Aragon v. Clear Water Products LLC et al

Filing 115

ORDER by Judge Philip A. Brimmer on 12/18/2018, re: 110 MOTION for Order to filed by Brody Hansen, Wayne Jeffrey Hubbard, Aqua Clear Solutions LLC, Clear Water Products LLC, Mills Solids Control Consulting, LLC, Danielle Mills, Scott Forkner, Jay Garrett Mills is GRANTED, 109 Unopposed MOTION for Attorney Fees filed by Thomas Aragon is GRANTED. The Court will issue a separate order setting forth the terms of the judgment. (sphil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 15-cv-02821-PAB-STV
THOMAS ARAGON, on behalf of himself and all similarly situated persons,
Plaintiff,
v.
CLEAR WATER PRODUCTS LLC,
MILLS SOLIDS CONTROL CONSULTING, LLC,
AQUA CLEAR SOLUTIONS LLC,
BRODY HANSEN,
SCOTT FORKNER,
WAYNE JEFFREY HUBBARD,
JAY GARRETT MILLS, and
DANIELLE MILLS,
Defendants.

ORDER

This matter comes before the Court on the Joint Motion for Final Approval of
Settlement Agreement [Docket No. 110] and plaintiff’s Unopposed Motion for Approval
of Attorney’s Fees and Costs [Docket No. 109]. The Court has jurisdiction over this
lawsuit pursuant to 28 U.S.C. § 1331.
I. BACKGROUND
This case arises out of a wage dispute. Plaintiff, a solids control technician,
claims that he and other similarly situated employees of defendants were not paid full
compensation for overtime hours worked and were instead paid a “day rate with no
overtime premium pay.” Docket No. 1 at 4, ¶ 9. Plaintiff also alleges that he was not
paid for all his hours worked and rest breaks as mandated by Colorado law. Id.

Plaintiff filed a class action complaint on December 28, 2015. Docket No. 1.
Plaintiff asserts claims for violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§ 201 et seq., the Colorado Wage Claim Act, Colo. Rev. Stat. § 8-4-101, et seq., the
Colorado Minimum Wage Act, Colo. Rev. Stat. § 8-6-101, et seq., and breach of
contract. Id. at 6-9, ¶¶ 14-37. On May 5, 2017, the parties filed a joint motion for
preliminary approval of a class action settlement. Docket No. 103. The Court granted
the motion on March 5, 2018 and approved the parties’ plan to disseminate notice of
the settlement to class members. Docket No. 106. On May 14, 2018, plaintiff filed a
motion requesting an award of attorney’s fees and costs. Docket No. 109. On June 28,
2018, the parties moved for final approval of the class action settlement. Docket No.
110. The Court held a final fairness hearing regarding the proposed settlement on
December 13, 2018. Docket No. 114.
II. FINAL APPROVAL OF CLASS ACTION SETTLEMENT
A. Overview of the Settlement Agreement
The proposed settlement agreement defines the settlement class as:
all persons who worked for Clear Water as solids control technicians and
were paid a day rate at any time from December 28, 2013 through the
date that the Court enters an order preliminarily approving this
Agreement.
Docket No. 103-3 at 1, ¶ II.A. Under the proposed settlem ent agreement, defendants
agree to pay a total of $350,000.00 as well as the settlement administrator’s fees. Id. at
6, ¶ IV.E.1. The settlement funds are to be distributed as follows: (1) service awards of
$7,000.00 to plaintiff and $2,750.00 each to opt-in plaintiffs Michael Aragon, Raymond
Romero, Kevin Shay, and David Yoho, id., ¶ IV.E.3; (2) payments to class counsel of up
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to $116,666.00 for attorneys’ fees and costs, id., ¶ IV.E.2; (3) payment of class
members’ payroll taxes, id. at 7, ¶ IV.E.4; and (4) pro rata payments to settlement class
members of all remaining funds based on the number of weeks they were paid a day
rate since December 28, 2013. Id., ¶ IV.E.7.
B. Notice to the Settlement Class
Under Rule 23(e)(1), a district court approving a class action settlement “must
direct notice in a reasonable manner to all class members who would be bound by the
proposal.” Fed. R. Civ. P. 23(e)(1). Rule 23(c)(2)(B) provides, in relevant part, that for
“any class certified under Rule 23(b)(3), the court must direct to class members the best
notice that is practicable under the circumstances, including individual notice to all
members who can be identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B).
In addition to the requirements of Rule 23, the Due Process Clause also guarantees
unnamed class members the right to notice of a settlement. DeJulius v. New England
Health Care Emps. Pension Fund, 429 F.3d 935, 943-44 (10th Cir. 2005). However,
due process does not require that each class member receive actual notice to be bound
by the adjudication of a representative action. Id. Instead, the procedural rights of
absent class members are satisfied so long as “the best notice practicable under the
circumstances [is given] including individual notice to all members who can be identified
through reasonable effort.” In re Integra Realty Resources, Inc., 262 F.3d 1089, 1110
(10th Cir. 2001) (citation omitted). Thus, “[t]he legal standards for satisfying Rule
23(c)(2)(B) and the constitutional guarantee of procedural due process are coextensive
and substantially similar.” DeJulius, 429 F.3d at 944.

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The Court finds that the parties complied with the notice plan that was approved
by this Court in its ruling on the parties’ motion for preliminary approval of the class
action settlement. See Docket No. 106 at 16-18. The settlement administrator mailed
a notice of preliminary approval to each of the eighty-nine settlement class members.
Docket No. 110-2 at 2, ¶ 6. The settlement administrator also emailed notice of the
settlement to eighty-six class members. Id. One class notice was returned to the
settlement administrator and was undeliverable upon remailing of the notice. Id. at ¶ 7.
Consistent with its prior order, the Court finds that the parties made reasonable
efforts to identify and provide notice to all class members who would be bound by the
settlement. See Fed. R. Civ. P. 23(e)(1) (requiring court to “direct notice in a
reasonable member to all class members who would be bound by the proposal”);
Tennille v. W. Union Co., 785 F.3d 422, 438-39 (10th Cir. 2015) (finding that mailing of
settlement notice to addresses updated through post office’s change-of-address
database was sufficient under Rule 23 and due process); DeJulius, 429 F.3d at 944
(noting that due process inquiry “focuses upon whether the district court gave the best
notice practicable under the circumstances including individual notice to all members
who can be identified through reasonable effort” (internal quotation marks omitted)).
Moreover, the notice itself contained information regarding the nature of the lawsuit, the
definition of the class, class members’ anticipated recovery under the settlement, the
amount of attorneys’ fees and costs sought, and a summary of the class members’
legal rights, including the right to object or exclude themselves from the settlement.
See Docket No. 110-3; see also Fed. R. Civ. P. 23(c)(2)(B) (describing information to

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be included in notice). The notice also directed class members to a toll-free number for
additional information regarding the settlement. See Docket No. 110-3 at 4; see also
Tennille, 785 F.3d at 437 (finding that “notice satisfied due process by informing class
members of several ways they could obtain information about the claims that they
would be releasing if they joined the settlement”).
Based on the foregoing, the Court is satisfied that the notice provided to class
members met the requirements of Rule 23(e) and Due Process.
C. Analysis of Rule 23 Factors 1
Rule 23(e) provides that a proposed settlement may only be approved after a
“finding that it is fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). In this
process, “trial judges bear the important responsibility of protecting absent class
members,” and must be “assur[ed] that the settlement represents adequate
compensation for the release of the class claims.” In re Pet Food Prods. Liab. Litig.,
629 F.3d 333, 349 (3d Cir. 2010); see also Amchem Prods., Inc. v. Windsor, 521 U.S.
591, 623 (1997) (noting that the Rule 23(e) inquiry “protects unnamed class members
from unjust or unfair settlements affecting their rights when the representatives become
fainthearted before the action is adjudicated or are able to secure satisf action of their
individual claims by a compromise”) (citations omitted). To determine whether a
proposed settlement is fair, reasonable, and adequate, courts consider the following
factors: “(1) whether the proposed settlement was fairly and honestly negotiated; (2)

1

This Court previously found that certification of the proposed class was
appropriate for purposes of the parties’ settlement. Docket No. 106 at 14. The Court
incorporates that finding herein.
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whether serious questions of law and fact exist, placing the ultimate outcome of the
litigation in doubt; (3) whether the value of an immediate recovery outweighs the mere
possibility of future relief after protracted and expensive litigation; and (4) the judgment
of the parties that the settlement is fair and reasonable.” Rutter & Wilbanks Corp. v.
Shell Oil Co., 314 F.3d 1180, 1188 (10th Cir. 2002). If the settling parties can establish
these factors, courts usually presume that the proposed settlement is fair and
reasonable. In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 535 (3d Cir. 2004)
(applying an “initial presumption of fairness” to a proposed settlement where: (1) it was
the result of arm’s length negotiations; (2) it was based on sufficient discovery; (3) “the
proponents of the settlement [were] experienced in similar litigation; and (4) only a small
fraction of the class objected”).
With regard to the first factor, the Court finds no evidence of collusion. This case
has been pending for nearly three years, during which time the parties have briefed
several motions and engaged in formal discovery, including written discovery and
depositions. See Docket No. 110 at 7; Docket No. 79 (plaintiff’s motion for class
certification); Docket No. 80 (plaintiff’s motion to approve Hoffman-LaRoche notice).
The parties also engaged in informal discovery, which indicated that any substantial
recovery won by plaintiff could lead to defendants’ bankruptcy. See Docket No. 110 at
7. Based on the information provided, the Court is satisfied that the parties’ settlement
is the product of fair and honest negotiations between the parties. See Reiskin v. Reg’l
Transp. Dist. Colo., No. 14-cv-03111-CMA-KLM, 2017 WL 5990103, at *2 (D. Colo. July
11, 2017) (finding that class settlement was fairly and honestly negotiated where “case

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involved intensive discovery,” “expert witness reports,” depositions, and “[n]umerous
motions”).
The Court also finds that there are serious questions of law and fact in this case
that likely would have affected plaintiffs’ chance at recovery. Defendants represent that
they believe that many of the class members are subject to the Motor Carrier Act
exemption to the FLSA, 29 U.S.C. § 213(b)(1). See Docket No. 110 at 8-9. The parties
also dispute several issues related to damages, such as which statute of limitations
applies and to what extent the Motor Carrier Act exemption applies. Id. Finally, the
financial information disclosed by defendants during discovery indicated that
defendants would not have been able to pay a large lump sum judgment, possibly
leading to minimal recovery by the class members. Id. at 7. Given the real prospect
that plaintiffs would not have obtained any recovery had the case proceeded to trial, the
Court finds that this factor weighs in favor of approving the parties’ settlement
agreement.
The Court next considers whether the value of immediate recovery outweighs
the mere possibility of future relief after protracted and expensive litigation. The parties
indicate that continued litigation would lead to additional discovery, extensive motions
practice, trial, and an appeal. See Docket No. 110 at 9-10. Under the parties’
settlement agreement, class members will receive a pro rata share of $350,000, less
attorney’s fees and other adjustments. See Docket No. 110-1 at 6-7, ¶¶ 1-7. Given the
risks and costs of protracted litigation and uncertainty surrounding class members’
ability to recover on a lump sum judgment, the Court finds that the immediate recovery
provided for in the parties’ settlement agreement outweighs the possibility of greater
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future relief.
The fourth factor also weighs in favor of final approval of the parties’ settlement.
“Counsels’ judgment as to the fairness of the agreement is entitled to considerable
weight.” Hapka v. CareCentrix, Inc., 2018 WL 1871449, at *5 (D. Kan. Feb. 15, 2018)
(quoting Lucas, 234 F.R.D. at 695). Here, class counsel has extensive experience
representing plaintiffs in wage and hour law cases and in class actions. See Docket
No. 109-1 at 2, 4-5, ¶¶ 3, 10-11. In their joint m otion, counsel for both sides state that
they “fully support the [s]ettlement [a]greement” and that it is “fair, reasonable, and
adequate.” See Docket No. 110 at 10-11.
Finally, no class members requested exclusion from the settlement or objected
to the settlement. See Docket No. 110 at 5. Class members’ apparently positive
response to the settlement is further evidence that it is fair, adequate, and reasonable.
See Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 118 (2d Cir. 2005) (noting
that the fact that “only a small number of objections are received . . . can be viewed as
indicative of the adequacy of the settlement” (internal quotation marks omitted)).
Based on the foregoing, the Court concludes that the settlement is “fair,
reasonable, and adequate,” and will grant final approval of the settlement agreement.
III. ATTORNEY’S FEE AWARD
Class counsel request an award of attorney’s fees and costs in the amount of
$116,666, which is between 32% and 33% of the total settlement amount. See Docket
No. 109 at 1. The FLSA entitles a prevailing plaintiff to recover “a reasonable attorney’s
fee . . . and costs of the action.” Gray v. Phillips Petroleum Co., 971 F.2d 591, 594

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(10th Cir. 1992) (quoting 29 U.S.C. § 216(b)). “[P]laintiffs may be considered ‘prevailing
parties’ for attorney’s fees purposes if they succeed on any significant issue in litigation
which achieves some of the benefit the parties sought in bringing suit.” Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983) (internal citation om itted).
In common fund cases, the Tenth Circuit has “recognized the propriety of
awarding attorneys’ fees . . . on a percentage of the fund, rather than lodestar, basis.” 2
Uselton v. Commercial Lovelace Motor Freight, Inc., 9 F.3d 849, 853 (10th Cir. 1993);
accord Gottlieb v. Barry, 43 F.3d 474, 483 (10th Cir. 1994) (holding that, although either
method is permissible in common fund cases, “Uselton implies a preference for the
percentage of the fund method”). Because this is a common fund case and because
plaintiffs’ fee request is for a percentage of the common fund, the Court will evaluate
the attorney’s fees award using the percentage of the fund approach. See Brown v.
Phillips Petroleum Co., 838 F.2d 451, 454 (10th Cir. 1988) (distinguishing common fund
and statutory fees cases).
The “percentage reflected in a common fund award must be reasonable [and]
the district court must ‘articulate specific reasons for fee awards.’” Brown, 838 F.2d at
454 (quoting Ramos v. Lamm, 713 F.2d 546, 552 (10th Cir. 1983)). In determ ining the
reasonableness of a percentage award, courts must apply the Johnson factors, which
are:

2

The lodestar amount is calculated based upon “the total num ber of hours
reasonably expended multiplied by a reasonable hourly rate – and then adjust[ing] the
lodestar upward or downward to account for the particularities of the suit and its
outcome.” Zinna v. Congrove, 680 F.3d 1236, 1239, 1242 (10th Cir. 2012) (q uotation
marks omitted).
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(1) the time and labor involved; (2) the novelty and difficulty of the questions;
(3) the skill requisite to perform the legal service properly; (4) the preclusion
of other employment by the attorney due to acceptance of the case; (5) the
customary fee; (6) any prearranged fee-this is helpful but not determinative;
(7) time limitations imposed by the client or the circumstances; (8) the
amount involved and the results obtained; (9) the experience, reputation, and
ability of the attorneys; (10) the undesirability of the case; (11) the nature and
length of the professional relationship with the client; and (12) awards in
similar cases.
Id. at 454-55 (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717 (5th Cir.
1974); see also Brown v. Phillips Petroleum Co., 838 F.2d 451, 455-56 (10th Cir. 1988)
(“The court here clearly considered all of the relevant Johnson factors and applied them
appropriately.”). Thus, in evaluating the reasonableness of a fee award, a court need
not specifically address each Johnson factor. Gudenkauf v. Stauffer Commc’ns, Inc.,
158 F.3d 1074, 1083 (10th Cir. 1998). T he Court finds that the factors relevant in this
case weigh in favor of approving the requested fee award.3
A. Time and Labor Required
Class counsel represent that they have spent three years and over 165 hours
litigating this case. See Docket No. 109-1 at 5, ¶ 13. As part of the litigation, counsel
conducted both formal written discovery (including depositions) and informal discovery
related to the defendants’ financial condition. See Docket No. 110 at 2; Docket No.
109-1 at 5-6, ¶ 14. Counsel also drafted multiple motions, consulted with an expert
witness, negotiated the settlement, and worked with defendants’ counsel to ensure
approval of the settlement. See Docket No. 109-1 at 5-6, ¶ 14. Given the substantial

3

Class counsel argues that the seventh Johnson factor is not relevant in this
case. The Court agrees. See Brown, 838 F.2d at 455-56 (“[R]arely are all of the
Johnson factors applicable; this is particularly so in a common fund situation.”).
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amount of time and labor invested in this case by class counsel, the Court finds that the
time and labor factor weighs in favor of plaintiffs’ requested fee award.
B. Novelty and Difficulty of the Questions Presented
Class counsel represents that the case involved two fundamental issues:
whether the solids control technicians were entitled to overtime compensation and
whether this question could be resolved on a class or collective action basis. See
Docket 109 at 6. In evaluating the risks of proceeding to trial and in negotiating a
settlement, class counsel had to navigate difficult issues related to both the FLSA and
Fed. R. Civ. P. 23. Id. This factor therefore weighs in favor of the requested award.
See In re Qwest Commc’ns Int’l, Inc. Sec. Litig., 625 F. Supp. 2d 1143, 1150 (D. Colo.
2009) (noting that, although the area of law was not novel, the difficulty and complexity
of the issues in the case supported a “generous award of attorney fees”).
C. Skill Required and Experience of Plaintiffs’ Counsel
The Court will consider the third and ninth Johnson factors together. See, e.g.,
id. (noting that the second, third, and ninth Johnson factors are closely related). As
evidenced by his declaration, class counsel has extensive experience representing
plaintiffs in both wage and hour cases and in class action lawsuits. See Docket No.
109-1 at 4-5, ¶¶ 10-11. Accordingly, class counsel was well equipped to address the
unique challenges that defendants’ financial condition and anticipated defenses posed
to plaintiffs’ ability to recover in this case. Class counsel successfully negotiated a
structured settlement that provides meaningful recovery for the plaintiff class. The
“skill” and “experience” factors therefore weigh in favor of the requested fee award.

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D. Preclusion of Other Employment
“Attorneys attempting to handle a large class [in FLSA cases] are precluded by
the ticking of the clock from taking certain other cases given that they have decided to
take a chance on a possible recovery in a contingent fee case.” Whittington v. Taco
Bell of America, Inc., No. 10-cv-01884-KMT-MEH, 2013 WL 6022972 at *6 (D. Colo.
Nov. 13, 2013). Class counsel represents that he spent sig nificant hours on this case
on a contingent fee basis. See Docket No. 109 at 7. The Court finds that, while this
case does not involve a large class, the handling of this case precluded other work, and
therefore the fourth factor weighs in favor of the requested fee award.
E. The Customary Fee/Awards in Similar Cases
The Court considers factors five and twelve together. Courts in this district have
recognized that “[t]he customary fee to class counsel in a common fund settlement is
approximately one-third of the economic benefit bestowed on the class.” Anderson v.
Merit Energy Co., No. 07-cv-00916-LTB-BNB, 2009 WL 3378526, at *3 (D. Colo. Oct.
20, 2009); see also Shaw v. Interthinx, Inc., No. 13-cv-01229-REB-NYW, 2015 WL
1867861, at *6 (D. Colo. Apr. 22, 2015) (citing cases holding that fees within the 2050% range are “presumptively reasonable”); Brody v. Hellman, 167 P.3d 192, 203
(Colo. App. 2007) (collecting cases approving percentage fees ranging from 24% to
36% of the common fund). Plaintiffs in this case seek $116,666 in attorney’s fees and
costs, or between 32% and 33% of the total settlement amount. The Court finds this
amount to be in line with the customary fees and awards in similar cases. The fifth and
twelfth Johnson factors therefore weigh in favor of approval.

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F. Fixed or Contingent Nature of the Fee
While the parties have not presented any evidence of a prearranged fee, class
counsel undertook the representation on a conting ency basis. Docket No. 109 at 8.
Courts have consistently found that this type of fee arrangement, under which counsel
runs a significant risk of nonpayment, weighs in favor of the reasonableness of a
requested fee award. See, e.g., Shaw, 2015 WL 1867861, at *8; Farley v. Family
Dollar Stores, Inc., No. 12-cv-00325-RM-MJW, 2014 WL 5488897, at *4 (D. Colo. Oct.
30, 2014).4
G. Amount Involved and the Results Obtained
“[T]he most critical factor in determining the reasonableness of a fee award is the
degree of success obtained.” Farrar v. Hobby, 506 U.S. 103, 114 (1992) (internal
quotation marks omitted). Here, class counsel recovered $350,000 on behalf of 89
settlement class members. See Docket No. 110-1 at 6, ¶ E.1. Further, all affected

4

While courts have consistently interpreted this factor as an inquiry into the fixed
or contingent nature of the fee arrangement, the Supreme Court has indicated that “a
careful reading of Johnson shows that the contingency factor was meant to focus
judicial scrutiny solely on the existence of any contract for attorney’s fees which may
have been executed between the party and [the] attorney.” Pennsylvania v. Del. Valley
Citizens’ Council for Clean Air, 483 U.S. 711, 723 (1987) (plurality op.), abrogated in
part on other grounds by City of Burlington v. Dague , 505 U.S. 557 (1992). However,
even if this factor is interpreted as focusing on the specific fee quoted to plaintiffs at the
outset of the litigation, the Court finds that the apparent absence of any prearranged
fee weighs in favor of the requested award. See id. (“The fee quoted to the client or the
percentage of the recovery agreed to is helpful in demonstrating the attorney’s fee
expectations when he accepted the case.” (internal quotation marks omitted)); Johnson,
488 F.2d at 718 (indicating that fee amount agreed upon at outset of litigation is a factor
to be considered in determining reasonableness of requested fee); Brody, 167 P.3d at
200-01 (finding that Johnson factors weighed in favor of fee award where “there was no
prearranged fee other than an understanding the fee would be contingent on the
outcome”).
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class members will receive compensation. See Docket No. 109 at 8. Class counsel
obtained this result despite serious questions as to whether the class could be certified
under Fed. R. Civ. P. 23 and whether the Motor Carrier Act exemption would be a
complete defense to plaintiff’s claims. Id. Given the risks involved, the Court finds that
the relief provided by the settlement represents an excellent result for the settlement
class. See Brown, 838 F.2d at 456 (finding that the results obtained by the settlement
“may be given greater weight [in the Johnson analysis] when . . . the trial judge
determines that the recovery was highly contingent and that the efforts of counsel were
instrumental in realizing recovery on behalf of the class”); Tennille v. W. Union Co., No.
09-cv-00938-JLK-KMT, 2014 WL 5394624, at *4 (D. Colo. Oct. 15, 2014) (recognizing
that prospective relief contributes to the “real and actual value” of a settlement).
Accordingly, the eighth Johnson factor strongly supports the requested fee award.
H. The Undesirability of the Case
Class counsel states that the case could only have been litigated via a
contingency fee arrangement “because the class members here are not highly paid
employees.” See Docket No. 109 at 10. Class counsel represents that the case
required a significant time commitment, and that counsel’s firm incurred $2,070 in costs
for “expert witness fees, filing fees, service fees, travel and mileage.” See id.; Docket
No. 109-1 at 5, ¶ 13. The Court agrees that counsel’s time spent and out-of-pocket
costs was not an insubstantial burden, given the significant risk that plaintiffs would be
unable to obtain any recovery from defendants even if they prevailed on the merits.
The relative undesirability of this case therefore weighs in favor of the requested fee

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award. See In re Qwest, 625 F. Supp. 2d at 1152-53 (finding that risk borne by lead
counsel was key factor in assessing desirability of the case).
I. Nature and Length of Professional Relationship with the Client
“[A] lawyer may vary his or her fee for similar work in light of the professional
relationship of the client with the lawyer.” In re Qwest, 625 F. Supp. 2d at 1153. Class
counsel states that “the unpaid wage claims asserted in this case do not lend
themselves to continuous, long-term attorney-client relationships.” Docket No. 109 at
10. As there is “no indication that . . . counsel adjusted the ag reed fee in this case
based on any special relationship with the lead plaintiffs,” the Court finds that this factor
does not apply in this case. See In re Qwest, 625 F. Supp. 2d at 1153.
J. Lodestar Crosscheck
Courts evaluating the reasonableness of a percentage fee award will often
crosscheck the requested fee with the lodestar amount. See, e.g., Shaw, 2015 WL
1867861, at *8; see also Brody, 167 P.3d at 201 (noting that, “[t]ypically, courts use the
percentage method and then crosscheck the adequacy of the resulting fee by applying
the lodestar method”). Class counsel seek $116,666 in attorney’s fees and costs for
approximately 165 hours spent on the litigation. The requested fee reflects a 1.15
multiplier on counsel’s $101,070 lodestar amount.5
The Court finds the number of hours expended on this case to be reasonable
given that the litigation has been ongoing since 2015 and has involved multiple motions,

5

Using the requested attorney’s fee alone – $99,000 – rather than the requested
award of attorney’s fees and costs, the multiplier is 1.18.
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extensive discovery, and settlement negotiations.6 The hourly rate charged by class
counsel of $600 per hour is also generally consistent with the rates charged in other
cases in this district. See Shaw, 2015 WL 1867861, at *8 (approving of hourly rates
ranging from $150 to $675 per hour for attorneys and staff members involved in
litigation). Even if the rate is slightly higher than the rates customarily charged in this
area, the 1.15 multiplier is lower than the lodestar multipliers that have been approved
in other class action cases in this District. See, e.g., Shaw, 2015 WL 1867861, at *8
(finding lodestar multiplier of 1.37 to be “significantly lower than lodestar multipliers that
Colorado federal courts and other courts consistently have approved in other class
action cases”); Mishkin v. Zynex, Inc., No. 09-cv-00780-REB-KLM, 2012 WL 4069295,
at *2 (D. Colo. Sep. 14, 2012) (collecting Colorado federal district court cases approving
lodestar multipliers ranging from 2.5 to 4.6). Accordingly, the lodestar crosscheck
supports the reasonableness of the requested fee.
IV. COSTS
Class counsel’s requested fee award includes $2,070 in out-of-pocket litigation
expenses. See Docket No. 109-1 at 5; ¶ 13. W hile it appears that counsel is not
seeking separate reimbursement for these litigation expenses, and the Court finds a
$116,666 total fee to be reasonable under the percentage method, the Court also
concludes that $2,070 in litigation expenses is independently reasonable in the context
of this case.
6

Although class counsel has not submitted detailed billing records, the Colorado
Court of Appeals has stated that, when “the lodestar method is used as a mere
crosscheck of the percentage method, the court does not need to scrutinize
exhaustively the hours documented by counsel.” Brody, 167 P.3d at 204.
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“Expenses are compensable in a common fund case if the particular costs are
the type typically billed by attorneys to paying clients in the marketplace.” Brody, 167
P.3d at 205-06 (citing Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42 of Stephens Cty.,
Okla., 8 F.3d 722, 725-26 (10th Cir. 1993)). Here, the requested costs are for “expert
witness fees, filing fees, service fees, travel and mileage.” Docket No. 109-1 at 5, ¶ 13.
Class counsel avers that these costs are based on contemporaneous expense records.
Id. The Court concludes that these are the type of costs normally billed to clients. See
In re Crocs, Inc. Sec. Litig., No. 07-cv-02351-PAB-KLM, 2014 WL 4670886, at *5 (D.
Colo. Sept. 18, 2014) (finding fees for computer research, investigation, and
experts/consultants to be “of the type normally billed to clients”). The Court also finds
that there have been no objections to counsel’s request for costs and that the costs are
reasonable given the nature and duration of this lawsuit. See Shaw, 2015 WL
1867861, at *8 (awarding $62,388.58 in litigation expenses in wage-and-hour class
action lawsuit).
V. INCENTIVE FEES
The settlement provides for an “enhancement payment” of $7,000 for the class
representative, as well as an enhancement of $2,750 for each of four opt-in plaintiffs.
Docket No. 110-1 at 6-7, ¶ E.3. “[C]ourts regularly give incentive awards to
compensate named plaintiffs for the work they performed – their time and effort
invested in the case.” Chieftain Royalty Co. v. Enervest Energy Institutional Fund XIIIA, L.P., 888 F.3d 455, 468 (10th Cir. 2017). “The award should be proportional to the
contribution of the plaintiff.” Id. No member of the settlement class has objected to the

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payments, which were disclosed in both the settlement agreement and the notice sent
to class members. See Docket No. 110-1 at 6-7, ¶ E.3; Docket No. 110-3 at 3. Based
on the information provided by class counsel and the fact that this case has been
pending for almost three years, the Court concludes that the enhancem ent payments
are reasonable compensation for the named plaintiff and opt-in plaintiffs’ participation in
the lawsuit. See Pliego v. Los Arcos Mexican Restaurants, Inc., 313 F.R.D. 117, 131
(D. Colo. 2016) (finding that $7,500 service award was “appropriate and . . .
commensurate with awards in similar cases”); Wornicki v. Brokerpriceopinion.com, No.
13-cv-03258-PAB-KMT, Docket No. 170 at 21-22 (D. Colo. Sept. 20, 2018) (f inding a
$5,000 incentive award to be “reasonable compensation” to the class representatives).
VI. CONCLUSION
For the foregoing reasons, it is
ORDERED that the Joint Motion for Final Approval of Settlement Agreement
[Docket No. 110] is GRANTED. It is further
ORDERED that plaintiff’s Unopposed Motion for Approval of Attorney’s Fees and
Costs [Docket No. 109] is GRANTED.
The Court will issue a separate order setting forth the terms of the judgment.

DATED December 18, 2018.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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