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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`CHRISTINA GRACE, et al.,
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`Plaintiffs,
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`v.
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`APPLE, INC.,
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`Defendant.
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`Case No. 17-CV-00551-LHK
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`ORDER GRANTING IN PART AND
`DENYING IN PART MOTION FOR
`ATTORNEYS’ FEES
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`Re: Dkt. No. 429
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`Before the Court is Class Counsel’s motion for attorneys’ fees, ECF No. 429. The Court
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`held a hearing on the motion on February 8, 2021. ECF No. 445 (“Mot.”). In response to the
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`Court’s questions at the hearing, Class Counsel filed four supplemental declarations regarding
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`attorneys’ fees on February 19, 2021. ECF Nos. 450–53. On February 26, 2021, Defendant Apple,
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`Inc. filed an opposition to Class Counsel’s supplemental declarations; and Class Counsel filed a
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`reply on March 5, 2021. ECF Nos. 454 (“Supp. Opp’n”), 455 (“Supp. Reply”). Having considered
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`all the briefing, the oral arguments, the relevant law, and the record in this case, the Court hereby
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`GRANTS IN PART and DENIES IN PART Class Counsel’s motion for attorneys’ fees.
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`Case 5:17-cv-00551-LHK Document 456 Filed 03/31/21 Page 2 of 14
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`Specifically, the Court orders that fees in the amount of $5.04 million and expenses in the amount
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`of $1,083,045.14 be paid to Class Counsel, and that service awards of $7,500 be paid to each
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`Class Representative.
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`I.
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`LEGAL STANDARD
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`“Where a settlement produces a common fund for the benefit of the entire class, courts
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`have discretion to employ either the lodestar method or the percentage-of-recovery method.” In re
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`Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 942 (9th Cir. 2011). To guard against an
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`unreasonable result, the Ninth Circuit encourages district courts to “cross-check[] their
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`calculations against a second method.” Id. at 944. Accordingly, the Court calculates the attorneys’
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`fees using the percentage-of-recovery method and then cross-checks its calculations against the
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`lodestar method. See id. at 944–45.
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`“Because in common fund cases the relationship between plaintiffs and their attorneys
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`turns adversarial at the fee-setting stage, courts have stressed that when awarding attorneys’ fees
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`from a common fund, the district court must assume the role of fiduciary for the class plaintiffs.”
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`In re Wa. Pub. Power Supply System Sec. Litigation (WPPSS), 19 F.3d 1291, 1302 (9th Cir. 1994).
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`Thus, “fee applications must be closely scrutinized.” Vizcaino v. Microsoft Corp., 290 F.3d 1043,
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`1052 (9th Cir. 2002). “Rubber-stamp approval, even in the absence of objections, is improper.” Id.
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`Where the percentage-of-recovery method is used, it is well-established that 25% of a
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`common fund is a presumptively reasonable amount of attorneys’ fees. In re Bluetooth, 654 F.3d
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`at 942 (“[C]ourts typically calculate 25% of the fund as the ‘benchmark’ for a reasonable fee
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`award . . . .”). However, the Ninth Circuit has emphasized that “[t]he 25% benchmark rate,
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`although a starting point for analysis, may be inappropriate in some cases.” Vizcaino, 290 F.3d at
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`1048. “Selection of the benchmark or any other rate must be supported by findings that take into
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`account all the circumstances of the case.” Id.; see also WPPSS, 19 F.3d at 1298 (“[C]ourts cannot
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`Case 5:17-cv-00551-LHK Document 456 Filed 03/31/21 Page 3 of 14
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`rationally apply any particular percentage . . . in the abstract, without reference to all the
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`circumstances of the case.”).
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`II.
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`DISCUSSION
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`Class Counsel moves for fee award substantially greater than the 25 percent benchmark
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`rate. Specifically, Class Counsel seeks 30 percent of the settlement fund ($5.4 million). In
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`addition, Class Counsel seeks reimbursement of $1,090,393.14 in expenses and $7,500 service
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`awards to each of the two Class Representatives.
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`The Court ultimately concludes that an award between the 25 percent benchmark and Class
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`Counsel’s 30 percent request is appropriate. Specifically, the Court awards 28 percent of the
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`settlement fund, which yields fees of $5.04 million and an adjusted multiplier of 0.72. As for
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`expenses, the Court concludes that nearly all of Class Counsel’s requested reimbursement is
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`reasonable. The Court orders reimbursement of $1,083,045.14—an amount which excludes $7,348
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`in unreasonable hotel expenses. Lastly, the Court approves $7,500 service awards for both Class
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`Representatives. Below, the Court analyzes the fee award, expenses, and service awards in turn.
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`A. The Court awards 28 percent of the settlement fund in attorneys’ fees.
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`The Court awards 28 percent of the settlement fund in attorneys’ fees—a moderate
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`increase to the 25 percent benchmark rate. The Court reaches this award based on consideration of
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`the following factors: (1) the skills displayed by Class Counsel; (2) the risks taken by Class
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`Counsel; (3) the result achieved for the class; and (4) a lodestar cross-check. See Vizcaino, 290
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`F.3d at 1048–49 (weighing the risks taken by counsel and the result achieved for the class); see
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`also Serrano v. Priest, 20 Cal. 3d 25, 49 (Cal. 1977) (stating factors under California law). The
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`Court discusses each factor in turn.
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`1. Class Counsel displayed skill by bringing a novel claim and analyzing technical
`subject matter.
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`The skills displayed by Class Counsel merit a moderate upward adjustment from 25
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`percent. Class Counsel’s skills were displayed in two ways. To start, Class Counsel achieved an
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`Case 5:17-cv-00551-LHK Document 456 Filed 03/31/21 Page 4 of 14
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`$18 million settlement based in part on a novel claim: trespass to chattels. See ECF No. 57 at
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`12:14–15 (stating that “this trespass to chattels claim seems novel”). Before the instant case, the
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`Court “ha[d]n’t seen a trespass case of action in [a] consumer class action.” Id. at 5:15–18.
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`Moreover, the instant case’s subject matter was technical. The case required analyzing the
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`source code for Apple’s FaceTime product. See, e.g., ECF No. 71 (source code protective order).
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`Specifically, Class Counsel alleged that Apple disabled FaceTime for iOS 6 and earlier operating
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`systems by prematurely terminating a digital certificate. See Grace v. Apple, Inc., 328 F.R.D. 320,
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`328 (N.D. Cal. 2018) (background). Class Counsel further analyzed different technical methods to
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`connect FaceTime calls, namely “peer-to-peer” versus “relay.” Id. at 327. The characteristics of
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`these distinct methods allegedly motivated Apple’s conduct. Id.
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`In short, the novel nature of the trespass to chattels claim and the technical subject matter
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`of the instant case support a moderate upward adjustment from a 25 percent fee award. However,
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`these considerations do not support the 30 percent fee award requested by Class Counsel. The
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`weakness of Class Counsel’s case on the merits supports a 28 percent fee award instead.
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`Specifically, the trespass to chattels claim, though novel, was not compelling and not particularly
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`meritorious. To survive the motion to dismiss, the trespass to chattels claim required the Court to
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`assume that “FaceTime was permanently disabled on iOS6 and earlier operating systems, and that
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`Plaintiffs could not transition to iOS7.” Grace v. Apple Inc., No. 17-CV-00551, 2017 WL
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`3232464, at *13 (N.D. Cal. July 28, 2017) (emphasis in original). However, in fact, class members
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`chose not to transition to, and declined, a free software update (iOS7) that would re-enable
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`FaceTime—and thus redress class members’ injury—because the update would allegedly
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`“significantly impair” class members’ iPhones. Grace v. Apple, Inc., 328 F.R.D. 320, 328 (N.D.
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`Cal. 2018). If the case had proceeded to adjudication on the merits, it is possible that Apple would
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`have prevailed. Cf. WhatsApp Inc. v. NSO Grp. Techs. Ltd., 472 F. Supp. 3d 649, 685 (N.D. Cal.
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`2020) (dismissing trespass to chattels claim for failure to “detail any actual harm caused by
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`defendants’ program or access”).
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`Despite the potential weakness of their claims, Class Counsel cite Hopkins v. Stryker Sales
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`Corporation to support a 30 percent fee award. Mot. at 15 (citing No. 11–CV–02786–LHK, 2013
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`WL 496358 (N.D. Cal. Feb. 6, 2013)). Yet the claims in Hopkins were more meritorious than the
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`claims here. In Hopkins, class counsel clearly “brought to light evidence of Defendants’ violations
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`of California labor and unfair competition laws.” Hopkins, 2013 WL 496358, at *2. Accordingly,
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`the skills displayed by Class Counsel support a 28 percent fee award, not a 30 percent fee award.
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`2. Class Counsel assumed significant risk.
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`The significant risks assumed by Class Counsel also support a moderate upward
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`adjustment from the 25 percent benchmark. These risks arose in extensive motion practice and
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`trial preparation. Specifically, in motion practice, Apple threatened (1) zero recovery for Plaintiffs
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`through several case-dispositive arguments in a motion to dismiss and motion for summary
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`judgment; and (2) denial of class certification. In trial preparation, Class Counsel risked
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`proceeding to trial without expert opinions because, at the time the parties settled, the Court had
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`not yet resolved Apple’s Daubert motion. ECF No. 333. These significant risks support a 28
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`percent fee award. Cf. Vizcaino, 290 F.3d at 1048 (approving a 28 percent fee where the case was
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`“extremely risky” since plaintiffs had lost twice in district court, forcing counsel to have to revive
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`the claim on appeal), WPPSS, 19 F.3d at 1302 (noting that the case was “fraught with risk and
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`recovery was far from certain”).
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`3. Class Counsel achieved a significant monetary result for the class.
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`Class Counsel achieved a significant monetary result: a $18 million non-reversionary
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`common fund. This fund compensates for about 20 percent of the total average damages initially
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`estimated by Plaintiffs’ expert, Professor Justine S. Hastings. ECF No. 174-85 at 31 (expert
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`report); see Mot. at 11 (summarizing damages range). Class members will receive, for each
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`qualifying iPhone they own, an initial payment of about $3—with the possibility of another
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`payment thereafter. Moreover, class members need not submit a claim form to receive payment.
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`Class members will automatically receive either an e-check or paper check. In short, Class
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`Counsel achieved a significant monetary recovery for the class and paired that recovery with an
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`easy claims process.
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`In sum, given the factors above, the Court concludes that a percentage of 28 percent should
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`be applied to the $18 million settlement fund. Accordingly, the percentage-of-recovery method
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`produces a total attorneys’ fee award of $5.04 million. With that figure in hand, the Court next
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`performs a lodestar calculation as a means of cross-checking that result.
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`4. A lodestar cross-check supports a fee award moderately greater than the 25
`percent benchmark.
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`Courts calculate a lodestar “by multiplying the number of hours the prevailing party
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`reasonably expended on the litigation (as supported by adequate documentation) by a reasonable
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`hourly rate for the region and for the experience of the lawyer.” In re Bluetooth, 654 F.3d at 941.
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`Although “the lodestar figure is ‘presumptively reasonable,’ the court may adjust it upward or
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`downward by an appropriate positive or negative multiplier reflecting a host of ‘reasonableness’
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`factors.” Id. at 941–42 (citation omitted). Where, as here, the lodestar is being used as a cross-
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`check, courts may do a rough calculation “with a less exhaustive cataloging and review of
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`counsel’s hours.” Young v. Polo Retail, LLC, No. 02-CV-04546-VRW, 2007 WL 951821, at *6
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`(N.D. Cal. Mar. 28, 2007); see also In re Toys R Us-Delaware, Inc.–Fair & Accurate Credit
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`Transactions Act (FACTA) Litig., 295 F.R.D. 438, 460 (C.D. Cal. 2014) (“In cases where courts
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`apply the percentage method to calculate fees, they should use a rough calculation of the lodestar
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`as a cross-check to assess the reasonableness of the percentage award.”).
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`Class Counsel estimates their lodestar is about $8,068,130—0.67 times Class Counsel’s
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`requested award of $5.4 million (30% of the settlement fund). Mot. at 19. Class Counsel argues
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`that their “0.67 negative lodestar multiple confirms the reasonableness of the requested fee.” Supp.
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`Reply at 3 (emphasis in original). Apple responds that Class Counsel’s lodestar is inflated by (1)
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`non-working travel time; (2) excessive hours; and (3) block-billing. As explained below, the Court
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`agrees with Apple.
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`a. The Court excludes non-working travel time from the lodestar.
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`The Court has discretion to “reduce the fees owed related to travel. . . . The central inquiry
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`is whether the time sought is reasonable.” Reyes v. Bakery & Confectionery Union & Indus. Int'l
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`Pension Fund, 281 F. Supp. 3d 833, 856 (N.D. Cal. 2017) (quoting Transbay Auto Serv., Inc. v.
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`Chevron U.S.A., Inc., No. 09-CV-04932-SI, 2013 WL 843036, at *7 (N.D. Cal. Mar. 6, 2013)).
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`The Court joins other courts in holding that “[t]ravel time is generally not compensable when
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`setting a reasonable fee.” Taylor Indus. Constr., Inc. v. Westfield Ins. Co., No. 8:16-CV-2960-T-
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`SPF, 2020 WL 1873595, at *5 (M.D. Fla. Apr. 15, 2020) (collecting cases). Without evidence that
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`counsel “performed work for his client during any portion of his travel . . . the Court will not
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`assume that counsel is entitled to recover for travel time.” GemCap Lending I, LLC v. Unity Bank
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`Minnesota, No. 18-CV-05979-YGR, 2019 WL 3842010, at *4 (N.D. Cal. Aug. 15, 2019).
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`Here, Class Counsel’s supplemental declarations concede that counsel billed 239.7 hours
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`to non-working travel. See Supp. Opp’n at 3–4 (citing ECF Nos. 450-2 ($20,427), 451-2
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`($106,361), 452 ($73,580)). Class Counsel’s response is that their travel “was incurred exclusively
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`for this Action.” Supp. Reply at 3. Even so, non-working travel is not billable toward the lodestar.
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`Just as non-working travel is often non-billable for private sector clients, non-working travel
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`should not be billable for class members, who lack the opportunity to negotiate Class Counsel’s
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`billing practices.
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`Class Counsel’s non-working travel amounts to $200,368 of the lodestar. Thus, the Court
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`reduces Class Counsel’s lodestar by $200,368.
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`b. The Court excludes excessive hours from the lodestar.
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`A reasonable number of hours is equal to the number of hours that the attorney could
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`reasonably bill to a private client. Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir.
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`2013). “A district court should exclude from the lodestar amount hours that are not reasonably
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`expended because they are ‘excessive, redundant, or otherwise unnecessary.’” Van Gerwin v.
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`Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000) (quoting Hensley v. Eckerhart, 461
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`U.S. 424, 434 (1983)).
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`Here, the Court has identified excessive hours billed to (1) unsuccessful class certification
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`motions; and (2) “attorney meetings/strategy and “case management.” The Court addresses each in
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`turn. First, unsuccessful motions are non-billable if they were “[un]reasonable” or “clearly
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`unmeritorious.” Jacobson v. Persolve, LLC, No. 14-CV-00735-LHK, 2016 WL 7230873, at *11
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`(N.D. Cal. Dec. 14, 2016) (quoting Jadwin v. Cty. of Kern, 767 F. Supp. 2d 1069, 1109–10 (E.D.
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`Cal. 2011)). Class Counsel’s unsuccessful attempt to certify a nationwide damages class and
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`injunction class—and Class Counsel’s resulting Rule 23(f) appeal—were clearly unmeritorious.
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`Class Counsel billed at least 329.0 hours toward those unsuccessful motions. See Supp. Opp’n at 4
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`(collecting hours across ECF Nos. 450–53). These hours improperly accounted for $232,122 of
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`the lodestar. Id.
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`As for “attorney meetings” and “case management,” “in general, counsel should not bill
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`for attending the same meetings, internal communications, and communicating with each other, as
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`such time is unnecessary.” Salgado v. T-Mobile USA, Inc., No. 17-339, 2020 WL 3127931, at *22
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`(E.D. Cal. June 12, 2020). Given this general rule, “many courts have reduced fee awards for time
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`spent in ‘interoffice conferences’ or other internal communications.” Id. (quoting Gauchat-Hargis
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`v. Forest River, Inc., 2013 WL 4828594 at *3 (E.D. Cal. Sept. 9, 2013)). In Salgado, for instance,
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`the court exercised its discretion to reduce the fee award given “the significant amount of time
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`billed for internal communications in the law firm and co-counsel.” Id. at *23.
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`The Court follows Salgado here. Here, Class Counsel billed 962.2 hours or $718,339 to
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`“Case Management” and “Attorney Meeting/Strategy.” See Supp. Opp’n at 5 (collecting hours);
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`see, e.g., ECF No. 451-1 (one class counsel’s time billed to “Case Management” and “Attorney
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`Meeting/Strategy”). The Court has concerns about the “significant amount of time billed for
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`internal communications” and the Class Counsel’s generally excessive hours and rates. Thus, the
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`Court exercises its discretion to reduce the lodestar billed to “Case Management” and “Attorney
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`Meeting/Strategy” by 10 percent. See Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th
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`Cir. 2008) (holding that a court may impose a discretionary 10 percent “haircut”). This reduction
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`amounts to subtracting $71,834 from the lodestar.
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`c. The Court excludes specifically identified block-billing from the lodestar.
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`The Court has “authority to reduce hours that are billed in block format. The fee applicant
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`bears the burden of documenting the appropriate hours expended in the litigation and must submit
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`evidence in support of those hours worked.” Welch v. Metro. Life Ins. Co., 480 F.3d 942, 948 (9th
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`Cir. 2007). Here, in an attempt to clarify many hours of vague block-billing, the Court ordered
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`Class Counsel to file “[b]illing records identifying time billed by task for the time entries
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`specifically identified in [Apple]’s opposition to the motion for attorneys’ fees.” ECF No. 448
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`(citing ECF No. 434 at 12–13).
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`Most notably, Apple had identified a block of 102.2 hours billed at a rate of $875/hour by
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`one Texas-barred attorney. Id. This attorney provided the same narrative across all 102.2 hours
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`and 12 consecutive days: “Research jury instruction issues; work on motions in limine related
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`issues; continue working on witness proffers and exhibit list issues.” Id. Accordingly, the Court
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`specifically ordered “billing by task” for this block of 102.2 hours. Feb. 8, 2021 Hearing Tr. at
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`44:20–21, ECF No. 449.
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`Class Counsel failed to provide “billing records identifying time billed by task.” ECF No.
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`434. Rather, Class Counsel filed a declaration that violates Local Civil Rule 7-5(b) by including
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`“conclusions and argument.” Class Counsel argues, for instance, that Apple’s arguments against
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`the block-billed time entries “are superficial” and “accurately reflect how [counsel] was
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`overseeing everything during that timeframe.” ECF No. 453 at 3. None of this identifies how the
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`block of 102.2 hours was billed by task. Given Class Counsel’s non-responsive and procedurally
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`improper response, the Court strikes 102.2 hours ($89,425 in fees) in block-billing from the
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`lodestar.
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`In sum, the Court reduces Class Counsel’s $8,068,130 lodestar by $593,749 ($200,368 +
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`$232,122 + $71,834 + $89,425). The resulting adjusted lodestar is $7,474,381, which yields a
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`negative multiplier of 0.72 on the requested fee award of 30 percent of the settlement fund. This
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`lodestar cross-check confirms that the 28 percent award to Class Counsel under the percentage-of-
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`the-fund method is not excessive. See In re Bluetooth Headset Prod. Liab. Litig., 654 F.3d 935,
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`944 (9th Cir. 2011) (describing lodestar cross-check). To the extent Class Counsel argue that the
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`negative multiplier requires awarding even more than 28 percent of the settlement fund, Class
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`Counsel are mistaken. The Court may adjust a lodestar “upward or downward by an appropriate
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`positive or negative multiplier reflecting a host of ‘reasonableness’ factors.” Id. at 942 (emphasis
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`added). “[A]n award of no lodestar multiplier at all is within the district court’s discretion.”
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`McDaniel v. Cty. of Schenectady, 595 F.3d 411, 425 (2d Cir. 2010).
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`Accordingly, the Court awards Class Counsel 28 percent of the settlement fund: $5.04
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`million. The Court follows its practice of calculating percentages based on the gross settlement
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`fund, not the settlement fund net of fees. See, e.g., In re Anthem, Inc. Data Breach Litig., No. 15-
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`MD-02617-LHK, 2018 WL 3960068, at *8 (N.D. Cal. Aug. 17, 2018) (including “litigation
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`expenses and administrative costs” because they “were necessary to litigate this case”).
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`B. Nearly all of Class Counsel’s expenses are reimbursable.
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`In common-fund cases, the Ninth Circuit has stated that the reasonable expenses of
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`acquiring the fund can be reimbursed to counsel who has incurred the expense. See Vincent v.
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`Hughes Air W., Inc., 557 F.2d 759, 769 (9th Cir. 1977); Acosta v. Frito-Lay, Inc., No. 15-CV-
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`02128-JSC, 2018 WL 646691, at *11 (N.D. Cal. Jan. 31, 2018) (“There is no doubt that an
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`attorney who has created a common fund for the benefit of the class is entitled to reimbursement
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`of reasonable litigation expenses from that fund.”) (quoting Ontiveros v. Zamora, 303 F.R.D. 356,
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`375 (E.D. Cal. 2014)). Expense reimbursements comport with the notion that the district court
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`may “spread the costs of the litigation among the recipients of the common benefit.” Wininger v.
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`SI Mgmt. L.P., 301 F.3d 1115, 1121 (9th Cir. 2002).
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`Here, Class Counsel at first requested reimbursement of $1,092,459.47 in litigation costs.
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`Mot. at 20. However, Apple identified $2,066.33 in excessive meal expenses, such as $425.45 at
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`Frances; $398.05 at Prospect; $389.36 at Alexander Steakhouse; and $280.40 at the Michelin-
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`starred Lord Stanley. See Supp. Opp’n Schedule C (citing ECF Nos. 405-4 & 453-2). Class
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`Counsel thus “exclud[ed] the [excessive meal] expenses from their reimbursement request.” Supp.
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`Reply at 13. Class Counsel’s reimbursement request is now $1,090,393.14. About 91% of these
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`expenses are attributable expert fees, Class Counsel’s on-line document database, court reporters,
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`and mediation. Id. at 11 (citing Warshaw Decl., Ex. 5, ECF No. 429-24). The bulk of the
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`remainder is attributable to travel, including economy-class airfare and hotels. Id. at 11 & n.11
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`(collecting declarations). Class Counsel rightly do not seek reimbursement for their many first-
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`class or business-class flights. Id. at 12.
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`Having reviewed the submissions of Class Counsel, the Court finds that their requests for
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`unreimbursed expenses are mostly reasonable. Class Counsel submitted declarations and invoices
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`reflecting the unreimbursed expenses that they incurred in this action. See, e.g., ECF Nos. 451–53
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`(supplemental declarations). However, as Apple correctly notes, some of Class Counsel’s hotel
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`expenses are unreasonable. Specifically, Apple identifies $18,369.98 in hotel accommodations that
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`exceeded $300/night. Supp. Opp’n at Schedule B. Class Counsel unpersuasive response is that
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`these hotel bills were somewhat inflated by taxes, fees, incidental charges, and prices in San
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`Francisco. Supp. Reply at 14.
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`The Court finds that some of Class Counsel’s lodging expenses are unreasonable.
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`Moreover, the Court notes that some of these unreasonable expenses are for lodging in San Jose
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`and its suburbs and not just in San Francisco. For instance, Class Counsel seeks reimbursement for
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`$768.59/night at the Aloft in Cupertino, $638.91/night at the Doubletree in San Jose,
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`$613.90/night at the Hotel Adagio in San Francisco, and $602.94/night at the Sheraton in Palo
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`Alto. Supp. Opp’n at Schedule B (citing ECF No. 453-2). The Court will not require the class to
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`pay for unreasonable lodging expenses.
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`Accordingly, of the $18,369.98 in unreasonable hotel accommodations identified by
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`Apple, the Court reduces Class Counsel’s reimbursement by 40 percent, which is $7,348. The
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`Court orders that $1,083,045.14 in unreimbursed costs be paid from the settlement fund to Class
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`Counsel.
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`C. The Court approves service awards for both Class Representatives.
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`Class Counsel lastly ask the Court to award $7,500 to both Class Representatives,
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`Christina Grace and Ken Potter. Apple opposes these service awards on two grounds. First, Apple
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`argues that two United States Supreme Court decisions from the 1800s bar service awards. ECF
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`No. 434 at 17–18. For support, Apple cites Johnson v. NPAS Solutions, LLC, 975 F.3d 1244, 1257
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`(11th Cir. 2020). Second, Apple argues that a $7,500 service award to each Class Representative is
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`unreasonable. In Apple’s view, neither Grace nor Potter “did anything noteworthy to protect or
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`benefit the class.” ECF No. 434 at 18.
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`Neither of Apple’s arguments is persuasive. Apple’s first argument not only relies on
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`Johnson’s novel reading of old Supreme Court decisions, but also contravenes Ninth Circuit
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`precedent. “[S]ervice awards ‘have long been approved in the Ninth Circuit.’” In re Apple Inc.
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`Device Performance Litig., No. 5:18-MD-02827-EJD, 2021 WL 1022866, at *11 (N.D. Cal. Mar.
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`17, 2021) (quoting In re Lithium Ion Batteries Antitrust Litig., 2020 WL 7264559, at *24 n.24
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`(N.D. Cal. Dec. 10, 2020)). As the Ninth Circuit has explained, service awards “compensate class
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`representatives for work done on behalf of the class, to make up for financial or reputational risk
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`undertaken in bringing the action, and, sometimes, to recognize their willingness to act as a private
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`attorney general.” Rodriguez v. W. Publ'g Corp., 563 F.3d 948, 958–59 (9th Cir. 2009). Unlike the
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`Eleventh Circuit in Johnson, the Ninth Circuit has not held that service awards violate Supreme
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`Court decisions from the 1800s. Thus, like other courts in this district, this Court “declines to
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`follow Johnson.” In re Apple Inc. Device Performance Litig., 2021 WL 1022866, at *11; accord
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`In re Lithium Ion Batteries Antitrust Litig., 2020 WL 7264559, at *24 n.24 (same).
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`Apple also fails to acknowledge the Class Representatives’ significant contributions to this
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`lawsuit. The Class Representatives (1) responded to discovery requests; (2) prepared for and
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`underwent depositions; and (3) surrendered their iPhones for months so that their devices could be
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`imaged and analyzed. ECF No. 438 at 19 (detailing contributions). Other courts have approved
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`service awards based on potentially less significant contributions. See In re Lithium Ion Batteries
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`Antitrust Litig., 2020 WL 7264559, at *24 ($10,000 for “time spent in depositions and responding
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`to discovery”). This Court has also approved service awards where, as here, the awards comprise
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`less than 0.1 percent of the settlement fund. See Nevarez v. Forty Niners Football Co., LLC, 474
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`F. Supp. 3d 1041, 1048 (N.D. Cal. 2020) (noting that awards total “less than .1%” of the
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`settlement). Thus, a service award of $7,500 per Class Representative is reasonable.
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`Accordingly, the Court hereby approves a service award to the Class Representatives,
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`Christina Grace and Ken Potter, in the amount of $7,500 each.
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`III. CONCLUSION
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`For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART
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`Plaintiffs’ motion for attorneys’ fees. The Court orders that fees in the amount of $5.04 million
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`and expenses in the amount of $1,083,045.14 be paid to Class Counsel, and that service awards of
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`$7,500 be paid to each Class Representative.
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`IT IS SO ORDERED.
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`Dated: March 31, 2021
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`______________________________________
`LUCY H. KOH
`United States District Judge
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