Lytle v. Lowe's Home Centers, Inc.

Filing 477

ORDER: Plaintiff/Class Counsel's Unopposed Motion for Approval of Attorneys' Fees and Costs 476 is GRANTED. Signed by Judge Virginia M. Hernandez Covington on 11/17/2014. (KNC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LIZETH LYTLE, individually
and on behalf of all others
similarly situated who consent
to their inclusion in a
collective action,
Plaintiff,
v.

Case No. 8:12-cv-1848-T-33TBM

LOWE’S HOME CENTERS, INC.,
ET AL.,
Defendants.
______________________________/
ORDER
This cause comes before the Court in consideration of
Plaintiff/Class Counsel’s Unopposed Motion for Approval of
Attorneys’ Fees and Costs (Doc. # 476), filed on November 12,
2014. For the reasons that follow, the Court grants the
Motion.
I.

Background
On August 15, 2012, Plaintiff Lizeth Lytle filed a

collective action Complaint for unpaid overtime compensation,
liquidated damages, pre-judgment and post-judgment interest,
attorneys’ fees, costs and other compensation pursuant to the
Fair Labor Standards Act (FLSA) (Doc. # 1), and filed an
Amended Complaint (Doc. # 76) on April 15, 2013. Plaintiff

filed a Second Amended Complaint on July 5, 2013, adding
claims under the Employee Retirement Income Security Act
(ERISA). (Doc. # 186). Thereafter, on January 31, 2014,
following the Court’s Order granting Plaintiff’s Motion to
Add Party Defendant to ERISA Claims (Doc. # 342), Plaintiff
filed her Third Amended Complaint reasserting the same FLSA
and ERISA claims she pled in her Second Amended Complaint
(Doc. # 350).
On

July

26,

2013,

Plaintiff

sought

conditional

certification of this case as a nationwide collective action
pursuant to 29 U.S.C. § 216(b), consisting of:
All Human Resources Managers or other Human
Resources store employees with other titles, who
are or were employed with [Defendants]1, within the
past three years preceding this lawsuit to the day
of trial, and elect to opt-in to this action
pursuant to FLSA 29 U.S.C. Section 216(b) who have
worked in excess of forty (40) hours per week and
were not paid overtime wages.
(Doc. # 205 at ¶ 11). On January 10, 2014, this Court
conditionally certified a nationwide FLSA collective action.
(Doc. # 340). Thereafter, on January 31, 2014, this Court
granted the parties’ Joint Motion for Approval of Notice and

The named Defendants in this action are Lowe’s Home
Centers, Inc., Lowe’s HIW, Inc., Lowe’s Companies, Inc., and
Administrative Committee of Lowe’s Corporation, Inc. 
1

2

adopted the parties’ proposed class notice and methods of
dissemination. (Doc. # 349).
On April 29, 2014, this Court granted Defendants’ Motion
to Dismiss (Doc. # 362) to the extent that Plaintiff’s ERISA
counts – Counts II through IV - were dismissed without
prejudice (Doc. # 408).

The only remaining count – Count I

– was Plaintiff’s FLSA claim. On August 12, 2014, the parties
filed a Notice of Settlement (Doc. # 444).
On October 30, 2014, United States Magistrate Judge
Thomas B. McCoun III, entered a Report and Recommendation, in
which he recommended that this Court approve the parties’
executed settlement agreement. (Doc. # 470). On November 7,
2014, as no objection to the Report and Recommendation was
filed, this Court adopted the Report and Recommendation, and
as a result, the parties’ settlement agreement was approved.
(Doc. # 472). Thus, the case was dismissed with prejudice in
accordance with the terms set forth in the parties’ settlement
agreement. (Id.). However, the Court granted Plaintiff’s
counsel until November 14, 2014, to file any motions for
attorneys’ fees and costs. (Id.). Thereafter, Plaintiff’s
counsel filed the present Motion on November 12, 2014. (See
Doc. # 476).
II.

Discussion

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In the present action, Plaintiff’s counsel requests that
this

Court

approve

an

award

of

attorneys’

fees

of

$1,300,000.00 in addition to costs and expenses of litigation
up to $70,000.00 as referenced in the parties’ settlement
agreement. (See Id.). According to Plaintiff’s counsel, the
agreed amount of attorneys’ fees is below the estimated
lodestar fees incurred by Plaintiff’s counsel in the lawsuit
and “constitutes approximately a 26.7% common fund fee of the
gross settlement amount (added fees and net distribution).”
(Id. at 5). Furthermore, Plaintiff’s counsel provides that
“the attorneys’ fees agreed to be paid by Defendants [were]
separately negotiated and without regard to the amount paid
to the Plaintiff and Class members.” (Id.).
A. Attorneys’ Fees
This Court is duty-bound to scrutinize the attorneys’
fees requested in this FLSA case as directed by the Eleventh
Circuit in Silva v. Miller, 307 F. App’x 349 (11th Cir. 2009).
There, the court explained:
FLSA
requires
judicial
review
of
the
reasonableness of counsel’s legal fees to
assure both that counsel is compensated
adequately and that no conflict of interest
taints the amount the wronged employee
recovers under a settlement agreement. FLSA
provides for reasonable attorney’s fees; the
parties cannot contract in derogation of
FLSA’s provisions. To turn a blind eye to an

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agreed upon contingency fee in an amount
greater than the amount determined to be
reasonable after judicial scrutiny runs
counter to FLSA’s provisions for compensating
the wronged employee.
Id. at 352.
The Court is afforded broad discretion in addressing
attorneys’ fees issues. See Villano v. City of Boynton Beach,
254

F.3d

1302,

1305

(11th

Cir.

2001)(“Ultimately,

the

computation of a fee award is necessarily an exercise of
judgment because there is no precise rule or formula for
making these determinations.”)(internal citation omitted).
Attorneys

in

class

litigation

are

entitled

to

compensation for their services from the common fund, but the
amount is subject to court approval. Camden I Condo. Ass’n,
Inc. v. Dunkle, 946 F.2d 768, 771 (11th Cir. 1991). The
following

factors

are

considered

in

determining

the

appropriate percentage of the common fund to be awarded as
fees:
(1) the time and labor required, (2) the novelty
and difficulty of the questions involved, (3) the
skill requisite to perform the legal services
properly, (4) the preclusion of other employment by
the attorney due to acceptance of the case, (5) the
customary fee, (6) whether the fee is fixed or
contingent, (7) time limitations imposed by the
client or the circumstances, (8) the amount
involved and the results obtained, (9) the

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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.
Stahl

v.

MasTec,

Inc.,

No.

8:05-CV-1265-T27TGW,

2008

WL

2267469, at *1 (M.D. Fla. May 20, 2008).
The attorneys’ fee sought by Plaintiff’s counsel is
higher than what this Court would generally approve, and as
a result, such a request has brought this Court tremendous
pause. However, upon review of the present Motion and the
attached exhibits thereto and an independent review of the
legal authority surrounding this issue; specifically, the
factors enumerated above, the Court finds that the attorneys’
fee

requested

to

be

fair

and

of

attorneys’

reasonable

under

the

circumstances.
The

issue

fees

has

previously

been

reviewed by United States Magistrate Judge Thomas B. McCoun
III. (Doc. # 470). In his Report and Recommendation, Judge
McCoun, noted that:
The matter of legal fees has been negotiated
separately from the resolution of the Plaintiffs’
claims such that the agreement to pay fees and costs
has no effect on this settlement agreement with
Plaintiff and the opt-in Plaintiffs. The proposed
fee award also reflects a compromise of the sum
which might otherwise be available to Plaintiffs’

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counsel under both the lodestar approach and on a
percentage basis of the total gross funds
recovered.
(Doc. # 470). As the request is unopposed by Defendants and
was negotiated separately, and thus had no effect on the
settlement agreement negotiated for the class members, the
Court finds that an attorneys’ fee award of $1,300,000.00 is
reasonable on its face and no further analysis is necessary
by the Court.2
Furthermore, the attorneys’ fee sought by Plaintiff’s
counsel is similar to those that have been approved by courts
within the Eleventh Circuit and this district. See Camden I
Condo. Ass'n, Inc., 946 F.2d at 774 (“The majority of common

2  
In Bonetti, the court explained: "if the parties submit

a proposed FLSA settlement that, (1) constitutes a compromise
of the plaintiff's claims, (2) makes a full and adequate
disclosure of the terms of settlement, including the factors
and reasons considered in reaching same and justifying the
compromise of the plaintiff's claims, and (3) represents that
the plaintiff's attorneys' fee was agreed upon separately and
without regard to the amount paid to the plaintiff, then,
unless the settlement does not appear reasonable on its face
or there is reason to believe that the plaintiff's recovery
was adversely affected by the amount of fees paid to his
attorney, the Court will approve the settlement without
separately considering the reasonableness of the fee to be
paid to plaintiff's counsel." Bonetti v. Embarq Mgmt. Co.,
715 F. Supp. 2d 1222, 1228 (M.D. Fla. 2009).

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fund fee awards fall between 20% to 30% of the fund.”);
Signorelli v. Utiliquest, LLC, No. 5:08-cv-38-OC-10GRJ, 2008
WL 7825757, at *2 (M.D. Fla. July 25, 2008)(awarding 30% of
the

Maximum

Gross

Settlement

for

fair

and

reasonable

attorneys’ fees, costs, and expenses); Pinto v. Princess
Cruise Lines, Ltd., 513 F. Supp. 2d 1334, 1343 (S.D. Fla.
2007)(approving attorneys’ fees and costs equal to 30% of
common fund); Stahl, 2008 WL 2267469, at *2 (finding that
attorney’s fees equating to 27.9% of the settlement was
reasonable); Diaz v. Hillsborough Cnty. Hosp. Authority, No.
8:90-cv-120-T-25B,

2000

WL

1682918,

at

*7

(M.D.

Fla.

2000)(finding that reasonable attorneys’ fees, litigation
expenses, and costs equating to 30% of common fund to be fair
and reasonable); Hosier v. Mattress Firm, Inc., No. 3:10-cv294-J-32JRK, 2012 U.S. Dist. LEXIS 94958, at *16 (M.D. Fla.
June 8, 2012)(report and recommendation adopted on July 10,
2012)(approving attorney fees in FLSA collective action in
the amount of $480,000.00, which represented 30% of the common
fund of $1.6 million).
Moreover, the amount of attorneys’ fees requested under
the common fund recovery ($1,300,000.00) is less than the
$1,530,125.00

lodestar

figure

claimed

by

counsel

for

Plaintiff. (Doc. # 476 at 13-14, 22—24); see Su v. Elec. Arts,

8

Inc., No. 6:05-CV-131-ORL-28JGG, 2006 WL 4792780, at *5 (M.D.
Fla. Aug. 29, 2006)(report and recommendation adopted on
Sept. 20, 2006)(approving attorney fees in FLSA collective
action in the amount of $120,000.00, which represented 15.3%
of the common fund of $785,000.00).
As

noted

by

the

Su

court:

“In

determining

the

reasonableness of attorneys’ fees pursuant to a fee-shifting
statute or a statute with a fee-shifting provision, the
‘lodestar’ is generally recognized as a reasonable fee.” Id.3
Here,

the

allocated

lodestar

fee

to

attorneys’

the

is

$1,530,125.00.
fees

in

As
the

the

amount

settlement

($1,300,000.00) is less than the lodestar amount, the Court
concludes that $1,300,000.00 is a reasonable fee.
B. Litigation Costs
The FLSA provides for a mandatory award of “costs of the
action” to a prevailing plaintiff. See 29 U.S.C. § 216(b);
Glenn v. Gen. Motors Corp., 841 F. 2d 1567, 1575 (11th Cir.
1988)(stating that in awarding a judgment in FLSA cases,

3

The lodestar is calculated by multiplying the number of
hours reasonably expended by a reasonable hourly rate. Norman
v. Housing Auth. of City of Montgomery, 836 F.2d 1292, 1299
(11th Cir. 1988). A reasonable hourly rate is “the prevailing
market rate in the relevant legal community for similar
services by lawyers of reasonably comparable skills,
experience, and reputation.” Id. 

9

Courts shall award costs as permitted by 28 U.S.C. § 1920).
In

accordance

with

this

standard,

Plaintiff’s

counsel

requests for this Court to approve up to $70,000.00 in costs
to be paid from the common fund.
Upon review of the accompanying affidavits and exhibits
Plaintiff’s

counsel

has

provided,

the

Court

grants

Plaintiff’s unopposed request for out-of-pocket costs in this
action as such a request is reasonable and fair under the
circumstances. Therefore, the Court approves up to $70,000.00
in costs to be paid from the common fund, as agreed to by
Defendants.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED
Plaintiff/Class Counsel’s Unopposed Motion for Approval
of Attorneys’ Fees and Costs (Doc. # 476) is GRANTED.
DONE and ORDERED in Chambers in Tampa, Florida, this
17th day of November, 2014.

Copies: All Counsel of Record

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