ro 2 0 2017 - good jobs first

Robert S. Arns, State Bar No. 65071 ([email protected])Jonathan E. Davis, State Bar No. 191346 [email protected])Kevin M. Osborne, State Bar No. 261367 ([email protected])Julie C. Erickson, State Bar No. 293111 [email protected])Robert C. Foss, State Bar No. 275489 ([email protected])TH N, ARNS LAW FERMA Professional Corporation515 Folsom St., 3 rd FloorSan Francisco, CA 94109Tel: (415) 495-7800Fax: (415) 495-7888

Attorneys for Plaintiffs

C0 FILED

SUPOP10F COUrf Of Collfornin 'County of Los Angeles

RO 2 0 2017Sherri R, Carter, Executive Officer/ClerkBy_V JU-,~j n

) u1julyVeronic'a Hillard

SUPERIOR COURT OF THE STATE OF CALIFORNIAIN AND FOR THE COUNTY OF LOS ANGELES

CASEY CANT, ALLAN RITTERBAND,SHANNON KITCHEN-JUAREZ, ANAARIAS, BRIAN ZOLENSKI,CHRISTOPHER MARTINEZ, DANIELMAJOR, ELISABETH PEREZ. JANEENESTATON, JASON Sl,-,ERIK, JAYSONCANDELARIO, JENNELLE LEVEQUE,JEREMY NAIL, KEN BARTON, LEAHJOHNSON, LILY SUN, LINDSAYKRESLAKE, LIZ TEMKIN, MATTHEWMCINTYRE, MICHAEL HEARN, MIMI

HAYES, YOSFHNARI MOGI, PAULAVAN, SHANNON GOODSELL, SKYLAPOJEDNIC, TACHINA GARRETT,TIMOTHY HEARL, TOMMY GARADIS,VICTOR FRANCIS, AMMORA COLLINS,JUSTIN ZOECKLER, MICHAELCONNORS, TRACY ROEBUCK,CAROLINA MAYORGA, MARCELLAHOLMES, MARGARET WOLF,MARKETTA WILDER, MATTHEWTELLES, CHRISTOPHER HOLMES,EBANGHA TANYI, KEVIN JONES,MARY ANN VARUGHESE, MODIFRANK, STEPHANIE FRIZZELL, AEGEABARCLAY, LAURA OXENFELD,PAULINA NGUYEN, JEFF KENDRICK,VANESSA BAIN, MARY SYLVIA,KIMBERLEE KELLER, ROBIN

Case No. BC652216

MEMORANDUM OF POINTS &AUTHORITIES IN SUPPORT OFMOTION FOR AWARD OFATTORNEYS'FEES, LITIGATIONCOSTS, AND SERVICE AWARDS

DATE: January 16,2018TIME: 2:00 pm.DEPT.: 311

Assigned for all purposes to:Hon. John Shepard Wiley

Complaint filed: February 28, 2017

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INotice Of Motion And Memorandum Of Points & Authorities In Support Of Motion For Award Of Attorneys' Fees,

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DRUMMOND, ADAN BOTELLO,CYNTHIA JENNINGS, DOMINICCOBARRUVIAZ, ARLIN GOLDEN, JOHNREILLY, CHRISTOPHER RUSSELL,SUSAN BANNON, BATYA WEBER, ANDDEREK WILLIAMS, JONATHANHUSTING, MATTHEW CLAYTON,LADIA ARMSTRONG, STEPHANIEWEIDNER, MARGARET CONNOLLY,MATTHEW PARSONS, SARAH LESTER,NATHAN RAINES, BENJAMIN BOVEN,AMY NOSEK, JAMES RICHIE, ANDREWKENDRICK, ALEX RICHTER, VICKYWILSON, DAVID SHEMPERT, DEEDRAEVERETT, TENOLA IIILL, and ALFRED -MANN, Individually and On Behalf of AllOthers Similarly Situated,

Plaintiffs,vs.

MAPLEBEAR, INC., dba INSTACART;AND DOES 1 THROUGH 100, inclusive,

Defendants.

2Notice Of Motion And Memorandum Of Points & Authorities In Support Of Motion For Award Of Attorneys' Fees,

TABLE OF CONTENTS

I. INTRODUCTION 7

Il. CLASS COUNSEL'S EFFORTS IN OBTAINING THE SETTLEMENT BENEFITS FORTHE CLASS 8

III. SETTLEMENT BENEFITS TO THE CLASS 10A. Monetary Relief 11B. Non-Monetary Relief 11

IV. THE FEE REQUEST IS FAIR AND REASONABLE 12A. Class Counsel's Fees Are Reasonable Under The Lodestar Method As Class Counsel

Lodestar Has Vastly Exceeded the Fees Sought 141. Class Coun'sel's'Lode'star Amounts Are Reasonable And Exceed The Fees Sought 142. Class Counsel's Hourly Rates Are Well Within the Prevailing Rates for Similar

Complex Civil Litigation 15B. A Percentage of Recovery "Cross Checle' Supports The Reasonableness of The Fee

Request As It Represents 33.33 Percent of the Monetary Settlement Benefits 16

V. REIMBURSEMENT OF LITIGATION EXPENSES IS WARRANTED 17

VLTHE SERVICE AWARDS FOR THE NAMED PLAINTIFFS ARE APPROPRIATE 17

VII. CONCLUSION 20

3Notice Of Motion And Memorandum Of Points & Authorities In Support Of Motion For Award Of Attomeys'Fees,

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TABLE OF AUTHORITIES

Cases

Bell v. Farmers Ins. Exchange (2004) 115 Cal.App.4th 715

Boeing Co. v. Van Gemert (1980) 444 U.S. 472

17

16

Bowens v. Atlantic Maintenance Corp. (2008) 546 F.Supp.2d 55 17

Camacho v. Bridgeport Fin., Inc. (9th Cir. 2008) 523 F.3d 973 15

Chavez v. Nqflix, Inc. (2008) 162 Cal.App.4th 43 16

Children's Hospital and Medical Center v. Bonta (2002) 97 Cal.App.4th 740 15

Clark v, Am. Residential Srvc. LLC (2009) 175 C.al.AppAth.785 17

Cotchett, Pitre & McCarthy v. Universal Paragon Corp. (2010) 187 Cal.App.4th 1405 16

Fitzgerald v. City ofLos Angeles (C.D. Cal. 2003) 2003 WL 25471424 17

Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140 16

Hensley v. Eckerhart (1983) 461 U.S. 424 14

In re Cal. Indirect Purchaser X-Ray Film Antitrust Litig. (1998) (Sup. Cr. Alatneda Cty.) 1998

WL 1031494 16,17

Ketchum v. Moses (2001) 24 CalAth 1122 15

Kim v. Euromotors West (2007) 149 Cal.AppAth 170 13

Laffitte v. Robert HalfIntern. Inc. (2016) 1 Cal. 5th 4 80 13,16

Lealao v. Beneficial Cal., Inc. (2000) 82 Cal.App.4th 19 13,14,16

Martino v. Denevi (1986) 182 Cal.App.3d 553 - 14

McIntosh v. McAfee, Inc. (N.D. Cal. 2009) 2009 WL 673976 15

PLCM Group, Inc. v. Drexler (2000) 22 CalAth 1084 15

Robertson v. Fleetwood Travel Trailers (2006) 144 Cal.App.4th 785 15

Serrano v. Priest ("Serrano Ilf') (1977) 20 CaUd 25 16

Stokus v. Marsh (1990) 217 Cal.App.3d 647 14

Trustees v. Greenaugh (1981) 105 U.S. 527 17

Vo v. Los Virgenes Municipal Water District (2000) 79 Cal.App.4th 440 14

Webb v. Board ofEduc. (198 5) 471 U.S. 234 14


Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224 13

Statutes

Labor Code section 1194 13

Labor Code section 218.5 12,17

Labor Code section 2802 13

Treatises

4 Conte and Newberg, Newberg on Clas Actions (5th ed. 2011) section § 14.7 16


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TO ALL PARTILES AND THEIR ATTORNEYS OF RECORD:. NOTICE IS HEREBY GIVEN that on January 16, 2018 at 2: 00 p.m., or as soon thereafter

as counsel may be heard by the above-entitled court, located at 600 South Commonwealth Ave.,

Los Angeles, California 90005, in Department 311, Plaintiffs Casey Camp, Allan Ritterband,

Shannon Kitchen-Juarez, Ana Arias, Brian Zolenski, Christopher Martinez, Daniel Major,

Elisabeth Perez, Janeene Staton, Jason Skerik, Jayson Candelario, Jennelle Leveque, Jeremy Nail,

Ken Barton, Leah Jobnson, Lily Sun, Lindsay Kreslake, Liz Temkin, Matthew Mcintyre, Michael

Hearn, Mimi Hayes, Yoshinari Mogi, Paula Van, Shannon Goodsell, Skyla Pojednic, Tachina

Garrett, Timothy. . Hearl, Tommy Garadis, Victor Francis, . Ammora Collins, Justin Zoeckler,

Michael Connors, Tracy Roebuck, Carolina Mayorga, Marcella Holmes, Margaret Wolf, Marketta

Wilder, Matthew Telles, Christopher Holmes, Ebangha Tanyi, Kevin Jones, Mary Ann Varughese,

Modi Frank, Stephanie Frizzell, Aegea Barclay, Laura Oxenfeld, Paulina. Nguyen, Jeff Kendrick,

Vanessa Bain, Mary Sylvia, Kimberlee Keller, Robin Drummond, Adan Botello, Cynthia

Jennings, Dominic Cobarruviaz, Arlin Golden, Jolui Reilly, Christopher Russell, SusanBannon,

Batya Weber, Derek Willianis, Jonathan Busting, Matthew Clayton, Ladia Armstrong, Stephanie

Weidner, Margaret Connolly, Matthew Parsons, Sarah Lester, Nathan Raines, Benjamin Boven,,

Amy Nosek, James Richie, Andrew Kendrick, Alex Richter, Vicky Wilson, David Shempert,

Deedra Everett, Tenola Hill, and Alfred Mann (collectively "Plaintiffs"), will move the Court for

an Order awarding Attorney's Fees and Costs and Plaintiffs service payments in the above-

captioned matter. The Motion will be based on this Notice of Motion, Memorandum of Points and

Authorities in Support, the Declarations of Robert S. Arns, and the Exhibits attached thereto, the

record in this matter, and upon such matters as may be presented to the court at the time of the

hearing.


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1. INTRODUCTION

Plaintiffs bring this Motion seeking an award of Class Counsel Attorneys' Fees, Plaintiffs

Litigation Expenses, and Class Representative Service Awards. As is discussed in the

concurrently-filed Motion for Final Approval of Class Action Settlement the parties to this lawsuit

have settled their dispute in a manner that provides substantial benefits to the Class, both monetary

and non-monetary, and the Court has preliminarily approved the Settlement.' Class Counsel has

negotiated that Defendant will pay $4.625 million into a "Gross Common Fund" as defined in the

Settlement Agreement. (Set. Agmnt. § 1(l 8).) This fund will be used for monetary payments made

to the class as well as, subject to Court. approval, payment of attorneys' fees not to exceed 33.33

percent of the Settlement Fund, actual litigation expenses not to exceed $50,000, and payments in

amounts ranging from $500 to $5,000 to the Class Representatives in recognition of their efforts

in resolving this action on behalf of the Class. (Set. Agnint, §§ 1(6), 1(8), 1(26).)

As discussed in the previously-filed Motion for Preliminary Approval, this action is the

third in a series of hard-fought and highly contentious class action lawsuits brought by Class

Counsel against Instacait for its alleged practice of misclassif~~g the shopper workforce that

shops for and/or delivers groceries to Instacart's customers. Plaintiffs, through Class Counsel,

filed 50 individual demands for arbitration against Instacart on behalf of Instacart shoppers

between December 2015 and September 2016. (Arns Decl. ~ 9.) Over the course of the several

years the Parties have engaged in motion practice regarding attacks on the pleadings and Instacart's

arbitration agreement, exchanged thousands of pages of documentary evidence, and mediated in

good faith and at arm's-length in two formal mediation sessions, engaged in multiple depositions,

and significant discovery and motion practice. (Arns Decl. 111-13.) This Settlement, Final

Approval of which is currently before this Court, was the result of steadfast commitment to the

pursuit of these claims, whether in the class context or individual arbitrations, and Class Counsel

are extremely proud of the results obtained given the challenges presented in the matter.

1 A copy of the operative Settlement Agreement, referred to herein as "Set. Agnint." is attachedas Exhibit I to the concurrently filed Declaration of Robert S. Arns ("Arns Decl.") in support ofthis motion f6r award of Attorney Fees, Costs and Service Awards.


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Plaintiffs seek Court approval for an attorneys' fee award of $1,541,512.50 (33.33 percent

of the $4.625 million Gross Settlement Fund), reimbursement of out-of-pocket litigation expenses

incurred to date of $47,894.57, and Class Representative Service Awards.

The Attorneys Fees sought are fair and reasonable, particularly in light of the benefits

obtained by Class Counsel, the risks and complexity of the case, efforts expended in obtaining

settlement, the experience of counsel, and the fees commonly awarded in cases of this type. As

detailed in the supporting declarations of Counsel filed in support of this motion, Class Counsel

collectively spent over 5,300 hours litigating the action, with a total lodestar in the amount of

.$3,033,776. 00.2 Herculean efforts were expended by counsel in case development, discovery,

filings, motion practice, and ongoing disputes with Defense counsel regarding almost every aspect

of the litigation. Additionally, significant time and effort was also incurred in settlement

discussions, which included multiple formal mediation sessions and numerous other settlement

commun !cations. ~Given the risk of contingent representation, the important legal issues presented,

the overall result, and other relevant factors, the award of attorneys' fees and costs sought by Class

Counsel is warranted. The fees request represents 33.33 percent of the total value of the Gross

Settlement Fund, an amount that is $1,492,263.50 less than Class Counsel's total lodestar. For

these and other reasons set forth below, the instant motion should be granted in its entirety.

II. CLASS COUNSEL'S EFFORTS IN OBTAINING THE SETTLEMENTBENEFITS FOR THE CLASS

On January 9, 2015, named Plaintiff Don-dnic Cobarruviaz filed a class action complaint

on behalf of himself and all others similarly situated. (Arris Decl. ~ 7.) The complaint named

Instacart as the defendant, and alleged Instacart violated Labor Code sections, Industrial Welfare

Commission orders, the Business & Professions Code, and included allegations brought under

PAGA. (1d.) Instacart removed the case to federal court and, on April 8, 2015, Plaintiff

Cobarruviaz filed a First Amended Complaint naming six other plaintiffs and adding nationwide

claims under the FLSA. (1d.)

2 Information regarding the allocation of hours is discussed in the concurrently-filed Declarationof Robert S. Ams ("Arns Decl.") of The Ams Law Firm, and the Declaration of Jahan SagafiC'Sagafi. Decl.") of Outten & Golden, LLP, in support of this motion.


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281.

In May 2015, Instacart moved to compel individual arbitration of the Cobarruviaz

Plaintiffs' claims as well as to dismiss numerous causes of action in Plaintiffs' operative complaint.

In connection with Tnstacart's Motion to Compel, the Cobarruviaz Plaintiffs drafted and served

additional written discovery and conducted a Rule 30(b)(6) deposition regarding Instacart's

arbitration agreement and arbitration practices and policies. (Arns Decl. T 8.) After multiple rounds

of briefing and two hearings on the matter, the court granted Instacart's motion, compelling

arbitration of all claims on an individual basis, except for the PAGA representative claim. (1d.) By

this time, the Parties also fully-briefed the motion to dismiss.

In response to beingordered to arbitration, Class. Counsel filed 50 demands for individual

arbitration between December 30, 2015 and October 2016, which required significant expenditure

of time and effort by Counsel and the Named Plaintiffs to prosecute these actions. (Arns Deel. 1

9.) As noted elsewhere, Class Counsel believe these efforts were instrumental in obtaining the

broad settlement benefits obtained for the Class in this action. (Id. T 46.)

In support of the case and axbitrations that ultimaLely led to the Settlement, Class Coirnsel

has engaged in significant discovery practice with Instacart including informal document

exchanges, as well as formal discovery including propounding and responding to interrogatories,

request for production, and requests for admissions. (Id. T 5.) This entire process was highly

contentious, requiring an arduous meet and confer process, as well as briefed and argued motions

to compel responses. (1d.) Ultimately, over 4,000 pages of Documents were exchanged as part of

this process. Class Counsel also conducted Person Most Knowledgeable Depositions on thirteen

categories, and defended depositions of two of the Class Representatives in this action. (1d.) Class

Counsel and the Class Representatives spent considerable time answering discovery requests from

Defendant, which, in the aggregate, included 60 requests for production of documents, 80 requests

for admission, and 80 special interrogatories. (1d)

In addition to discovery practice, the parties engaged in ongoing meet and confer efforts

regarding the parameters of the arbitrations, held multiple status and discovery conferences with

the respective arbitrators, and fully briefed and argued motions to dismiss and strike. (M) In

addition to the arbitrations, Class Counsel filed the 115-page I-lusting complaint, which named


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twelve class representatives from eleven different states, and sought declaratory judgment as to

the unenforceability of Instacart's arbitration agreement. (Arns Decl. 116.) Class Coiinsel also

interviewed approximately 300 absent class members about their experiences working for

Instacart, and obtained multiple declarations from this group. (Id 16.)

In addition to these litigation efforts, Class Counsel engaged in extensive, contentious,

arms-length negotiations with Instacart through a formal mediation process. (Id. ~ 12.) In

preparation for these mediations, Class Counsel prepared a comprehensive mediation brief and

presentation, as well as engaged in subsequent communications with the mediator and engaging

.in shuttle negotiations made through. the. mediator. .(Id.) These negotiations led to the scheduling

of the second mediation session prior to which the Defendant provided detailed information and

data to Class Counsel regarding tasks performed by Class Members and pay history. (Id. 113.)

Class Colinsel performed extensive analysis of this data in order to determine what causes of action

could be substantiated by this evidence and to calculate the damages for all Class Member3 for the

purpose of mediation. (Id.) Doing so required the creation of numerous spreadsheets containing

complex calculations which were used in negotiating with the Defendant on to obtain a settlement

on behalf of the class. (Arns Decl. T 11.)

These years of multi-front, strategic efforts by Class Counsel and the Class Representatives

were instrumental in obtaining the broad recovery on behalf of the Settlement Class that the court

has preliminarily approved. (Id. T 16.)

in. SETTLEMENT BENEFITS TO THE CLASS

Plaintiffs have negotiated a Settlement that provides significant monetary and non-

monetary benefits to the Settlement Class, which includes Instacart workers in 16 states. (See Set.

Agnint. §§ 1(7), (10), (19) & (32).) This monetary and non-monetary relief was the result of the

totality of the efforts by Class Counsel to obtain resolution for the claims against histacart, each

of the named Class Representatives here who had active arbitration against Instacart dismissed

those arbitrations to join this settlement. (Arns Decl. T 16.)

10Notice Of Motion And Memorandum Of Points & Authori6es In Support Of Motion For Award Of Attorneys' Fees,

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A. Monetary Relief

The Settlement Agreement provides that Defendants will pay $4,625,000 to fully resolve

the claims in the Action. (Set. Agmnt., § 111(2).) After certain Court-approved deductions, the

remaining Net Settlement Fund amount will be distributed.to the Class Members on a checks-3mailed basis. All Class Members who do not exclude themselves from the settlement will

automatically receive a settlement payment and will not need to submit a claim form. There is no

reversion .of any funds to Defendant.

The Settlement Administrator will distribute the Net Settlement Fund to the Class

Members.. Class- Counsel- has. - reviewed corporate data. from. Defendants, -and the Settlement

Administrator will determine, based on this and other data, an amount each Class Member will be

paid based on how long each individual worked for Defendants and the state in which he/she

worked. (Set. Agmnt., § III(I 3)(c).) - The key features of the settlement payments to the Class

Members are as follows:

(1) Class Members will be paid an w-nount of the Net Settlement Ainount based on: (a) the

state in which the Class Member worked; (b) the number of hours each Class Member

worked; and (c) the type of work Class Members performed.

(2) The Net Settlement Amount will be distributed in the form of settlement checks mailed to

the Class Members to their addresses of record. (Set. Agmnt. § 1(34); § III(14)(b).)

B. Non-Monetary Relief

The Settlement Agreement also provides numerous components of non-monetary relief.

(Set. Agmnt. § 111(3).) First, Instacart has agreed to modify its customer-facing App to clarify the

difference between a "Service fee" and a "tip." (Id. at § I11(3)(a)(I).) This component of non-

monetary relief provides significant value to the Settlement Class, as it reduces potential confusion

and makes it easier customers who want to issue a tip to be able to do so through the Instacart App.

(Set. Agmnt. § IH(2).)

3 The Court-approved deductions sought will included amounts for claims administration,attorney fees and costs, service awards to the Class Representatives, and settlement of the PAGAclaims.


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1.

Second, Instacart has agreed to disclose, as part of the application and/or onboarding

process of new shopper applicants, that commercial insurance may be required in certain

jurisdictions and that Instacart does not provide such insurance. (Set. Agnint. § III(3)(a)(2).) This

disclosure will ensure that Shoppers are duly informed of the need to obtain commercial insurance

prior to starting work for Instacart or, alternatively, of the risk of proceeding to work for Instacart

without commercial insurance. This change will prevent situations where Shoppers are blindsided

when they get into an accident on the job and end up having their claim denied or getting dropped

by their personal insurance carrier.

. ......Third, Insfacart has agreed fo implement a formal. deactivation policy under which it would

only be able to fire Shoppers for cause. (Set. Agrnnt, § IH(3)(a)(3).) Under Instacart's current

policy, Instacart is able to deactivate a Shopper for any reason or no reason at all. Instacart has

also agreed to create a formal, internal process through which a Shopper who has been deactivated

can obtain additional information regarding the reasons for his or her deactivation and through

which the Shopper may ask Tnstacart to reconsider any such deactivation. This appeal process and

increased transparency along with the for-cause deactivation policy provide significant protection

to the Shoppers and accordingly confer a substantial benefit to the Settlement Class.

Finally, Instacart has agree to create an interface or computer application that will allow

Shoppers to obtain more detailed information regarding their work, including information about

the tasks they have performed and the money they have received in relation to those tasks. (Set.

Agnint. § III(3)(a)(4).)

As more fully explained in Plaintiffs Motion for Final Approval, Plaintiffs and Class

Counsel believe that these terms provide the maximum value to the Class based on the available

evidence and in light of other litigation risks such as success of certain claims.

IV. YnE FEE RE Q-UEST IS FAIR AND REASONABLE

In this action, many of the Labor Code sections asserted by Plaintiff contain mandatory

payments of attorneys' fees and costs to successful plaintiffs. Labor Code section 218.5 provides

that "[fln any action brought for the nonpayment of wages, the court shall award reasonable

attorney's fees and costs to the prevailing party" if initially requested by either party upon initiation


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of the suit. Similarly, the attorneys' fees provision of Labor Code section 1194 states: "[Alny

employee receiving less than the legal minimum wage or the legal overtime compensation [ ... ] is

entitled to recover [ ... ] reasonable attorneys' fees, and costs of suit." Likewise, Labor Cod.- section

2802 states: "All awards made by a court for reimbursement of necessary expenditures [...] shall

include all reasonable costs, including, but not limited to, attorney's fees incurred by the employee

enforcing the rights granted by this section." Thus, some award of attorneys' fees is mandatory.

(Kim v. Euromotors West (2007) 149 Cal.App.4th 170,177.)

California courts have recognized two methods of calculating attorneys' fees in civil class

actions: (1) percentage of recovery method; and (2) the lodestar./mul-tiplier method. - (.Wershba v.

Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 254.) In the past, one recognized approach has

been to employ the first methodology (lodestar/multiplier) and then use the second methodology

(percentage of recovery) to "cross check" the reasonableness of the requested award. (See Lealao

v. Beneficial Cal., Inc. (2000) 82 Cal.App.4th 19, 49-50.) However, trial courts have s~gniflcant

discretion whether to use, or not use, the a lodestar uross-check in determining the reasonableness

of a requested percentage fee. (Laffitte v. Robert Ha~f Intern. Inc. (2016) 1 Cal.5th 480, 506.) In

Laffitte, th~ California Supreme Court upheld an appellate court's ruling that the use of a

percentage of fund methodology for determining an attorney fee award in a class action was not

an abuse of discretion, without regard to whether the trial court considered Class Counsel's

lodestar and necessary multiplier to meet this amount. (1d. at 506.)

Here, Class Counsel's fee request of 33.33 percent of the Settlement Fund is in line with

the historic benchmark for fees in common fund cases, and in line with the Supreme Court's

decision in Laffitte, approving a one-third of common fund settlement. (See Laffitte, supra, at 485.)

The reasonableness of the requested fees is underlined by the fact that it is rougbly half of Class

Counsel's total lodestar, representing a reduction of $1,492,263.50.


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A. Class Counsel's Fees Are Reasonable Under The Lodestar Method As ClassCounsel Lodestar Has Vastly Exceeded the Fees SoughtI Class Counsel's Lodestar Amounts Are Reasonable And Exceed The Fees

Sought

The lodestar method requires the Court to determine a "touchstone" or "lodesw" figure

based on a compilation of time spent and reasonable hourly compensation for each attorney. (Vo

v. Los Virgenes Municipal Water District (2000) 79 Cal.App.4th 440, 445; Lealao, 82 Cal. App.

4th at 26.) Counsel is entitled to recover for all hours reasonably spent working on the case. (See

Vo v. Los Virgenes, 79 Cal.AppAth at 446 ("under the lodestar method, a party who qualifies for

a fee should recover for all hours reasonably spent unless special circumstances would render the. award unjust'.').) 4 Generally, hours are reasonable if they were "reasonably expended in pursuit of

the ultimate result achieved in the same manner that an attorney traditionally is compensated by a

fee-paying client." (Hensley v. Eckerhart (1983) 461 U.S. 424, 43 1.) Here, Class Counsel were

required to spend significant time, both in litigation efforts and difficult settlement negotiations in

order to obtain the result on behalf of the Class.

The Declarations from Class Counsel confirm the signifiqant amount of work undertaken

to prosecute this case through investigation, filing, discovery practice, and eventual settlement.

(See Arns Decl. 11 17-41; Declaration of Jahan Sagafi ("Sagafi Decl.") TT 14-24.) These

declarations serve as the basis of this fee request, along with the record of the action. Here, Class

Counsel's total lodestar is $3,033,776, and is indicative of the significant time and effort expended

5by Class Counsel on the prosecution of this action. (Arns Decl. T 17.) Additionally, a significant

amount of additional attorney hours will be necessary to ensure final approval and proper

4 Compensable activities under the lodestar method include both pre-litigation activities (such asinterviewing the client, investigating the facts, researching the law and preparing the initialpleading) and litigation activities (such as conducting discovery, conferring with clients, draftingpleadings, making court appearances, travel time and settlement negotiations). See Webb v. BoardofEduc, (1985) 47

* I U.S. 234, 243; Stokus v. Marsh (1990) 217 Cal.App.3d 647.

5 California trial courts apply a liberal standard in considering evidence to support attorney'shours, and detailed time records are not required; an attorney's testimony or declarations alone asto the number of hours worked on a particular case are sufficient to support an award ofattorney's fees, even in the absence of detailed time records. (See, e.g., Martino v. Denevi(1986) 182 Cal.App.3d 553, 559.)


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administration of the Settlement, however it should be clear that this future work is not reflected

in the lodestar before the Court. (Arns. Decl. ~ 39.)

The significant monetary and injunctive relief obtained for the class by Class Counsel's

work on this case would also support a multiplier under Ketchum v. Moses (2001) 24 Cal.4th 1122

and Graham v. DaimlerChrysler Corp. (2004) 34 CalAth 553. Here, Class Counsel are seeking

attorney fees of $1,541,512.50, which if compared to the total lodestar, is roughly half of the Class

Counsel's total lodestar of $3,033,776.

2. Class Counsel's Hourly Rates Are Well Within the Prevailing Rates forSimilar Complex Civil Litigation

The second step in a lodestar analysis is determining the reasonable market value of the

attorneys' services at an hourly rate. (See, generally, Ketchum v. Moses, 24 CalAth 1122; PLCM

Group, Inc. v. Drexler (2000) 22 CalAth 1084, 1094; Camacho v. Bridgeport Fin., Inc. (9th Cir.

2008) 523 F.3d 973, 979.) This rule applies even when, as here, the attorneys representing the

Named Plaintiff normally work on a contingent fee basis. (See, e.g., Robertson v. F7eetwood

Travel Trailers (2006) 144 Cal.AppAth 785, 818.) Rates are reasonable if they are "within the

range of reasonable rates charged by and j udicially awarded comparable attorneys for comparable

work." (Children's Hospital and Medical Center v. Bonta (2002) 97 Cal.AppAth 740, 783.) A

reasonable hourly rate is the prevailing rate charged by attorneys of similar skill and experience in

the relevant community. (PLCM Group, Inc., supra, 22 CalAth at 1095.)

Here, the hourly rates requested by Class Counsel are comfortably within the rates charged

by skilled counsel in California in similar complex civil litigation. (McIntosh v. McAfee, Inc. (N.D.

Cal. 2009) 2009 WL 673976, *2 ("[c]ourts may find hourly rates reasonable based on evidence

of other courts approving similar rates or other attorneys who are engaged in similar litigation

charging similar rates").) Additionally, the rates charged represent typical billing rates, and are

in line with rates approved elsewhere, including Class Counsel's rates, which have been approved

in other actions in California. (Arns Decl. ~ 21)I

Class Counsel brought a unique blend of expertise and skill targeted to this case which

aided in the successful prosecution. Class Counsel has prosecuted a number of employment class


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actions, including misclassification cases similar to this action. (Ams Decl. 118.) The breadth

and depth of expertise of attorneys acting as Class Counsel was fundamental to producing the

significant result obtained in this case, and while collaboration between attorneys was necessary

and important to the successful case prosecution, work was tasked appropriately to take advantage

of areas of expertise as well as minimize the potential for duplication of effort.

B. A Percentage of Recovery "Cross Check" Supports The Reasonableness ofThe Fee Request As It Represents 33.33 Percent of the Monetary SettlementBenefits

The percentage of recovery method also justifies the fee request. A common cross-check

regarding the reasonableness of a fee award is its percentage to the total value of the benefits

conferred on the class. (Serrano v. Priest ("Serrano 1Y) (1977) 20 Cal.3d 25, at 34; Boeing Co.

v. Van Gemert (1980) 444 U.S. 472, 478-81; Lealao, 82 Cal.AppAth at 49-50; Graciano v.

Robinson Ford Sales, Inc. (2006) 144 Cal.AppAth 140, 164; 4 Newberg on Class Actions, § 14.7.)

In calculating the overall settlement benefit, the Court considers the total potential benefits made

available. (Chavez v. Netflix, Inc. (2008) 162 Cal.AppAth 43, 46 (approving methodology that

adds fees and class payments in the percentage of recovery cross-check). The overall settlement

benefits also includes items such as attorneys' fees, litigation costs, class notice and administration

costs and other settlement amounts that defendants have agreed to pay. (Id.)

Courts in California routinely have approved attorney fee awards constituting 33 percent

or more of common fund settlements. (See, e.g., In re Cal. Indirect Purchaser X-Ray Film

Antitrust Litig. (1998) (Sup. Cr. Alameda Cty.) 1998 WL 1031494, * 9 (awarding 3 0 percent of

common fund as attorneys' fee and citing many other California cases where fee awards

constituted 30 to 45 percent of common fund).) Indeed, "[e]mpirical studies show that, regardless

whether the percentage method or the lodestar method is used, fee awards in class actions average

around one-third of the recovery." (Chavez, 162 Cal. App. 4th at 65, n. I I (citation omitted); see

also Cotchett, Pitre & McCarthy v, Universal Paragon Corp. (2010) 187 Cal.AppAth 1405, 1421

(contingency fees typically range from 33 to 40 percent of class benefit); see also Laffitte. su r. p a,

1 Cal.5th at 485 (approving a one-third of common fund settlement.) Here, the overall value of the

instant settlement to the Class is $4.625 million (Set. Agmnt. § I(l 8).) Class Counsel's fee request


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of $1,541,512.50 represents 33.33 percent of the overall benefits to the Class. That percentage,

which falls near the recognized benchmark, underscores the reasonableness of the requested fees,

and is far below Class Counsel's lodestar in the action. (Arns Decl. T 21.)The reasonableness of the award is ftu-ther-supported by the skilffW handling of complex

issues, the assumption of highly contingent risks for over two and a half years, and the time and

money invested by Class Counsel without any compensation yet for the services rendered. (1d.

40.)

V. REIMBURSEMENT OF LITIGATION EXPENSES IS WARRANTED

Class Counsel is also entitled to recover their out-of-pocket Litigation Expenses.

Reimbursement of costs is necessitated under Labor Code section 218.5 and the common fund

doctrine of Trustees v. Greenaugh (1981) 105 U.S. 527, 533. Here, as shown in the attached

declarations and exhibits thereto, to date Class Counsel have collectively incurred $47,894.57 in

costs in litigating this case. (See Arns Decl. T 37, and Sagafi Decl. T 19.)Vi. THE SERVICE AWARDS FOR TBE NAMED PLAINTIFFS ARE

APPROPRIATE

In light of their significant efforts resulting in the substantial settlement on behalf of the

Class, the proposed services award payments to the Class Representatives are warranted. Class

representatives play a crucial role in bringing justice to those who would otherwise be without a

remedy. (See, e.g., Bowens v. Atlantic Maintenance Corp. (2008) 546 F.Supp.2d 55, 80; Bell v.

Farmers Ins, Exchange (2004) 115 Cal.AppAth 715, 726; Clark v. Am. Residential Srvc. LLC

(2009) 175 Cal.App.4th 785, 804). Service awards are intended to encourage individuals to come

forward and "perform their civil duty in protecting the rights of the class and to compensate class

representatives for their time, effort and inconvenience." (In re Cal. Indirect Purchaser X-Ray

FilmAntitrust Litig. 1998 WL 1031494, at *11.) The Court has broad discretion to grant service

awards to plaintiffs in a class action. (See Fitzgerald v. City ofLos Angeles (C.D. Cal. 2003) 2003

WL 25471424, *2.) Relevant factors in determining whether such an award is warranted include:

the named plaintiff's actions to protect the interests of the class; the degree to which the class has

benefitted from those actions; the time and effort the named plaintiff expended in pursuing the


litigation; the risk to the named plaintiff in corrimencing suit, both financial and otherwise; the

notoriety and personal difficulties encountered by named plaintiff; the duration of litigation; and

the personal benefit (or lack thereof) to the named plaintiff as a result of the litigation. (Clork, 175

Cal.App.4th at 804-07.)

Here, the Settlement Agreement contemplates service awards for three distinct groups of

Class Representatives, each instrumental in the successful prosecution of the action, and bringing

the matter to settlement to the benefit of the entire class.

The first such group is comprised of Class Representatives Arlin Golden, Dominic

Cobarruviaz, and Batya Weber. Class Representatives Golden, Cobarruviaz and Weber have

worked closely with Class Counsel since very early in the litigation process, spending significant

time preparing for the action, researching issues regarding the Instacart platform, and preparing

and producing documents related to the case. (Ams Decl. 142-43.) Additionally, each of these

Class Representatives were required to spend many hours responding to discovery requestE related

to their lawsuits and arbitrations. (Id.) All three had depositions scheduled, and were required to

expend time and effort working with their attorneys and reviewing documents while preparing for

those depositions. 6 Each of these activities were time-cons-uming and difficult, and their

contributions throughout the duration of the litigation helped produce the substantial benefits now

offered to the Settlement Class. (See Arns Decl. 129.) In light of their significant efforts, a Class

Representative Service Award of $5,000 for each of them is appropriate and should be approved

by the Court.

The second group of Class Representatives are those who were involved in the preparation

and filing of the Husting complaint which added additional claims against the Defendant as well

as adding claims on behalf of workers in additional states reflected in this settlement. 7 (Arns Decl.

144.) Each of these individuals expended time and effort working with Class Counsel on

' Class Representatives Golden and Cobarruviaz both had their depositions taken, Weber wasprepared, but ultimately it did not take place.7 This group includes Class Representatives John Reilly, Christopher Russell, Susan Bannon,Derek Williams, Jonathan Busting, Matthew Clayton, LaDia Armstrong, Stephanie Weidner,Margaret Connolly, Matthew Parsons, Sarah Lester, Nathan Raines, Benjamin Boven, AmyNosek, James Richie, Andrew Kendrick, Lea Johnson, Marcella Holmes, Elisabeth Pere*z,Marketta Wilder, and Jeremy Nail.


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preparation of their claims and engaged activities that contributed to, and ultimately enabled the

filing of the expanded complaint. (Arns Decl. T 44.) Thus, their efforts were instrumental in

obtaining the broad settlement benefits for the Class in the agreement preliminarily approved by

this Court, including making such benefits available in the multiple states included in the

settlement. (Id. 145.) In recognition of their efforts, the Court should approve the requested

Service Award of $ 1,000 for each member of this group.

Lastly, Plaintiffs are requesting an award of $500 to each of the remaining Class

Representatives in this action, as each expended significant time and effort preparing documents,

discussing the matter extensively with Class. Counsel, and preparing their respective arbitrations

filed against Instacart. (Id. T 46.) As previously stated, Class Counsel is confident that the existence

of these outstanding arbitrations was a significant factor which ultimately led to the settle mi ent of

Plaintiffs' claims. (Id. ~ 47.) Additionally, many in this group, like the other Class Representatives,

continued to work for Tnstacart while involved in this lawsuit and arbitrations. (Id. T 46.), Unsure

how a defendant may react, whenever and worker becomes involved in a wage and hour action

against a company while still providing services for that company, there is always a legitimate

concern of retaliation or adverse treatment. (Id. T 46.) These Class Representatives, in face of such

realities, lent their names and efforts to this action, and the Class as a whole benefitted as a result

of their efforts. As such, a $500 service award for this group is warranted and should be approved.

For all of these reasons, the Court should approve the Class Representative Service Awards

as set forth in the Settlement Agreement.


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VIIII. CON LU ION~

,.F,6r::td,l...of't,he foreping reasons Tlaintiff respec ly:Tqq ~ts iha:t*fh-e Courventetati, "'d,iful—

th n, att vs eanbiits.intthat aPPro-ves' (A) Pument. ~of V,54.1~ .1.215, i -the; p

$47P.4-7--i-b. liti-p q cq%s? and nt, -V A d "n—dih, the.Q14§s ,g Ose ali e,-S ar, s as outli e

Seftlement Agrpeipe ftlitte'd h: s rq6tioh.

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IS:k.'-e Vi WM,,:.-00orrle:hlidl"C; Erickson

Attor "Ail 'S'd . tttletn ut Class

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Camp et at v. Maplebear, Ina dba Instacart Los Angeles Superior Court Case

CERTIFICATE OF SERVICE

I, the undersigned, declare as follows:

I am a citizen of the United States, over the age of 18 years and not a party to, nor interested in, theabove-entitled action. I am an employee of The Ams Law Firm, A Professional Corporation, and my businessaddress is 515 Folsom Street, 3 d Floor, San Francisco, CA 94105

On December 20, 2017, 1 served the following: MEMORANDUM OF POINTS & AUTHORITIESIN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS' FEES, LITGATION COSTS, ANDSERVICE AWARDS

on all interested parties in the above cause, by:

—REGULAR MAIL by placing a true and correct copy thereof enclosed in a sealed envelope withpostage thereon fully prepaid. Said envelope was thereafter deposited in the United States Mail at San Francisco,California in accordance with this firm's business practice of collection and processing correspondence for mailingof which I am readily familiar. All correspondence is deposited with the United States Postal Service on the sameday in the ordinary course of business.

X FELEANDSERVEXPRESS by electronically serving the document described above viaLexisNexis File & ServeXpresSTM, on the recipients designated on the Transaction Receipt located on theLexisNexis File & ServeXpreSSTM website (www,fileandserve-,,,press.com).

The envelopes were addressed as follows:

Rachael MenyBenjamin BerkowitzNikki VoRyan WongKEKER, VAN NEST & PETERS LLC633 Battery StreetSan Francisco, CA 94111-1809PHONE: 415-391-5400Counselfor Defendant.Maplebear, Inc. dba Instacart

Non-nan B. BlumenthalKyle R. NordrehaugAperajit BhowmikBLUMENTHAL, NORDREHAUG & BHOWMIK2255 Calle ClaraLa Jolla, CA 92037PHONE: 858-551-1223Counselfor Sumerlin.Plaintiffs

correct:

Shannon Liss-RiordanLICHTEN* & LISS-RIORDAN466 Geary Street, Suite 201San Francisco, CA 94102Counselfior Donna Busick

Jahan C. SagafiOUTTEN & GOLDEN LLPOne Embarcadero Center, 38h FLSan Francisco, CA .94111PHONE: 415-638-8800Counselfor Plaintiffs

I declare under penalty of perjury under the laws of the State of California that the foregoing is trae and

Executed on December 20, 2017 at San Francisco, Califomia.

~Wk MARTA E. CARRENO