Almodova et al v. City and County of Honolulu
Filing
74
ORDER GRANTING JOINT 68 MOTION FOR APPROVAL OF SETTLEMENT AND GRANTING PLAINTIFFS' 62 MOTION FOR APPROVAL OF ATTORNEY'S FEES AND COSTS. re: 72 Minutes, Set Detailed Order Pending Deadline. Follows oral order of 08/06/2012. Signed by J UDGE LESLIE E. KOBAYASHI on August 8, 2012. (bbb, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JONATHAN S. ALMODOVA, ET AL., )
)
Plaintiffs,
)
)
vs.
)
)
CITY AND COUNTY OF HONOLULU, )
)
)
Defendant.
_____________________________ )
CIVIL NO. 10-00355 LEK-RLP
ORDER GRANTING JOINT MOTION FOR APPROVAL
OF SETTLEMENT AND GRANTING PLAINTIFFS’ MOTION
FOR APPROVAL OF ATTORNEY’S FEES AND COSTS
Plaintiffs Jonathan S. Almodova, Randall Arakaki,
Wallace Change, Chad Giesseman, J. Craig Petersen, Jason Pistor,
Lisa Reed, Ronald L. Smith, and Robert Thomas, et al.,
(collectively, “Plaintiffs”) filed the Motion for Approval of
Attorney’s Fees and Costs (“Fee Motion”) on June 11, 2012.
no. 62.]
[Dkt.
Defendant City & County of Honolulu (“Defendant”) filed
a statement of position on June 26, 2012.
[Dkt. no. 65.]
Plaintiffs and Defendant (collectively, “the Parties”) filed a
Joint Motion for Approval of Settlement (“Joint Settlement
Motion”) on July 23, 2012.
[Dkt. no. 68.]
These matters came
before this Court for hearing on August 6, 2012.
Appearing on
behalf of Plaintiffs was Vladimir Devens, Esq., and appearing on
behalf of Defendant was Darin Leong, Esq.
After careful
consideration of the Fee Motion and Joint Settlement Motion,
supporting and opposing memoranda, and the arguments of counsel,
the Fee Motion and the Joint Settlement Motion are HEREBY GRANTED
for the reasons set forth below.
BACKGROUND
On June 28, 2010, Plaintiffs filed a complaint against
Defendant alleging violations of the Fair Labor Standards Act
(“FLSA”).
A number of plaintiffs have settled their claims
against Defendant with 143 plaintiffs remaining (“Remaining
Plaintiffs”).
On April 10, 2012, the Parties reached a
settlement that would resolve the claims of all Remaining
Plaintiffs in the instant case.
I.
Almodova I
In the preceding action, Almodova, et al. v. City &
County of Honolulu, CV 07-00378 DAE-LEK, the plaintiffs alleged
that Defendant violated the FLSA by: improperly calculating the
plaintiffs’ regular rate of pay, which is used to calculate
overtime pay; failing to compensate them for pre-shift and postshift periods of work and for working through unpaid meal
periods; failing to comply with the FLSA’s compensatory time off
provisions; failing to compensate them in a timely manner for
overtime work; and improperly classifying certain plaintiffs as
exempt from the FLSA.
2010 WL 1372298, at *1 (D. Hawai`i Mar.
31, 2010) (“Almodova I”).
Defendant made individual offers of settlement to 422
of the 463 plaintiffs, with different amounts offered to groups
2
of plaintiffs based upon their department and ranking or status.
Id. at *1 & n.2.
Each individual plaintiff independently chose
whether or not to accept his or her offer, with 280 of the 463
plaintiffs accepting.
Certain groups did not receive settlement
offers, specifically battalion chiefs in the fire department and
employees of in departments other than the police department or
the fire department.
Id. at *1.
The magistrate judge found the
settlements to be fair and reasonable and recommended approval of
the settlements.
Id. at *6.
Further, using the lodestar
analysis as a guide, the magistrate judge found that the
attorneys’ fees that Defendant agreed to pay and the attorneys’
fees which were to be deducted from the settlement amounts were
reasonable, and the magistrate judge recommended approval of the
attorneys’ fees attributable to the settling plaintiffs in
Almodova I.
Id. at *12-13.
The district judge issued the Order Adopting
Magistrate’s Findings and Recommendation on April 20, 2010.
07-00378 DAE-LEK (dkt. no. 198).]
[CV
After approval of the
settlements, the district judge approved the parties’ stipulation
to dismiss the action without prejudice and to allow the
remaining plaintiffs, who either did not receive settlement
offers or rejected the settlement offers they received, to refile their FLSA claims in a new action under the statute of
limitations applicable to CV 07-00378.
3
[Id., Stip. & Order to
Dismiss the Action Without Prejudice & Preserve the Statute of
Limitations, filed 6/21/10 (dkt. no. 199).]
The Stipulation and
Order also stated:
9.
For the purpose of attorney’s fees and
costs, Almodova I and Almodova II shall be treated
as a continuous action. The fee agreements signed
in Almodova I shall remain in full force and
effect for Almodova II. Attorney’s fees and costs
generated during Almodova I shall be recoverable
in Almodova II to the extent they would have been
recoverable if the action had continued under
Almodova I, whether pursuant to a fee agreement or
a statutory or other legal entitlement[.]
[Id. at 4.]
II.
Almodova II
The remaining 183 plaintiffs reasserted their claims in
the instant action, Almodova v. City & County of Honolulu, CV 1000355 LEK-RLP.
The complaint in the instant case alleges
violations identical to the violations of the FLSA claims alleged
in CV 07-00378.
2011 WL 4828708, at *2 (D. Hawai`i Sept. 30,
2011) (“Almodova II”).
On August 31, 2010, after engaging in
numerous settlement conferences, Defendant issued individual
Offers of Judgment to the 183 plaintiffs.
Plaintiffs’ counsel
communicated the offers to each plaintiff individually, and
forty-one accepted.
Id.
The parties filed a Joint Motion for
Approval of Offers of Judgment on August 4, 2011, which the Court
granted on September 30, 2011.
Id. at *1.
In the instant case, Plaintiffs filed the Fee Motion on
June 11, 2012, and Defendant filed a statement of position to the
4
Fee Motion on June 26, 2012 stating that Defendant does not
oppose the Fee Motion, provided that this Court approves the
underlying settlement agreement.
[Dkt. no. 65.]
The Parties
filed the Joint Settlement Motion on July 23, 2012.
PROPOSED SETTLEMENT
In the instant case, the Parties have entered into a
Settlement Agreement that would resolve the claims of all
Remaining Plaintiffs in Almodova II.1
The settlement requires
Defendant to pay a sum certain as damages, and it calls for the
Remaining Plaintiffs to attribute part of the settlement proceeds
to satisfy their attorneys’ fee obligations.
Fee Motion at 2.]
[Mem. in Supp. of
The Settlement has the following general
provisions:
•
Defendant will pay to each Plaintiff a gross
amount (as reflected in the Settlement), less
applicable payroll deductions. Defendant
will pay to Plaintiffs’ counsel an amount for
attorneys’ fees and costs that is equal to
33.33% of the gross amount.
•
Defendant will pay each Plaintiff directly by
check. Defendant will pay Plaintiffs’
counsel with a separate check. These
payments will be made after the Court
approves the settlement.
•
Defendant has acknowledged its obligations to
compensate employees for all hours of work
1
On July 24, 2012, the Court issued an order granting
Plaintiffs leave to file exhibits pertaining to the settlement
under seal. [Dkt. no. 70.] Plaintiffs filed the Settlement
Agreement as Exhibit 1 and the list of the settlement amounts for
each of the Remaining Plaintiffs as Exhibit 2. [Dkt. no. 71.]
5
that it suffers or permits them to perform.
[Mem. in Supp of Joint Settlement Motion at 8; Motion to File
Exhibits Pertaining to Settlement under Seal, filed 7/24/12 (dkt.
no. 71-1), Exh. 1 (“Settlement Agreement”) at 1-2, 4.]
JOINT MOTION FOR APPROVAL OF SETTLEMENT
The FLSA provides:
Any employer who violates the provisions of
section 206 or section 207 of this title shall be
liable to the employee or employees affected in
the amount of their unpaid minimum wages, or their
unpaid overtime compensation, as the case may be,
and in an additional equal amount as liquidated
damages. . . . The court in [an FLSA] action
shall, in addition to any judgment awarded to the
plaintiff or plaintiffs, allow a reasonable
attorney’s fee to be paid by the defendant, and
costs of the action. . . .
29 U.S.C. § 216(b).
As in Almodova I and Almodova II, the Court will review
the settlement and Plaintiffs’ attorneys’ fees and costs,
“according to the fairness standard set forth in the seminal
case, Lynn’s Food Stores, Inc. v. United States, 679 F.2d 1350
(11th Cir. 1982).”
See Almodova II, 2011 WL 4828708, at *3.
“Lynn’s Food requires the district court to ‘scrutiniz[e] the
settlement for fairness[,]’ and determine that the proposed
settlement ‘is a fair and reasonable resulution [sic] of a bona
fide dispute over FLSA provisions.’”
Id. (alterations in
Almodova II) (quoting 679 F.2d at 1353, 1355).
6
The Settlement Agreement between the Parties provides
that a portion of the settlement amount be allocated for an award
of Plaintiffs’ attorneys’ fees and costs.
This Court has
previously looked to the following factors in evaluating a
proposed class action settlement for overall fairness:
the strength of the plaintiffs’ case; the risk,
expense, complexity, and likely duration of
further litigation; the risk of maintaining class
action status throughout the trial; the amount
offered in settlement; the extent of discovery
completed and the stage of the proceedings; the
experience and views of counsel; the presence of a
governmental participant; and the reaction of the
class members to the proposed settlement.
Id. (some citations omitted) (quoting Hanlon v. Chrysler Corp.,
150 F.3d 1011, 1026 (9th Cir. 1998)).
Class actions and FLSA actions are inherently
different, and therefore not all of the factors apply.
The
majority of the factors, however, do apply and will be useful in
determining the fairness of the settlement in this case.
See id.
In the instant case, the Parties reassert similar arguments as in
Almodova I and Almodova II and contend that each of the factors
weigh in favor of finding the settlement to be fair and
reasonable.
[Mem. in Supp. of Joint Settlement Motion at 9-16.]
The Remaining Plaintiffs claims are the same as the claims this
Court addressed in Almodova II, therefore the Court relies on the
analysis previously set forth in Almodova II.
7
I.
Strength of Plaintiffs’ Case
This Court has reviewed the strengths and weaknesses of
the claims in this case in Almodova II and found that this factor
weighed in favor of approving the settlement.
Plaintiffs assert that some of their claims,
such as the regular rate and uncompensated work
claims, are well grounded in the law, but they
acknowledge that the factual elements of the
uncompensated work claims may be difficult to
prove. Further, a recent Ninth Circuit case found
the donning and doffing of uniforms and equipment,
one of the larger uncompensated work claims in CV
07-00378 and in the instant case, to be a
non-compensable activity under the FLSA when
police officers have the option of donning and
doffing at home. The Ninth Circuit has also held
that an employer is not required to provide
compensatory time off on the specific days that
the employee requests if the employer allows the
time off within a reasonable period thereafter.
Defendant has raised various defenses,
including the higher overtime threshold for police
officers and fire fighters, credits for overtime
payments that Defendant made, and the alleged
exemption from the FLSA for police sergeants,
police lieutenants, fire captains, fire battalion
chiefs, and police dispatch supervisors.
Plaintiffs also note that, even prior to CV 0700378, there was a similar lawsuit against
Defendant in 2006. It prompted Defendant to
institute certain policies to control overtime
work, and these policies could make it more
difficult for Plaintiffs to prove their case.
In light of the strengths and potential
weaknesses in Plaintiffs’ case, the Court finds
that the first factor weighs in favor of approving
the settlement.
Id. at *3-4 (citations omitted).
8
The Court finds that, for the same reasons, this factor
weighs in favor of approving the settlement of the Remaining
Plaintiffs’ claims.
II.
Risks of Further Litigation
Plaintiffs acknowledge that there is risk
inherent in all litigation, and the risk for each
of Plaintiffs’ claims varies for the reasons
discussed above. Plaintiffs also note that the
FLSA has only been applied to local and municipal
governments since 1985, and there is little case
law regarding FLSA claims by police officers and
firefighters, who work under unique circumstances.
This Court finds that these risks support
settlement approval.
Id. at *4.
The claims this Court discussed in Almodova II were the
same as the Remaining Plaintiffs’ claims; the Court therefore
finds that this factor weighs in favor of approving the
settlement.
III. Stage of Proceedings
In the instant case, the Parties have not conducted
further discovery since the filing of the complaint in the
instant case.
[Mem. in Supp. of Joint Settlement Motion at 13.]
The Parties anticipate that, if Plaintiffs’ claims were to
proceed, formal discovery including document requests,
interrogatories, and depositions would commence and the ensuing
attorneys’ fees and costs could quickly escalate for both
Parties.
The Parties have participated in numerous conferences
with the Court regarding the course of discovery, the case
9
schedule, and settlement discussions.
The Parties have conducted
sufficient discovery to allow a realistic evaluation of the case,
but significant discovery remains, as well as motions practice
and trial preparation, which could further increase the cost of
bringing the instant case to conclusion.
[Id. at 13-14.]
The
Court therefore finds that the stage of the proceedings and the
extent of discovery completed favor approval of the settlement.
IV.
Expense, Complexity, and Duration of Further Litigation
The Court finds that this factor weighs in favor of
settlement approval for the same reasons previously set forth by
this Court:
As previously noted above and in Almodova I,
there is significant discovery remaining in this
case, particularly because representative
plaintiffs have not been selected yet.
Plaintiffs’ counsel also anticipate extensive
dispositive motions in this case. If the case
proceeds to trial, the plaintiffs will likely
retain an expert witness to calculate damages.
Plaintiffs also believe that a trial in this case
would be lengthy and costly because it will
involve many witnesses. This Court therefore
finds that the expense, complexity, and likely
duration of further litigation favors settlement
approval.
Almodova II, 2011 WL 4828708, at *4.
V.
Amount Offered in Settlement
This Court has previously found in both Almodova I and
Almodova II that settlement amounts in a similar range for
individual plaintiffs were reasonable.
10
Plaintiffs contend that the settlement
amounts are reasonable because they mirror the
range offered in CV 07-00378, which were found to
be fair in Almodova I. 2010 WL 1372298, at *5.
This Court agrees that, because the plaintiffs
received a similar range of offers in the prior
action, Defendant has offered reasonable and fair
settlement amounts in the instant case. The Court
therefore finds that this factor favors approval
of the settlement.
Id.
In the instant case, the Court finds that Defendant has
offered reasonable settlement amounts, and therefore this factor
weighs in favor of approval of the settlement.
VI.
Experience and Views of Counsel
This Court has previously recognized that Plaintiffs’
counsel have extensive experience in FLSA litigation.
In
Almodova II, this Court found that:
Plaintiffs’ counsel have extensive experience
in FLSA litigation, and they believe that the
settlement is fair and reasonable and should be
approved. In Almodova I, the magistrate judge
found that both local counsel, Meheula & Devens,
LLP, and an Oregon law firm, Aitchison & Vick,
have extensive experience in complex litigation
and that their views weighed in favor of
settlement. [2010 WL 1372298, at *5.] This Court
therefore finds that the experience and views of
Plaintiffs’ counsel weigh in favor of settlement
approval.
Id. at *5.
For the reasons set forth above, the Court finds that
Plaintiffs’ counsel’s views and experience weigh in favor of
approving the settlement.
11
VII. Plaintiffs’ Reaction to the Settlement
The settlement in the instant case is contingent upon
ninety of the Remaining Plaintiffs accepting.
Agreement at 2.]
[Settlement
Previously, this Court held that individualized
decision making by plaintiffs weighed strongly in favor of
settlement approval.
Almodova I, 2010 WL 1372298, at *6;
Almodova II, 2011 WL 4828708, at *5.
The same holds true for the
Remaining Plaintiffs.
This Court therefore FINDS that all of the relevant
factors weigh in favor of determining that the settlement is
reasonable.
MOTION FOR APPROVAL FOR ATTORNEYS’ FEES AND COSTS
Insofar as the Parties have allocated a portion of the
settlement amount for Plaintiffs’ attorneys’ fees and expenses,
this Court must examine the reasonableness of the award before it
can grant approval of attorneys’ fees and costs in the instant
case.
In the Fee Motion, Plaintiffs seek approval of the
attorneys’ fee allocation.
When the Remaining Plaintiffs joined
the litigation, they each signed a contingency fee agreement
(“Fee Agreement”).2
The fee agreement contained the following
relevant provisions:
2. Client shall compensate Attorneys
for services rendered under this Agreement
2
The Fee Agreement is attached to the Fee Motion as Exhibit
2.
12
only if Client obtains a recovery by
settlement or judgement. . . .
FEE SCHEDULE
Recovery with or without court action,
the fee will be (based on gross amount
recovered) . . . 33 1/3% + state excise
tax + costs
. . . .
3. For purposes of computing Attorneys’
fees hereunder, the term “gross recovery”
shall mean the total of any and all economic
benefits conferred on Client as a result of
the Lawsuit, including . . . monetary
payments awarded by the Court or agreed to be
paid in settlement, including any amounts
owed by Client to Attorneys . . . .
. . . .
12. . . . Client authorizes the Employer
to deduct from the amount due Client under
any settlement or litigated decision, the
contingency fees due to Attorneys and to pay
such contingency fees directly to
Attorneys. . . .
[Fee Agreement at ¶¶ 2-3, 12.]
Plaintiffs contend that the fee agreement calls for
$263,330.00 in attorneys’ fees.
Further, Plaintiffs allege that
under the fee agreement, the Remaining Plaintiffs are also
responsible for paying 4.712% in General Excise Tax on the
$263,330.00, or $12,408.11.
[Mem. in Supp. of Fee Motion at 3.]
In addition, Plaintiffs argue that this Court recommended a
finding that the following hourly rates for Plaintiffs’
attorneys’ and support staff were reasonable in Almodova I:
13
Vlad Devens
Denise Asuncion
Andrea Rosehill
Lynn Kochi
Will Aitchison
Jeffrey Julius
Breanne Sheetz
Carol Green
Erin Hislope
Interview Staff
Anya King
Partner
Paralegal
Legal Assistant
Legal Assistant
Partner
Partner
Associate
Legal Assistant
Legal Assistant
$280
$75
$75
$50
$350
$285
$150
$85
$50
$105
$125
Data Analyst
[Id. at 3-4 (citing 2010 WL 1372298, at *12).]
Plaintiffs also
note that the district judge approved the recommendation as to
attorneys’ fees.
[Id. at 4.]
The Fee Motion states that parsing the attorney fees
attributable to the Remaining Plaintiffs is difficult due to the
litigation history.
In Almodova I, the class size was 463
plaintiffs with the 143 Remaining Plaintiffs making up 30.88% of
that class.
The Fee Motion states that the Remaining Plaintiffs,
therefore, should be assessed 30.88% of the fees and costs
charged up to June 21, 2010, when the Court approved the
settlement in Almodova I.
[Id. at 4-5; Fee Motion, Decl. of
Vladimir Devens (“Devens Decl.”) at ¶¶ 8-9.]
Further, at the
time of the Almodova II order, there was a total of 422
plaintiffs, with the 143 Remaining Plaintiffs making up 33.89% of
the plaintiffs.
The Fee Motion states that the Remaining
Plaintiffs should be assessed 33.89% of the attorneys’ fees and
costs accrued between June 21, 2010 and August 31, 2010 since the
Offers of Judgment in Almodova II were largely accepted by
14
September 1, 2010.
Decl. at ¶¶ 8-9.]
[Mem. in Supp. of Fee Motion at 5; Devens
Finally, the Fee Motion states that the
Remaining Plaintiffs should be assessed 100% of the attorneys’
fees and costs accrued after August 31, 2010.
[Mem. in Supp. of
Fee Motion at 5; Devens Decl. at ¶¶ 8-9.]
Plaintiffs argue that there is no reason for a downward
adjustment of the lodestar amount and that the Court should apply
a lodestar factor of at least one because of the highly
contingent nature of this litigation and the quality of the
result counsel obtained.
Further, Plaintiffs contend that the
provisions of the settlement calling for the payment of
attorneys’ fees and litigation costs is reasonable given the
complexity and demands of the litigation, and the Court should
approve the settlement.
I.
[Id. at 8-10.]
Attorneys’ Fees and Costs
In reviewing the proposed attorneys’ fees and costs for
reasonableness, this Court will use the principles of the
traditional lodestar method as a guide, and apply the same
analysis set forth in Almodova I and Almodova II.
2010 WL
1372298, at *6-12; 2011 WL 4828708, at *5-7.
A.
Reasonable Hourly Rate and Hours Reasonably Expended
Under the lodestar method, the court must determine a
reasonable fee by multiplying “the number of hours reasonably
expended on the litigation” by “a reasonable hourly rate.”
15
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
The Court must
then decide whether to adjust the lodestar amount based on an
evaluation of the factors articulated in Kerr v. Screen Extras
Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), which have not been
subsumed in the lodestar calculation.
214 F.3d 1115, 1119 (9th Cir. 2000).
Fischer v. SJB-P.D., Inc.,
The factors the Ninth
Circuit articulated in Kerr are:
(1) the time and labor required, (2) the novelty
and difficulty of the questions involved, (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) 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
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.
Kerr, 526 F.2d at 70.
Factors one through five have been
subsumed in the lodestar calculation.
Morales v. City of San
Rafael, 96 F.3d 359, 364 n.9 (9th Cir. 1996).
Further, the Ninth
Circuit, extending City of Burlington v. Dague, 505 U.S. 557, 567
(1992), held that the sixth factor, whether the fee is fixed or
contingent may not be considered in the lodestar calculation.
Davis v. City & Cnty. of San Francisco, 976 F.2d 1536, 1549 (9th
Cir. 1992), vacated in part on other grounds, 984 F.2d 345 (9th
Cir. 1993).
16
If this Court were determining the fee award under the
lodestar analysis, the Court would require counsel to submit
detailed records of all time billed in this case.
Plaintiffs’
counsel assert that the hours expended are reasonable due to the
complexity and demands of the litigation.
[Fee Motion, Decl. of
Will Aitchison (“Aitchison Decl.”) at ¶ 15; Devens Decl. at ¶
10.]
The Court notes that, previously in Almodova I and Almodova
II, the Court accepted Plaintiffs’ representation that all of
counsel’s time expended on this case was reasonable and
Almodova I, 2010 WL 1372298, at *10; Almodova II,
necessary.
2011 WL 4828708, at *6.
Further, in the instant case,
Plaintiffs’ counsel applied the hourly rates found reasonable in
Almodova I.
B.
[Aitchison Decl. at ¶ 15; Devens Decl. at ¶ 10.]
Amount of the Award
Plaintiffs’ counsel divided their attorneys’ fees
during three time periods:
(1) the time period up to and
including June 21, 2010, when this Court approved a group of
settlements in Almodova I (“Group 1”); (2) the time period
between June 22, 2010 and August 31, 2010, when this Court
approved the Offers of Judgement in Almodova II (“Group 2”); and
(3) the time period after August 31, 2010 (“Group 3”).
[Aitchison Decl. at ¶ 14; Devens Decl. at ¶ 8.]
As previously
stated, the Remaining Plaintiffs in the instant case make up
30.88% of the Plaintiffs in Group 1, 33.89% of the Plaintiffs in
17
Group 2; and 100% of the Plaintiffs in Group 3.
¶ 9.]
[Devens Decl. at
If this Court applied the lodestar analysis in this case,
this Court would find the following fees to be reasonable, as set
forth in the tables below.
1.
Group 1
Group 1 consists of the plaintiffs in the prior action
who incurred attorneys’ fees and costs up to and including
June 21, 2010.
Attorney/Staff
Rate
Hours
Subtotal
Meheula & Devens
Vlad Devens-partner
Denise Asuncion-legal assist.
Andrea Rosehill-legal assist.
Lynn Kochi-legal assist.
$280
$ 75
$ 75
$ 50
331.25
125.00
20.25
106.00
Subtotal
$ 92,750.00
$ 9,375.00
$ 1,518.75
$ 5,300.00
$108,943.75
Aitchison & Vick
Will Aitchison-partner
Jeffrey Julius-partner
Breanne Sheetz-associate
Anya King-data analyst
Marc Fuller-data analyst
Carol Green-legal assist.
Erin Hislope-legal assist.
Survey Staff
$350
$285
$150
$125
$125
$ 85
$ 50
$105
241.30
89.85
459.58
143.20
175.50
152.85
162.30
1126.15
Subtotal
Grand Total
$ 84,455.00
$ 25,607.25
$ 68,937.00
$ 17,900.00
$ 21,937.50
$ 12,992.25
$ 8,115.00
$118,245.75
$358,189.75
$467,133.50
Almodova II, 2011 WL 4828708, at *6.3
3
The Court is applying the amounts for attorneys’ fees as
calculated in Almodova II. The hours represented in the Fee
Motion are the same, however, the Court notes that there are
errors in the calculations of the attorneys’ fees attributable to
those hours.
18
The Remaining Plaintiffs constitute 30.88% of Group 1.
[Devens Decl. at ¶ 9.]
The Remaining Plaintiffs are therefore
responsible for 30.88% of the total attorneys’ fees for Group 1,
amounting to $144,250.82.
2.
Group 2
Group 2 consists of the plaintiffs who incurred
attorneys’ fees and costs on the matter from June 22, 2010
through August 31, 2010.
Attorney/Staff
Meheula & Devens
Vlad Devens-partner
Rate
Hours
$280
4.00
Aitchison & Vick
Will Aitchison-partner
Breanne Sheetz-associate
Anya King-data analyst
Carol Green-legal assist.
$350
$150
$125
$ 85
2.90
34.592
83.90
4.21
Subtotal
Grand Total
Subtotal
$
1,120.00
$ 1,015.00
$ 5,188.80
$ 10,487.50
$
357.85
$ 17,049.15
$ 18,169.15
Almodova II, 2011 WL 4828708, at *6.
The Remaining Plaintiffs constitute 33.89% of Group 2.
[Devens Decl. at ¶ 9.]
The Remaining Plaintiffs are therefore
responsible for 33.89% of the total attorneys’ fees for Group 2,
amounting to $6,157.52.
3.
Group 3
Group 3 consists of the Remaining Plaintiffs, who
incurred attorneys’ fees and costs in the instant case after
August 31, 2010.
19
Attorney/Staff
Meheula & Devens
Vlad Devens-partner
Denise Asuncion-paralegal
Rate
Hour
$280
$ 75
163.50
55.00
Subtotal
$ 45,780.00
$ 4,125.00
$ 49,905.00
Aitchison & Vick
Will Aitchison-partner
Breanne Sheetz-associate
Anya King-data analyst
$350
$150
$125
156.02
66.52
29.00
Subtotal
Grand Total
$ 54,607.00
$ 9,978.00
$ 3,625.00
$ 68,210.00
$118,115.00
[Aitchison Decl. at ¶ 15; Devens Decl. at ¶ 10.]
Subtotal
Since the
Remaining Plaintiffs constitute 100% of Group 3, the Remaining
Plaintiffs are therefore responsible for 100% of the total
attorneys’ fees for Group 3.
C.
Summary of Attorneys’ Fees
If the Court applied the lodestar analysis in this
case, the total unadjusted lodestar award would be $268,541.34.
Generally, it is common practice for district courts to award
general excise tax when awarding attorney’s fees.
See, e.g.,
Donkerbrook v. Title Guar. Escrow Servs., Inc., Civ No. 10-00616
LEK-RLP, 2011 WL 3649539, at *9-10 (D. Hawai`i Aug. 18, 2011);
Shea v. Kahuku Hous. Found., Inc., Civ. No. 09-00480 LEK-RLP,
2011 WL 1261150, at *8 (D. Hawai`i Mar. 31, 2011).
Further, as
previously stated, Plaintiffs allege that under the fee
agreement, the Remaining Plaintiffs are also responsible for
paying 4.712% in general excise tax on the $263,330.00, or a
total of $12,408.11.
[Mem. in Supp. of Fee Motion at 3; Fee
Agreement at ¶ 2.]
20
The unadjusted lodestar amount is greater than the
contingent fee agreement amount of $263,330.00.
of Fee Motion at 8.]
[Mem. in Supp.
Both the lodestar amount and the amount in
the settlement only take into account the time that Plaintiffs’
counsel worked prior to the filing of the Fee Motion, thus, the
time they spent preparing the Fee Motion and any time that they
will spend in the settlement approval process was not included in
the analysis.
Additionally, the calculations do not include the
time that Plaintiffs’ counsel will spend in the post-settlement
interview process called for by the Settlement Agreement.4
[Devens Decl. at ¶ 11.]
Having compared the amount that this Court could award
in this case under the lodestar analysis with the amount that the
Fee Agreement calls for, this Court FINDS that the award of
attorneys’ fees under the Fee Agreement is manifestly reasonable.
II.
Costs
Pursuant to the Fee Agreement, Plaintiffs seek
$263,330.00, plus $12,408.11 in general excise tax, for a total
of $275,738.11.
At the hearing on the motions, Plaintiffs’
counsel clarified that this amount represents the Remaining
Plaintiffs’ total outstanding obligation to Plaintiffs’ counsel.
4
Plaintiffs’ counsel anticipates that at least another
fifty hours will be spent preparing the Remaining Plaintiffs for
the post-settlement interviews and representing them during the
interviews. [Devens Decl. at ¶ 11.]
21
In other words, the amount includes both attorneys’ fees and
costs.
Thus, although Plaintiffs presented information about the
litigation costs that Plaintiffs’ counsel incurred for each of
the three groups, [Mem. in Supp. of Fee Motion at 6,] this Court
need not address the reasonableness of those costs because this
Court has already found that the amount provided under the Fee
Agreement is reasonable based on the amount of attorneys’ fees
that this Court could have awarded under the lodestar analysis.
The Court therefore FINDS that the $275,738.11 provided
for under the Fee Agreement, which represents the Remaining
Plaintiffs’ attorneys’ fees and costs, is manifestly reasonable.
The Court GRANTS approval of the attorneys’ fees and costs
attributable to the Remaining Plaintiffs in this case.
In light of this Court’s previous findings that all of
the relevant factors favor approval of the settlement, and in
light of this Court’s approval of the attorneys’ fees and costs
attributable to the Remaining Plaintiffs, this Court GRANTS
approval of the Parties’ settlement.
CONCLUSION
On the basis of the foregoing, Plaintiffs’ Motion for
Approval of Attorney’s Fees and Costs, filed June 11, 2012, and
the Parties’ Joint Motion for Approval of Settlement, filed
June 23, 2012, are HEREBY GRANTED.
22
The Court ORDERS the Parties to perform their duties
and obligations under the Settlement Agreement.
Further, the
Court ORDERS Plaintiffs’ counsel to file a report regarding the
distribution of the settlement amounts within sixty (60) days
after the payment of the settlement amounts.
Upon receipt of
such report and approval by the Court and the Parties, this Court
will dismiss the Remaining Plaintiffs’ claims against Defendant
with prejudice.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, August 8, 2012.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
JONATHAN S. ALMODOVA, ET AL. V. CITY AND COUNTY OF HONOLULU;
CIVIL 10-00355 LEK-RLP; ORDER GRANTING JOINT MOTION FOR APPROVAL
OF SETTLEMENT AND GRANTING PLAINTIFFS’ MOTION FOR APPROVAL OF
ATTORNEY’S FEES AND COSTS
23
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