Legere-Gordon v. FirstCredit Incorporated

[7] 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF IDAHO 10 ----oo0oo---- [11] 12 NAOMI LEGERE-GORDON, No. 1:19-cv-360 WBS individually and on behalf of 13 others similarly situated, 14 Plaintiff, MEMORANDUM AND ORDER RE: MOTION FOR FINAL APPROVAL OF 15 v. CLASS ACTION SETTLEMENT AND MOTION FOR ATTORNEYS’ FEES, 16 FIRSTCREDIT INCORPORATED, COSTS, AND REPRESENTATIVE SERVICE PAYMENT 17 Defendant. [18] 19 ----oo0oo---- 20 Plaintiff Naomi Legere-Gordon, individually and on 21 behalf of all others similarly situated, brought this putative 22 class action against defendant Firstcredit Incorporated, alleging 23 violations of the Telephone Consumer Protection Act (“TCPA”), 47 24 U.S.C. § 227 . (See Compl. (Docket No. 1).) On January 26, 2021, 25 the court granted plaintiff’s unopposed motion for preliminary 26 approval of class action settlement. (See Order Granting 27 Preliminary Approval (Docket No. 43).) Plaintiff now moves 28 unopposed for final approval of the parties’ class action 1 settlement and attorneys’ fees, costs, and a class representative 2 service payment. (See Docket No. 46.) 3 I. Discussion1 4 The Ninth Circuit has declared a strong judicial policy 5 favoring settlement of class actions. Class Plaintiffs v. City 6 of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992); see also 7 Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 965 (9th Cir. 2009) 8 (“We put a good deal of stock in the product of an arms-length, 9 non-collusive, negotiated resolution[.]”) (citation omitted). 10 Rule 23(e) provides that “[t]he claims, issues, or defenses of a 11 certified class may be settled . . . only with the court’s 12 approval.” Fed. R. Civ. P. 23(e). 13 “Approval under 23(e) involves a two-step process in 14 which the Court first determines whether a proposed class action 15 settlement deserves preliminary approval and then, after notice 16 is given to class members, whether final approval is warranted.” 17 Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523 , 18 525 (C.D. Cal. 2004) (citing Manual for Complex Litig. (Third), 19 § 30.41 (1995)). This court satisfied step one by granting 20 plaintiff’s unopposed motion for preliminary approval of class 21 action settlement on January 26, 2021. (Docket No. 43.) Now, 22 following notice to the class members, the court will consider 23 whether final approval is merited by evaluating: (1) the 24 treatment of this litigation as a class action and (2) the terms [26] 1 The court already recited the factual and procedural background in its order granting plaintiff’s unopposed motion for 27 preliminary approval of the class action settlement. (See Order Granting Preliminary Approval at 2-5.) Accordingly, the court 28 will refrain from doing so again. 1 of the settlement. See Diaz v. Tr. Territory of Pac. Islands, [2] 876 F.2d 1401 , 1408 (9th Cir. 1989). 3 A. Class Certification 4 A class action will be certified only if it meets the 5 requirements of Rule 23(a)’s four prerequisites and fits within 6 one of Rule 23(b)’s three subdivisions. Fed. R. Civ. P. 23(a)- 7 (b). Although a district court has discretion in determining 8 whether the moving party has satisfied each Rule 23 requirement, 9 the court must conduct a rigorous inquiry before certifying a 10 class. See Califano v. Yamasaki, 442 U.S. 682, 701 (1979); Gen. 11 Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982). 12 1. Rule 23(a) 13 Rule 23(a) restricts class actions to cases where: (1) the class is so numerous that joinder of all [14] members is impracticable; (2) there are questions 15 of law or fact common to the class; (3) the claims or defenses of the representative parties are 16 typical of the claims or defenses of the class; and (4) the representative parties will fairly and 17 adequately protect the interests of the class. 18 Fed. R. Civ. P. 23(a). These requirements are commonly referred 19 to as numerosity, commonality, typicality, and adequacy of 20 representation. In the court’s order granting preliminary 21 approval of the settlement, the court found that the putative 22 class satisfied the Rule 23(a) requirements. (See Order Granting 23 Preliminary Approval at 5-13.) The court is unaware of any 24 changes that would affect its conclusion that the putative class 25 satisfies the Rule 23(a) requirements, and the parties have not 26 indicated that they are aware of any such developments. (See 27 Mot. for Final Approval.) The court therefore finds that the [28] 1 class definition proposed by plaintiff meets the requirements of 2 Rule 23(a). 3 2. Rule 23(b) 4 An action that meets all the prerequisites of Rule 5 23(a) may be certified as a class action only if it also 6 satisfies the requirements of one of the three subdivisions of 7 Rule 23(b). Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th 8 Cir. 2013). In its order granting preliminary approval of the 9 settlement, the court found that the requirements of Rule 10 23(b)(2) were satisfied. (Order Granting Preliminary Approval at 11 13-15.) The court is unaware of any changes that would affect 12 its conclusion that Rule 23(b)(2) is satisfied. Because the 13 settlement class satisfies both Rule 23(a) and 23(b)(2), the 14 court will grant final class certification of this action. 15 3. Rule 23(c)(2) Notice Requirements 16 Under Rule 23(c)(2), whether notice to class members of 17 certification under Rule 23(b)(2) must be provided is left to the 18 district court’s discretion. See Fed. R. Civ. P. 23(c)(2)(A)( 19 (“For any class certified under Rule 23(b)(1) or (b)(2), the 20 court may direct appropriate notice to the class.” (emphasis 21 added)); Equal Opportunity Emp’t Comm’n v. Gen. Tel. Co. of Nw., 22 Inc., 599 F.2d 322 , 334 (9th Cir. 1979) (“When an action is 23 certified under Rule 23(b)(2) . . . absent class members are not 24 required to receive notice or to have the opportunity to opt-out 25 of the suit.”). 26 In this case, the court required the parties to provide 27 notice to the class because the proposed settlement would bind 28 absent class members by waiving their right to bring a class 1 claim for damages against defendant. See Fed. R. Civ. P. 23(e); 2 (Order Granting Preliminary Approval at 25). 3 While there are “no rigid rules to determine whether a 4 settlement notice to class members satisfies constitutional and 5 Rule 23(e) requirements,” Wal-Mart Stores, Inc. v. Visa U.S.A., 6 Inc., 396 F.3d 96, 114 (2d Cir. 2005), notice of settlement--like 7 any form of notice--must comply with due process requirements 8 under the Constitution. See Rubenstein, 4 Newberg on Class 9 Actions § 8:15 (5th ed.). That is, the notice must be 10 “reasonably calculated, under all the circumstances, to apprise 11 interested parties of the pendency of the action and afford them 12 an opportunity to present their objections.” Mullane v. Cent. 13 Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950). While actual 14 notice is not required, the notice provided must be “reasonably 15 certain to inform the absent members of the plaintiff class.” 16 Silber v. Mabon, 18 F.3d 1449, 1454 (9th Cir. 1994) (citation 17 omitted). The content of the “[n]otice is satisfactory if it 18 ‘generally describes the terms of the settlement in sufficient 19 detail to alert those with adverse viewpoints to investigate and 20 to come forward and be heard.’” See Churchill Vill., LLC v. Gen. 21 Elec., 361 F.3d 566 , 575 (9th Cir. 2004). 22 Here, the court ordered the parties to conduct a 23 digital media notice plan using the Google Display Network, which 24 provided a summary version of the notice of class action 25 settlement and directed viewers to a website containing the full 26 version of the settlement notice. (See Order Granting 27 Preliminary Approval at 28-31.) The parties selected KCC Class 28 Action Services (“KCC”) to serve as the Settlement Administrator. 1 (Decl. of Jay Geraci re: Notice Procedures ¶ 1 (“Geraci Decl.”) 2 (Docket No. 46-1).) KCC purchased 41,267,000 “impressions” to be 3 distributed via various websites. (Id. at ¶ 2.) The impressions 4 appeared on both mobile and desktop devices from February 15, 5 2021 through March 17, 2021. (Id.) 41,499,034 impressions were 6 ultimately delivered (232,034 were delivered at no extra charge). 7 (Id.) 8 On February 10, 2021, KCC set up a website and a toll9 free telephone number dedicated to (1) providing information to 10 class members about the Settlement Agreement; (2) answering 11 frequently asked questions; and (3) downloading copies of the 12 full notice of settlement or for requesting that a notice packet 13 be mailed. (Id. at ¶¶ 3-4.) As of the date of plaintiff’s 14 motion for final approval, the website had been visited 9,855 15 times and the hotline had received 6 calls. (Id.) As of the 16 date of plaintiff’s motion for final approval, KCC had not 17 received any objections to the settlement. (Id. at ¶ 5.) 18 The notice provided on the settlement website 19 identifies the parties, explains the nature of the proceedings, 20 defines the class, provides the terms of the settlement, and 21 explains the procedure for objecting to the settlement. (Id. at 22 Ex. B.) The notice also explains the injunctive relief provided 23 by the settlement, that class members will waive their right to 24 participate in future class claims for damages against defendant 25 for calls made during the class period, the amount that class 26 counsel is requesting in attorneys’ fees, and the size of 27 plaintiff’s requested incentive award. (Id.) Accordingly, the 28 notice complies with Rule 23(e)’s requirements. [1] B. Rule 23(e): Fairness, Adequacy, and Reasonableness of 2 Proposed Settlement [3] Having determined that class treatment is warranted, [4] the court must now address whether the terms of the parties’ [5] settlement appear fair, adequate, and reasonable. See Fed. R. [6] Civ. P. 23(e)(2). To determine the fairness, adequacy, and [7] reasonableness of the agreement, Rule 23(e) requires the court to [8] consider four factors: “(1) the class representatives and class [9] counsel have adequately represented the class; (2) the proposal [10] was negotiated at arm's length; (3) the relief provided for the [11] class is adequate; and (4) the proposal treats class members [12] equitably relative to each other.” Id. The Ninth Circuit has [13] also identified eight additional factors the court may consider, [14] many of which overlap substantially with Rule 23(e)’s four [15] factors: 16 The strength of the plaintiff’s case; the risk, expense, complexity, and likely duration of 17 further litigation; the risk of maintaining class action status throughout the trial; the amount 18 offered in settlement; the extent of discovery completed and the stage of the proceedings; the 19 experience and views of counsel; the presence of a governmental participant; and the reaction of 20 the class members to the proposed settlement. [21] Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998). [22] 1. Adequate Representation [23] The court must first consider whether “the class [24] representatives and class counsel have adequately represented the [25] class.” Fed. R. Civ. P. 23(e)(2)(A). This analysis is [26] “redundant of the requirements of Rule 23(a)(4) . . . .” Hudson [27] v. Libre Tech., Inc., No. 3:18-cv-1371-GPC-KSC, 2020 WL 2467060 , [28] 1 at *5 (S.D. Cal. May 13, 2020) (quoting Rubenstein, 4 Newberg on 2 Class Actions § 13:48 (5th ed.)) see also In re GSE Bonds Antitr. 3 Litig., 414 F. Supp. 3d 686, 701 (S.D.N.Y. 2019) (noting 4 similarity of inquiry under Rule 23(a)(4) and Rule 23(e)(2)(A)). 5 Because the Court has found that the proposed class 6 satisfies Rule 23(a)(4) for purposes of class certification, the 7 adequacy factor under Rule 23(e)(2)(A) is also met. See Hudson, [8] 2020 WL 2467060 , at *5. 9 2. Negotiation of the Settlement Agreement 10 Counsel for both sides appear to have diligently 11 pursued settlement after thoughtfully considering the strength of 12 their arguments and potential defenses. The parties participated 13 in an arms-length mediation before an experienced employment 14 litigation mediator and former federal judge, Hon. James Ware 15 (ret.) on September 15, 2020, ultimately coming to a tentative 16 agreement at the close of the mediation and producing a final 17 agreement the next month. (Decl. of Anthony Paronich (“Paronich 18 Decl.”) ¶ 25 (Docket No. 46-3).) Given the sophistication and 19 experience of plaintiff’s counsel and the parties’ representation 20 that the settlement reached was the product of arms-length 21 bargaining, the court does not question that the proposed 22 settlement is in the best interest of the class. See Fraley v. 23 Facebook, Inc., 966 F. Supp. 2d 939, 942 (N.D. Cal. 2013) 24 (holding that a settlement reached after informed negotiations 25 “is entitled to a degree of deference as the private consensual 26 decision of the parties” (citing Hanlon, 150 F.3d at 1027 )). 27 3. Adequate Relief 28 In determining whether a settlement agreement provides 1 adequate relief for the class, the court must “take into account 2 (i) the costs, risks, and delay of trial and appeal; (ii) the 3 effectiveness of any proposed method of distributing relief to 4 the class, including the method of processing class-member 5 claims; (iii) the terms of any proposed award of attorney's fees, 6 including timing of payment; and (iv) any [other] agreement[s]” 7 made in connection with the proposal. See Fed. R. Civ. P. 8 23(e)(2)(C); Baker v. SeaWorld Entm’t, Inc., No. 14-cv-02129-MMA9 AGS, 2020 WL 4260712 , at *6-8 (S.D. Cal. Jul. 24, 2020). 10 The court notes that, in evaluating whether the 11 settlement provides adequate relief, it must consider 12 several of the same factors as outlined in Hanlon, 13 including the strength of the plaintiff’s case, the risk, 14 expense, complexity, and likely duration of further 15 litigation, the risk of maintaining class action status 16 throughout the trial, and the amount offered in settlement. 17 See Hanlon, 150 F.3d at 1026 . 18 In determining whether a settlement agreement is 19 substantively fair to class members, the court must balance 20 the value of expected recovery against the value of the 21 settlement offer. See In re Tableware Antitrust Litig., [22] 484 F. Supp. 2d 1078, 1080 (N.D. Cal. 2007). Though 23 plaintiff’s counsel estimates that defendant could face up 24 to $16,500,000 in statutory penalties based on records of 25 the violative calls at issue, the Settlement Agreement does 26 not provide any monetary relief to class members. (See 27 generally Mot. for Preliminary Approval of Class Action 28 Settlement, Ex. 1 (“Settlement Agreement”) (Docket No. 381 1).) Instead, the Settlement Agreement provides injunctive 2 relief for class members by requiring defendant to scrub 3 its call list of all cellular numbers for which defendant 4 does not have a good faith belief that consent to call has 5 been provided, and to implement specific, delineated 6 changes to its policies and procedures to ensure future 7 TCPA compliance. (See id. ¶¶ 21-25.) Plaintiff obtained 8 this relief in consideration for a limited release which 9 preserves the class members’ individual claims against 10 defendant. (See id.) 11 Plaintiff’s counsel represents that, absent 12 settlement, continuing litigation--which would likely 13 include class certification and a motion for summary 14 judgment--would be costly, time consuming, and uncertain in 15 outcome. (See Mot. for Final Approval of Class Action 16 Settlement at 9 (Docket No. 46); Decl. of Gary M. Klinger 17 (“Klinger Decl.”) ¶ 11 (Docket No. 46-2).) Because the 18 Supreme Court recently narrowed the TCPA’s definition of 19 Automated Telephone Dialing Systems (“ATDS”) to systems 20 that must either have the capacity to store a number using 21 a random or sequential number generator, see Facebook, Inc. 22 v. Duguid, 141 S. Ct. 1163 (2021), class counsel represents 23 that there is a risk that class members’ claims could be 24 completely eliminated or “zeroed out.” The Settlement 25 Agreement’s injunctive relief provides class members with 26 some relief, while allowing them each to pursue defendant 27 individually for damages in the future. (See Mot. for 28 Final Approval at 9.) The settlement’s injunctive relief 1 is also in line with the TCPA’s purpose, which is to 2 prevent cell phone users from receiving harassing phone 3 calls from robocallers. 4 Given the strength of plaintiff’s claims and 5 defendants’ potential exposure, as well as the risk, 6 expense, and complexity involved in further litigation, and 7 in light of defendant’s limited funds and corresponding 8 inability to pay a class-wide monetary judgment (see id.), 9 the court is satisfied that the settlement and resulting 10 distribution provides a strong result for the class. See 11 Tableware, 484 F. Supp. 2d at 1079 . 12 The Settlement Agreement further provides for an award 13 of attorney’s fees and costs totaling $180,000. (See Settlement 14 Agreement ¶ 30.) If a negotiated class action settlement 15 includes an award of attorney’s fees, then the court “ha[s] an 16 independent obligation to ensure that the award, like the 17 settlement itself, is reasonable, even if the parties have 18 already agreed to an amount.” In re Bluetooth Headset Prods. 19 Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011). 20 Plaintiff’s counsel has included a request for 21 attorneys’ fees and costs in its motion for final approval of the 22 class action settlement pursuant to Federal Rule 23(h). (Mot. 23 for Final Approval at 15.) As discussed in additional detail 24 below, the court finds plaintiff’s counsel’s request for 25 attorneys’ fees in the amount of $172,566.63 to be excessive, and 26 will instead award a lower sum, $74,153.00. The court is 27 satisfied that this lower sum is reasonable and supports approval 28 of the settlement. 1 In light of the claims at issue, defendants’ potential 2 exposure and the risk to plaintiff and to the class of proceeding 3 to trial, the court finds that the substance of the settlement is 4 fair to class members and thereby “falls within the range of 5 possible approval.” See Tableware, 484 F. Supp. 2d at 1079 ; 6 Ramirez, 2017 WL 3670794 , at *3. Counsel has not directed the 7 court to any other relevant agreements that would alter this 8 analysis. The court therefore finds that Rule 23(e)’s third 9 factor is satisfied. See Fed. R. Civ. P. 23(e)(C). 10 4. Equitable Treatment of Class Members 11 Finally, the court must consider whether the Settlement 12 Agreement “treats class members equitably relative to each 13 other.” See Fed. R. Civ. P. 23(e)(2)(D). In doing so, the Court 14 determines whether the settlement “improperly grant[s] 15 preferential treatment to class representatives or segments of 16 the class.” Hudson, 2020 WL 2467060 , at *9 (quoting Tableware, 17 484 F. Supp. at 1079. 18 Here, the Settlement Agreement does not improperly 19 discriminate between any segments of the class, as all class 20 members are entitled to the same injunctive relief. (See 21 Settlement Agreement ¶ 13.) While the Settlement Agreement 22 allows plaintiff to seek an incentive award of $3,500 (Settlement 23 Agreement ¶ 29), the court is satisfied that the prospect of 24 additional compensation, in and of itself, has not caused Ms. 25 Legere-Gordon’s interests to diverge from the class, primarily 26 because other class members are free to pursue their own claims 27 for damages against defendant. However, as detailed further 28 below, in Section E, the court will only award plaintiff $1,500. 1 See Hudson, 2020 WL 2467060 , at *9. 2 The court therefore finds that the Settlement Agreement 3 treats class members equitably. See Fed. R. Civ. P. 23(e)(D). 4 5. Remaining Hanlon Factors 5 In addition to the Hanlon factors already considered as 6 part of the court’s analysis under Rule 23(e)(A)-(D), the court 7 must also take into account “the extent of the discovery 8 completed . . . the presence of government participation, and the 9 reaction of class members to the proposed settlement.” Hanlon, [10] 150 F.3d at 1026 . 11 Through formal discovery, defendant provided plaintiff 12 with class data including a call list, call logs, and call data, 13 including the dates and times of calls made to class members, to 14 the extent defendant possessed records reflecting such data. 15 (See Docket No. 31. ) This factor weighs in favor of final 16 approval of the settlement. 17 The seventh Hanlon factor, pertaining to government 18 participation, is neutral, as there was no governmental 19 participation in this matter. Hanlon, 150 F.3d at 1026 . The 20 eighth Hanlon factor, the reaction of the class members to the 21 proposed settlement, also weighs in favor of final approval. See 22 Hanlon, 150 F.3d at 1026 . No class members have objected to or 23 sought to opt out of the settlement. See id. 24 The court therefore finds that the remaining Hanlon 25 factors weigh in favor of preliminary approval of the Settlement 26 Agreement. See Ramirez, 2017 WL 3670794 , at *3. 27 In sum, the four factors that the court must evaluate 28 under Rule 23(e) and the eight Hanlon factors, taken as a whole, 1 appear to weigh in favor of the settlement. The court will 2 therefore grant final approval of the Settlement Agreement. 3 C. Attorneys’ Fees 4 Federal Rule of Civil Procedure 23(h) provides, “[i]n a 5 certified class action, the court may award reasonable attorney’s 6 fees and nontaxable costs that are authorized by law or by the 7 parties’ agreement.” Fed. R. Civ. P. 23(h). If a negotiated 8 class action settlement includes an award of attorneys’ fees, 9 that fee award must be evaluated in the overall context of the 10 settlement. Knisley v. Network Assocs., 312 F.3d 1123 , 1126 (9th 11 Cir. 2002); Monterrubio v. Best Buy Stores, L.P., 291 F.R.D. 443 , 12 455 (E.D. Cal. 2013) (England, J.). The court “ha[s] an 13 independent obligation to ensure that the award, like the 14 settlement itself, is reasonable, even if the parties have 15 already agreed to an amount.” Bluetooth Headset, 654 F.3d at 16 941. 17 The Ninth Circuit recognizes two different methods for 18 assessing the reasonableness of attorneys’ fees: the lodestar 19 method and the percent-of-recovery method. See Hanlon, 150 F.3d 20 at 1029 . In injunctive-relief class actions certified under Rule 21 23(b)(2), the lodestar method is preferred, as “there is no way 22 to gauge the net value of the settlement or any percentage 23 thereof.” Id. Under the lodestar method, a lodestar value is 24 calculated by multiplying the number of hours reasonably expended 25 by a reasonable hourly rate. Fischel v. Equitable Life Assurance 26 Soc’y of United States, 307 F.3d 997 , 1006-07 (9th Cir. 2002). 27 There is a “strong presumption” that the lodestar figure 28 represents a reasonable fee. D'Emanuele v. Montgomery Ward & 1 Co., 904 F.2d 1379, 1384 (9th Cir. 1990), overruled on other 2 grounds by Burlington v. Dague, 505 U.S. 557 (1992). Thus, 3 although a court can adjust the lodestar upward or downward based 4 on certain factors, adjustments are “the exception rather than 5 the rule.” Id. at 1383–84. 6 One instance in which an upward adjustment is 7 appropriate is when there is a risk of nonpayment. See Fischel, 8 307 F.3d at 1008. In fact, the Ninth Circuit has held that it 9 “is an abuse of discretion to fail to apply a risk multiplier . . 10 . when (1) attorneys take a case with the expectation that they 11 will receive a risk enhancement if they prevail, (2) their hourly 12 rate does not reflect that risk, and (3) there is evidence that 13 the case was risky. Id. 14 Here, class counsel calculates their lodestar at 15 $111,532.50. Counsel states in their declarations that this 16 lodestar was calculated using applicable billing rates for 17 Chicago, Washington D.C., and Boston--their firms’ places of 18 business--as follows: 19 Name Position Hourly Rate Total Hours Lodestar 20 Gary Klinger Partner $700/hour 78.25 $54,775.00 21 Danielle Partner $650/hour 17.25 $11,212.50 22 Perry 23 Taylor Heath Paralegal $170/hour 8.5 $1,445.00 24 Anthony Partner $600/hour 73.5 $44,100.00 25 Paronich 26 Total: $111,532.50 [27] (See Klinger Decl. ¶¶ 15-20; Paronich Decl. ¶¶ 20-21.) Class [28] 1 counsel estimates that they will incur an additional $7,500.00 in 2 fees “in connection with preparing for argument at the final 3 approval hearing and other miscellaneous matters, including 4 responding to class member inquiries and claims administration,” 5 increasing the lodestar to $119,032.50. (Mot. for Final Approval 6 at 16.) Class counsel further asks that the court apply a 7 multiplier of 1.45, which would result in a total attorneys’ fee 8 award of $172,566.63. (See id.) 9 To determine whether counsel has employed a “reasonable 10 hourly rate” for purposes of calculating the lodestar amount, the 11 court must look to the “prevailing market rates in the relevant 12 community.” Gonzalez v. City of Maywood, 729 F.3d 1196 , 1206 13 (9th Cir. 2013) (quoting Blum v. Stenson, 465 886, 895 (9th Cir. 14 2001)). “Generally, when determining a reasonable hourly rate, 15 the relevant community is the forum in which the district court 16 sits.” Id. (internal quotation marks omitted) (quoting Prison 17 Legal News v. Schwarzenegger, 608 F.3d 446, 454 (9th Cir.2010)). 18 Within this geographic community, the district court should 19 “tak[e] into consideration the experience, skill, and reputation 20 of the attorney [or paralegal].” Dang v. Cross, 422 F.3d 800 , 21 813 (9th Cir. 2005) (internal quotation marks omitted). 22 Importantly, the fee applicant has the burden of producing 23 “satisfactory evidence” that the rates he requests meet these 24 standards. Id. at 814 . Affidavits of the plaintiffs' attorney 25 and other attorneys regarding prevailing fees in the relevant 26 community, and rate determinations in other cases, particularly 27 those setting a rate for the plaintiffs' attorney, are 28 satisfactory evidence of the prevailing market rate. Chalmers v. 1 City of Los Angeles, 796 F.2d 1205, 1214 (9th Cir. 1986), opinion 2 amended on denial of reh'g, 808 F.2d 1373 (9th Cir. 1987). 3 The only evidence class counsel has provided that their 4 hourly rates are reasonable is a single case from 2014, in which 5 the Northern District of California approved partner billing 6 rates between $350 and $775 per hour, and the Legal Services 7 Institute Laffey Matrix, a “widely accepted fees matrix utilized 8 in the District of Columbia where Class Counsel has an office.” 9 (Id. at 17.) The relevant inquiry for the court, however, is not 10 whether counsels’ rates are reasonable in their home markets, but 11 whether they are reasonable in the District of Idaho, the forum 12 in which the district court sits. See Gonzalez, 729 F.3d at 13 1206. 14 A survey of recent cases in which Idaho district courts 15 have awarded attorneys’ fees shows that billing rates of $24516 $280/hour are generally held to be reasonable for partners in the 17 Idaho community. See, e.g., Scoyni v. Central Valley Fund L.P. 18 II & III, No. 1:20-cv-00402-SEH, 2021 WL 733309 , at *1 n.10 (D. 19 Idaho Feb. 16, 2021) (citing Asset Vision, LLC v. Fielding, No. 20 4:13-CV-00288-BLW (D. Idaho Dec. 16, 2014) (finding $245-280 to 21 be reasonable rates for partners); Giltner Logistics Services, 22 Inc. v. Syny Logistics Inc., 1:18-CV-00305-BLW (D. Idaho April 4, 23 2019) (finding $245 to be a reasonable rate for a partner)). 24 Similarly, Idaho district courts generally hold that billing 25 rates of $120/hour for paralegals are reasonable. See, e.g., 26 Gonzales on behalf of A.G. v. Burley High School, No. 4:18-cv27 00092-DCN, 2020 WL 7047747 , at *7 (D. Idaho Nov. 30, 2020); 28 Fuller v. Dep’t of Corr., No. 1:13-cv-00035-DCN, 2019 WL 6332850 1 (D. Idaho Nov. 26, 2019). Given the sophistication and 2 experience of class counsel in this case (see Decl. of Gary 3 Klinger in Support of Mot. for Preliminary Approval ¶¶ 4-17 4 (Docket No. 38-3); Decl. of Anthony Paronich in Support of Mot. 5 for Preliminary Approval ¶¶ 3-7 (Docket No. 38-2)), the court 6 finds a reasonable hourly rate for the partners in this case is 7 $280/hour, a figure at the high end of the range of rates 8 approved by courts in the District of Idaho. See Scoyni, 2021 WL 9 733309, at *1. The court further finds that a rate of $120/hour 10 is reasonable for Mason Lietz & Klinger’s paralegal, Ms. Heath. 11 Gonzales, 2020 WL 7047747 , at *7. 12 Substituting these hourly rates for those submitted by 13 counsel, and assuming that counsel would incur an additional 14 $2,800 in fees for remaining tasks in this case under Idaho 15 rates, yields a lodestar of $51,140.00, as follows: 16 Name Position Hourly Rate Total Hours Lodestar 17 Gary Klinger Partner $280/hour 78.25 $21,910.00 18 Danielle Partner $280/hour 17.25 $4,830.00 19 Perry 20 Taylor Heath Paralegal $120/hour 8.5 $1,020.00 21 Anthony Partner $280/hour 73.5 $20,580.00 22 Paronich 23 Additional $2,800 24 Fees 25 Total: $51,140 [26] 27 “A district court generally has discretion to apply a [28] 1 multiplier to the attorneys’ fees calculation to compensate for 2 the risk of nonpayment.” See Fischel, 307 F.3d at 1008. Here, 3 counsel represents that there was a substantial risk of 4 nonpayment in this case because of the inherent unpredictability 5 of litigation and because of the rapidly evolving nature of 6 jurisprudence involving the TCPA, “where jurisdictions have been 7 historically split as to the particularly technology included in 8 the definition of the statute.” (Klinger Decl. ¶ 11.) Indeed, 9 the Supreme Court recently held that the definition of an ATDS 10 under the statute was significantly narrower than many courts had 11 assumed. See Duguid, 141 S. Ct. at 1163. Because counsel was 12 retained on a contingent basis, these risks posed a threat not 13 only to success in the case but to the chances counsel would be 14 compensated for its work representing the class. (See id.) The 15 court will therefore grant the 1.45 multiplier requested by 16 counsel, which the court finds to be well within the range of 17 multipliers granted by courts in this circuit to successful 18 plaintiffs. See Johnson v. Fujitsu Tech. & Bus. of Am., Inc., 19 No. 16-cv-03698-NC, 2018 U.S. Dist. LEXIS 80219 , at *20 (N.D. 20 Cal. May 11, 2018) (finding multiplier of 4.37 to be reasonable); 21 In re NCAA Ath. Grant-In-Aid Cap Antitrust Litig., 2017 U.S. 22 Dist. LEXIS 201108, at *21 (N.D. Cal. Dec. 6, 2017) (finding 23 multiplier of 3.66 to be “well within the range of awards in 24 other cases.”). 25 Accordingly, the court will grant attorneys’ fees to 26 class counsel in the amount of $74,153.00 ($51,140.00 x 1.45). 27 D. Costs 28 “There is no doubt that an attorney who has created a 1 common fund for the benefit of the class is entitled to 2 reimbursement of reasonable litigation expenses from that fund.” 3 In re Heritage Bond Litig., Civ. No. 02-1475, 2005 WL 1594403 , at 4 *23 (C.D. Cal. June 10, 2005). Here, the parties agreed that 5 plaintiff’s counsel shall be entitled to recover reasonable 6 attorneys’ fees and costs, not to exceed $180,000. (Settlement 7 Agreement ¶ 30.) Counsel states that it has incurred reasonable 8 and necessary litigation costs to date in the amount of 9 $7,433.37. (Klinger Decl. ¶ 22; Paronich Decl. ¶ $5,149.94.) 10 These expenses include mediation fees, research expenses, and 11 expert witness fees. (Id.) The court finds that these are 12 reasonable litigation expenses, and will therefore grant class 13 counsel’s request for costs in the amount of $7,433.37. 14 E. Representative Service Award 15 “Incentive awards are fairly typical in class action 16 cases.” Rodriguez, 563 F.3d at 958 . “[They] are intended to 17 compensate class representatives for work done on behalf of the 18 class, to make up for financial or reputational risk undertaken 19 in bringing the action, and, sometimes, to recognize their 20 willingness to act as a private attorney general.” Id. at 95821 59. 22 Nevertheless, the Ninth Circuit has cautioned that 23 “district courts must be vigilant in scrutinizing all incentive 24 awards to determine whether they destroy the adequacy of the 25 class representatives . . . .” Radcliffe v. Experian Info. 26 Solutions, Inc., 715 F.3d 1157, 1164 (9th Cir. 2013). In 27 assessing the reasonableness of incentive payments, the court 28 should consider “the actions the plaintiff has taken to protect 1 the interests of the class, the degree to which the class has 2 benefitted from those actions” and “the amount of time and effort 3 the plaintiff expended in pursuing the litigation.” Staton v. 4 Boeing Co., 327 F.3d 938, 977 (9th Cir. 2003) (citation omitted). 5 The court must balance “the number of named plaintiffs receiving 6 incentive payments, the proportion of the payments relative to 7 the settlement amount, and the size of each payment.” Id. 8 In the Ninth Circuit, an incentive award of $5,000 is 9 presumptively reasonable. Davis v. Brown Shoe Co., Inc., No. 10 1:13-01211 LJO BAM, 2015 WL 6697929 , at *11 (E.D. Cal. Nov. 3, 11 2015) (citing Harris v. Vector Marketing Corp., No. C-08-5198 12 EMC, 2012 WL 381202 , at *7 (N.D. Cal. Feb. 6, 2012) (collecting 13 cases). The single named plaintiff, Naomi Legere-Gordon, seeks 14 an incentive payment of $3,500. (Klinger Decl. ¶ 28.) 15 In its Order Granting Preliminary Approval, the court 16 noted that, while plaintiff’s request for an incentive payment is 17 within the range the Ninth Circuit has designated “presumptively 18 reasonable,” plaintiff would “have to submit additional evidence 19 documenting her time and effort spent on this case and the likely 20 value of other class members’ individual claims for damages to 21 ensure that her additional compensation above other class members 22 is justified.” (Order Granting Preliminary Approval at 25.) 23 The only evidence submitted evidencing plaintiff’s 24 efforts in this case is a single sentence in the declaration of 25 her counsel, Gary Klinger: “such efforts [of Ms. Legere-Gordon] 26 include, answering Class Counsel’s questions, reviewing, and 27 approving the Complaint, remaining in touch with counsel during 28 discovery, being available to Class Counsel during mediation, and 1 reviewing and approving the Settlement Agreement.” (Klinger 2 Decl. ¶ 28.) Ms. Legere-Gordon did not submit her own 3 declaration in support of her motion. (See generally Docket No. 4 46.) Plaintiff’s motion also contains no evidence showing the 5 likely value of the individual claims other class members will be 6 free to pursue. 7 In light of the lack of evidence submitted by 8 plaintiff, the court is not satisfied that it could award 9 plaintiff a $3,500 incentive payment without “improperly granting 10 preferential treatment to [the] class representative[].” Hudson, [11] 2020 WL 2467060 , at *5. Plaintiff’s fellow class members will 12 not receive any financial benefit from this class action. 13 Plaintiff has not provided sufficient evidence to demonstrate why 14 she should be entitled to $3,500 more than any other class member 15 will receive. See id. It does not appear as if plaintiff 16 contributed much effort to this action, other than “being 17 available” to confer with counsel and reviewing and approving key 18 documents, such as the complaint and the Settlement Agreement. 19 (Klinger Decl. ¶ 28.) Counsel’s declaration does not even 20 indicate that plaintiff attended the mediation which led to 21 settlement in this matter. (See id.) While counsel asserts that 22 the service award is also meant to compensate plaintiff for the 23 risk she took in putting her name on a complaint, the court 24 struggles to discern exactly what risk plaintiff now faces. 25 Unlike a wage and hour class action, for instance, where a named 26 plaintiff may suffer retaliation from her future employer or 27 prejudice in attempting to obtain future employment, see Flores 28 v. Dart Container Corp., No. 2:19-cv-00083 WBS JDP, 2021 U.S. 1 Dist. LEXIS 94456, at **25-26 (E.D. Cal. May 18, 2021), 2 plaintiff does not identify any specific harm she is likely to 3 suffer in the future as a result of her association with a TCPA 4 class action alleging that she received unsolicited robocalls on 5 her cell phone. 6 However, because service awards are also designed to 7 “recognize [named plaintiffs’] willingness to act as a private 8 attorney general,” Rodriguez, 563 F.3d at 958 , the court will 9 still grant plaintiff a service award, though not one as large as 10 requested in her motion. Based on the efforts expended by 11 plaintiff in this case, and in recognition of her willingness to 12 act as a “private attorney general,” the court will authorize 13 payment of a $1,500 service award. Staton, 327 F.3d at 977 14 II. Conclusion 15 Based on the foregoing, the court will grant final 16 certification of the settlement class and will approve the 17 settlement set forth in the settlement agreement as fair, 18 reasonable, and adequate. The settlement agreement shall be 19 binding upon all participating class members. 20 IT IS THEREFORE ORDERED that plaintiff’s unopposed 21 motion for final approval of the parties’ class action settlement 22 and attorneys’ fees, costs, and a class representative service 23 payment (Docket Nos. 35-38) be, and the same hereby is, GRANTED. 24 IT IS FURTHER ORDERED THAT: 25 (1) Solely for the purpose of this settlement, and 26 pursuant to Federal Rule of Civil Procedure 23, the court hereby 27 certifies the following class: All natural and juridical persons 28 within the United States (a) to whom defendant placed, or caused 1 to be placed, a call, (b) directed to a number assigned to a 2 cellular telephone service, but not assigned to the intended 3 recipient of defendant’s calls, (c) by using an automatic 4 telephone dialing system or an artificial or prerecorded voice, 5 (d) from September 18, 2015 through January 26, 2021 (i.e., the 6 Class Period); 7 (2) The court appoints the named plaintiff Naomi 8 Legere-Gordon as class representative and finds that she meets 9 the requirements of Rule 23; 10 (3) The court appoints law firm of Mason Lietz & 11 Klinger LLP, by and through Gary Klinger, and Paronich Law, P.C., 12 by and through Anthony Paronich, as class counsel and finds that 13 they meet the requirements of Rule 23; 14 (4) The plan for class notice set forth in the parties’ 15 January 19, 2021 Joint Status Report and in the court’s Order 16 Granting Preliminary Approval of the Class Action Settlement is 17 the best notice practicable under the circumstances and satisfies 18 the requirements of due process and Rule 23. The plan is 19 approved and adopted. The notice to the class complies with Rule 20 23(e) and is approved and adopted; 21 (5) The court finds that the parties and their counsel 22 took appropriate efforts to locate and inform all class members 23 of the settlement. Given that no class member filed an objection 24 to the settlement, the court finds that no additional notice to 25 the class is necessary; 26 (6) As of the date of the entry of this order, 27 plaintiff and all class members who have not timely opted out of 28 this settlement herby do and shall be deemed to have fully, 1 finally, and forever released, settled, compromised, 2 relinquished, and discharged defendants of and from any and all 3 settled claims, pursuant to the release provisions stated in the 4 parties’ settlement agreement; 5 (7) Plaintiff’s counsel is entitled to fees in the 6 amount of $74,153.00, and litigation costs in the amount of 7 $7,433.37; 8 (8) KCC Class Action Services, LLC is entitled to 9 administration costs in the amount of $41,500.00; 10 (9) Plaintiff Naomi Legere-Gordon is entitled to an 11 inventive award in the amount of $1,500.00; 12 (10) Beginning sixty days after issuance of this Order, 13 and continuing for a period of no less than two (2) years, or 14 until there are such changes in the law related to the below 15 practices that occur after the date of this Order, defendant 16 shall update and improve its processes and procedures concerning 17 compliance with the TCPA as follows: 18 (a) defendant shall implement a scrub of phone 19 numbers placed by clients or otherwise obtained to determine 20 whether the number is a cell phone. If a scrub determines a 21 phone number is a cell phone, defendant will not put it on its 22 dialing equipment unless it has a good faith basis to believe 23 there is consent to call the number or the law otherwise permits 24 such calls; 25 (b) defendant shall revise its written TCPA 26 processes, procedures, and training materials consistent with 27 paragraph (10)(a); 28 (c) defendant shall implement regular training 1 for its employees concerning its TCPA processes and procedures as 2 set forth in paragraph (10)(a) 3 (d) FCI shall issue quarterly reports to class 4 counsel concerning TCPA litigation during the two-year injunctive 5 period; 6 (e) FCI shall submit proof of compliance with the 7 injunction to Class Counsel by way of providing the training and 8 testing materials used in the training upon the commencement of 9 such training. Furthermore, a declaration of the responsible 10 person at FCI for ensuring compliance with the training 11 requirements of the injunction shall be provided upon completion 12 of the training. Class Counsel shall be provided such other 13 documentation of compliance as they might deem necessary to 14 confirm compliance, upon request, subject to either party seeking 15 review by the court as to the reasonableness of the request(s). 16 (f) At the end of the 24-month injunction, 17 defendant shall submit to Class Counsel a declaration from its 18 training coordinator confirming that training was provided on a 19 regular basis during the injunction term, as required by 20 paragraph (10)(c). Further, at the end of the 24-month 21 Stipulated Injunction, FCI shall also submit to Class Counsel an 22 exemplar of the revised TCPA testing materials to confirm FCI’s 23 compliance with paragraph (10)(b). 24 (g) During the 24-month term of the injunction, 25 both plaintiff and defendant shall have the right to seek relief 26 from, or modification of, the injunction based upon an unfair 27 burden on the business, or a change in the law. Any request for 28 alteration or modification of the injunction’s terms shall be 1 made to the court. Any alteration or modification of this 2 injunction shall not extend the length of the 24-month 3 injunction. Any alteration or modification shall only apply 4 prospectively for the remainder of the 24-month injunction. 5 (11) This action is dismissed with prejudice. However, 6 without affecting the finality of this Order, the court shall 7 retain continuing jurisdiction over the interpretation, 8 implementation, and enforcement of the Settlement Agreement and 9 this Order, which includes the 24-month injunction, with respect 10 to all parties to this action and their counsel of record. 11 The clerk is instructed to enter judgment accordingly. 12 | Dated: June 2, 2021 dete 4k_AdZ.kt 13 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE