revisions 19 were lacking, and the judge ultimately had to issue two further orders directing counsel to 20 make corrections (Dkt. Nos. 289, 291). Preliminary approval was finally granted in January 21 2023 (Dkt. No. 293). 22 Plaintiff now moves for final approval of the class settlement and, separately, for 23 attorney’s fees, costs, and a class representative service award (Dkt. Nos. 294–95). This order 24 follows full briefing and oral argument. 25 ANALYSIS 26 1. MOTION FOR FINAL APPROVAL. 27 “The class action device, while capable of the fair and efficient adjudication of a large 1 risks.” Officers for Just. v. Civ. Serv. Comm’n of S.F., 688 F.2d 615, 623 (9th Cir. 1982). As 2 set out in Rule 23(e)(2) of the Federal Rules of Civil Procedure, a district court may grant 3 approval of a settlement that would bind class members only after a hearing and only upon a 4 finding that it is fair, reasonable, and adequate. 5 Our court of appeals has explained that any such finding under Rule 23(e)(2) is guided by 6 the eight Churchill factors: (1) the strength of the plaintiff’s case; (2) the risk, expense, 7 complexity, and likely duration of further litigation; (3) the risk of maintaining class action 8 status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery 9 completed and the stage of the proceedings; (6) the experience and views of counsel; (7) the 10 presence of a governmental participant; and (8) the reaction of the class members of the 11 proposed settlement. Kim v. Allison, 8 F.4th 1170 , 1178 (9th Cir. 2021) (quoting In re 12 Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 946 (9th Cir. 2011)). 13 Meanwhile, Rule 23(e)(2) itself, as amended in 2018, requires a district court to take up 14 an additional set of factors. Fed. R. Civ. P. 23(e)(2)(A)–(D). To find that a settlement is fair, 15 reasonable, and adequate, a district court must assess whether: (A) the class representatives 16 and class counsel have adequately represented the class; (B) the proposal was negotiated at 17 arm’s length; (C) the relief provided for the class is adequate; and (D) the proposal treats class 18 members equitably relative to each other. Other relevant factors that will be considered are 19 those listed in the judge’s notice regarding factors to be evaluated for any proposed class 20 settlement, filed herein December 2019 (Dkt. No. 12). 21 In short, in consideration for the dismissal of this action with prejudice and a release of 22 claims related to the alleged liquidated damages provisions, Vivint agrees to modify the 23 Version 1 PPA contracts of class members to reduce the price paid by those who default and 24 buy out their systems from seven dollars per watt to four dollars per watt, with a five percent 25 reduction for each year their systems were in service (Dkt. No. 292-1 ¶ 7.1). This order finds 26 the settlement fit for final approval. 27 A. THE CHURCHILL FACTORS. 1 First, this was never a powerful case to begin with. The action was originally brought in 2 2019 by ten plaintiffs seeking certification of a class estimated to be in the tens of thousands 3 and asserting a range of interrelated state law claims (Dkt. No. 1). We are now left with one 4 plaintiff on behalf of a class of 947 customers seeking to settle some of those claims. At trial, 5 plaintiff would have had the burden of establishing that the alleged liquidated damages 6 provisions were not setting out alternatives to performance and instead prevented customers 7 from making realistic and rational choices (see Dkt. No. 230 at 8–10). And, defendants could 8 have escaped liability by demonstrating that actual damages would have been difficult to 9 quantify and seven dollars per watt was a reasonable estimate (see id. at 7–8). Even 10 recognizing plaintiff’s (limited) success at the partial summary judgment stage with respect to 11 this (limited) class, she certainly would have risked losing when proceeding on such questions. 12 This factor weighs moderately in favor of settlement. 13 Second, the risk, expense, complexity, and likely duration of further litigation likewise 14 support settlement. Here, the risk of loss identified above applies equally to both sides, as both 15 sides acknowledge (Fairness Br. 11; Fairness ISO Br. 8). The action has already resulted in 16 two appeals, and proceeding to trial would likely result in more and drag this on. Meanwhile, 17 trial and additional appeals would require racking up additional fees beyond the 18 disproportionate fees already incurred. 19 Third, the risk of maintaining class action status throughout trial is neutral. The class 20 was certified in March 2022 (Dkt. No. 230). Although it is unlikely that the class would be 21 decertified, defendants could have offered evidence that the value of the systems installed at 22 class member homes varies so significantly that ascertaining damages would present 23 individualized questions of fact, precluding class-wide resolution (see Dkt. No. 296-1 ¶ 12). 24 Fourth, the “amount” offered in settlement supports settlement. Although this settlement 25 provides for the modification of a contract instead of a cash award, the parties agree that the 26 potential savings amount for defaulting customers is similar to that which plaintiff could have 27 achieved had she prevailed at trial (Dkt. Nos. 294-1 ¶ 16, 296-1 ¶ 11). And, as plaintiff 1 have been left vulnerable seeing that defendants could have pursued common law remedies to 2 offset the savings provided (Fairness Br. 11). 3 Fifth, the extent of discovery completed and the stage of proceedings support settlement. 4 The narrowed claims have survived dismissal, judgment on the pleadings, partial summary 5 judgment, and class certification (Dkt. Nos. 47, 140, 229, 230). Plaintiff (then plaintiffs) 6 served 25 interrogatories, five sets of requests for production, and two expert reports (Fairness 7 ISO Br. 7). Defendants produced over 16,000 pages of documents and one expert report 8 (Fairness Br. 4–5). There has been ample discovery, and the settlement was reached just two 9 months before the action would have proceeded to trial (see Dkt. No. 278). 10 Sixth, the experience and views of counsel support settlement. Although it was not 11 always readily apparent, counsel for both sides are sufficiently experienced in complex 12 litigation and class actions. As class counsel observe, with the settlement, class members stand 13 to save, whereas without it, they could be trapped in unfavorable contracts for years to come 14 (Fairness Br. 11). Likewise, defense counsel acknowledge the benefits of settlement for class 15 members, emphasizing the avoidance of damages for breach (Fairness ISO Br. 9). 16 Seventh, although there was not a governmental participant in this action, defendants 17 notified the California Attorney General and the United States Attorney General, as required 18 by CAFA, in September 2022 (Dkt. Nos. 283, 284). Neither has raised any concerns involving 19 the settlement. 20 Eighth, the reaction of the class members of the proposed settlement favors settlement. 21 Of the 955 potential class members notified, only four requested exclusion, and more than 99% 22 of the potential class members are participating (Dkt. No. 294-5 ¶¶ 7–8). 23 In sum, the Churchill factors support final approval of the settlement. 24 B. THE RULE 23(e)(2) FACTORS. 25 “[C]onsideration of these eight Churchill factors alone is not enough . . . . ” Kim, 8 F.4th 26 at 1179 (quoting Bluetooth, 654 F.3d at 946 ). Rule 23(e)(2), as amended in 2018, requires the 27 district court to go beyond Ninth Circuit precedent by analyzing the four additional factors set 1 in order to find that a settlement is fair, reasonable, and adequate, a district court must consider 2 whether: (A) the class representatives and class counsel have adequately represented the class; 3 (B) the proposal was negotiated at arm’s length; (C) the relief provided for the class is 4 adequate; and (D) the proposal treats class members equitably relative to each other. This 5 order evaluates these factors to the extent not considered in the Churchill analysis above. 6 First, class counsel and the class representative have, by and large, represented the class 7 adequately. As noted before, the relief is similar to what could have been achieved had 8 plaintiff been successful at trial. To the extent that class counsel and the class representative 9 could have done better, that should (and will) be reflected in their compensation, not in the 10 denial of a settlement that has some benefit to the class. 11 Second, the proposal was negotiated at arm’s length. Chief Magistrate Judge Donna Ryu 12 supervised settlement negotiations in the lead-up to trial, and the parties did not immediately 13 agree on settlement terms. There is no discussion of attorney’s fees in the settlement 14 agreement beyond plaintiff’s right to seek them and defendants’ right to oppose them — and 15 no discussion of plaintiff’s entitlement to fees in the first place (Dkt. No. 292-1 ¶¶ 6.2, 6.2.1, 16 8.4). What’s more, there is no evidence of collusion and, to the contrary, there is a stark 17 $1,786,773 difference between the attorney’s fees class counsel and defense counsel believe 18 should be awarded. That is not to mention the $142,848.45 difference in opinion on costs and 19 the $13,000 difference in opinion on the class representative service award. In total, class 20 counsel has requested $1,942,621.45 more than what defense counsel believe is warranted. 21 For all of these reasons, this order concludes that the settlement agreement was the result of 22 arm’s-length negotiations.2 23 Third, the relief is adequate, taking into account, as required: (i) the costs, risks, and 24 delay of trial and appeal; (ii) the effectiveness of any proposed method of distributing relief to 25 the class, including the method of processing class-member claims; (iii) the terms of any [26] 27 2 This order also finds that the settlement agreement shows none of the warning signs of collusion 1 proposed award of attorney’s fees, including timing of payment; and (iv) any agreement 2 required to be identified under Rule 23(e)(3). Again, the relief is similar to what could have 3 been achieved at trial, and there was risk in pursuing further litigation. The relief is also 4 adequate considering the method of distributing it to the class: a strong effort was (eventually) 5 made to notify all potential class members of the settlement, and their Version 1 PPA contracts 6 will be automatically changed pursuant to the settlement agreement. Note that after defendants 7 provided a list of potential class members, the settlement administrator conducted a National 8 Change of Address search. Class notices were mailed to 955 potential class members and 9 emailed to 947 of those potential class members. The settlement administrator conducted skip10 traces for 38 undelivered class notices as requested by the judge and, in the end, there were 11 only four that remained undeliverable (Dkt. No. 294-5; see Dkt. No. 285). This systematic 12 effort to notify potential class members and the automatic change to class member contracts 13 make the distribution of relief very effective. Recall, there was no provision for attorney’s fees 14 beyond plaintiff’s right to seek them and defendants’ right to oppose them. And, there was no 15 agreement identified under Rule 23(e)(3). 16 Fourth, the settlement treats class members equitably relative to each other. It modifies 17 the contracts on a per watt basis with a standard annual discount such that class members are 18 treated the same no matter the size of their system. 19 In sum, the Rule 23(e)(2) factors likewise support final approval of the settlement. 20 C. THIS COURT’S FACTORS. 21 A prior order laid out fourteen factors that would be analyzed in the event of a proposed 22 class settlement (Dkt. No. 12). This order evaluates these factors to the extent relevant to the 23 settlement at issue and not considered in the Churchill and Rule 23(e)(2) analyses above. 24 The fourth factor contemplates whether the release is limited only to the certified claims 25 (id. at 3). The judge had to instruct counsel twice to modify the release in the settlement 26 agreement and class notice such that it was clear that class members would only be releasing 27 claims that were asserted and settled in this action (Dkt. No. 289 at 2–3). The settlement 1 agreement and class notice now reflect the narrow release of claims (Dkt. Nos. 292-1 ¶ 7.1, 2 292-2 at 2). 3 The eighth factor makes clear that an opt-out option is not a cure-all for a poor-quality 4 settlement (Dkt. No. 12 at 4). Although this settlement has an opt-out option and four potential 5 class members chose to exercise it, that option is not operating as a pernicious cure-all here. 6 As explained in the analysis of Churchill factor eight and Rule 23(e)(2) factor three, the 7 settlement does not rely heavily on the opt-out option, and it provides value for the vast 8 majority of potential class members. 9 The ninth factor acknowledges the danger of giving incentive payments to named 10 plaintiffs to sweeten an inadequate deal (ibid.). Although class counsel now separately seek a 11 class representative service award for Ms. Dekker, this has no bearing on the settlement itself. 12 Defendants did not offer plaintiff an incentive payment to settle the case. 13 In sum, the factors laid out in the prior order further support final approval. As such, for 14 the foregoing reasons, final approval of the class settlement is hereby GRANTED. 15 2. MOTION FOR ATTORNEY’S FEES, COSTS, AND SERVICE AWARD. 16 As mentioned above, the settlement agreement did not discuss attorney’s fees beyond 17 plaintiff’s right to seek them and defendants’ right to oppose them. Plaintiff now separately 18 moves for $1,859,273 in fees, $168,276.05 in costs, and $15,000 for a class representative 19 service award under Rule 23(h) of the Federal Rules of Civil Procedure. Defendants counter 20 that plaintiff should receive no more than $72,500 in fees, $25,427.60 in costs, and $2,000 for 21 a class representative service award. This order turns to resolving the chasmic dissonance. 22 A. ATTORNEY’S FEES. 23 Let’s start with the requested fees, and before that, some context. As the parties are 24 aware, mere months ago, our court of appeals decisively reversed and remanded a 1.7-million25 dollar fee award. See Lowery v. Rhapsody Int’l, Inc., 75 F.4th 985 (9th Cir. 2023).3 That [26] 3 Meanwhile, three weeks ago, our court of appeals denied a petition to rehear Lowery en banc and [27] issued an amended opinion that altered a single footnote. The altered footnote does not affect this 1 award was significantly less than the six million dollars requested by class counsel but still 2 more than thirty times the amount that the class had received from the underlying settlement. [3] Id. at 991 . In reversing the award, our court of appeals underscored that “[t]he touchstone for 4 determining the reasonableness of attorneys’ fees in a class action is the benefit to the class.” [5] Id. at 988 . Accordingly, “[i]t matters little that the plaintiffs’ counsel may have poured their 6 blood, sweat, and tears into a case if they end up merely spinning wheels on behalf of the 7 class,” as “[w]hat matters most is the result for the class members.” Ibid. In Lowery, “the 8 benefit from th[e] litigation was minimal: the class received a measly $52,841.05 and obtained 9 no meaningful injunctive or nonmonetary relief.” Ibid. 10 In our case, the settlement provides no cash to the class. Rather, it provides a 11 modification to Version 1 PPA contracts. Specifically, the Version 1 PPA contracts of 12 947 class members will be modified to allow those who default and buy out their systems to 13 purchase them for four dollars per watt, discounted by five percent for each year the systems 14 have been in service, instead of seven dollars per watt, as set out in the original Version 1 PPA 15 contracts (Dkt. No. 292-1 ¶ 7.1). And, it is undisputed that this merely formalizes Vivint’s 16 existing practice: the record reflects that, in rare cases of default, Vivint has routinely allowed 17 customers to buy out their systems for four dollars per watt, discounted by five percent for 18 each year the systems have been in service, instead of seven dollars per watt, as set out in the 19 original Version 1 PPA contracts (Fees Opp. 4; Fees Reply Br. 11; see Dkt. Nos. 296-11 ¶ 6, 20 296-12).4 Which is to say, class counsel seek almost two million dollars in fees for changing 21 the default provisions in the contracts of less than one thousand customers to conform to what 22 Vivint was already doing and, for all the record shows, would have continued to do. 23 As both sides recognize, this no-cash settlement does bind Vivint and its new parent 24 company Sunrun to continue this practice for all class members for the duration of their 25 contracts. Based on the historical default rate of 0.5% for customers with Version 1 PPA [26] 4 The original Version 1 PPA contracts had already allowed customers who sold their homes to [27] people unwilling or unable to assume the obligations under their contracts to buy out their systems 1 contracts, and the fact that all class members’ systems are at least ten years old, roughly five 2 class members stand to invoke this modification each year over the course of the next ten 3 years, which amounts to roughly fifty class members in total (see Fees Opp. 5; Fees Reply 4 Br. 7). This no-cash settlement also ensures all class members will know at the outset that they 5 can buy out their systems at the reduced price and that the reduced price will be offered to 6 individuals who assume their contractual obligations (see Dkt. No. 292-1 ¶ 9.7). In light of 7 this, questions remain as to whether some additional benefit to the class may emerge. Rather 8 than guess at that now, the practical approach is to wait and see, and then adjust attorney’s fees 9 upward to conform to how it actually plays out. If the settlement causes more class members 10 to invoke the relevant provisions than has historically been the case, class counsel will be 11 allowed to seek additional fees, explained below.5 12 But even so, this was by no means the blockbuster resolution that class counsel 13 previously pursued and that could potentially justify their extraordinary fee request. 14 Remember, they had once sought public injunctive relief and, briefly, damages on behalf of 15 tens of thousands of Vivint customers. Indeed, much of the effort that went into litigating this 16 case was dedicated to the arbitration fights of non-class members, several of whom ultimately 17 settled out — for which class counsel were ostensibly compensated. In other words, as in 18 Lowery, “the benefit from this litigation was minimal” and “the class . . . obtained no 19 meaningful injunctive or nonmonetary relief.” 75 F.4th at 988 ; see also Stanikzy v. 20 Progressive Direct Ins. Co., No. 22-35524, 2023 WL 4837875 , at *2 (9th Cir. July 28, 2023) 21 (upholding a reduced fee award last month based on a district court’s finding that the requested 22 fees would greatly exceed class recovery); Create-A-Card, Inc. v. Intuit, Inc., No. C 07-06452 23 WHA, 2009 WL 3073920 , at *3 (N.D. Cal. Sept. 22, 2009) (“The determinative factor, [26] 5 To contextualize the historical default rate, defendants observe, and plaintiff does not contest, that the price of electricity under solar PPA contracts is typically lower than that charged by [27] utilities (Fees Opp. 4). According to defendants, “[h]omeowners need electricity, and as long as 1 however, is the benefit to the class — here pretty small, far less than the fee request itself. The 2 benefit to the class simply does not warrant the requested fee award.”). 3 Class counsel emphasized at the hearing that Lowery was a copyright case and federal 4 law was at issue, whereas this is not a copyright case and state law is at issue (Tr. 8:21–9:1). 5 But Lowery was clear that “[t]he district court’s fee award [was] not reasonable under 6 Rule 23.” 75 F.4th at 991 (emphasis added). Moreover, our court of appeals has held that 7 irrespective of whether a plaintiff was a prevailing party under a state law fee-shifting 8 provision, “the district court needed to do more to assure itself — and us — that the amount 9 awarded was not unreasonably excessive in light of the results achieved.” Bluetooth, 654 F.3d 10 at 943. In other words, Lowery is on point and looms large here. As set out below, this order 11 finds that a reduced fee award is appropriate. 12 * * * 13 In a certified class action, a district court may award reasonable attorney’s fees that are 14 authorized by law or by the parties’ agreement. Fed. R. Civ. P. 23(h). As the settlement 15 agreement reached by the parties did not itself authorize an award, let alone speak to class 16 counsel’s entitlement to an award, our first question is whether an award is authorized by law 17 (see Dkt. No. 292-1 ¶¶ 6.2, 6.2.1, 8.4). 18 In the end, plaintiff asserted an unlawful liquidated damages claim under Section 1671 of 19 the California Civil Code, as well as derivative claims under the CLRA and UCL (Dkt. 20 No. 214). Plaintiff alleged that defendants’ inclusion of unlawful liquidated damages 21 provisions violated CLRA Section 1770(a)(14), which prohibits representing that a transaction 22 involves obligations prohibited by law, as well as Section 1770(a)(19), which prohibits 23 inserting an unconscionable provision into a contract. According to class counsel, they are 24 thereby entitled to fees under the CLRA. 25 Under CLRA Section 1780(e), “[t]he court shall award court costs and attorney’s fees to 26 a prevailing plaintiff in litigation” filed under Section 1770. When litigation is resolved by a 27 pre-trial settlement, determination of the prevailing party under Section 1780 is within “the 1 (Euromotors), 56 Cal. Rptr. 3d 780, 788 (Cal. Ct. App. 2007). California courts use two 2 approaches to determine the prevailing party. In re Volkswagen “Clean Diesel” Mktg., Sales 3 Pracs., & Prod. Liab. Litig., No. C 15-02672 CRB, 2023 WL 4109573 , at *3 (N.D. Cal. June 4 20, 2023) (Judge Charles R. Breyer). One looks at whether there is a net monetary recovery, 5 as defined in California Code of Civil Procedure Section 1032. See Euromotors, 56 Cal. Rptr. 6 3d at 786. Another looks at whether the party succeeded on a practical level. See Graciano v. 7 Robinson Ford Sales, Inc., 50 Cal. Rptr. 3d 273 , 281–82 (Cal. Ct. App. 2006). Succeeding on 8 a practical level means “succeed[ing] on [a] significant issue in litigation which achieve[d] 9 some of the benefit the parties sought in bringing suit.” Id. at 284 (quoting Hensley v. 10 Eckerhart, 461 U.S. 424, 433 (1983)). 11 Finding the more pragmatic approach more appropriate here, class counsel (narrowly) 12 clear this bar. Plaintiff ultimately sought private injunctive and declaratory relief to invalidate 13 the default provisions in Version 1 PPA contracts. Although there has been no finding that the 14 default provisions were, in fact, liquidated damages provisions, the parties agree that the 15 settlement’s reduced four dollars per watt annually discounted price is fair and that it does not 16 overcompensate defendants for customer default. In other words, the default provisions can no 17 longer be liquidated damages provisions. In light of that, plaintiff has “succeeded on [a] 18 significant issue in litigation which achieve[d] some of the benefit the parties sought in 19 bringing suit.” Ibid. This order finds plaintiff is therefore a prevailing party under Section 20 1780, “mak[ing] such an award mandatory, not discretionary.” Euromotors, 56 Cal. Rptr. 3d 21 at 788. 22 Separately, class counsel claim to be entitled to fees under Section 1021.5 of the 23 California Code of Civil Procedure. But being entitled to fees under Section 1021.5 requires, 24 inter alia, that “a significant benefit, whether pecuniary or nonpecuniary, has been conferred 25 on the general public or a large class of persons.” As discussed above, the benefit here was 26 minimal and only conferred on 947 class members who signed Version 1 PPA contracts in 27 2012 and 2013. And, only fifty class members, in all likelihood, stand to invoke the modified 1 plaintiff has succeeded on a significant issue, she has not secured a significant benefit for the 2 general public or a large class of persons, to say nothing of Section 1021.5’s other 3 requirements. Thus, class counsel are entitled to fees under the CLRA but not under Section 4 1021.5. 5 “Whether an award is justified and what amount that award should be are two distinct 6 questions, and the factors relating to each must not be intertwined or merged.” Thayer v. Wells 7 Fargo Bank, N.A., 112 Cal. Rptr. 2d 284, 298 (Cal. Ct. App. 2001) (citation omitted). 8 Defining a plaintiff as a prevailing party when she has succeeded in achieving some benefit 9 sought on a significant issue is “a generous formulation that brings the plaintiff only across the 10 statutory threshold,” which “may say little about whether the expenditure of counsel’s time 11 was reasonable in relation to the success achieved.” Hensley, 461 U.S. at 433, 436 . 12 Having established that class counsel are entitled to attorney’s fees under the CLRA, we 13 turn to the amount requested. “Two primary methods of determining a reasonable attorney fee 14 in class action litigation have emerged and been elaborated in recent decades.” Laffitte v. 15 Robert Half Int’l Inc., 376 P.3d 672, 676 (Cal. 2016); see Lowery, 75 F.4th at 990 . One is the 16 percentage-of-recovery method, where the attorney’s fees are calculated as a share of a 17 common fund or the monetary value of class recovery. The other is the lodestar method, where 18 the attorney’s fees are calculated by multiplying the number of reasonably spent hours by a 19 reasonable hourly rate, and applying a positive or negative multiplier to “ratchet the attorneys’ 20 fees up or down” based on various factors. Lowery, 75 F.4th at 990 . 21 “Under either approach, ‘[r]easonableness is the goal, and mechanical or formulaic 22 application of either method, where it yields an unreasonable result, can be an abuse of 23 discretion.’” Bellinghausen v. Tractor Supply Co., 306 F.R.D. 245, 260 (N.D. Cal. 2015) 24 (Judge Jacqueline Scott Corley) (quoting Fischel v. Equitable Life Assurance Soc’y of U.S., [25] 307 F.3d 997 , 1007 (9th Cir. 2002)). “[T]he ultimate goal . . . is the award of a reasonable fee 26 to compensate counsel for their efforts, irrespective of the method of calculation.” Apple 27 Comput., Inc. v. Superior Ct., 24 Cal. Rptr. 3d 818, 826 (Cal. Ct. App. 2005) (internal 1 legal fees — and endure the hassles and headaches of litigation — to recover only relief that is 2 a small fraction of that amount.” Lowery, 75 F.4th at 994 . 3 In this action, class counsel request attorney’s fees in the amount of $1,859,273 [sic] 4 based on a $929,636 lodestar and a multiplier of 2.0 (Fees Br. 8).6 They assert that California 5 substantive law governs the calculation of attorney’s fees here and, thus, the use of the lodestar 6 method is mandatory (Fees Br. 13–14; Fees Reply Br. 9 (quoting Serrano v. Priest, 569 P.2d 7 1303 , 1316 n.23 (1977)). Defense counsel counter that our court of appeals has confirmed Erie 8 doctrine does not apply to a federal court’s assessment of a class action settlement, including 9 attorney’s fees, under Rule 23(e) (Fees Opp. 6 (quoting Briseño, 998 F.3d at 1029)). This 10 seems like a rather generous read of Briseño, which concluded that “Erie’s effect on fee11 shifting law, if it even has one, is simply not implicated in this appeal.” Briseño, 998 F.3d 12 at 1030. In any event, we are now considering a motion for attorney’s fees under Rule 23(h), 13 not a motion for approval of a settlement under Rule 23(e).7 14 State law governs plaintiff’s right to fees and the method of calculating those fees. 15 Mangold v. Cal. Pub. Utils. Comm’n, 67 F.3d 1470 , 1478 (9th Cir. 1995). Although there is no 16 blanket “lodestar only” mandate in California, and every fee-shifting statute must be construed 17 on its own merits, the California Supreme Court has endorsed the lodestar method in fee18 shifting cases except in limited circumstances. Laffitte, 376 P.3d at 684 (quoting Ketchum v. 19 Moses, 17 P.3d 735, 744 (Cal. 2001)); see ibid. (collecting cases). Of note, “[d]espite its [21] 6 Following a meet and confer, class counsel agreed to eliminate three of more than ten categories of problematic billing identified in defendants’ opposition (Dkt. No. 298-1 ¶ 5; see Fees Opp. 11– [22] 13). Despite correctly identifying the sum of those categories in their reply (Fees Reply Br. 6–7), class counsel were off by $0.50 in their accompanying declaration (Dkt. No. 298-1 ¶ 5), which led [23] to a discrepancy of $1.00 once their multiplier was applied (Fees Reply Br. 21). In other words, class counsel’s fee request should not be $1,859,273 but rather $1,859,272, two times the modified [24] lodestar of $929,636. [25] 7 Since 2018, Rule 23(e) has required consideration of the terms of any proposed award of attorney’s fees in any proposed settlement to evaluate whether the relief provided for the class is [26] adequate. Fed. R. Civ. P. 23(e)(2)(C)(iii) & advisory committee’s note to 2018 amendment. In evaluating the motion for final approval, this order considered such terms above. Once again, [27] there was no discussion of attorney’s fees in the settlement agreement beyond plaintiff’s right to 1 primacy, the lodestar method is not necessarily utilized in common fund cases.” Lealao v. 2 Beneficial Cal., Inc., 97 Cal. Rptr. 2d 797, 803 (Cal. Ct. App. 2000); see Laffitte, 376 P.3d 3 at 683–84. But this is not a common fund case, where class counsel’s efforts have created or 4 preserved an identifiable fund of money out of which class members recover their award and 5 class counsel recover their fees. See Serrano, 569 P.2d at 1307–08; Laffitte, 376 P.3d at 683– 6 84. Nor is this a “constructive common fund” case, where defense counsel agree to pay class 7 members and class counsel separately but the entire amount comes from the same source. See 8 Laffitte, 376 P.3d at 686–87; Bluetooth, 654 F.3d at 943 . In such circumstances, courts have 9 used the lodestar method to calculate attorney’s fees awarded under the CLRA, which can be 10 cross-checked against the percentage-of-recovery method. See, e.g., Graciano, 50 Cal. Rptr. 11 3d at 285, 293; Bluetooth, 654 F.3d at 941, 945 .8 12 As the California Supreme Court has recognized, cross-checking the lodestar against the 13 value of the class recovery helps to determine a reasonable fee because it “provides a credible 14 measure of the market value of the legal services provided.” Laffitte, 376 P.3d at 685 (quoting 15 Lealao, 97 Cal. Rptr. 2d at 820 ). As such, it is “consistent with the mandate of Serrano,” 16 which requires that the fee award be “‘anchored’ in the time spent by counsel on the case.” 17 Lealao, 97 Cal. Rptr. 2d at 816–17 (citing Serrano, 569 P.2d at 1316 n.23); accord Laffitte, [18] 376 P.3d at 685 (citing Lealao, 97 Cal. Rptr. 2d at 816–17). Our court of appeals also 19 expressly encourages cross-checking to avoid unreasonable results and to ensure “that 20 counsel’s fee does not dwarf class recovery.” Lowery, 75 F.4th at 994 (quoting Bluetooth, [21] 654 F.3d at 945 ). Indeed, cross-checking is especially important in light of Lowery because, as 22 even the California Supreme Court has acknowledged, “the lodestar method better accounts for 23 the amount of work done, while the percentage of the fund method more accurately reflects the [25] 8 Defense counsel argue that Laffitte provides for the direct use of the percentage-of-recovery [26] method, but they misstate its holding. According to defense counsel, Laffitte held that a court may use the percentage-of-recovery method “when a class action settlement creates a monetary benefit [27] for a class” (Fees Opp. 6), but it actually held that a court may use that method “when class action 1 results achieved.” Laffitte, 376 P.3d at 687 (citation omitted); cf. Lowery, 75 F.4th at 988 2 (“What matters most is the result for the class members.”). 3 Class counsel initially put forward a lodestar of $990,801.50 (Fees Br. 8). Following a 4 meet and confer with defense counsel, they reduced the lodestar by $61,165.50 to $929,636 5 (Fees Reply Br. 6–7, 21). According to class counsel’s declaration, the time dedicated to tasks 6 exclusively associated with plaintiffs who received individual settlements was not included, 7 but much of the time spent seeking to include additional claims and plaintiffs was (Dkt. 8 No. 298-1 ¶ 12). The thrust of defense counsel’s remaining objections to class counsel’s 9 requested fee award is that a great deal of the hours expended were on behalf of claims and 10 plaintiffs that did not prevail, such that the requested fee award cannot be justified by reliance 11 on class counsel’s billing records. That is true and will be taken up in due course. 12 But application of the lodestar method “begins with the ‘lodestar,’ i.e., the number of 13 hours reasonably expended multiplied by the reasonable hourly rate.” Graciano, 50 Cal. Rptr. 14 3d at 285. It “is the basic fee” that later “may be adjusted by the court based on factors.” Ibid. 15 Upon review of class counsel’s billing records, declarations, and briefing, this order observes 16 that class counsel’s reduced lodestar generally reflects reasonable hours expended at 17 reasonable rates. Time was fairly devoted, and allegations of block billing and vague entries 18 are misplaced (see Fees Opp. 13). The problem, however, is that class counsel have “achieved 19 only partial or limited success,” such that “the product of hours reasonably expended on the 20 litigation as a whole times a reasonable hourly rate [is] an excessive amount.” Hensley, [21] 461 U.S. at 436 . “This will be true even where the plaintiff’s claims were interrelated, 22 nonfrivolous, and raised in good faith.” Ibid. 23 Conducting their own cross-check of sorts, class counsel suggest their lodestar is 24 reasonable given the potential savings of up to $8,990,750 in the “highly unlikely” scenario in 25 which all 951 [sic] class members buy out their systems in their ninth year of service (Fees 26 Br. 13).9 Applying class counsel’s proposed 2.0 multiplier to the $929,636 lodestar, their [27] 1 requested fees correspond to roughly 20% of $8,990,750. Our court of appeals has recognized 2 25% of the recovery as the benchmark award for attorney’s fees. Bluetooth, 654 F.3d at 942 ; 3 see Laffitte, 376 P.3d at 680 . But not only is the historical default rate for customers with 4 Version 1 PPA contracts (and all Vivint customers) no more than 0.5% annually, but class 5 counsel’s estimate is impossible because all class members’ systems are now at least ten years 6 old (see Dkt. No. 296-11 ¶¶ 6, 8).10 7 For their part, defense counsel arrive at $289,006.33 in estimated class benefit (Fees 8 Opp. 5). First, they measure the average savings per class member in each of the next ten 9 years — the difference between the four dollars and seven dollars per watt rates, discounted by 10 five percent for each year a class member’s system will have been in service, multiplied by the 11 average system size of 5.184 kilowatts. Next, defense counsel multiply the average savings per 12 class member in each of those years by the number of anticipated defaults in each of those 13 years. Note they display the number of anticipated defaults as five class members per year, but 14 they actually use 0.5% of the 951 [sic] class members minus the number of class members who 15 ostensibly already defaulted, rounded up to the nearest hundredth, which amounts to between 16 4.5 and 5 class members per year. Finally, defense counsel discount the total savings in each 17 of those years to net present value. Adding up the savings across the years, they propose that 18 an appropriate fee would be a percentage-of-recovery award around $72,500, which 19 corresponds to 25% of the approximate $290,000 class benefit (Fees Opp. 5; Dkt. No. 296-11 20 ¶ 10). Although this order will make a minor adjustment to defense counsel’s calculation to 21 correct the number of class members, it finds that they have meaningfully captured the class 22 benefit and the corresponding percentage-of-recovery award. 23 In line with the “significant trend” of “blending [] the two fee calculation methods, an 24 approach in which one method is used to confirm or question the reasonableness of the other’s [26] 10 While defense counsel state that all systems covered by Version 1 PPA contracts were at least ten years old as of the July fairness hearing (Fees Opp. 5), they previously represented that [27] customers entered into Version 1 PPA contracts as late as September 2013 (Dkt. No. 189 at 9). 1 result,” this order uses the percentage-of-recovery method to cross-check the 2 (un)reasonableness of the lodestar. Laffitte, 376 P.3d at 681 . Where we should expect rough 3 parity, here there is an extraordinary discrepancy. The $929,636 lodestar is about 12.8 times 4 the $72,500 percentage-of-recovery award. And, it is that amount that is in line with a 5 reasonable fee. See Consumer Privacy Cases, 96 Cal. Rptr. 3d 127 , 137 n.13 (Cal. Ct. App. 6 2009) (“Empirical studies show that, regardless whether the percentage method or the lodestar 7 method is used, fee awards in class actions average around one-third of the recovery.”); 8 Lowery, 75 F.4th at 994 (“Except in extraordinary cases, a fee award should not exceed the 9 value that the litigation provided to the class.”). Like in Lowery, “no matter the final valuation 10 of the settlement, the . . . lodestar amount will greatly exceed 25% of the value of the 11 settlement. Indeed, it will be multiple times the settlement’s value. And that is a major red 12 flag that signifies that lawyers are being overcompensated and that they achieved only meager 13 success for the class.” 75 F.4th at 994 . 14 Courts may increase or decrease the lodestar taking into account a variety of so-called 15 reasonableness factors. Although the factors recognized by California and federal courts 16 differ, both include the results obtained for the class. See, e.g., Laffitte, 376 P.3d at 677 ; 17 Bluetooth, 654 F.3d at 941–42; see also Lealao, 97 Cal. Rptr. 2d at 815–16. As observed in 18 Lealao, “[a]n adjustment reflecting the amount of the class recovery is not significantly 19 different from an adjustment reflecting a percentage of that amount; and California courts have 20 evaluated a lodestar as a percentage of the benefit.” Lealao, 97 Cal. Rptr. 2d at 818 (citing 21 Glendora Cmty. Redevelopment Agency v. Demeter, 202 Cal. Rptr. 389 (Cal. Ct. App. 1984)). 22 Meanwhile, in Lowery, our court of appeals expressly encouraged the district court to evaluate 23 its lodestar as a percentage of the benefit on remand “and then award attorneys’ fees proportional 24 and reasonable to the benefit received by the class.” 75 F.4th at 993–95. True, Lowery 25 recognized that “assigning a precise dollar amount to the class benefit may prove difficult” 26 where the relief is injunctive in nature and not easily monetized. Id. at 992 n.1. But here, like 27 in Lealao, “[t]hough the settlement did not create a common fund out of which fees are to be 1 traditional common funds” on account of the historical default rate. 97 Cal. Rptr. 2d at 821 . 2 This order will adjust the lodestar downward to reflect the results obtained for the class and the 3 benefit conferred by the settlement. Seeing that additional benefit may materialize in the 4 future, however, this order will award attorney’s fees in two steps if warranted. 5 For clarity, unlike defense counsel’s chart, our chart accounts for 947 class members and 6 displays the anticipated defaults as 0.5% of 947 class members minus the number of class 7 members who ostensibly already defaulted, rounded up to the nearest hundredth, instead of as a 8 rounded five class members each year (in column F). With this change, the estimated class 9 benefit is $287,668.01. 10 A B C D E F G H I Years Buyout Buyout Price New New Buyout | Anticipated Nominal Annual Present Since Payment under Buyout Price under Defaults Savings Expected Value of 11 In- under Existing Payment Settlement (0.5% per Based on Class Projected Service | Existing PPA under year) Settlement Savings Savings to Date PPA Settlement (average Given Class 12 Under (37/W, ($4/W, defaulting | Default Rate PPA | discounted) discounted) class 3 13 v.l member) | 8 | $464 | $24,053.76 | $265 | $13,737.60 | - | $10,316.16 | $0.00 | $0.00 | | 9 | $441 | $22,861.44 | $252 | $13,063.68 | - | $9,797.76 | $0.00 | $0.00 | 14 | 10 | $419 | $21,72096 | $239 | $12,389.76 | 474 | $9,331.20 | $44,229.89 | $44,229.89 | | 1 | $3.98 | $20,632.32 | $228 | $11,819.52 | 472 | $8,812.80 | $41,596.42 | $ 39,615.64 | [16] | 16 | $3.08 | $15,966.72 | $176 | $9,123.84 | 460 | $6,842.88 | $31,477.25 | $23,488.81 | [17] | 18 [| $278 | $14.41152 | $159 | $8242.56 | 455 | $6,168.96 | $28,068.77 | $18,998.05 | | 19 | $264 | $13,685.76 | $151 | $7,827.84 | 453 | $5,857.92 | $26,536.38 | $ 17,105.59 | Z 18 19 Using the updated class benefit estimate, 25% of the value of the benefit obtained for the class 20 is $71,917. Accounting for another reasonableness factor, the novelty of the issues, this order 21 will soften the blow and award class counsel $100,000 in fees at this time. See Laffitte, [22] 376 P.3d at 677 ; Bluetooth, 654 F.3d at 941-42 . 23 “[W here the plaintiff has achieved ‘only limited success,’ counting all hours expended 24 on the litigation — even those reasonably spent — may produce an ‘excessive amount,’ and 25 the Supreme Court has instructed district courts to instead ‘award only that amount of fees that 26 is reasonable in relation to the results obtained.’” Bluetooth, 654 F.3d at 942 (quoting Hensley, [27] 461 U.S. at 436, 440 ). California courts have embraced this instruction as well. See Mann v. 28 Quality Old Time Serv., Inc., 42 Cal. Rptr. 3d 607, 617-18 (Cal. Ct. App. 2006) (quoting 1 Hensley, 461 U.S. at 436, 440 ). Having cross-checked the lodestar, this order finds that a 2 reduction to $100,000 will award that amount of fees that is reasonable in relation to the results 3 obtained. Here too, “[t]he record reveals nothing about this case which would make it 4 manifestly inappropriate to evaluate the lodestar as a percentage of the recovery and adjust it 5 accordingly.” Lealao, 97 Cal. Rptr. 2d at 821 ; see also id. at 800 (holding that the trial court 6 had discretion “to measure an award calculated under the lodestar methodology by a 7 percentage-of-the-benefit yardstick and to adjust the lodestar upward or downward on that 8 basis”). 9 Recognizing, however, that it is unclear how many (if any) additional class members can 10 be expected to default and buy out their systems now that they are aware of the availability of a 11 reduced price at the outset — and that “we simply will not know for the next several years” 12 (Fees Reply Br. 13) — this order will allow class counsel to seek additional fees based upon 13 realized benefit to the class in three years’ time. Cf. In re Pinterest Derivative Litig., No. C 2014 08331 WHA, 2022 WL 2079712 , at *1–2 (N.D. Cal. 2022). If more than the anticipated 15 fifteen class members invoke the modified Version 1 PPA contract language (which 16 corresponds to five class members each year for three years) class counsel may move for 17 attorney’s fees once more. Defense counsel shall keep records of how many class members 18 default and buy out their systems after the issuance of this order. They shall also keep records 19 of how many individuals who have assumed the obligations under class members’ contracts 20 default and buy out their systems after the issuance of this order, in case this could paint a 21 fuller picture. Class counsel may, at reasonable intervals, request these records. Possibly, the 22 records from the three-year period will allow us to extrapolate the full extent of the class 23 benefit over the ten-year period. 24 In closing, this order would be remiss not to point out that another factor, the quality of 25 representation, supports the downward adjustment. See Laffitte, 376 P.3d at 677 ; Bluetooth, 26 654 F.3d at 941–42. It took one hearing and two subsequent orders for class counsel to make 27 the required changes to the settlement agreement and class notice (Dkt. Nos. 285, 289, 291). 1 Nos. 289, 291).11 And, class counsel twice included outdated versions of the settlement 2 agreement in exhibits to motions seeking approval — including their motion for final approval 3 (see Dkt. Nos. 290-1 at 23–41, 294-2 at 23–41). In both instances, the judge had to be the one 4 to identify and inform class counsel of this mistake. Furthermore, class counsel’s 5 representation was at times inadequate during the litigation itself, such as when they forgot to 6 respond to defendants’ first set of requests for admission and had to subsequently move for 7 relief (Dkt. No. 275). Extra efforts were necessary to protect the class here. 8 All told, the request for $1,859,273 in attorney’s fees is DENIED. An adjusted amount of 9 $100,000 is APPROVED and will be awarded and paid now as attorney’s fees. Class counsel 10 may move for additional attorney’s fees, if warranted, in three years. 11 B. COSTS. 12 Next, we turn to costs. Class counsel request a total of $168,276.05 for costs, including 13 $110,361 for costs associated with expert witness Bruce McFarlane, $30,294 for costs 14 associated with expert witness Nora Ostrofe, $25,427.60 for miscellaneous litigation costs, and 15 $2,193.45 for the cost of issuing an additional class notice upon the filing of this order (Dkt. 16 No. 295-4). 17 The CLRA provides that a court must award “costs and attorney’s fees to a prevailing 18 plaintiff in litigation filed pursuant to [Section 1770].” Cal. Civ. Code § 1780 (e). Nontaxable 19 costs recoverable under the CLRA are governed by California Code of Civil Procedure 20 Section 1033.5. Shuman v. SquareTrade Inc., No. C 20-02725 JCS, 2023 WL 2311950 , at *8 21 (N.D. Cal. Mar. 1, 2023) (Judge Joseph C. Spero). “It is well-established that a CLRA plaintiff 22 is not entitled to recover expert-related costs unless the expert was ordered by the court.” 23 Volkswagen, 2023 WL 4109573 , at *13 (citing Cal. Civ. Proc. § 1033.5(b)). Here, the experts 24 were not ordered by the court, so the requests for $110,361 and $30,294 for costs related to Mr. [27] 1 McFarlane and Ms. Ostrofe, respectively, are DENIED.12 The request for $25,427.60 in 2 miscellaneous litigation costs is unopposed and APPROVED (Fees Opp. 18), but the request for 3 $2,193.45 for the cost of issuing an additional class notice is DENIED, recognizing that it goes 4 beyond the $8,000 cap that the parties had expressly agreed the settlement administration costs 5 would not exceed (Dkt. No. 292-1 ¶ 6.4). The additional class notice shall still issue, however. 6 C. CLASS REPRESENTATIVE SERVICE AWARD. 7 Finally, we consider the class representative service award. In brief, class counsel’s 8 requested $15,000 class representative service award is unreasonably high. Likewise, defense 9 counsel’s suggested $2,000 class representative service award is unreasonably high. This order 10 finds $500 will reasonably compensate Ms. Dekker for her work on the case. 11 To support their request for a $15,000 class representative service award, class counsel 12 emphasize that Ms. Dekker assumed a reputational risk by serving as a named plaintiff, citing 13 Billinghausen [sic] and Guippone (Fees Br. 23). 306 F.R.D. 245 ; Guippone v. BH S & B 14 Holdings, LLC, No. C. 09-01029 CM, 2011 WL 5148650 (S.D.N.Y. Oct. 28, 2011) (Judge 15 Colleen McMahon). But those two cases dealt with employment law claims, and it cannot be 16 said that Ms. Dekker, who is by all accounts retired, risks discrimination by future employers 17 because she served as a named plaintiff in a small class action asserting liquidated damages 18 claims against a solar company. “The trial court is not bound to, and should not, accept 19 conclusory statements about ‘potential stigma’ and ‘potential risk,’ in the absence of 20 supporting evidence.” Wilson v. Tesla, Inc., 833 F. App’x 59 , 62 (9th Cir. 2020) (quoting 21 Clark v. Am. Residential Servs. LLC, 96 Cal. Rptr. 3d 441, 457 (Cal. Ct. App. 2009)). 22 Additionally, Ms. Dekker’s lack of involvement in the case and lack of familiarity with 23 the claims asserted made the issue of adequacy at class certification “a closer call than many” 24 (Dkt. No. 230 at 5). To compensate her in an amount corresponding to $250 per hour under 25 such circumstances would be inappropriate — all the more so in view of the glaring [27] 12 See also Olson v. Auto. Club of S. Cal., 179 P.3d 882 , 884–85 (Cal. 2008) (holding that Section 1 inconsistencies between Ms. Dekker’s declaration in support of the service award, her sworn 2 testimony, and class counsel’s billing records (see Fees Opp. 19-20). By way of example, in 3 her declaration, Ms. Dekker says that she spent five hours meeting with her attorney to prepare 4 for her deposition (Dkt. No. 295-6 § 4). Yet at her deposition, Ms. Dekker testified that she 5 spent only “[a]n hour, maybe an hour and a half, with the two attorneys” to prepare (Dkt. 6 No. 296-8 at 7). Class counsel’s billing records reflect that two attorneys spent 0.9 hours and 7 1.5 hours preparing her, respectively (Dkt. No. 295-3 at 29). As such, this order APPROVES a 8 class representative service award of $500. 9 CONCLUSION 10 For the foregoing reasons, final approval of the class settlement is GRANTED. To the 11 extent stated herein, the motion for attorney’s fees, expenses, and a class representative service 12 award is GRANTED. Class counsel are presently awarded $100,000 in ATTORNEY’S FEES and 5 13 may seek additional fees in three years pursuant to this order. Class counsel’s costs in the 14 amount of $25,427.60 to be paid immediately are APPROVED. A class representative service 3 15 award in the amount of $500 to be paid immediately to Ms. Dekker is APPROVED. a 16 IT IS SO ORDERED. 18 Dated: August 23, 2023. Pee 19 A = ILLIAM ALSUP 20 UNITED STATES DISTRICT JUDGE