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BLUMENTHAL NORDREHAUG BHOWMIK
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2 Norman B. Blumenthal (State Bar #068687)
Kyle R. Nordrehaug (State Bar #205975)
3 Aparajit Bhowmik (State Bar #248066) JUL 1 1 2022
2255 Calle Clara
4 La Jolla, CA 92037 By:.
Telephone: (858)551-1223 Uepuly Clerk
5 Facsimile: (858) 551-1232
Firmsite: www.bamlawca.com
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Attorneys for Plaintiff Andrea Spears
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF SACRAMENTO
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11 ANDREA SPEARS, an individual, on behalf Consolidated Case No.:
of herself and on behalf of all persons 34-2017-00210560-CU-OE-GDS
12 similarly situated,
SUPPLEMENTAL DECLARATION OF K Y L E
13 Plaintiff, NORDREHAUG IN SUPPORT OF MOTION
FOR FINAL APPROVAL
14
vs.
15 HEALTH NET OF CALIFORNIA, INC., a Hearing Date: August, 2022
California Corporation; and Does 1 through Hearing Time: 9:00 a.m.
16 50, inclusive. [Hearing scheduled by Orders dated March 10,
17 2022, May 13, 2022 and July 12. 2022]
Defendants.
18 Judge: Hon. Christopher E. Krueger
TOMAS R. ARANA, on behalf of himself, Dept: 54
19 all others similarly situated.
Action Filed: April 5, 2017
20 Plaintiff, Trial Date: Not Set
21 vs.
22 HEALTH NET OF CALIFORNIA, INC.; a
California Corporation; Does 1 through 50,
23 inclusive.
Defendants.
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SUPPLEMENTAL DECLARATION OF KYLE NORDREHAUG
fN SUPPORT OF MOTION FOR FINAL APPROVAL
-1- Case No. 34-2017-00210560-CU-OE-GDS
1 I, Kyle Nordrehaug, declare as follows:
2 1. I am the partner in the law firm of Blumenthal Nordrehaug Bhowmik De Blouw LLP,
3 counsel of record for Plaintiffs Andrea Spears and Tomas R. Arana and the Class in this matter. As
4 such, I am fully familiar with the facts, pleadings and history of this matter. I am submitting this
5 supplemental declaration in response to the Court's ruling for July 12, 2022 and in support of the
6 Motion for Final Approval filed by Plaintiffs Andrea Spears and Tomas R. Arana ("Plaintiffs") in
7 connection with services rendered in the above-entitled action and the requested service awards.
8 2. On or about June 16, 2022,1 had my attorney service file the document entitled
9 "DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FFNAL
10 APPROVAL AND MOTION FOR AWARD OF ATTORNEYS' FEES, COSTS AND SERVICE
11 AWARDS". A true and correct copy of this declaration is attached hereto as Exhibit #1. This
12 document was submitted along with a Notice of Motion for Award of Attorneys' Fees and a
13 Memorandum of Points and Authorities in Support of the Motion, true and correct copies of which are
14 attached hereto as Exhibits #2 and 3. respectively.
15 3. I learned from the Court's ruling for July 12, 2022 that the Court did not find these
16 documents in the register of actions. I checked with my attorney service about the status of this filing
17 and they reported that the Court rejected these documents as set forth in the rejection notice attached
18 hereto as Exhibit #4. The reason given is that the motion was not reserved.
19 4. The Court's Order dated March 10, 2022 expressly set both the Motion for Final
20 Approval and the Motion for Attorneys Fees for July 12, 2022 in Department 54. (See Order dated
21 March 10,2022 at paragraph 13 "Both the motion for final approval and the motion for attorneys' fees,
22 costs and service award shall be heard at the Final Approval Hearing"). These documents referred to
23 this Order dated March 10, 2022 as the basis for hearing on the motion.
24 5. I understand that an Order dated April 20, 2022 moved these motions and hearings to
25 Department 25. My office contacted Department 25 on April 26, 2022 to confirm this and Trevor
26 informed my staff that the motions should be filed in Department 25. This is the reason why the
27 documents were submitted to Department 25, and not to Department 54. Then on July 7,2022, Jennifer
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SUPPLEMENTAL DECLARATION OF KYLE NORDREHAUG
IN SUPPORT OF MOTION FOR FINAL APPROVAL
-2- Case No. 34-2017-00210560-CU-OE-GDS
in Dept 54 informed my staff that these motions would be heard in Department 54. I can only assume
2 that the switch to and from Department 25 was the reason why these documents were rejected despite
3 the Court Order dated March 10, 2022 expressly setting this motion for hearing on July 12, 2022.
4 6. Pursuant to the ruling by Department 54 for July 12, 2022, this original Declaration of
5 Nordrehaug, attached hereto as Exhibit #1. is being filed and served.
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7 I declare under penalty of perjury under the laws of the State of California that the foregoing
8 is true and correct. Executed this 12th day of July, 2022, at San Diego, California.
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SUPPLEMENTAL DECLARATION OF KYLE NORDREHAUG
IN SUPPORT OF MOTION FOR FINAL APPROVAL
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PROOF OF SERVICE
2
3 STATE OF CALIFORNIA, COUNTY OF SAN DIEGO
4 I, Kyle Nordrehaug, am employed in the County of San Diego, State of California. I am
5 over the age of 18 and not a party to the within action. My business address is 2255 Calle Clara,
6 La Jolla, California 92037.
7 On July 12, 2022,1 served the document(s) described as:
8 1. SUPPLEMENTAL DECLARATION OF KYLE NORDREHAUG IN SUPPORT
OF MOTION FOR FINAL APPROVAL
9
10 VIA ELECTRONIC SERVICE. I provided the documents referenced above
electronically via electronic mail (e-mail) to counsel for Defendant pursuant to an
11 agreement oi the parties at the following e-mail address(es):
12 LITTLER MENDELSON, P.C. SETAREH LAW GROUP
13 Keith Jacoby Shatxn Setareh
kiacoby@,littler.com shaun@.setarehlaw.com
Nathaniel H. Jenkins William M. Pao
14 njenkins(a),littler.com william@,setarehlaw.com
500 Capitol Mall, Suite 200 Nolan Dilts
15 Sacramento, CA 95814 nolanfolsetarehlaw.com
16 9665 Wilshire Blvd., Suite 430
Beverly Hills, CA 90212
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X (FEDERAL EXPRESS): I caused the above-described document to be delivered via overnight
18 delivery (Federal Express), by placing a copy in a separate FEDERAL EXPRESS mailer and
attaching a completed Federal Express air bill, with Standard Overnight deli very Apriority
19 Delivery requested, and caused said mailer to deposited in the Federal Express collection box
at San Diego, California addressed to the following:
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Royleen Harris
21 1040 Burr Ave.
Elverta, CA 95626
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Maria P. Perez
23 4118 Eagle Flight Drive
Simi Valley, CA 93065
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25 X (ONLINE TO THE LWDA): I caused the above-described document to be delivered to
the Labor Workforce Development Agency via online process at the PAGA Filing
26 website in accordance with the procedure imposed by the LWDA.
27 X (Stated: I declare under penalty of perjury under the laws of the State of California that
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SUPPLEMENTAL DECLARATION OF KYLE NORDREHAUG
IN SUPPORT OF MOTION FOR FINAL APPROVAL
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the above is true and correct. Executed on July 12, 2022, at La Jolla, California.
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SUPPLEMENTAL DECLARATION OF KYLE NORDREHAUG
IN SUPPORT OF MOTION FOR FINAL APPROVAL
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EXHIBIT #1
1 BLUMENTHAL NORDREHAUG BHOWMIK
DE BLOUW L L P
2 Norman B. Blumenthal (State Bar #068687)
Kyle R. Nordrehaug (State Bar #205975)
3 Aparajit Bhowmik (State Bar #248066)
2255 Calle Clara
4 La Jolla, CA 92037
Telephone: (858)551-1223
5 Facsimile: (858) 551-1232
Firmsite: www.bamlawca.com
6
Attorneys for Plaintiff Andrea Spears
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
IN AND FOR THE COUNTY OF SACRAMENTO
10
11
ANDREA SPEARS, an individual, on behalf Consolidated Case No.:
12 of herself and on behalf of all persons 34-2017-00210560-CU-OE-GDS
similarly situated,
13 DECLARATION OF K Y L E NORDREHAUG
Plaintiff, IN SUPPORT OF MOTION FOR FINAL
APPROVAL AND MOTION FOR AWARD OF
14
vs. ATTORNEYS' FEES, COSTS AND SERVICE
AWARDS
15
HEALTH NET OF CALIFORNIA, INC., a
California Corporation; and Does 1 through
16
50, inclusive. Hearing Date: July 12, 2022
Hearing Time: 9:00 a.m.
17
Defendants. [Hearing scheduled by Orders dated March 10,
18 2022 and May 13. 2022]
TOMAS R. ARANA, on behalf of himself,
19 all others similarly situated. Judge: Hon. Jill H. Talley
Dept: 25
20 Plaintiff,
Action Filed: April 5, 2017
21 vs. Trial Date: Not Set
22 HEALTH NET OF CALIFORNIA, INC.; a
California Corporation; Does 1 through 50,
23 inclusive.
Defendants.
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DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL AND
MOTION FOR AWARD OF ATTORNEYS' FEES, COSTS AND SERVICE AWARD
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1 I, Kyle Nordrehaug, declare as follows:
2 1. I am the partner in the law firm of Blumenthal Nordrehaug Bhowmik De Blouw LLP,
3 counsel of record for Plaintiffs Andrea Spears and Tomas R. Arana and the Class in this matter. As
4 such, I am fully familiar with the facts, pleadings and history of this matter. I am submitting this
5 declaration in support of Motion for an award of attomeys' fees and litigation expenses filed by
6 Plaintiffs Andrea Spears and Tomas R. Arana ("Plaintiffs") in connection with services rendered in the
7 above-entitled action and the requested service awards. A true and correct copy of the Class Action
8 Settlement Agreement (the "Agreement") is attached hereto as Exhibit #1. The following facts are
9 within my own personal knowledge, and if called as a witness, I could and would testify competently
10 to the matters stated herein.
11 2. Over the course of the litigation during the last five years, a number of attorneys in my
12 firm have worked on this matter. Their credentials are reflected in the Blumenthal Nordrehaug
13 Bhowmik De Blouw LLP firm resume, a true and correct copy of which is attached hereto as Exhibit
14 #2. Some of the major cases our firm has undertaken are also set forth in Exhibit #2. The bulk of the
15 attomeys involved in this matter at Blumenthal Nordrehaug Bhowmik De Blouw LLP have had
16 extensive class litigation experience, much of it in the area of employment class actions, unfair business
17 practices and other complex litigation. The attomeys at my firm have extensive experience in cases
18 involving labor code violations and overtime claims. Class Counsel has litigated similar wage and hour
19 class action cases against other employers on behalf of employees, including cases against Securitas,
20 Okta, Health Net of California, El Polio Loco, Total Renal, Panda Express, Walt Disney Resorts,
21 Pharmaca, Nortek Security, California Fine Wine, Solarcity, Space Exploration, Union Bank, Verizon,
22 Apple, Wells Fargo, Kaiser, Universal Protection Services, and Califomia State Automobile
23 Association. The issues presented in this case required more than just a general appreciation of wage
24 and hour law and class action procedure as this area of practice is still developing as evidenced by the
25 Supreme Court's decision infin/i^er^ejtoMran/Corp.v. Superior Court, 53 Ca\. 4th 1004 (2012), and
26 in the Ninth Circuit's decision in Sakkab v. Luxxotica Retail N. Am., Inc., 803 F.3d 425 (9* Cir. 2015),
27 which I personally argued. It is this level of experience which enabled the firm to undertake the instant
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DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL AND
MOTION FOR AWARD OF ATTORNEYS' FEES, COSTS AND SERVICE AWARD
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matter and to successfully combat the resources of the defendant and their capable and experienced
2 counsel. On account ofthe concerted and dedicated effort this case required in order to properly handle
3 and prosecute. Class Counsel were precluded from taking other cases, and in fact, had to tum away
4 other potential fee generating cases.
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6 The Attorneys' Fees Requested Are Fair and Reasonable and Should Be Approved
7 3. The Agreement For The Payment of Fees and Expenses Should Is Appropriate And
8 Should Be Enforced
9 (a) Class Counsel successfully negotiated a class action settlement which provides
10 for a common fund settlement to be paid by Defendant Health Net of Califomia, Inc. ("Defendant") to
the Class in the amount of Five Million Dollars ($5,000,000) (the "Gross Settlement Amount"). (Class
12 Action Settlement Agreement [the "Agreement"] TIf I(S) and 111(A).) As part of the settlement, the
13 Parties agreed to an award of attorneys' fees equal to one-third of the Gross Settlement Amount, as the
14 Class Counsel Fees Payment. (Agreement at ^ 111(B)(2).) By this motion, Class Counsel respectfully
15 requests approval of the Class Counsel Fees Payment in an amount equal to one-third of the Gross
16 Settlement Amount.
17 (b) In the class action context, that means "attempting to award the fee that informed
18 private bargaining, i f it were truly possible, might have reached." Here, informed arms-length
19 bargaining between experienced counsel and Defendant resulted in Defendant negotiating the fee award
20 to one-third of the Gross Settlement Amount. Such bargaining is obviously the best measure of the
21 market for fees. Moreover, fee awards in common fund settlements as this one have resulted in a
22 percentage of fees in an equivalent percentage to the sum sought by Class Counsel herein, further
23 reflecting the accurate market value of the award requested.
24 (c) The requested fee award, agreed to by the parties as part of the Settlement, should be
25 approved. The requested fee award was bargained for during arms' length adversarial bargaining by
26 counsel for each of the parties as part of the Settlement.
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DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL AND
MOTION FOR AWARD OF ATTORNEYS' FEES, COSTS AND SERVICE AWARD
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1 4. The Class Counsel Fee Award Is Properlv Calculated as a Percentage of the Total Value
2 Created for the Benefit of the Class
3 (a) As part ofthe settlement, the parties agreed to an award of attorneys' fees equal to one-
4 third of the Gross Settlement Amount of $5,000,000, which equals $, 1,666,666 for attorneys' fees. As
5 part ofthe Agreement, Defendant also agreed that Class Counsel will also be paid reasonable litigations
6 expenses incurred as per Class Counsel's billing statement in an amount not to exceed $140,000.
7 Finally, Defendant also agreed that Plaintiffs can be awarded Class Representative Service Awards in
8 the amount of $ 10,000 each, as their service awards under the Agreement.
9 (b) In defining a reasonable fee, the Court should mimic the marketplace for cases involving
10 a significant contingent risk such as this one. Our legal system places unique reliance on private
11 litigants to enforce substantive provisions of employment law through class actions. Therefore,
12 attomeys providing these substantial benefits should be paid an award equal to the amount negotiated
13 in private bargaining that takes place in the legal market place.
14 (c) There is a substantial difference between the risk assumed by attorneys being paid by the
15 hour and attorneys working on a contingent fee basis. The attomey being paid by the hour can go to
16 the bank with his fee. The attorney working on a contingent basis can only log hours while working
17 without pay towards a result that will hopefully entitle him to a market place contingent fee taking into
18 account the risk and other factors of the undertaking. Otherwise, the contingent fee attorney receives
19 nothing. In this case. Class Counsel subjected themselves to this contingent fee market risk in this all
20 or nothing contingent fee case wherein the necessity andfinancialburden of private enforcement makes
21 the requested award appropriate. The contingent fee practices of Class Counsel do not accommodate
22 the investment of unnecessary time in a case. This case was litigated on a contingent basis with all of
23 the concomitant risk factors inherent in such an uncertain undertaking. Indeed, I am aware of other
24 similar cases where the court dismissed the class allegations or denied class certification. Under such
25 circumstances, courts have held that a risk multiplier must be applied to the fee award.
26 (d) Here, the contingent nature of the fee award, both from the point of view of eventual
27 settlement and the point of view of establishing eligibility for an award, also warrant the requested fee
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DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL AND
MOTION FOR AWARD OF ATTORNEYS' FEES, COSTS AND SERVICE AWARD
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1 award. A number of difficult issues, the adverse resolution of any one of which could have doomed the
2 successful prosecution of the action, were present here. Attorneys' fees in this case were not only
3 contingent but risky, with a very real chance that Class Counsel would receive nothing at all for their
4 efforts, having devoted time and advanced costs. Class Counsel has previously invested in cases which
5 resulted in no recovery.
6 (e) At the time this case was brought, the result was far from certain. Defendant's practices at
7 issue here had been in place for years. Defendant's numerous defenses to the merits of the case and to
8 class certification created difficulties with proof and complex legal issues for Class Counsel to
9 overcome. Here, a number of defenses asserted by Defendant present serious threats to the claims of
10 the Plaintiffs and the other Class Members. Defendant asserted that Defendant's practices complied
11 with all applicable Labor laws. Defendant argued that all work time was paid for and that the regular
12 rate calculation was lawful. Finally, Defendant successfully argued that the Supreme Court decision
13 in Brinker v. Superior Court, 53 Cal. 4th 1004 (2012) precluded class certification as to the meal and
14 rest period claims and, as a result, deprived Plaintiffs of the ability to litigate the claims on liability and
15 obtain any value for these claims at all in Court. Defendant also argues that based on their facially
16 lawful practices, they acted in good faith and without willfulness, which if accepted would negate the
17 claims for waiting time penalties and/or inaccurate wage statements. In fact, given the flux in law
18 pertaining to regular rate and off the clock claims, it is questionable whether these penalties could be
19 awarded at all based upon the alleged unpaid wage violations. If successful, Defendant's defenses could
20 eliminate or substantially reduce any recovery to the Class. While Plaintiffs believe that these defenses
21 could be overcome. Defendant maintains these defenses have merit and therefore present a serious risk
22 to recovery by the Class While Plaintiffs believe that these defenses could be overcome, Defendant
23 maintains these defenses have merit and therefore present a serious risk to recovery by the Class. There
24 was also a significant risk that, if the Actions were not settled. Plaintiffs would be unable to maintain
25 class certification and thereby not recover on behalf of any employees other than themselves.
26 Defendant argued that the individual experience of each putative class member varied with respect to
27 the claims. Defendant could always relitigate class certification by filing a motion to decertify the class
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DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL AND
MOTION FOR AWARD OF ATTORNEYS' FEES, COSTS AND SERVICE AWARD
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1 arguing that damages determinations for off the clock claims would be too unmanageable to maintain
2 as a class action. See e.g. Cac/zo v. ^wra^tor,/«c., 43 Cal. App. 5th 885, 256 Cal. Rptr. 3d 547 (2019)
3 (denying certification of meal and rest break claims). In this way. Defendant contended that individual
4 differences in work experiences not only impacted damages but would also impact the ability to
5 maintain certification through trial. There was a risk of being unable to proceed on a class or
6 representative basis in light of the U.S. Supreme Court's decisions in Wal-Mart Stores, Inc. v. Dukes,
7 131 S.Ct. 2541 (2011) and Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013). Finally, even if class
8 certification was successfully preserved through a motion for decertification, as demonstrated by the
9 Califomia Supreme Court decision in Duran v. U.S. Bank National Assn., 59 Cal. 4th 1 (2014), there
10 are significant hurdles to overcome for a class wide recovery even where the class has been certified.
11 While other cases have approved class certification in wage and hour claims, class certification in this
12 action would have been hotly disputed and was by no means a foregone conclusion.
13 (f) The Settlement was possible only because Class Counsel was able to convince Defendant
14 that Plaintiffs could potentially prevail on the contested issues regarding liability, achieve class
15 certification, overcome difficulties in proof as to monetary relief and take the case to trial if need be.
16 In successfiilly navigating these hurdles Class Counsel displayed the necessary skills in both wage and
17 hour and class action litigation. The high quality of the Class Counsel's work in this case was mandated
18 by the vigorous defense presented by counsel for Defendant. Over the last years of litigation. Class
19 Counsel was required to invest substantial time and resources in investigation, litigation, the
20 determination of potential damages and communicating with and responding to opposing counsel's and
21 class members'requests and inquiries.
22 (g) To represent the Class on a contingent fee basis. Class Counsel also had to forego
23 compensable hourly work on other cases to devote the necessary time and resources to this contingent
24 case. In so doing, Class Counsel gave up the hourly work that a firm can bank on for the risky
25 contingent fee work in this case which could potentially have paid nothing.
26 (h) Class Counsel were required to advance all costs in this litigation. Especially in this type
27 of litigation where the corporate defendant and their attorneys are well funded, this can prove to be very
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DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL AND
MOTION FOR AWARD OF ATTORNEYS' FEES, COSTS AND SERVICE AWARD
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expensive and risky. Accordingly, because the risk of advancing costs in this type of litigation can be
2 significant, it is therefore cost prohibitive to many attomeys. The financial burdens undertaken by
3 Plaintiffs and Class Counsel in prosecuting this action on behalf of the Class were very substantial.
4 Class Counsel has previously litigated cases and advanced costs, but received no recovery. To date,
5 Class Counsel advanced more than $ 130,000 in costs which could not have been recovered if this case
6 had been lost, and in fact, because of the cap not all of these costs are being recovered if this case had
7 been lost. The Plaintiffs also undertook the risk of liability for Defendant's costs had this case not
8 succeeded, as well as other potential negative financial ramifications from having come forward to sue
9 Defendant on behalf of the Class. Accordingly, the contingent nature of the fee and the financial
10 burdens on Class Counsel and on Plaintiffs also support the requested awards.
11 (i) In a common fund settlement "[t]he lodestar method is merely a cross-check on the
12 reasonableness of a percentage figure". Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1050, n.5 (9* Cir.
13 2002). In this case, the reasonableness of the requested attorneys' fee of one-third equal to $ 1,666,666
14 is also established by reference to Class Counsel's lodestar in this matter. The contemporaneous
15 billing records for Class Counsel evidence that through June 15, 2022, Class Counsel's total
16 lodestar is $1,192,375.25, with significant additional fees still to be incurred to completefinalapproval
17 and the settlement process. The requested fee award is therefore currently equivalent to Class Counsel's
18 total lodestar with a reasonable multiplier of less than 1.4, and there will be additional lodestar incurred
19 by Class Counsel to complete the settlement process and manage the settlement distribution and reports
20 Such a multiplier is lower than the range of multipliers approved in other cases such as Vizcaino, and
21 less than what was approved in Laffitte.^ As evidenced by the billing. Class Counsel's work was
22
23 ' See Laffitte, supra, 1 Cal. 5*^ at 487 (approving 1/3 fee award with multiplier of 2.03 to 2.13);
Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1051 (9* Cir. 2002)(3.65 multiplier approved because
24 of substantial risk); Pellegrino v. Robert Half Intern., Inc., 182 CaI.App.4th 278 (2010) (in class
2^ actions reasonable multipliers of 2.0 to 4.0 are often applied and affirming 1.75 multiplier);
Wershba v. Apple Computer, 91 Cal. App. 4th 224, 255 (2001) ("multipliers can range from 2 to 4
26 or even higher."); In re Sutter Health Uninsured Pricing Cases, 171 Cal.App.4th 495, 512 (2009)
(affirming multiplier of 2.52 as "fair and reasonable); Chavez v. Netflix, Inc., 162 Cal.App.4th 43,
27 66 (2008) (affirming multiplier of 2.53 as well within the approved range of 2 to 4); Taylor v.
Fedex Freight, Inc., 2016 U.S. Dist. LEXIS 142202 (E.D. Cal. 2016) (30% fee justified by 2.26
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DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL AND
MOTION FOR AWARD OF ATTORNEYS' FEES, COSTS AND SERVICE AWARD
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1 efficiently performed and highly successful. As a result, this Court may conclude that the requested
2 award is fair and reasonable and is justified under California law.
3 (j) Counsel retained on a contingency fee basis, whether in private matters or in
4 representative litigation of this sort, is entitled to a premium beyond his standard, hourly, non-
5 contingent fee schedule in order to compensate for both the risks and the delay in payment for the
6 simple fact that despite the most vigorous and competent of efforts, success is never guaranteed.
7 Indeed, i f counsel is not adequately compensated for the risks inherent in difficult class actions,
8 competent attomeys will be discouraged from prosecuting similar cases.
9 5. On December 4,2018, in Panda Express Wage and Hour Cases (Los Angeles Superior
10 Court, Case No. JCCP 4919) Judge Carolyn Kuhl awarded Class Counsel a one-third fee award in a
11 wage and hour class settlement. On January 31,2020, in El Polio Loco Wage and Hour Cases (Orange
12 County Superior Court Case No. JCCP 495 7) Judge Wi 11 iam Claster awarded Class Counsel a one-third
13 award in a wage and hour class settlement. On Febmary 11, 2020, in Singh v. Total Renal Care (San
14 Francisco Superior Court Case No. CGC-16-550847) Judge Ethan Schulman awarded Class Counsel
15 a one-third award in a wage and hour class settlement. On April 15, 2021, in Walker v. Brink's Global
16 Services USA (Los Angeles County Superior Court Case No. BC564369) Judge Amy Hogue awarded
17 Class Counsel a one-third award in a wage and hour class settlement. On June 2,2021, in Pacia v. CIM
18 Group, LP. (Los Angeles Superior Court Case No. BC709666), Judge Amy D. Hogue awarded Class
19 Counsel a one-third fee award in a wage and hour class settlement. On September 13, 2021, in Smith
20 V. California Protection and Investigation Services (Los Angeles Superior Court Case No.
21 19STCV14719), Judge Daniel Buckley awarded a one-third fee award in a wage and hour class
22 settlement. On November 8, 2021, in Securitas Wage and Hour Cases (Los Angeles Superior Court
23 Case No. JCCP4837) Judge David Cunningham awarded a one-third fee award in a wage and hour class
24 settlement. On November 17, 2021, in Leon v. Sierra Aluminum Company (San Bernardino Superior
25 Court Case No. CIVDS2010856) Judge David Cohn awarded a one-third fee award in a wage and hour
26 class settlement. On March 17, 2022, in See's Candies Wage and Hour Cases (Los Angeles Superior
27
multiplier).
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DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL AND
MOTION FOR AWARD OF ATTORNEYS' FEES, COSTS AND SERVICE AWARD
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1 Court Case No. JCCP5004) Judge Maren Nelson awarded a one-third fee award in a wage and hour
2 class action settlement. On April 12, 2022, in O'Donnell v, Okta, Inc., (San Francisco Superior Court
3 Case No. CGC-20-587665) Judge Richard Ulmer awarded a one-third fee award in a wage and hour
4 class action settlement. On May 23, 2022, in Ettedgui v. WB Studio Enterprises Inc., (United States
5 District Court, Central District ofCalifornia Case No. 2:20-cv-08053-MCS-JDE) Judge Mark C.Scarsi
6 awarded a one-third fee award in a wage and hour class action settlement
7 6. The billing records for Class Counsel evidence that through June 15, 2022, Class
8 Counsel's total lodestar is $1,192,375.25, with significant additional fees still to be incurred to complete
9 final approval and the settlement process. The lodestar incurred by each firm are set forth in their
10 respective declarations as follows: Blumenthal Nordrehaug Bhowmik De Blouw LLP - $819,058.50;
11 Setareh Law Group - $373,316.75 (Declaration of Shaun Setareh at 10-11). I have reviewed my
12 firm's lodestar in this matter and believe the charges are reasonable and were reasonably necessary to
13 the conduct of the case. From March 15, 2017 through June 15, 2022, my firm has worked more than
14 1,494 hours prosecuting these claims with the attorneys' hourly fee rates for attorneys ranging from
15 $475 to $795, resulting in current lodestar equaling $819,058.50. A detailed breakdown of the total
16 fees and the services' performed by my firm on this case is attached hereto as Exhibit #3. In addition,
17 Class Counsel will be performing significant additional work that is not included in this lodestar
18 amount, including finalizing the final approval motion, attending the hearing on final approval, and
19 monitoring completion of the settlement process. I expect this additional work will result in at least
20 $30,000 in additional lodestar for my firm. The rates charged by my firm are in line with the prevailing
21 rates of attomeys in the local legal community for similar work and, if this were a commercial matter,
22 these are the charges that would be made and presented to the client. These hourly rates have been
23 approved by Court's throughout Califomia, including the Courts in the Superior Court of Califomia.
24 In fact, on August 1,2018, District Judge Andre Birotte Jr. explicitly found that Class Counsel's "rates
25 generally appear reasonable and 'in line with those prevailing in the [relevant] community'—the
26 Central District ofCalifornia". Finally, the reasonableness of Class Counsel's hourly rates is further
27 confirmed by comparing such rates with the rates of comparable counsel practicing complex and class
28
DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL AND
MOTION FOR AWARD OF ATTORNEYS' FEES, COSTS AND SERVICE AWARD
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1 litigation as detailed in the National Law Journal Billing Survey. See e.g. Zest IP Holdings, LLC v.
2 Implant Direct MFG., LLC, 2014 U.S. Dist. LEXIS 167563 (S.D. Cal. 2014) (finding that "Mayer
3 Brown's $775 average billing rate for partners" and "Mayer Brown's $543 average associate billing
4 rate" are reasonable rates when compared within 21 other firms practicing in the Southem District of
5 California.) This survey is usefiil to show that Class Counsel's rates are in line with the comparable
6 rates of the defense counsel that opposes these types of class claims, such as Mayer Brown noted above
7 who is defense counsel in cases currently being prosecuted by Class Counsel. In another example,
8 Sheppard Mullin Richter & Hampton, who is opposing counsel in many cases prosecuted by Class
9 Counsel, charges rates as high as $875 for partners and $535 for associates. Similarly, Paul Hastings,
10 another opposing counsel in these types of cases, charges between $900 and $750 for partners and $755
11 and $335 for associates. Thus, the rates charged by Class Counsel for comparable work are less than
12 these examples, and are therefore undoubtedly reasonable. Therefore, the requested fee award as a
13 percentage ofthe flind is supported by the currently lodestar incurred with reasonable multiplier of less
14 than 1.4 and will be even less by the completion of the settlement. This is lower than the multiplier
15 approved in Laffitte and below the range of multipliers approved in other cases. The requested award
16 is therefore reasonable viewed by the Lodestar/Multiplier cross-check.
17
18 Costs
19 7. As part of the Agreement at paragraph 111(B)(2), the parties agreed that Class Counsel
20 may seek "an amount not more than $140,000 for all expenses incurred as documented in Class
21 Counsel's billing records as their Class Counsel Litigation Expenses Payment." Class Counsel requests
22 reimbursement for incurred litigation expenses and costs in the amount of $140,000 based upon
23 counsel's billing records, which evidence that counsel incurred total litigation expenses in the total
24 amount of $141,284.3, consisting of $109,395.26 incurred by the Blumenthal firm and $31,559.04
25 incurred by the Setareh firm. The litigation expenses incurred by Blumenthal Nordrehaug Bhowmik
26 De Blouw LLP in this matter total $109,395.26 and include the expenses incurred for filing fees,
27 mediation expenses, expert fees, attomey service charges (Knox, One Legal), CourtCall charges,
28
DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL AND
MOTION FOR AWARD OF ATTORNEYS' FEES, COSTS AND SERVICE AWARD
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1 hearing travel, deposition expenses, deposition travel, docket download charges, hearing transcript
2 expenses, and document service charges, all of which are costs normally billed to and paid by the client.
3 These costs were reasonably incurred by Blumenthal Nordrehaug Bhowmik De Blouw LLP in the
4 prosecution of this matter and are set forth in detail in the contemporaneous billing records attached
5 hereto as Exhibit #3.
6
7 Service Awards
8 8. I respectfiilly request that for their service as the only class representatives. Plaintiffs
9 should be awarded the agreed service award of $10,000, each, in accordance with the Agreement for
10 their time, risk and effort expended on behalf of the Class as the class representative. (Agreement at
11 ^III(C)(1).) Defendant has agreed to this payment and there have been no objections to the requested
12 service award. The Declaration of Plaintiff Andrea Spears and Declaration of Plaintiff Tomas Arana
13 are submitted herewith in support of this request. As the representatives of the Class, Plaintiffs
14 performed their duty to the Class admirably and without exception. Plaintiffs worked extensively with
15 Class Counsel during the course of the litigation, responding to numerous requests, appearing for their
16 depositions, searching for documents, working with counsel, and reviewing the settlement
17 documentation. Plaintiffs worked extensively with Class Counsel during the course of the litigation,
18 responding to numerous requests, searching for documents, working with counsel, and reviewing the
19 settlement documentation. As set forth in the Agreement, the Plaintiffs are also providing a
20 comprehensive release as part of the Settlement, far beyond the class release. The declarations of the
21 Plaintiffs, submitted herewith, detail the involvement, stress and risks they undertook as a result of this
22 Action. The Plaintiffs also assumed the serious risk that they might possibly be liable for costs and fees
23 to Defendant, as well as the reputational risk of being "blacklisted" by other fiiture employers for
24 having filed a class action on behalf of fellow former employees. Without the Plaintiffs' participation,
25 cooperation and information, no other fellow employees would be receiving any benefit. The payment
26 of service awards to successful class representatives is appropriate and the amount of $10,000 is well
27 within the currently awarded range for similar settlements. The requested award is also reasonable by
28
DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL AND
MOTION FOR AWARD OF ATTORNEYS' FEES, COSTS AND SERVICE AWARD
-11 - Case No. 34-2017-00210560-CU-OE-GDS
1 reference to the amounts that other Califomia courts have found to be reasonable in wage and hour
2 class action settlements: Zamora v. Balboa Life & Casualty, LLC, Case No. BC360036, Los Angeles
3 County Superior Court (Mar. 7,2013)(awarding $25,000 service award); Aguiar v. Cingular Wireless,
4 LLC, Case No. CV 06-8197 DDP (AJWx)(C.D. Cal. Mar. 17,2011 )(awarding $ 14,767 service award);
5 Magee v. American Residential Services, LLC, Case No. BC423798, Los Angeles County Superior
6 Court (Apr. 21, 201 l)(awarding $15,000 service award); Mares v. BFS Retail & Commercial
7 Operations, LLC, Case No. BC375967, Los Angeles County Superior Court (June 24,2010)(awarding
8 $15,000 service award); Baker v. L.A. Fitness Int'l. LLC, Case No. BC438654, L.A. County Superior
9 Court (Dec. 12, 2012)(awarding $10,000 service awards to three named plaintiffs); Blue v. Coldwell
10 banker Residential Brokerage Co., Case No. BC417335, Los Angeles County Superior Court (Mar. 21,
11 201 l)(awarding $10,000 service award); Buckmire v. Jo-Ann Stores, Inc., Case No. BC394795, Los
12 Angeles County Superior Court (June, 11,2010)(awarding $ 10,000 service awards); Coleman v. Estes
13 Express Lines, Inc., Case No. BC429042, Los Angeles County Superior Court (Oct. 3,2013)(awarding
14 $ 10,000 service award); Ethridge v. Universal Health Services, Inc., Case No. BC391958, Los Angeles
15 County Superior Court (May 27,2011 )(awarding$ 10,000 service award); Mc/:so« v. South Coast Auto
16 Ins. Marketing. Inc., Case No. BC390395, Los Angeles County Superior Court (Mar. 27,
17 2012)(awarding $10,000 service award); Hill v. sunglass Hut Int'l. Inc., Case No. BC422934, Los
18 Angeles County Superior Court (July 2, 2012)(awarding $10,000 service award); Kambamba v.
19 Victoria's Secret Stores. LLC, Case No. BC368528, Los Angeles County Superior Court, (Aug. 19,
20 2011 )(awarding $ 10,000 service award together with additional compensation for their general release);
21 Nevarez v. Trader Joe's Co., Case No. BC373910, Los Angeles County Superior Court (Jan. 29,
22 2010)(awarding $ 10,000 service award); Ordaz v. Rose Hills Mortuary, LP., Case No. BC386500, Los
23 Angeles County Superior Court, (Mar. 19,2010)(awarding $ 10,000 service award); Sheldon v. AHMC
24 Monterey Park Hosp. LP, Case No. BC440282, Los Angeles County Superior Court (Feb. 22,
25 2013)(awarding $10,000 service award); Silva v. Catholic Mortuary Services, Inc., Case No.
26 BC408054, Los Angeles County Superior Court (Feb. 8,2011 )(awarding $ 10,000 enhancement award);
27 Weisbarth v. Banc West Investment Services, Inc., Case No. BC422202, Los Angeles County Superior
28
DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL AND
MOTION FOR AWARD OF ATTORNEYS' FEES, COSTS AND SERVICE AWARD
-12- Case No. 34-2017-00210560-CU-OE-GDS
1 Court (May 24,2013)(awarding $ 10,000 service award); Lazar v, Kaiser Foundation Health Plan, Case
2 No. 14-CV-273289, Santa Clara County Superior Court (Dec. 28, 2015) (awarding $10,000 service
3 award); Acheson v. Express. LLC, Case No. 109CV135335, Santa Clara County Superior Court (Sept.
4 13,2011 )(awarding $ 10,000 service award); Bejarano v. Amerisave Mortgage Corp., Case No. EDCV
5 08-00599 SGL (Opx)(C.D. Cal. June 22, 2010)(awarding $ 10,000 service award); Carbajal v. Sally
6 Beauty Supply LLC, Case No. CIVVS 1004307, San Bernardino County Superior Court (Aug. 6,
7 2012)(awarding $10,000 service award); Co«/A-eraj V. 5erco/«c.. Case No. 10-cv-04526-CAS-JEMx
8 (CD. Cal. Sep. 10, 2012)(awarding $10,000 service award); Guerro v. R.R. Donnelley & Sons Co.,
9 Case No. RIC 10005196, Riverside County Superior Court (July 16, 2013)(awarding $ 10,000 service
10 2iV^a.r(X); Kisliukv. ADT Security Services Inc., C&se^o.CyQ%-Q324\ DSF (RZx)(C.D. Cal. Jan. 10,
11 201 l)(awarding $10,000 service award); Morales v. BCBG Maxazria Int'l Holdings. Inc., Case No.
12 JCCP 4582, Orange County Superior Court (Jan. 24, 2013)(awarding $10,000 service acw&vA); Barrett
13 V. Doyon Security Services, LLC, Case No. BS900199, BS900517, San Bernardino County Superior
14 Court (Apr. 23,2010)(awarding$ 10,000 service award); Zi>/?o/ov. UAG Stevens Creek II. SantaClara
15 Superior Court Case no. 17CV313457 (July 10,2018) (awarding $10,000 service award); ra>'/or v. 77C
16 - 77ie/wi/Mc/r/a/Com/j/a«>',U.S.D.C. Central DistrictofCalifomia Case No. EDCV 16-186-VAP(Aug.
17 I , 2018) (awarding $10,000 service award).
18 9. The requested service awards are also reasonable in light of the reputational risk that
19 Plaintiffs assumed in bringing this action against their former employer. Plaintiffs put their future
20 employment prospects at risk by becoming a class representative as the fact that they filed a lawsuit "is
21 searchable on the internet and may become known to prospective employers when evaluating" her for
22 employment. Guippone v. BH S&B Holdings. LLC, 2011 U.S., Dist. LEXIS 126026, *20 (S.D.N.Y.
23 Oct. 28,2011). Employers routinely screen employee candidates to determine whether they have ever
24 filed a suit against other employers, allowing them to screen out the litigious candidates. An entire
25 industry exists that allows employers to mn extensive background searches on potential employees.
26 Companies who provide these services specifically highlight the fact that their services allows
27 employers to weed out litigious employment candidates. Reliable Plant outlines ways that employers
28
DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL AND
MOTION FOR AWARD OF ATTORNEYS' FEES, COSTS AND SERVICE AWARD
-13- Case No. 34-2017-00210560-CU-OE-GDS
can "get a sense of whether a prospective employee is likely to sue" the employer, through background
2 checks and other means, to screen out these employees.^ Onicra Credit Rating Agency states:
3 "Background screening has become a necessity in today's litigious society." Back Track Screening
4 also represents: "In today's litigious culture, employers simply cannot afford to hire employees who
5 will put their company at risk."^ PreciseHire also offers employment screening and similarly wams:
6 "with today's business climate being extremely competitive and highly litigious, conducting pre
7 employment background checks has become a necessity.""
8 10. As a result. Class Counsel respectfiilly requests approval of the application for award
9 ofthe Class Counsel Fees Payment equal to one-third (1/3) ofthe common fund, an award of litigation
10 expenses in the amount of $133,531.78, and approval ofthe requested service awards to the Plaintiffs.
11 11. In accordance with California Rules of Court, rule 3.769,1 make the following
12 disclosure. The Class Counsel Fees Payment awarded shal 1 be al located as fol lows: 50% to Blumenthal
13 Nordrehaug Bhowmik De Blouw LLP, and 50% to Setarah Law Group.
14
15 Procedural History and Background
16 12. On April 5, 2017, Plaintiff Spears filed a Complaint against Defendant in the Superior
17 Court of the State of Califomia, County of Sacramento {"Spears Action"). Plaintiff Spears asserted
18 the following claims against Defendant: (1) unfair competition in violation of Cal. Bus & Prof Code
19 §§ 17200, et seq.; (2) failure to pay overtime wages in violation of Cal. Labor Code § 510; (3) failure
20 to provide accurate itemized wage statements in violation of California Labor Code § 226; and, (4)
21 failure to provide wages at termination in violation of Cal. Lab. Code § 201, 202, and 203. On June
22 29, 2017, Plaintiff Andrea Spears filed a First Amended Complaint in the Spears Action which added
23 a claim for violation ofthe Private Attomey General Act, Cal. Labor Code §§ 2698, etseq. ("PAGA").
24
25 ^ www.reliableplant.com/Read/6959/a-solution-to-fear-of-hiring-litigious-employees.
26 ^ http://www.btscreening.com/wp-content/uploads/2012/09/Screening-101 .pdf.
27 '* https://precisehireblog.wordpress.eom/2013/l 1/21/pre-employment-background-checks-
have-become-a-busines-necissity/.
28 ^
DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL AND
MOTION FOR AWARD
Preview
BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW L L P P81 FD/s^^noRQFn r i L C, U/ii. uVn ac u 2 Norman B. Blumenthal (State Bar #068687) Kyle R. Nordrehaug (State Bar #205975) 3 Aparajit Bhowmik (State Bar #248066) JUL 1 1 2022 2255 Calle Clara 4 La Jolla, CA 92037 By:. Telephone: (858)551-1223 Uepuly Clerk 5 Facsimile: (858) 551-1232 Firmsite: www.bamlawca.com 6 Attorneys for Plaintiff Andrea Spears 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SACRAMENTO 10 11 ANDREA SPEARS, an individual, on behalf Consolidated Case No.: of herself and on behalf of all persons 34-2017-00210560-CU-OE-GDS 12 similarly situated, SUPPLEMENTAL DECLARATION OF K Y L E 13 Plaintiff, NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL 14 vs. 15 HEALTH NET OF CALIFORNIA, INC., a Hearing Date: August, 2022 California Corporation; and Does 1 through Hearing Time: 9:00 a.m. 16 50, inclusive. [Hearing scheduled by Orders dated March 10, 17 2022, May 13, 2022 and July 12. 2022] Defendants. 18 Judge: Hon. Christopher E. Krueger TOMAS R. ARANA, on behalf of himself, Dept: 54 19 all others similarly situated. Action Filed: April 5, 2017 20 Plaintiff, Trial Date: Not Set 21 vs. 22 HEALTH NET OF CALIFORNIA, INC.; a California Corporation; Does 1 through 50, 23 inclusive. Defendants. 24 25 26 27 28 SUPPLEMENTAL DECLARATION OF KYLE NORDREHAUG fN SUPPORT OF MOTION FOR FINAL APPROVAL -1- Case No. 34-2017-00210560-CU-OE-GDS 1 I, Kyle Nordrehaug, declare as follows: 2 1. I am the partner in the law firm of Blumenthal Nordrehaug Bhowmik De Blouw LLP, 3 counsel of record for Plaintiffs Andrea Spears and Tomas R. Arana and the Class in this matter. As 4 such, I am fully familiar with the facts, pleadings and history of this matter. I am submitting this 5 supplemental declaration in response to the Court's ruling for July 12, 2022 and in support of the 6 Motion for Final Approval filed by Plaintiffs Andrea Spears and Tomas R. Arana ("Plaintiffs") in 7 connection with services rendered in the above-entitled action and the requested service awards. 8 2. On or about June 16, 2022,1 had my attorney service file the document entitled 9 "DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FFNAL 10 APPROVAL AND MOTION FOR AWARD OF ATTORNEYS' FEES, COSTS AND SERVICE 11 AWARDS". A true and correct copy of this declaration is attached hereto as Exhibit #1. This 12 document was submitted along with a Notice of Motion for Award of Attorneys' Fees and a 13 Memorandum of Points and Authorities in Support of the Motion, true and correct copies of which are 14 attached hereto as Exhibits #2 and 3. respectively. 15 3. I learned from the Court's ruling for July 12, 2022 that the Court did not find these 16 documents in the register of actions. I checked with my attorney service about the status of this filing 17 and they reported that the Court rejected these documents as set forth in the rejection notice attached 18 hereto as Exhibit #4. The reason given is that the motion was not reserved. 19 4. The Court's Order dated March 10, 2022 expressly set both the Motion for Final 20 Approval and the Motion for Attorneys Fees for July 12, 2022 in Department 54. (See Order dated 21 March 10,2022 at paragraph 13 "Both the motion for final approval and the motion for attorneys' fees, 22 costs and service award shall be heard at the Final Approval Hearing"). These documents referred to 23 this Order dated March 10, 2022 as the basis for hearing on the motion. 24 5. I understand that an Order dated April 20, 2022 moved these motions and hearings to 25 Department 25. My office contacted Department 25 on April 26, 2022 to confirm this and Trevor 26 informed my staff that the motions should be filed in Department 25. This is the reason why the 27 documents were submitted to Department 25, and not to Department 54. Then on July 7,2022, Jennifer 28 SUPPLEMENTAL DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL -2- Case No. 34-2017-00210560-CU-OE-GDS in Dept 54 informed my staff that these motions would be heard in Department 54. I can only assume 2 that the switch to and from Department 25 was the reason why these documents were rejected despite 3 the Court Order dated March 10, 2022 expressly setting this motion for hearing on July 12, 2022. 4 6. Pursuant to the ruling by Department 54 for July 12, 2022, this original Declaration of 5 Nordrehaug, attached hereto as Exhibit #1. is being filed and served. 6 7 I declare under penalty of perjury under the laws of the State of California that the foregoing 8 is true and correct. Executed this 12th day of July, 2022, at San Diego, California. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SUPPLEMENTAL DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL -3- Case No. 34-2017-00210560-CU-OE-GDS PROOF OF SERVICE 2 3 STATE OF CALIFORNIA, COUNTY OF SAN DIEGO 4 I, Kyle Nordrehaug, am employed in the County of San Diego, State of California. I am 5 over the age of 18 and not a party to the within action. My business address is 2255 Calle Clara, 6 La Jolla, California 92037. 7 On July 12, 2022,1 served the document(s) described as: 8 1. SUPPLEMENTAL DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL 9 10 VIA ELECTRONIC SERVICE. I provided the documents referenced above electronically via electronic mail (e-mail) to counsel for Defendant pursuant to an 11 agreement oi the parties at the following e-mail address(es): 12 LITTLER MENDELSON, P.C. SETAREH LAW GROUP 13 Keith Jacoby Shatxn Setareh kiacoby@,littler.com shaun@.setarehlaw.com Nathaniel H. Jenkins William M. Pao 14 njenkins(a),littler.com william@,setarehlaw.com 500 Capitol Mall, Suite 200 Nolan Dilts 15 Sacramento, CA 95814 nolanfolsetarehlaw.com 16 9665 Wilshire Blvd., Suite 430 Beverly Hills, CA 90212 17 X (FEDERAL EXPRESS): I caused the above-described document to be delivered via overnight 18 delivery (Federal Express), by placing a copy in a separate FEDERAL EXPRESS mailer and attaching a completed Federal Express air bill, with Standard Overnight deli very Apriority 19 Delivery requested, and caused said mailer to deposited in the Federal Express collection box at San Diego, California addressed to the following: 20 Royleen Harris 21 1040 Burr Ave. Elverta, CA 95626 22 Maria P. Perez 23 4118 Eagle Flight Drive Simi Valley, CA 93065 24 25 X (ONLINE TO THE LWDA): I caused the above-described document to be delivered to the Labor Workforce Development Agency via online process at the PAGA Filing 26 website in accordance with the procedure imposed by the LWDA. 27 X (Stated: I declare under penalty of perjury under the laws of the State of California that 28 SUPPLEMENTAL DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL -4- Case No. 34-2017-00210560-CU-OE-GDS the above is true and correct. Executed on July 12, 2022, at La Jolla, California. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SUPPLEMENTAL DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL -5- Case No. 34-2017-00210560-CU-OE-GDS EXHIBIT #1 1 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW L L P 2 Norman B. Blumenthal (State Bar #068687) Kyle R. Nordrehaug (State Bar #205975) 3 Aparajit Bhowmik (State Bar #248066) 2255 Calle Clara 4 La Jolla, CA 92037 Telephone: (858)551-1223 5 Facsimile: (858) 551-1232 Firmsite: www.bamlawca.com 6 Attorneys for Plaintiff Andrea Spears 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SACRAMENTO 10 11 ANDREA SPEARS, an individual, on behalf Consolidated Case No.: 12 of herself and on behalf of all persons 34-2017-00210560-CU-OE-GDS similarly situated, 13 DECLARATION OF K Y L E NORDREHAUG Plaintiff, IN SUPPORT OF MOTION FOR FINAL APPROVAL AND MOTION FOR AWARD OF 14 vs. ATTORNEYS' FEES, COSTS AND SERVICE AWARDS 15 HEALTH NET OF CALIFORNIA, INC., a California Corporation; and Does 1 through 16 50, inclusive. Hearing Date: July 12, 2022 Hearing Time: 9:00 a.m. 17 Defendants. [Hearing scheduled by Orders dated March 10, 18 2022 and May 13. 2022] TOMAS R. ARANA, on behalf of himself, 19 all others similarly situated. Judge: Hon. Jill H. Talley Dept: 25 20 Plaintiff, Action Filed: April 5, 2017 21 vs. Trial Date: Not Set 22 HEALTH NET OF CALIFORNIA, INC.; a California Corporation; Does 1 through 50, 23 inclusive. Defendants. 24 25 26 27 28 DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL AND MOTION FOR AWARD OF ATTORNEYS' FEES, COSTS AND SERVICE AWARD -1- Case No. 34-2017-00210560-CU-OE-GDS 1 I, Kyle Nordrehaug, declare as follows: 2 1. I am the partner in the law firm of Blumenthal Nordrehaug Bhowmik De Blouw LLP, 3 counsel of record for Plaintiffs Andrea Spears and Tomas R. Arana and the Class in this matter. As 4 such, I am fully familiar with the facts, pleadings and history of this matter. I am submitting this 5 declaration in support of Motion for an award of attomeys' fees and litigation expenses filed by 6 Plaintiffs Andrea Spears and Tomas R. Arana ("Plaintiffs") in connection with services rendered in the 7 above-entitled action and the requested service awards. A true and correct copy of the Class Action 8 Settlement Agreement (the "Agreement") is attached hereto as Exhibit #1. The following facts are 9 within my own personal knowledge, and if called as a witness, I could and would testify competently 10 to the matters stated herein. 11 2. Over the course of the litigation during the last five years, a number of attorneys in my 12 firm have worked on this matter. Their credentials are reflected in the Blumenthal Nordrehaug 13 Bhowmik De Blouw LLP firm resume, a true and correct copy of which is attached hereto as Exhibit 14 #2. Some of the major cases our firm has undertaken are also set forth in Exhibit #2. The bulk of the 15 attomeys involved in this matter at Blumenthal Nordrehaug Bhowmik De Blouw LLP have had 16 extensive class litigation experience, much of it in the area of employment class actions, unfair business 17 practices and other complex litigation. The attomeys at my firm have extensive experience in cases 18 involving labor code violations and overtime claims. Class Counsel has litigated similar wage and hour 19 class action cases against other employers on behalf of employees, including cases against Securitas, 20 Okta, Health Net of California, El Polio Loco, Total Renal, Panda Express, Walt Disney Resorts, 21 Pharmaca, Nortek Security, California Fine Wine, Solarcity, Space Exploration, Union Bank, Verizon, 22 Apple, Wells Fargo, Kaiser, Universal Protection Services, and Califomia State Automobile 23 Association. The issues presented in this case required more than just a general appreciation of wage 24 and hour law and class action procedure as this area of practice is still developing as evidenced by the 25 Supreme Court's decision infin/i^er^ejtoMran/Corp.v. Superior Court, 53 Ca\. 4th 1004 (2012), and 26 in the Ninth Circuit's decision in Sakkab v. Luxxotica Retail N. Am., Inc., 803 F.3d 425 (9* Cir. 2015), 27 which I personally argued. It is this level of experience which enabled the firm to undertake the instant 28 DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL AND MOTION FOR AWARD OF ATTORNEYS' FEES, COSTS AND SERVICE AWARD -2- Case No. 34-2017-00210560-CU-OE-GDS matter and to successfully combat the resources of the defendant and their capable and experienced 2 counsel. On account ofthe concerted and dedicated effort this case required in order to properly handle 3 and prosecute. Class Counsel were precluded from taking other cases, and in fact, had to tum away 4 other potential fee generating cases. 5 6 The Attorneys' Fees Requested Are Fair and Reasonable and Should Be Approved 7 3. The Agreement For The Payment of Fees and Expenses Should Is Appropriate And 8 Should Be Enforced 9 (a) Class Counsel successfully negotiated a class action settlement which provides 10 for a common fund settlement to be paid by Defendant Health Net of Califomia, Inc. ("Defendant") to the Class in the amount of Five Million Dollars ($5,000,000) (the "Gross Settlement Amount"). (Class 12 Action Settlement Agreement [the "Agreement"] TIf I(S) and 111(A).) As part of the settlement, the 13 Parties agreed to an award of attorneys' fees equal to one-third of the Gross Settlement Amount, as the 14 Class Counsel Fees Payment. (Agreement at ^ 111(B)(2).) By this motion, Class Counsel respectfully 15 requests approval of the Class Counsel Fees Payment in an amount equal to one-third of the Gross 16 Settlement Amount. 17 (b) In the class action context, that means "attempting to award the fee that informed 18 private bargaining, i f it were truly possible, might have reached." Here, informed arms-length 19 bargaining between experienced counsel and Defendant resulted in Defendant negotiating the fee award 20 to one-third of the Gross Settlement Amount. Such bargaining is obviously the best measure of the 21 market for fees. Moreover, fee awards in common fund settlements as this one have resulted in a 22 percentage of fees in an equivalent percentage to the sum sought by Class Counsel herein, further 23 reflecting the accurate market value of the award requested. 24 (c) The requested fee award, agreed to by the parties as part of the Settlement, should be 25 approved. The requested fee award was bargained for during arms' length adversarial bargaining by 26 counsel for each of the parties as part of the Settlement. 27 28 DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL AND MOTION FOR AWARD OF ATTORNEYS' FEES, COSTS AND SERVICE AWARD -3- Case No. 34-2017-00210560-CU-OE-GDS 1 4. The Class Counsel Fee Award Is Properlv Calculated as a Percentage of the Total Value 2 Created for the Benefit of the Class 3 (a) As part ofthe settlement, the parties agreed to an award of attorneys' fees equal to one- 4 third of the Gross Settlement Amount of $5,000,000, which equals $, 1,666,666 for attorneys' fees. As 5 part ofthe Agreement, Defendant also agreed that Class Counsel will also be paid reasonable litigations 6 expenses incurred as per Class Counsel's billing statement in an amount not to exceed $140,000. 7 Finally, Defendant also agreed that Plaintiffs can be awarded Class Representative Service Awards in 8 the amount of $ 10,000 each, as their service awards under the Agreement. 9 (b) In defining a reasonable fee, the Court should mimic the marketplace for cases involving 10 a significant contingent risk such as this one. Our legal system places unique reliance on private 11 litigants to enforce substantive provisions of employment law through class actions. Therefore, 12 attomeys providing these substantial benefits should be paid an award equal to the amount negotiated 13 in private bargaining that takes place in the legal market place. 14 (c) There is a substantial difference between the risk assumed by attorneys being paid by the 15 hour and attorneys working on a contingent fee basis. The attomey being paid by the hour can go to 16 the bank with his fee. The attorney working on a contingent basis can only log hours while working 17 without pay towards a result that will hopefully entitle him to a market place contingent fee taking into 18 account the risk and other factors of the undertaking. Otherwise, the contingent fee attorney receives 19 nothing. In this case. Class Counsel subjected themselves to this contingent fee market risk in this all 20 or nothing contingent fee case wherein the necessity andfinancialburden of private enforcement makes 21 the requested award appropriate. The contingent fee practices of Class Counsel do not accommodate 22 the investment of unnecessary time in a case. This case was litigated on a contingent basis with all of 23 the concomitant risk factors inherent in such an uncertain undertaking. Indeed, I am aware of other 24 similar cases where the court dismissed the class allegations or denied class certification. Under such 25 circumstances, courts have held that a risk multiplier must be applied to the fee award. 26 (d) Here, the contingent nature of the fee award, both from the point of view of eventual 27 settlement and the point of view of establishing eligibility for an award, also warrant the requested fee 28 DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL AND MOTION FOR AWARD OF ATTORNEYS' FEES, COSTS AND SERVICE AWARD -4- Case No. 34-2017-00210560-CU-OE-GDS 1 award. A number of difficult issues, the adverse resolution of any one of which could have doomed the 2 successful prosecution of the action, were present here. Attorneys' fees in this case were not only 3 contingent but risky, with a very real chance that Class Counsel would receive nothing at all for their 4 efforts, having devoted time and advanced costs. Class Counsel has previously invested in cases which 5 resulted in no recovery. 6 (e) At the time this case was brought, the result was far from certain. Defendant's practices at 7 issue here had been in place for years. Defendant's numerous defenses to the merits of the case and to 8 class certification created difficulties with proof and complex legal issues for Class Counsel to 9 overcome. Here, a number of defenses asserted by Defendant present serious threats to the claims of 10 the Plaintiffs and the other Class Members. Defendant asserted that Defendant's practices complied 11 with all applicable Labor laws. Defendant argued that all work time was paid for and that the regular 12 rate calculation was lawful. Finally, Defendant successfully argued that the Supreme Court decision 13 in Brinker v. Superior Court, 53 Cal. 4th 1004 (2012) precluded class certification as to the meal and 14 rest period claims and, as a result, deprived Plaintiffs of the ability to litigate the claims on liability and 15 obtain any value for these claims at all in Court. Defendant also argues that based on their facially 16 lawful practices, they acted in good faith and without willfulness, which if accepted would negate the 17 claims for waiting time penalties and/or inaccurate wage statements. In fact, given the flux in law 18 pertaining to regular rate and off the clock claims, it is questionable whether these penalties could be 19 awarded at all based upon the alleged unpaid wage violations. If successful, Defendant's defenses could 20 eliminate or substantially reduce any recovery to the Class. While Plaintiffs believe that these defenses 21 could be overcome. Defendant maintains these defenses have merit and therefore present a serious risk 22 to recovery by the Class While Plaintiffs believe that these defenses could be overcome, Defendant 23 maintains these defenses have merit and therefore present a serious risk to recovery by the Class. There 24 was also a significant risk that, if the Actions were not settled. Plaintiffs would be unable to maintain 25 class certification and thereby not recover on behalf of any employees other than themselves. 26 Defendant argued that the individual experience of each putative class member varied with respect to 27 the claims. Defendant could always relitigate class certification by filing a motion to decertify the class 28 DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL AND MOTION FOR AWARD OF ATTORNEYS' FEES, COSTS AND SERVICE AWARD -5- Case No. 34-2017-00210560-CU-OE-GDS 1 arguing that damages determinations for off the clock claims would be too unmanageable to maintain 2 as a class action. See e.g. Cac/zo v. ^wra^tor,/«c., 43 Cal. App. 5th 885, 256 Cal. Rptr. 3d 547 (2019) 3 (denying certification of meal and rest break claims). In this way. Defendant contended that individual 4 differences in work experiences not only impacted damages but would also impact the ability to 5 maintain certification through trial. There was a risk of being unable to proceed on a class or 6 representative basis in light of the U.S. Supreme Court's decisions in Wal-Mart Stores, Inc. v. Dukes, 7 131 S.Ct. 2541 (2011) and Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013). Finally, even if class 8 certification was successfully preserved through a motion for decertification, as demonstrated by the 9 Califomia Supreme Court decision in Duran v. U.S. Bank National Assn., 59 Cal. 4th 1 (2014), there 10 are significant hurdles to overcome for a class wide recovery even where the class has been certified. 11 While other cases have approved class certification in wage and hour claims, class certification in this 12 action would have been hotly disputed and was by no means a foregone conclusion. 13 (f) The Settlement was possible only because Class Counsel was able to convince Defendant 14 that Plaintiffs could potentially prevail on the contested issues regarding liability, achieve class 15 certification, overcome difficulties in proof as to monetary relief and take the case to trial if need be. 16 In successfiilly navigating these hurdles Class Counsel displayed the necessary skills in both wage and 17 hour and class action litigation. The high quality of the Class Counsel's work in this case was mandated 18 by the vigorous defense presented by counsel for Defendant. Over the last years of litigation. Class 19 Counsel was required to invest substantial time and resources in investigation, litigation, the 20 determination of potential damages and communicating with and responding to opposing counsel's and 21 class members'requests and inquiries. 22 (g) To represent the Class on a contingent fee basis. Class Counsel also had to forego 23 compensable hourly work on other cases to devote the necessary time and resources to this contingent 24 case. In so doing, Class Counsel gave up the hourly work that a firm can bank on for the risky 25 contingent fee work in this case which could potentially have paid nothing. 26 (h) Class Counsel were required to advance all costs in this litigation. Especially in this type 27 of litigation where the corporate defendant and their attorneys are well funded, this can prove to be very 28 DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL AND MOTION FOR AWARD OF ATTORNEYS' FEES, COSTS AND SERVICE AWARD -6- Case No. 34-2017-00210560-CU-OE-GDS expensive and risky. Accordingly, because the risk of advancing costs in this type of litigation can be 2 significant, it is therefore cost prohibitive to many attomeys. The financial burdens undertaken by 3 Plaintiffs and Class Counsel in prosecuting this action on behalf of the Class were very substantial. 4 Class Counsel has previously litigated cases and advanced costs, but received no recovery. To date, 5 Class Counsel advanced more than $ 130,000 in costs which could not have been recovered if this case 6 had been lost, and in fact, because of the cap not all of these costs are being recovered if this case had 7 been lost. The Plaintiffs also undertook the risk of liability for Defendant's costs had this case not 8 succeeded, as well as other potential negative financial ramifications from having come forward to sue 9 Defendant on behalf of the Class. Accordingly, the contingent nature of the fee and the financial 10 burdens on Class Counsel and on Plaintiffs also support the requested awards. 11 (i) In a common fund settlement "[t]he lodestar method is merely a cross-check on the 12 reasonableness of a percentage figure". Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1050, n.5 (9* Cir. 13 2002). In this case, the reasonableness of the requested attorneys' fee of one-third equal to $ 1,666,666 14 is also established by reference to Class Counsel's lodestar in this matter. The contemporaneous 15 billing records for Class Counsel evidence that through June 15, 2022, Class Counsel's total 16 lodestar is $1,192,375.25, with significant additional fees still to be incurred to completefinalapproval 17 and the settlement process. The requested fee award is therefore currently equivalent to Class Counsel's 18 total lodestar with a reasonable multiplier of less than 1.4, and there will be additional lodestar incurred 19 by Class Counsel to complete the settlement process and manage the settlement distribution and reports 20 Such a multiplier is lower than the range of multipliers approved in other cases such as Vizcaino, and 21 less than what was approved in Laffitte.^ As evidenced by the billing. Class Counsel's work was 22 23 ' See Laffitte, supra, 1 Cal. 5*^ at 487 (approving 1/3 fee award with multiplier of 2.03 to 2.13); Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1051 (9* Cir. 2002)(3.65 multiplier approved because 24 of substantial risk); Pellegrino v. Robert Half Intern., Inc., 182 CaI.App.4th 278 (2010) (in class 2^ actions reasonable multipliers of 2.0 to 4.0 are often applied and affirming 1.75 multiplier); Wershba v. Apple Computer, 91 Cal. App. 4th 224, 255 (2001) ("multipliers can range from 2 to 4 26 or even higher."); In re Sutter Health Uninsured Pricing Cases, 171 Cal.App.4th 495, 512 (2009) (affirming multiplier of 2.52 as "fair and reasonable); Chavez v. Netflix, Inc., 162 Cal.App.4th 43, 27 66 (2008) (affirming multiplier of 2.53 as well within the approved range of 2 to 4); Taylor v. Fedex Freight, Inc., 2016 U.S. Dist. LEXIS 142202 (E.D. Cal. 2016) (30% fee justified by 2.26 28 DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL AND MOTION FOR AWARD OF ATTORNEYS' FEES, COSTS AND SERVICE AWARD -7- Case No. 34-2017-00210560-CU-OE-GDS 1 efficiently performed and highly successful. As a result, this Court may conclude that the requested 2 award is fair and reasonable and is justified under California law. 3 (j) Counsel retained on a contingency fee basis, whether in private matters or in 4 representative litigation of this sort, is entitled to a premium beyond his standard, hourly, non- 5 contingent fee schedule in order to compensate for both the risks and the delay in payment for the 6 simple fact that despite the most vigorous and competent of efforts, success is never guaranteed. 7 Indeed, i f counsel is not adequately compensated for the risks inherent in difficult class actions, 8 competent attomeys will be discouraged from prosecuting similar cases. 9 5. On December 4,2018, in Panda Express Wage and Hour Cases (Los Angeles Superior 10 Court, Case No. JCCP 4919) Judge Carolyn Kuhl awarded Class Counsel a one-third fee award in a 11 wage and hour class settlement. On January 31,2020, in El Polio Loco Wage and Hour Cases (Orange 12 County Superior Court Case No. JCCP 495 7) Judge Wi 11 iam Claster awarded Class Counsel a one-third 13 award in a wage and hour class settlement. On Febmary 11, 2020, in Singh v. Total Renal Care (San 14 Francisco Superior Court Case No. CGC-16-550847) Judge Ethan Schulman awarded Class Counsel 15 a one-third award in a wage and hour class settlement. On April 15, 2021, in Walker v. Brink's Global 16 Services USA (Los Angeles County Superior Court Case No. BC564369) Judge Amy Hogue awarded 17 Class Counsel a one-third award in a wage and hour class settlement. On June 2,2021, in Pacia v. CIM 18 Group, LP. (Los Angeles Superior Court Case No. BC709666), Judge Amy D. Hogue awarded Class 19 Counsel a one-third fee award in a wage and hour class settlement. On September 13, 2021, in Smith 20 V. California Protection and Investigation Services (Los Angeles Superior Court Case No. 21 19STCV14719), Judge Daniel Buckley awarded a one-third fee award in a wage and hour class 22 settlement. On November 8, 2021, in Securitas Wage and Hour Cases (Los Angeles Superior Court 23 Case No. JCCP4837) Judge David Cunningham awarded a one-third fee award in a wage and hour class 24 settlement. On November 17, 2021, in Leon v. Sierra Aluminum Company (San Bernardino Superior 25 Court Case No. CIVDS2010856) Judge David Cohn awarded a one-third fee award in a wage and hour 26 class settlement. On March 17, 2022, in See's Candies Wage and Hour Cases (Los Angeles Superior 27 multiplier). 28 DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL AND MOTION FOR AWARD OF ATTORNEYS' FEES, COSTS AND SERVICE AWARD -8- Case No. 34-2017-00210560-CU-OE-GDS 1 Court Case No. JCCP5004) Judge Maren Nelson awarded a one-third fee award in a wage and hour 2 class action settlement. On April 12, 2022, in O'Donnell v, Okta, Inc., (San Francisco Superior Court 3 Case No. CGC-20-587665) Judge Richard Ulmer awarded a one-third fee award in a wage and hour 4 class action settlement. On May 23, 2022, in Ettedgui v. WB Studio Enterprises Inc., (United States 5 District Court, Central District ofCalifornia Case No. 2:20-cv-08053-MCS-JDE) Judge Mark C.Scarsi 6 awarded a one-third fee award in a wage and hour class action settlement 7 6. The billing records for Class Counsel evidence that through June 15, 2022, Class 8 Counsel's total lodestar is $1,192,375.25, with significant additional fees still to be incurred to complete 9 final approval and the settlement process. The lodestar incurred by each firm are set forth in their 10 respective declarations as follows: Blumenthal Nordrehaug Bhowmik De Blouw LLP - $819,058.50; 11 Setareh Law Group - $373,316.75 (Declaration of Shaun Setareh at 10-11). I have reviewed my 12 firm's lodestar in this matter and believe the charges are reasonable and were reasonably necessary to 13 the conduct of the case. From March 15, 2017 through June 15, 2022, my firm has worked more than 14 1,494 hours prosecuting these claims with the attorneys' hourly fee rates for attorneys ranging from 15 $475 to $795, resulting in current lodestar equaling $819,058.50. A detailed breakdown of the total 16 fees and the services' performed by my firm on this case is attached hereto as Exhibit #3. In addition, 17 Class Counsel will be performing significant additional work that is not included in this lodestar 18 amount, including finalizing the final approval motion, attending the hearing on final approval, and 19 monitoring completion of the settlement process. I expect this additional work will result in at least 20 $30,000 in additional lodestar for my firm. The rates charged by my firm are in line with the prevailing 21 rates of attomeys in the local legal community for similar work and, if this were a commercial matter, 22 these are the charges that would be made and presented to the client. These hourly rates have been 23 approved by Court's throughout Califomia, including the Courts in the Superior Court of Califomia. 24 In fact, on August 1,2018, District Judge Andre Birotte Jr. explicitly found that Class Counsel's "rates 25 generally appear reasonable and 'in line with those prevailing in the [relevant] community'—the 26 Central District ofCalifornia". Finally, the reasonableness of Class Counsel's hourly rates is further 27 confirmed by comparing such rates with the rates of comparable counsel practicing complex and class 28 DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL AND MOTION FOR AWARD OF ATTORNEYS' FEES, COSTS AND SERVICE AWARD -9- Case No. 34-2017-00210560-CU-OE-GDS 1 litigation as detailed in the National Law Journal Billing Survey. See e.g. Zest IP Holdings, LLC v. 2 Implant Direct MFG., LLC, 2014 U.S. Dist. LEXIS 167563 (S.D. Cal. 2014) (finding that "Mayer 3 Brown's $775 average billing rate for partners" and "Mayer Brown's $543 average associate billing 4 rate" are reasonable rates when compared within 21 other firms practicing in the Southem District of 5 California.) This survey is usefiil to show that Class Counsel's rates are in line with the comparable 6 rates of the defense counsel that opposes these types of class claims, such as Mayer Brown noted above 7 who is defense counsel in cases currently being prosecuted by Class Counsel. In another example, 8 Sheppard Mullin Richter & Hampton, who is opposing counsel in many cases prosecuted by Class 9 Counsel, charges rates as high as $875 for partners and $535 for associates. Similarly, Paul Hastings, 10 another opposing counsel in these types of cases, charges between $900 and $750 for partners and $755 11 and $335 for associates. Thus, the rates charged by Class Counsel for comparable work are less than 12 these examples, and are therefore undoubtedly reasonable. Therefore, the requested fee award as a 13 percentage ofthe flind is supported by the currently lodestar incurred with reasonable multiplier of less 14 than 1.4 and will be even less by the completion of the settlement. This is lower than the multiplier 15 approved in Laffitte and below the range of multipliers approved in other cases. The requested award 16 is therefore reasonable viewed by the Lodestar/Multiplier cross-check. 17 18 Costs 19 7. As part of the Agreement at paragraph 111(B)(2), the parties agreed that Class Counsel 20 may seek "an amount not more than $140,000 for all expenses incurred as documented in Class 21 Counsel's billing records as their Class Counsel Litigation Expenses Payment." Class Counsel requests 22 reimbursement for incurred litigation expenses and costs in the amount of $140,000 based upon 23 counsel's billing records, which evidence that counsel incurred total litigation expenses in the total 24 amount of $141,284.3, consisting of $109,395.26 incurred by the Blumenthal firm and $31,559.04 25 incurred by the Setareh firm. The litigation expenses incurred by Blumenthal Nordrehaug Bhowmik 26 De Blouw LLP in this matter total $109,395.26 and include the expenses incurred for filing fees, 27 mediation expenses, expert fees, attomey service charges (Knox, One Legal), CourtCall charges, 28 DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL AND MOTION FOR AWARD OF ATTORNEYS' FEES, COSTS AND SERVICE AWARD -10- Case No. 34-2017-00210560-CU-OE-GDS 1 hearing travel, deposition expenses, deposition travel, docket download charges, hearing transcript 2 expenses, and document service charges, all of which are costs normally billed to and paid by the client. 3 These costs were reasonably incurred by Blumenthal Nordrehaug Bhowmik De Blouw LLP in the 4 prosecution of this matter and are set forth in detail in the contemporaneous billing records attached 5 hereto as Exhibit #3. 6 7 Service Awards 8 8. I respectfiilly request that for their service as the only class representatives. Plaintiffs 9 should be awarded the agreed service award of $10,000, each, in accordance with the Agreement for 10 their time, risk and effort expended on behalf of the Class as the class representative. (Agreement at 11 ^III(C)(1).) Defendant has agreed to this payment and there have been no objections to the requested 12 service award. The Declaration of Plaintiff Andrea Spears and Declaration of Plaintiff Tomas Arana 13 are submitted herewith in support of this request. As the representatives of the Class, Plaintiffs 14 performed their duty to the Class admirably and without exception. Plaintiffs worked extensively with 15 Class Counsel during the course of the litigation, responding to numerous requests, appearing for their 16 depositions, searching for documents, working with counsel, and reviewing the settlement 17 documentation. Plaintiffs worked extensively with Class Counsel during the course of the litigation, 18 responding to numerous requests, searching for documents, working with counsel, and reviewing the 19 settlement documentation. As set forth in the Agreement, the Plaintiffs are also providing a 20 comprehensive release as part of the Settlement, far beyond the class release. The declarations of the 21 Plaintiffs, submitted herewith, detail the involvement, stress and risks they undertook as a result of this 22 Action. The Plaintiffs also assumed the serious risk that they might possibly be liable for costs and fees 23 to Defendant, as well as the reputational risk of being "blacklisted" by other fiiture employers for 24 having filed a class action on behalf of fellow former employees. Without the Plaintiffs' participation, 25 cooperation and information, no other fellow employees would be receiving any benefit. The payment 26 of service awards to successful class representatives is appropriate and the amount of $10,000 is well 27 within the currently awarded range for similar settlements. The requested award is also reasonable by 28 DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL AND MOTION FOR AWARD OF ATTORNEYS' FEES, COSTS AND SERVICE AWARD -11 - Case No. 34-2017-00210560-CU-OE-GDS 1 reference to the amounts that other Califomia courts have found to be reasonable in wage and hour 2 class action settlements: Zamora v. Balboa Life & Casualty, LLC, Case No. BC360036, Los Angeles 3 County Superior Court (Mar. 7,2013)(awarding $25,000 service award); Aguiar v. Cingular Wireless, 4 LLC, Case No. CV 06-8197 DDP (AJWx)(C.D. Cal. Mar. 17,2011 )(awarding $ 14,767 service award); 5 Magee v. American Residential Services, LLC, Case No. BC423798, Los Angeles County Superior 6 Court (Apr. 21, 201 l)(awarding $15,000 service award); Mares v. BFS Retail & Commercial 7 Operations, LLC, Case No. BC375967, Los Angeles County Superior Court (June 24,2010)(awarding 8 $15,000 service award); Baker v. L.A. Fitness Int'l. LLC, Case No. BC438654, L.A. County Superior 9 Court (Dec. 12, 2012)(awarding $10,000 service awards to three named plaintiffs); Blue v. Coldwell 10 banker Residential Brokerage Co., Case No. BC417335, Los Angeles County Superior Court (Mar. 21, 11 201 l)(awarding $10,000 service award); Buckmire v. Jo-Ann Stores, Inc., Case No. BC394795, Los 12 Angeles County Superior Court (June, 11,2010)(awarding $ 10,000 service awards); Coleman v. Estes 13 Express Lines, Inc., Case No. BC429042, Los Angeles County Superior Court (Oct. 3,2013)(awarding 14 $ 10,000 service award); Ethridge v. Universal Health Services, Inc., Case No. BC391958, Los Angeles 15 County Superior Court (May 27,2011 )(awarding$ 10,000 service award); Mc/:so« v. South Coast Auto 16 Ins. Marketing. Inc., Case No. BC390395, Los Angeles County Superior Court (Mar. 27, 17 2012)(awarding $10,000 service award); Hill v. sunglass Hut Int'l. Inc., Case No. BC422934, Los 18 Angeles County Superior Court (July 2, 2012)(awarding $10,000 service award); Kambamba v. 19 Victoria's Secret Stores. LLC, Case No. BC368528, Los Angeles County Superior Court, (Aug. 19, 20 2011 )(awarding $ 10,000 service award together with additional compensation for their general release); 21 Nevarez v. Trader Joe's Co., Case No. BC373910, Los Angeles County Superior Court (Jan. 29, 22 2010)(awarding $ 10,000 service award); Ordaz v. Rose Hills Mortuary, LP., Case No. BC386500, Los 23 Angeles County Superior Court, (Mar. 19,2010)(awarding $ 10,000 service award); Sheldon v. AHMC 24 Monterey Park Hosp. LP, Case No. BC440282, Los Angeles County Superior Court (Feb. 22, 25 2013)(awarding $10,000 service award); Silva v. Catholic Mortuary Services, Inc., Case No. 26 BC408054, Los Angeles County Superior Court (Feb. 8,2011 )(awarding $ 10,000 enhancement award); 27 Weisbarth v. Banc West Investment Services, Inc., Case No. BC422202, Los Angeles County Superior 28 DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL AND MOTION FOR AWARD OF ATTORNEYS' FEES, COSTS AND SERVICE AWARD -12- Case No. 34-2017-00210560-CU-OE-GDS 1 Court (May 24,2013)(awarding $ 10,000 service award); Lazar v, Kaiser Foundation Health Plan, Case 2 No. 14-CV-273289, Santa Clara County Superior Court (Dec. 28, 2015) (awarding $10,000 service 3 award); Acheson v. Express. LLC, Case No. 109CV135335, Santa Clara County Superior Court (Sept. 4 13,2011 )(awarding $ 10,000 service award); Bejarano v. Amerisave Mortgage Corp., Case No. EDCV 5 08-00599 SGL (Opx)(C.D. Cal. June 22, 2010)(awarding $ 10,000 service award); Carbajal v. Sally 6 Beauty Supply LLC, Case No. CIVVS 1004307, San Bernardino County Superior Court (Aug. 6, 7 2012)(awarding $10,000 service award); Co«/A-eraj V. 5erco/«c.. Case No. 10-cv-04526-CAS-JEMx 8 (CD. Cal. Sep. 10, 2012)(awarding $10,000 service award); Guerro v. R.R. Donnelley & Sons Co., 9 Case No. RIC 10005196, Riverside County Superior Court (July 16, 2013)(awarding $ 10,000 service 10 2iV^a.r(X); Kisliukv. ADT Security Services Inc., C&se^o.CyQ%-Q324\ DSF (RZx)(C.D. Cal. Jan. 10, 11 201 l)(awarding $10,000 service award); Morales v. BCBG Maxazria Int'l Holdings. Inc., Case No. 12 JCCP 4582, Orange County Superior Court (Jan. 24, 2013)(awarding $10,000 service acw&vA); Barrett 13 V. Doyon Security Services, LLC, Case No. BS900199, BS900517, San Bernardino County Superior 14 Court (Apr. 23,2010)(awarding$ 10,000 service award); Zi>/?o/ov. UAG Stevens Creek II. SantaClara 15 Superior Court Case no. 17CV313457 (July 10,2018) (awarding $10,000 service award); ra>'/or v. 77C 16 - 77ie/wi/Mc/r/a/Com/j/a«>',U.S.D.C. Central DistrictofCalifomia Case No. EDCV 16-186-VAP(Aug. 17 I , 2018) (awarding $10,000 service award). 18 9. The requested service awards are also reasonable in light of the reputational risk that 19 Plaintiffs assumed in bringing this action against their former employer. Plaintiffs put their future 20 employment prospects at risk by becoming a class representative as the fact that they filed a lawsuit "is 21 searchable on the internet and may become known to prospective employers when evaluating" her for 22 employment. Guippone v. BH S&B Holdings. LLC, 2011 U.S., Dist. LEXIS 126026, *20 (S.D.N.Y. 23 Oct. 28,2011). Employers routinely screen employee candidates to determine whether they have ever 24 filed a suit against other employers, allowing them to screen out the litigious candidates. An entire 25 industry exists that allows employers to mn extensive background searches on potential employees. 26 Companies who provide these services specifically highlight the fact that their services allows 27 employers to weed out litigious employment candidates. Reliable Plant outlines ways that employers 28 DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL AND MOTION FOR AWARD OF ATTORNEYS' FEES, COSTS AND SERVICE AWARD -13- Case No. 34-2017-00210560-CU-OE-GDS can "get a sense of whether a prospective employee is likely to sue" the employer, through background 2 checks and other means, to screen out these employees.^ Onicra Credit Rating Agency states: 3 "Background screening has become a necessity in today's litigious society." Back Track Screening 4 also represents: "In today's litigious culture, employers simply cannot afford to hire employees who 5 will put their company at risk."^ PreciseHire also offers employment screening and similarly wams: 6 "with today's business climate being extremely competitive and highly litigious, conducting pre 7 employment background checks has become a necessity."" 8 10. As a result. Class Counsel respectfiilly requests approval of the application for award 9 ofthe Class Counsel Fees Payment equal to one-third (1/3) ofthe common fund, an award of litigation 10 expenses in the amount of $133,531.78, and approval ofthe requested service awards to the Plaintiffs. 11 11. In accordance with California Rules of Court, rule 3.769,1 make the following 12 disclosure. The Class Counsel Fees Payment awarded shal 1 be al located as fol lows: 50% to Blumenthal 13 Nordrehaug Bhowmik De Blouw LLP, and 50% to Setarah Law Group. 14 15 Procedural History and Background 16 12. On April 5, 2017, Plaintiff Spears filed a Complaint against Defendant in the Superior 17 Court of the State of Califomia, County of Sacramento {"Spears Action"). Plaintiff Spears asserted 18 the following claims against Defendant: (1) unfair competition in violation of Cal. Bus & Prof Code 19 §§ 17200, et seq.; (2) failure to pay overtime wages in violation of Cal. Labor Code § 510; (3) failure 20 to provide accurate itemized wage statements in violation of California Labor Code § 226; and, (4) 21 failure to provide wages at termination in violation of Cal. Lab. Code § 201, 202, and 203. On June 22 29, 2017, Plaintiff Andrea Spears filed a First Amended Complaint in the Spears Action which added 23 a claim for violation ofthe Private Attomey General Act, Cal. Labor Code §§ 2698, etseq. ("PAGA"). 24 25 ^ www.reliableplant.com/Read/6959/a-solution-to-fear-of-hiring-litigious-employees. 26 ^ http://www.btscreening.com/wp-content/uploads/2012/09/Screening-101 .pdf. 27 '* https://precisehireblog.wordpress.eom/2013/l 1/21/pre-employment-background-checks- have-become-a-busines-necissity/. 28 ^ DECLARATION OF KYLE NORDREHAUG IN SUPPORT OF MOTION FOR FINAL APPROVAL AND MOTION FOR AWARD