Case 2:14-cv-02158-APG-VCF Document 15 Filed 07/09/15 Page 1 of 16

1 Mark R. Thierman, Nev. Bar No. 8285

Joshua D. Buck, Nev. Bar No. 12187
2 Leah L. Jones, Nev. Bar No. 13161
THIERMAN BUCK LLP
3 7287 Lakeside Drive
Reno, Nevada 89511
4 Telephone: (775) 284-1500
Fax: (775) 703-5027
5
Attorneys for Plaintiffs
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Elayna J. Youchah, Esq., Nev. Bar No. 5837
7 Peter D. Navarro, Esq., Nev. Bar No. 10168
JACKSON LEWIS LLP
Howard Hughes Parkway
8 3800
Suite 600
Las Vegas, NV 89169
9 Telephone: (702) 921-2460
Fax: (702) 921-2461
10
Attorneys for Defendant
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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA
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JUDITH SMITH, on behalf of herself and all others

15 similarly situated,
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Plaintiff,

Case No.: 2:14-cv-02158-APG-VCF

JOINT MOTION FOR FINAL
APPROVAL OF COLLECTIVE AND
CLASS ACTION SETTLEMENT

v.

18 MANDALAY CORPORATION dba MANDALAY

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BAY RESORT AND CASINO, and DOES 1-50,

inclusive,

Plaintiff Judith Smith (Plaintiff), on behalf of herself and all others similarly situated

21 (collectively Class Members or the Class), by and through her counsel of record, and
22 Defendant Mandalay Corp. dba Mandalay Bay Resort and Casino, by and through its counsel of
23 record, hereby move the Court for an order granting final approval of the class and collective action
24 settlement in this matter. The Court preliminarily approved the parties settlement on May 6, 2015.
25 (See Doc. 14.)
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This Motion is made pursuant to Federal Rule of Civil Procedure 23(e) and the Fair Labor

27 Standards Act (FLSA), 29 U.S.C. 201-16.

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This Motion is based on the following

Case 2:14-cv-02158-APG-VCF Document 15 Filed 07/09/15 Page 2 of 16

1 memorandum of points and authorities, the parties Joint Stipulation and Settlement Agreement
2 (previously filed as Document No. 13), the accompanying declarations, exhibits, and proposed
3 order, all other papers on file in this action, and such other evidence or arguments the Court may
4 receive before deciding this Motion.
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Dated: July 8, 2015

THIERMAN BUCK, LLP

By: /s/Joshua D. Buck

Mark R. Thierman
Joshua D. Buck

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Attorneys for Plaintiffs

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11 Dated: July 8, 2015

JACKSON LEWIS LLP

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By: /s/Elayna J. Youchah

Elayna J. Youchah
Peter D. Navarro
Attorneys for Plaintiff

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Case 2:14-cv-02158-APG-VCF Document 15 Filed 07/09/15 Page 3 of 16

MEMORANDUM OF POINTS AND AUTHORITIES

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I.

Plaintiff, on behalf of herself and others similarly situated, seeks final approval of this

THIERMAN BUCK LLP

7287 Lakeside Drive
Reno, NV 89511
(775) 284-1500 Fax (775) 703-5027

INTRODUCTION

class and collective action settlement.

(See Joint Stipulation and Settlement Agreement,

previously filed as Doc. 13, hereinafter Settlement, Agreement, or Settlement

Agreement.)1 This Motion follows a successful administration of the Settlement authorized by

the Courts Order Granting Preliminary Approval of Class and Collective Action Settlement on

May 6, 2015. (See Doc. 14.)

Subject to Court approval, Plaintiffs have settled their claims and those of Class

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Members for a maximum Settlement Amount of $100,000 a checks mailed basis. (Settlement

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12(c) and (d).) The final class list consisted of 67 Class Members. (See Mary Nichols Dec.

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4.) Of the 67 Class Members, only one Class Member as submitted a valid exclusion; therefore,

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66 Class Members are participating in this settlement, or 98%. (Id. 10.) In Class Counsels

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experience, this is an overwhelmingly positive response. (Buck Dec. 10.) Furthermore, no

objections have been filed with the Claims Administrator, Class Counsel, or the Court.
(Nichols Dec. 12; Buck Dec. 10.)

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The proposed Settlement satisfies all of the criteria for final settlement approval under
federal law because it is fair, adequate, and reasonable. See Churchill Village, L.L.C. v. GE,

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361 F.3d 566, 575-76 (9th Cir. 2004). The overwhelmingly positive response of the Class
Members to the Settlementincluding minimal exclusions and no objectorsprovides strong
support that final settlement approval is appropriate. See Stoetzener v. U.S. Steel Corp., 897
F.2d 115, 118-19 (3d Cir. 1990) (finding that objections of 29 members out of a settlement class

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of 281over 10 percentstrongly favors settlement); Boyd v. Bechtel Corp., 485 F. Supp.

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610, 624 (N.D. Cal. 1979) (finding that objections from only 16 percent of a class was

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persuasive that a settlement was adequate). Because the Settlement provides a substantial

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For purposes of consistency, and unless otherwise noted, all terms herein shall have the
same meaning and definition as in the Parties Settlement Agreement.
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Case 2:14-cv-02158-APG-VCF Document 15 Filed 07/09/15 Page 4 of 16

benefit to the Parties, Class Members, Plaintiffs request that the Court approve the parties

Settlement as fair, adequate, and reasonable, and enter judgment accordingly.

II.

A.

Plaintiff was employed by Defendant as an hourly non-exempt, poker room employee.

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Plaintiffs Lawsuit

Plaintiff alleges that Defendant did not pay the Class Members for all time worked in each
workweek. Plaintiff alleges that all non-exempt, poker room employees by Defendant that are
paid hourly were similarly not paid for all hours worked in each workweek.

THIERMAN BUCK LLP

7287 Lakeside Drive
Reno, NV 89511
(775) 284-1500 Fax (775) 703-5027

FACTUAL BACKGROUND

As a result of Plaintiffs allegations regarding Defendants policies and procedures

relating to pay, Plaintiff filed this class action for unpaid wages on November 18, 2014.2 See

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Doc. 1, Exhibit A thereto (Defendants Notice of Removal). Plaintiff specifically alleges (1)
Failure to Pay for All Hours Worked in Violation of 29 U.S.C. 201 et seq.; (2) Failure to Pay
Overtime Wages in Violation of the FLSA, 29 U.S.C. 207; (3) Failure to Pay Compensate for
All Hours Worked in Violation of NRS 608.140 and 608.016; (4) Failure to Pay Minimum

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Wages in Violation of the Nevada Constitution; (5) Failure to Pay Overtime Wages in Violation

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of NRS 608.140 and 608.018; (6) Failure to Timely Pay All Wages Due and Owing in Violation

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of NRS 608.140 and NRS 608.020-.050; and (7) Breach of Contract. See id.

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these allegations, Plaintiff sought to recover unpaid wage, attorneys fees, costs, interest and

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penalties for herself and the following classes of individuals:

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As a result of

The Uniform Subclass: All current and former hourly paid

employees who, at any time during the Class Period, were
provided with uniforms by Mandalay Bay (collectively Uniform
Subclass Members).

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The Pre-Shift Subclass: All current and former hourly paid

employees who, at any time during the Class Period, reviewed preshift sheets and/or attended pre-shift meetings (collectively PreShift Subclass Members).

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The complaint was originally filed in the Eighth Judicial District Court on July 1, 2014.
This action was removed by Defendant on August 13, 2014. See Doc 1.
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Case 2:14-cv-02158-APG-VCF Document 15 Filed 07/09/15 Page 5 of 16

The Wages Due and Owing Subclass: All Uniform and/or PreShift Subclass Members who, at any time during the Class Period,
were terminated or otherwise separated from employment
(collectively Wages Due and Owing Subclass Members).

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The relevant time period (also known as the Class Period) encompasses all shifts worked by
non-exempt poker room employees from November 18, 2011 through November 18, 2014.

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B.

Upon receipt of Plaintiffs Complaint, the Parties conducted significant investigation of

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THIERMAN BUCK LLP

7287 Lakeside Drive
Reno, NV 89511
(775) 284-1500 Fax (775) 703-5027

Negotiation and Settlement

the facts and law. Such discovery and investigation have included, inter alia, the review and
exchange of information, numerous email exchanges, meetings, and interviews. The Parties

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engaged in settlement negotiations over several months. (Buck Decl. 7.) Through this direct

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communication the parties were able to assess the relative strengths and weaknesses of each

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parties positions, weigh the inherent risks and expenses of continued litigation, and agree upon

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the proper parameters of evaluating the potential damages resulting from Plaintiffs allegations.

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These discussions resulted in the settlement that has already been submitted to this Court. (See

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Doc. 13-1.)

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III.

SUMMARY OF SETTLEMENT TERMS

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The Parties Settlement provides for significant monetary recovery on behalf of the

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Class, releases those claims alleged or related to the complaint, and sets forth the legally

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appropriate mechanism for providing notice to the Class of the terms and conditions of the

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Settlement.

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A.

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The Recovery.

The Settlement provides for a maximum settlement amount of $100,000 (the Maximum
Settlement Amount). Settlement 12(c). The following approximate breakdown applies to

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payments from the Maximum Settlement Amount:

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$70,000 in estimated settlement funds to the Class;3

$5,000 enhancement to Plaintiff for her participation in the lawsuit; and,

This amount shall be referred to herein as the Net Settlement Amount.

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Case 2:14-cv-02158-APG-VCF Document 15 Filed 07/09/15 Page 6 of 16

$25,000 attorneys fees and costs.

Id. 12(c); 12(d) and (e)(ii); and 14. The Class Members portion of payroll taxes will be

deducted from the wage payments made to Class Members. Id. 12(c). The total settlement

amount was attained by taking the actual number of shifts worked during the Class Period. Each

Class Member will receive a proportionate amount based on the percentage of shifts worked by

each Class Member as compared with the total amount of shifts worked during the Class Period.

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THIERMAN BUCK LLP
7287 Lakeside Drive
Reno, NV 89511
(775) 284-1500 Fax (775) 703-5027

These amounts were determined by reference to Defendants records and are presumed to be
correct. Defendant will pay out the entirety of the Net Settlement Amount; provided, however,
that if any of the checks payable to Class Members pursuant to this Agreement remains uncashed
90-days following the issuance of said checks, such amounts shall be donated to the MGM

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Resorts Foundation. Id. 12(d).
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This monetary amount represents a significant recovery on behalf of the Class. This
issue has been fully investigated and litigated by plaintiffs counsel. Even if a class could be
certified, trial would be lengthy and have risks. Even if the class won at trial, damages might
not exceed the amount of this settlement, and the judgment could be appealed, resulting in
further lengthy delays.

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B.

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Defendant continues to deny liability under any of Plaintiffs claims. Settlement 6.

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The Settlement provides that, in consideration for the Settlement, Class Members who did not

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file valid requests for exclusion shall fully and finally release all claims under state, federal or

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local law including, but not necessarily limited to, contractual or common law claims for unpaid

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wages, unpaid overtime, claims under the Fair Labor Standards Act, 29 U.S.C. 201, et seq.,

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Nevada Revised Statutes Chapter 608, Nevada Administrative Code Chapter 608, and the

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Nevada Constitution, as well as rights, demands, liabilities and causes of action of every nature

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The Release.

and description, whether known or unknown, arising during the Class Period, and/or which

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Case 2:14-cv-02158-APG-VCF Document 15 Filed 07/09/15 Page 7 of 16

arose out of or could have arisen out of the facts alleged in this action as to the Class Members.4

Id. 1(t), 7, and 19.

C.

Defendant administered the claims process. Id. 13. The Settlement provided for

Defendant to send out notice explaining the terms and conditions of the Settlement to all Class

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Members. Id. 1(p); and 16. (A copy of the Notice to be approved by the Court and sent to
Class Members is attached as Exhibit A to the Settlement.) Following mailing of the Notice,
Class Members had thirty (30) days to do nothing to participate in the Settlement, request to be
excluded from the Settlement, or object to the Settlement. Id. 16(a); 17-20.

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THIERMAN BUCK LLP
7287 Lakeside Drive
Reno, NV 89511
(775) 284-1500 Fax (775) 703-5027

The Settlement Mechanism.

The Settlement further provided that following the notice period the Court would hold a

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final fairness hearing to provide final review and approval of the Settlement. Id. 21 (a).
The Notice advised Class Members about the fairness hearing and their opportunity to attend
the hearing and make their views known. Id. 1(p). At the fairness hearing, the parties will
address any issues raised by Class Members or the notice process itself, and the Court will have
a second opportunity to review the settlement in full.

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Specifically, Released Claims means that upon final approval by the Court, each
member of the Settlement Class who has not submitted a timely and valid Request for
Exclusion Form, fully and finally releases and discharges Defendant, its present and former
parent entities, subsidiaries, related or affiliated companies, shareholders, officers, directors,
managers, members, employees, agents, attorneys, insurers, successors and assigns, and any
individual or entity that could be jointly liable with Defendant and the Released Parties as
defined below, arising from any and all applicable local, state and federal law wage-and-hour
claims (including, but not necessarily limited to, contractual or common law claims for unpaid
wages, unpaid overtime, claims under the Fair Labor Standards Act, 29 U.S.C. 201, et seq.,
Nevada Revised Statutes Chapter 608, Nevada Administrative Code Chapter 608, and the
Nevada Constitution), and rights, demands, liabilities and causes of action of every nature and
description, whether known or unknown, arising during the Class Period, and/or which arose
out of or could have arisen out of the facts alleged in this action. Id. 1(t).

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IV.

A.

On May 6, 2015, the Court granted preliminary approval of the Settlement. (Doc. 14.)

In doing so, the Court authorized the sending of notice, claim forms, and exclusion forms to all

Class Members, certified the Settlement Classes for settlement purposes, confirmed Plaintiff as

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Mandalay as the Claims Administrator. (Id.)

B.

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Preliminary Approval

Class representative, confirmed Thierman Buck, LLP as Class Counsel, and confirmed

THIERMAN BUCK LLP

7287 Lakeside Drive
Reno, NV 89511
(775) 284-1500 Fax (775) 703-5027

THE COURT-APPROVED NOTICE PROCESS

Notice To The Class

The Notice process approved by the Court has been administered flawlessly by
Mandalay. On May 18, 2015, Defendants provided the last-known address and employment

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information of 67 Class Members. (Nichols Dec. 4.) After updating the addresses through the
National Change of Address database (Id.), Mandalay sent out the Court-approved Notice,
Claim Form, and Request for Exclusion (Notice Packet) via first class mail on May 22, 2015.
(Id. 5.) One Notice Packet was returned to Mandalay by the Post Office. (Id. 6.) Mandalay

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performed a Skip Trace and attempted to contact the Class Member by phone. (Id. 7 and 8.)

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After attempting to reach the class member, the Notice Packet was re-mailed by Mandalay. (Id.

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9.)

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C.

Class Participation and Settlement Awards

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Mandalay received two (2) Requests for Exclusion only one of which was received by June 22,

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2015. (Nichols Dec. 10.) There are no objectors. (Nichols Dec. 12; Buck Dec. at 10) This

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overwhelmingly positive response speaks to the fairness, reasonableness, and adequacy of the

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Settlement. (Buck Dec. 10.) The Net Settlement Amount which was available for distribution

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to all Class Members after all Court approved deductions is $70,000. (Buck Dec. 11.) The

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average settlement payment per Class Member is estimated at $1,042.60. (Buck Dec. 11.) The
highest estimated settlement payment is $1,948.92. (Id.).

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Case 2:14-cv-02158-APG-VCF Document 15 Filed 07/09/15 Page 9 of 16

THE SETTLEMENT SHOULD RECEIVE FINAL APPROVAL

The law favors settlement, particularly in class actions and other complex cases where

substantial resources can be conserved by avoiding the time, cost, and rigors of formal

litigation. See Churchill Village, L.L.C. v. GE, 361 F.3d 566, 576 (9th Cir. 2004) (noting

strong judicial policy favoring settlements reached through arms-length, non-collusive

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THIERMAN BUCK LLP
7287 Lakeside Drive
Reno, NV 89511
(775) 284-1500 Fax (775) 703-5027

V.

negotiations); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1029 (9th Cir. 1998) (endorsing the
trial courts proper deference to the private consensual decision of the parties when approving
a settlement); Franklin v. Kaypro, 884 F.2d 1222, 1227 (9th Cir. 1989) (Litigation settlements
offer parties and their counsel relief from the burdens and uncertainties inherent in trial . . . [t]he
economics of litigation are such that pretrial settlement may be more advantageous for both

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sides than expending the time and resources inevitably consumed in the trial process.); see
generally Newberg On Class Actions 11.41 (4th ed. 2002) (Newberg).
The standard for final approval is whether the Settlement is fair, reasonable, and
adequate. Fed. R. Civ. P. 23(e)(2). A settlement is fair, reasonable, and adequate, and

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therefore merits final approval, when the interests of the class are better served by the

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settlement than by further litigation. Manual for Complex Litigation, Fourth 21.61 (Fed.

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Jud. Ctr. 2006) (Complex Manual). The Ninth Circuit has directed district courts to consider

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a variety of factors without providing an exhaustive list or suggesting which factors are most

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important. See, e.g., Staton v. Boeing Co., 327 F.3d 938, 959 (9th Cir. 2003). These factors

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include: (1) the amount offered in the settlement, (2) the reaction of the class to the proposed

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settlement, (3) the strength of the plaintiffs case balanced against the risk, expense,

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complexity, and likely duration of further litigation and the risk of maintaining class action

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status throughout the trial, (4) the extent of discovery completed and the stage of the

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proceedings, and (5) the informed views of experienced counsel. See Hanlon, 150 F.3d at
1026; Staton, 327 F.3d at 959.
These factors are not exclusive, and one factor may deserve more weight than the others
depending on the circumstances. Torrisi v. Tucson Elec. Power Co., 8F.3d 1370, 1375 (9th Cir.
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1993). In some instances, one factor alone may prove determinative in finding sufficient

grounds for court approval. Natl Rural Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523,

525-26 (C.D. Cal. 2004). The relative degree of importance to be attached to any particular

factor will depend upon and be dictated by the nature of the claim(s) advanced, the type(s) of

relief sought, and the unique facts and circumstances presented by each individual case.

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THIERMAN BUCK LLP

7287 Lakeside Drive
Reno, NV 89511
(775) 284-1500 Fax (775) 703-5027

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Officers for Justice v. Civil Serv. Commn, 688 F.2d 615, 625 (9th Cir. 1982).
Due to the impossibility of predicting any litigation result with certainty, a district
courts evaluation of a settlement essentially amounts to nothing more than an amalgam of
delicate balancing, gross approximations and rough justice. Id. at 625 (internal citations
omitted). It is the settlement taken as a whole, rather than the individual component parts, that

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must be examined for overall fairness. Id. at 628. Indeed, the Courts role in intruding upon
what is otherwise a private consensual agreement is limited to the extent necessary to reach a
reasoned judgment that the agreement is not the product of fraud or collusion between the
negotiating parties, and that the settlement taken as a whole, is fair, reasonable and adequate to

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all concerned. Schiller v. Davids Bridal, Inc., No 10-00616, 2012 WL 2117001, at *10 (E.D.

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Cal. June 11, 2012) (citing In re Imperial Corp of Am., 92 F.3d 1502, 1506 n.5 (9th Cir. 1996)).

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A.

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Significantly, [a]n initial presumption of fairness is usually involved if the settlement is

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recommended by class counsel after arms-length bargaining. Newberg 11.42 (4th ed. 2002).

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Such is the case here. Class Counsel engaged in extensive factual investigation (informally and

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through formal discovery) and participated in direct settlement discussions. (Buck Dec. at 7.)

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Class Counsel are experienced in wage-and-hour litigation, and have obtained over half a billion

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dollars for class members since 1997. (Buck Dec. 5.) Finally, there are no objectors to the

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The Settlement Is Presumed To Be Fair.

Settlement and only 1 of the 67 Class Members submitted a valid Request for Exclusion Form.
(Nichols Dec. 10.) See also, Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1289 (9th Cir.
1992) (recognizing that fairness of a class action settlement may be inferred if few class
members object to it). Accordingly, the Settlement should be presumed fair.
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B.

The Settlement provides for a maximum settlement amount of $70,000, which

represents a significant recovery by Plaintiff Class Members. This is not a settlement where the

aggregate figure is large simply because the size of the class is in the tens or hundreds of

thousands. Instead, the class size here is relatively small but class members are eligible for

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THIERMAN BUCK LLP

7287 Lakeside Drive
Reno, NV 89511
(775) 284-1500 Fax (775) 703-5027

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The Settlement Value Supports Final Approval.

significant financial benefitan average payment of $1042.60.

Given the significant legal uncertainty, and the real risk of receiving nothing at the end
of the day, the $70,000 settlement represents a substantial recovery. Although a larger award
was theoretically possible by litigating this case to the end of trial, the very essence of a
settlement is compromise, a yielding of absolutes and an abandoning of highest hopes in

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exchange for certainty and resolution. Linney v. Cellular Alaska Pship, 151 F.3d 1234, 1242
(9th Cir. 1998).
C.

The Class Response Supports Final Approval.

The Class Member participation rate of 98% is high. The fact that only one Class

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Member opted out and there are no objectors strongly favors final approval. See Natl Rural,

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221 F.R.D. at 529 (It is established that the absence of a large number of objections to a

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proposed class action settlement raises a strong presumption that the terms of the proposed

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settlement action are favorable to the class members.)

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D.

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Having engaged in meaningful discovery and significant discussions regarding their

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respective legal positions, both parties were able to assess the relative strengths and weaknesses

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of their claims and defenses.

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understand that the outcome of class certification, trial, and any attendant appeals are inherently

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The Risks of Continued Litigation Support Final Approval.

Class Counsel are experienced class-action litigators, and

uncertain, as well as likely to consume many more months, even years. (Buck Dec. 4-5, 7.)
Having reviewed relevant data and employment information, counsel for the parties arrived at a
reasonable resolution through a protracted and arms-length direct negotiation process, which
continued into all details of the Settlement Agreement and ancillary documents.
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In considering final approval, the Court should weigh the immediacy and certainty of

substantial settlement proceeds against the risks inherent in continued litigation. See Complex

Manual 21.62. The trial of this action, were it to occur, could easily exceed one month in

length.

finances, sophistication, and tenacity to secure legal representation and persevere through years

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THIERMAN BUCK LLP

7287 Lakeside Drive
Reno, NV 89511
(775) 284-1500 Fax (775) 703-5027

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Moreover, individual litigation would not be economical even for those with the

of individual litigation.

The parties Settlement Agreement, on the other hand, provides

immediate relief to all Class Members in a prompt and efficient manner and therefore is
consistent with the overriding public interest in settling and quieting litigation that is
particularly true in class-action suits. Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 950 (9th
Cir. 1976).

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E.

The Recommendation of Experienced Counsel Favors Final Approval.

[P]arties represented by competent counsel are better positioned than courts to produce
a settlement that fairly reflects each partys expected outcome in litigation. In re Pacific
Enterprises Securities Litigation, 47 F.3d 373, 378 (9th Cir. 1995). The recommendations of

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plaintiffs counsel should be given a presumption of reasonableness, particularly when counsel

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has significant litigation experience in similar cases. Boyd v. Bechtel Corp., 485 Supp. at 622;

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see also Ellis v. Naval Air Rework Facility, 87 F.R.D. 15, 18 (N.D. Cal 1980) ([T]he fact that

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experienced counsel involved in the case approved the settlement after hard-fought negotiations

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is entitled to considerable weight.). Hence when evaluating a proposed settlement, a court

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absent evidence of fraud, collusion, or the likeshould be hesitant to substitute its own

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judgment for that of counsel. See Flinn v. FMC Corp.,528 F.2d 1169, 1173 (4th Cir. 1975).

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Here Class Counsel, who have extensive experience prosecuting and litigating

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employment cases and complex class actions, and who conducted a legal and factual

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investigation into the claims in this case, and who have actively litigated this case for over a
year, firmly believe the proposed Settlement is fair, reasonable, adequate and in the best interest
of all Class Members. (Buck Dec. 8, 14.) Accordingly, this factor also weighs in favor of
final approval.
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VI.

The Named Plaintiff applies to the Court for a total of $5,000.00 in an enhancement

payment for services rendered as a representative of the Class in prosecuting this Action5, which

is well within the range of reasonableness. See Ingram v. Coca-Cola Co., 200 F.R.D. 685, 694

(N.D. Ga. 2001) (approving incentive awards of $300,000 to each named plaintiff in recognition

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of services to class by responding to discovery, participating in mediation process and taking

the risk of stepping forward); Van Vranken v. Atl. Richfield Co., 901 F. Supp. 294, 300 (N.D.
Cal. 1995) (approving $50,000 participation award).

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THIERMAN BUCK LLP
7287 Lakeside Drive
Reno, NV 89511
(775) 284-1500 Fax (775) 703-5027

THE CLASS REPRESENTATIVE PAYMENT SHOULD BE APPROVED

Here, the Named Plaintiff provided invaluable assistance to Class Counsel in explaining
Defendants pay policies and procedures and also incurred personal risk in bringing this lawsuit

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on behalf of other persons in the Class. (Smith Dec. at 3-8) Plaintiffs have been held
responsible for Defendants costs if they were unsuccessful. (Id.); see also Koehl v. Verio, 142
Cal. App. 4th 1313, 1328 (2006) (holding named plaintiffs in wage-and-hour class action liable,
jointly and severally, for defendants attorneys fees where defendant prevailed at trial).)

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Such service payments are recognized as serving an important function in promoting class

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action settlements. For example, in League of Martin v. City of Milwaukee, 588 F. Supp. 1004,

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1024 (E.D. Wis. 1984), the court held that the proposed settlement properly granted the named

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plaintiff additional relief, explaining that it is not uncommon for class members . . . to receive

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special treatment in settlement when they have been instrumental in prosecuting the lawsuit.

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Given the Named Plaintiffs active participation in this litigation, and their courage for asserting

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such an action despite the inherent risks involved in litigation and fear of reprisals, the requested

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Enhancement Payment is fair and well-deserved. In addition, there have been no objections by

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Class Members to the Enhancement Payment.

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Accordingly, the Court should approve

Plaintiffs request.

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This Enhancement Payment is separate and apart from any other recovery to which the
Named Plaintiffs may be entitled as Class Members under the Settlement.
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Case 2:14-cv-02158-APG-VCF Document 15 Filed 07/09/15 Page 14 of 16

THIERMAN BUCK LLP

7287 Lakeside Drive
Reno, NV 89511
(775) 284-1500 Fax (775) 703-5027

VII.

PLAINTIFFS ATTORNEYS FEES AND COSTS SHOULD BE APPROVED

Class Counsels Fee Award Is Properly Calculated as a Percentage of the

Total Settlement Fund.

The Federal Rules of Civil Procedure expressly authorize an award of reasonable

attorneys fees and costs in a certified class action pursuant to the parties agreement or to the

extent otherwise authorized by law. Fed. R. Civ. P. 23(e). The FLSA also provides for

attorneys fees. 29 U.S.C. 216(b). Here, Class Counsels fee and costs request is 25% of the

Maximum Settlement. The requested amount is less than the attorneys fees Plaintiffs agreed to

pay on a contingency basis (35%), which is less still than the market rate of 40% to 50% in

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other contingency cases. Therefore, the requested amount is presumptively fair, reasonable, and

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A.

appropriate.
Under the common fund doctrine, a litigant or a lawyer who recovers a common fund
for the benefit of persons other than himself or his client is entitled to a reasonable attorneys
fee from the fund as a whole. Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980). The purpose
of the common fund approach is to spread litigation costs proportionally among all the

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beneficiaries so that the active beneficiary does not bear the entire burden alone. Vincent v.
Hughes Air West, Inc., 557 F.2d 759, 769 (9th Cir. 1977).
In Boeing, the Supreme Court specifically addressed whether a proportionate share of
the fees awarded to lawyers who represented the successful class may be assessed against the

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unclaimed portion of the fund. 444 U.S. at 473. The Supreme Court found the total amount of

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the fund the proper denominator, approving fees of approximately $2,000,000.00 on a

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settlement valued at $7,000,000.00 where claims totaled $706,600 of $1,544,300 in unconverted

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debentures at issue, or 47% of the total. The Court found that any latent reversionary right the

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defendant possessed contingent on the failure of absentee class members to exercise their

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present rights of possession did not defeat each class members equitable obligation to share the

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expenses of the litigation. Id. at 481-82.

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Case 2:14-cv-02158-APG-VCF Document 15 Filed 07/09/15 Page 15 of 16

Moreover, in Williams v. MGM-Pathe Communications Co., 129 F.3d 1026 (9th Cir.

1997), the gross settlement fund was valued at $4.5 million, the parties agreed to 33% of the

total value for attorneys fees, and the amount of the claims totaled just $10,000. The district

court assessed the attorneys fees as 33% of the $10,000 amount claimed. The Ninth Circuit

reversed, finding that the fee award should have been based on 33% as agreed by the parties

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THIERMAN BUCK LLP

7287 Lakeside Drive
Reno, NV 89511
(775) 284-1500 Fax (775) 703-5027

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based on the total recovery value of $4.5 million: [T]he court abused its discretion by basing
the fee on the class members claims against the fund rather than on a percentage of the entire
fund . . . . 129 F.3d at 1027.
Under these principles, a percentage of the common fund fee award is properly based on
the total settlement value of $100,000 in this case. Class Counsels request for approximately

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25% of this amount ($25,000.00) for recovery of attorneys fees and costs is fair compensation
for undertaking complex, risky, expensive, time-consuming, and prolonged litigation solely on a
contingency basis. (Buck Dec. 13.) The request is in line with attorneys fees awards in
other wage-and-hour class actions (e.g., Barbosa v. Cargill Meat Solutions Corp., 297 F.R.D.

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431, 450-51 (E.D. Cal. 2013) (gathering cases and awarding 33% of total settlement amount),

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especially since a significant portion of the Class Members will be receiving substantial

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settlement payments averaging $1042.60. (Buck Dec. 11.)

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Courts have historically awarded percentage fees in the range of 20% to 50% of the

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common fund, depending on the circumstances of the case. Newberg 14:6 (4th ed. 2008). No

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general rule can be articulated on what is a reasonable percentage of a common fund. Usually

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50% of the fund is the upper limit on a reasonable fee award from a common fund in order to

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assure that the fees do not consume a disproportionate part of the recovery obtained for the

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class, although somewhat larger percentages are not unprecedented. Id. Here, the Class

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Notice plainly disclosed that $25,000.00 (or 25%) of the Settlement would be allocated to pay
attorneys fees and costs. The fact that no Class Member objected to the Settlement in general,
or the attorneys fees and costs specifically, is an overwhelming indication that the attorneys

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Case 2:14-cv-02158-APG-VCF Document 15 Filed 07/09/15 Page 16 of 16

fees and costs sought here are fair, reasonable, and appropriate. Accordingly, Class Counsels

attorneys fee and costs award should be approved.

VIII. FINAL CLASS CERTIFICATION SHOULD ALSO BE GRANTED.

No Class Member has objected to class certification or to the appointment of Named

Plaintiff as Class representative or to the appointment of Class Counsel. Accordingly, the Court

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THIERMAN BUCK LLP

7287 Lakeside Drive
Reno, NV 89511
(775) 284-1500 Fax (775) 703-5027

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should grant final certification of the Settlement Classes as defined in the Settlement.
IX.

CONCLUSION.
For all these reasons, and based on the information provided, Plaintiffs respectfully ask

the Court to enter the proposed Order of Final Approval and Judgment submitted
contemporaneously with this Motion.

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Dated: July 9, 2015

THIERMAN BUCK, LLP

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By: /s/Joshua D. Buck

Mark R. Thierman
Joshua D. Buck

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Attorneys for Plaintiffs

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Dated: July 9, 2015

JACKSON LEWIS LLP

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By: /s/Elayna J. Youchah
Elayna J. Youchah
Peter D. Navarro

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Attorneys for Plaintiffs

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4812-9361-3093, v. 1

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- 16 MOTION FOR FINAL APPROVAL OF COLLECTIVE AND CLASS ACTION SETTLEMENT