Akins et al v. Worley Catastrophe Response, LLC et al

Filing 329

ORDER ORDER AND REASONS ON MOTION. For all of the foregoing reasons, IT IS ORDERED that the joint motion to approve settlement is GRANTED as to all plaintiffs except Ronald Sorenson, Jr. (whose claims have been preserved and severed), but only as mod ified above concerning the amount of approved attorney's fees and resulting recalculation of the increased amounts to be paid to participating plaintiffs. IT IS FURTHER ORDERED that this case is hereby dismissed, each party to bear its own fees and costs except as provided in the confidential settlement agreement, without prejudice to the rights of the parties to move for summary judgment seeking to enforce the settlement or to reopen the matter if settlement is not consummated, as provided in Local Rule 41.2. The court also retains jurisdiction over the parties and their confidential settlement agreement, including the fee-sharing agreement among plaintiffs attorneys, for purposes of enforcing such agreements should any controversy ar ise about the terms of the agreements or any party's performance of its obligations thereunder for a reasonable time after the final payment to any party is due to be paid under the confidential settlement agreement. IT IS FURTHER ORDERED that, upon the court's receipt of a joint motion to dismiss to be filed by the parties no later than 60 days after the disbursement of the balance of the payments as specified in the confidential settlement agreement, the court will enter a final orde r dismissing with prejudice all claims of all plaintiffs in this action, each party to bear its own fees and costs except as provided in the confidential settlement agreement, except that the claims of any non-participating plaintiffs as defined in t he confidential settlement agreement shall be dismissed without prejudice to any rights such non-participating plaintiffs may have to refile such claims in the United States District Court for the Eastern District of Louisiana. The parties shall iden tify in their joint motion to dismiss the names of any non-participating plaintiffs, or shall indicate that there are no non-participating plaintiffs, as the case may be. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 4/11/14. (tbl) (Additional attachment(s) added on 4/14/2014: # 1 Unredacted Version) (bbc). (Main Document 329 replaced on 4/14/2014) (bbc).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOHN AKINS ET AL.

CIVIL ACTION

VERSUS

NO. 12-2401

WORLEY CATASTROPHE
RESPONSE, LLC ET AL.

MAGISTRATE JUDGE
JOSEPH C. WILKINSON, JR.

ORDER AND REASONS ON MOTION
All of the parties in this matter, except Ronald Sorenson, Jr., who is currently
proceeding pro se, have filed a Joint Motion to Approve Settlement and for Conditional
Dismissal. Record Doc. No. 328. They also submitted for my in camera review their
confidential settlement agreement and attached exhibits, including a detailed breakdown
of the amounts that will be paid to each participating plaintiff and the voluminous time and
task description records of plaintiffs’ counsel in support of the attorney’s fees provision in
the proposed settlement agreement.
This matter was previously referred to a United States Magistrate Judge for all
proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c) upon written
consent of all parties. Record Doc. No. 26. Having considered the motion and its
attachments and for the following reasons, the court grants the motion and approves the
proposed settlement, but only subject to the modifications set out in this order.
As an initial matter, because plaintiff Sorenson is no longer represented by plaintiffs’
counsel, Record Doc. Nos. 323 and 324, has not participated in the settlement discussions
and will not participate in the settlement, the parties have requested that his individual

claims be preserved by severing them from this collective action, so that Sorenson’s claims
may proceed separately. The court approves this request. Accordingly,
IT IS ORDERED that the claims of plaintiff Ronald Sorenson, Jr., are specifically
preserved and are hereby SEVERED from the above-captioned case, so that they may be
prosecuted and resolved as an independent and individual action, to be assigned a new pretrial schedule and trial date in accordance with additional orders of the court that will be
separately entered.
“Because this case arises under the Fair Labor Standards Act, the Court must
scrutinize the settlement for fairness before issuing its approval.” Domingue v. Sun Elec.
& Instrumentation, Inc., No. 09-682, 2010 WL 1688793, at *1 (M.D. La. Apr. 26, 2010)
(Vance, J.) (citing 29 U.S.C. § 201 et seq.; Schulte v. Gangi, 328 U.S. 108, 113 n.8 (1946);
Lynn’s Food Stores, Inc. v. United States, 679 F.2d 1350, 1352-55 (11th Cir. 1982)).
Before approving a settlement in an FLSA collective action, the court must determine
whether (1) the settlement involves the resolution of a bona fide dispute over an FLSA
provision and (2) the settlement is fair and reasonable. Lynn’s Food Stores, 679 F.2d at
1352-55; Jarrad v. S. Shipbldg. Corp., 163 F.2d 960, 960 (5th Cir. 1947); Domingue, 2010
WL 1688793, at *1 (citing Lynn’s Food Stores, 679 F.2d at 1355); Liger v. New Orleans
Hornets NBA Ltd. P’ship, No. 05-1969, 2009 WL 2856246, at *1 (E.D. La. Aug. 28, 2009)
(Berrigan, J.) (citing Lynn’s Food Stores, 679 F.2d at 1355; Collins v. Sanderson Farms,
Inc., 568 F. Supp. 2d 714, 717 (E.D. La. 2008) (Berrigan, J.); Camp v. Progressive Corp.,
No. 01-2680, 2004 WL 2149079, at *4 (E.D. La. Sept. 23, 2004) (Wilkinson, M.J.)).
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Although the provisions of Fed. R. Civ. P. 23, which governs class actions, do not
apply to collective actions under the FLSA, cases interpreting Rule 23(e) are analogous and
applicable to the instant FLSA action. Id. at *2 (citing Hitchcock v. Orange County, No.
604CV1722ORL28JGG, 2006 WL 3614925 (M.D. Fla. Dec. 11, 2006); Brask v. Heartland
Auto. Servs., Inc., No. 06-CV-00011, 2006 WL 2524212 (D. Minn. Aug. 15, 2006); Camp,
2004 WL 2149079, at *5). In determining whether a settlement is fair, adequate and
reasonable, the court should consider the following six factors:
(1) the existence of fraud or collusion behind the settlement; (2) the
complexity, expense, and likely duration of the litigation; (3) the stage of the
proceedings and the amount of discovery completed; (4) the probability of
plaintiffs’ success on the merits; (5) the range of possible recovery; and (6)
the opinions of the class counsel, class representatives, and absent class
members.
Reed v. Gen. Motors Corp., 703 F.2d 170, 172 (5th Cir. 1983) (citing Parker v. Anderson,
667 F.2d 1204, 1209 (5th Cir. 1982)); accord Liger, 2009 WL 2856246, at *2; Collins, 568
F. Supp. 2d at 722.
Having reviewed the record as a whole, I find that the instant action presents bona
fide disputes over several FLSA provisions. On their face, “disagreements over ‘hours
worked or compensation due’ clearly establishes (sic) a bona fide dispute. The institution
of a federal court litigation followed [by] aggressive prosecution and strenuous defense
demonstrates the palpable bona fides of this dispute.” Bredbenner v. Liberty Travel, Inc.,
No. 09-905, 2011 WL 1344745, at *18 (D.N.J. Apr. 8, 2011) (quoting Hohnke v. United
States, 69 Fed. Cl. 170, 175 (Fed. Cl. 2005)) (citing D.A. Schulte, Inc. v. Gangi, 328 U.S.

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108, 113 n.8 (1946); Lynn’s Food Stores, 679 F.2d at 1354); accord Liger, 2009 WL
2856246, at *3 (citing Hohnke, 69 Fed. Cl. at 175). This court has observed both aggressive
prosecution and strenuous defense in this case. Thus, the first prong of the settlement
approval process is satisfied.
In addition, considering all of the Reed factors, 703 F.2d at 172, I find that the
proposed settlement is fair, reasonable and adequate to the collective action members. The
court may presume that a proposed settlement is fair and reasonable when it is the result
of arm’s-length negotiations. 4 Newberg on Class Actions § 11.41 (4th ed.) (avail. on
Westlaw without pagination; database updated Dec. 2013); accord Liger, 2009 WL
2856246, at *3; Collins, 568 F. Supp. 2d at 725. While approval of a proposed settlement
is discretionary, “it is clear that the court should not give rubber-stamp approval.”
Newberg on Class Actions § 11.41. There is also a presumption that no fraud or collusion
occurred between counsel, in the absence of any evidence to the contrary. Id. § 11.51;
accord Liger, 2009 WL 2856246 at *3; Collins, 568 F. Supp. 2d at 725.
In the instant case, no evidence refutes these presumptions. On the contrary, the
evidence and the court’s record and observations establish that the parties conducted
extensive settlement discussions, including several additional settlement conferences
conducted by me, that led to finalization of the settlement agreement, following substantial
discovery. The settlement agreement treats all collective action members uniformly.
Benefits will be distributed based on objective criteria of employment status, wages and
the amount of time worked.
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Reasonable additional amounts are awarded to collective action representative Akins
and other plaintiffs who participated directly in depositions and discovery. Such incentive
awards
are not uncommon in class action litigation and particularly where . . . a
common fund has been created for the benefit of the entire class. The
purpose of these payments is to compensate named plaintiffs for the services
they provided and the risks they incurred during the course of class action
litigation, and to reward the public service of contributing to the enforcement
of mandatory laws.
Sullivan v. DB Invs., Inc., 667 F.3d 273, 333 n.65 (3d Cir. 2011) (quotations and citations
omitted); accord Henderson v. Eaton, No. 01-0138, 2002 WL 31415728, at *6 (E.D. La.
Oct 25, 2002) (Vance, J.) (citing In re S. Ohio Corr. Facility, 175 F.R.D. 270, 272-73 (S.D.
Ohio 1997)).
Moreover, the complexity, expense and duration of the litigation, the late stage of
the proceedings and the amount of discovery in advance of a looming discovery deadline
and in preparation for a firm trial date less than two months away are all factors that weigh
heavily in favor of finding that the settlement is fair and reasonable. This lawsuit was filed
more than 18 months ago. A collective action was conditionally certified, and the court
ordered that notice be given to potential collective action members that they must opt in to
the case in writing. The discovery process has been lengthy and involved.
A jury trial estimated to last two weeks is scheduled for June 2, 2014, with a final
pretrial conference set for May 15, 2014. Extensive motion practice was anticipated before
the final pretrial conference. Trial in this matter would be not only lengthy, but also

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complicated and expensive. “Issues of decertification and dispositive motions were avoided
because of the progress of settlement negotiations.” Collins, 568 F. Supp. 2d at 726. These
factors weigh in favor of approving the settlement.
The probability of plaintiffs’ success on the merits, including much uncertainty
about the outcome, weighs heavily in favor of approving the settlement agreement. The
settlement amounts to be paid to each participating plaintiff, which have been set out in
particularized detail to the court in Exhibit A to the Confidential Settlement Agreement, are
within the range of possible recovery and reflective of both the similarities and differences
between the positions of the plaintiffs in this case and the similar, previous case of Altier
v. Worley Catastrophe Response, LLC, C.A. No. 11-241 c/w 11-242, over which I presided
and the settlement of which I approved.
The parties join in requesting approval of the settlement, which was arrived at after
extensive negotiation. “The Court is entitled to rely on the judgment of experienced counsel
in its evaluation of the merits of a class action settlement.” Liger, 2009 WL 2856246, at
*4 (citing Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977)). Although a potential
conflict of interest always exists between an attorney and members of a collective action,
id. (citing City of Detroit v. Grinnell Corp., 495 F.2d 448, 462 (2d Cir. 1974); In re
Employee Benefit Plans Sec. Litig., No. 3-92-708, 1993 WL 330595, at *5 (D. Minn.
1993)), I find that plaintiffs’ counsel have worked diligently and in good faith to secure a
reasonable compromise.

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The proposed settlement agreement includes a provision for plaintiffs’ counsel to
receive 25 percent of the total settlement amount as attorney’s fees, plus a specified amount
for costs. Record Doc. No. 328-1 at p. 1. Exhibit A to the motion asserts that “[b]ecause
the time expended by Class Counsel during the prosecution of this case exceeds the 25%
of common fund amount, Class Counsel will not be requesting an upward departure.”
Record Doc. No. 328-1. Although Worley does not object to the requested fees or costs,
I conclude after my review of the extensive evidentiary submissions concerning attorney’s
fees that the above-quoted statement in Exhibit A is inaccurate in that the time documented
in the evidence multiplied by the hourly rates requested does not exceed 25 percent. Thus,
an attorney’s fees amount less than 25 percent will be approved as follows.
The methods used by various federal courts to assess reasonable attorney’s fees in
a class or collective action involving a common settlement fund
include the ‘lodestar’ method, which entails multiplying the reasonable hours
expended on the litigation by an adjusted reasonable hourly rate; the
percentage method, in which the Court compensates attorneys who recovered
some identifiable sum by awarding them a fraction of that sum; or, more
recently, a combination of both methods in which a percentage is awarded
and checked for reasonableness by use of the lodestar method.
In re Vioxx Prods. Liab. Litig., 760 F. Supp. 2d 640, 651 (E.D. La. 2010) (Fallon, J.)
(citation omitted). Under any of these methods, “the ultimate goal is reasonableness.” Id.
at 650-51.
The Manual on Complex Litigation states that a fee of 25 percent of a common fund
“‘represents a typical benchmark’” in common fund cases, while the “Ninth Circuit has

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adopted a benchmark of 25% in common fund cases” and common fee awards in securities
suits “generally fall within the 20 to 33 per cent range.” In re OCA, Inc. Sec. & Derivative
Litig., No. 05-2165, 2009 WL 512081, at *19 (E.D. La. Mar. 2, 2009) (Vance, J.) (quoting
Manual on Complex Litigation (4th) § 14.121)) (citing Staton v. Boeing Co., 327 F.3d 938,
968 (9th Cir. 2003); Newberg on Class Actions § 14.6 (4th ed.)). However, the Fifth
Circuit has traditionally used the lodestar method to calculate reasonable attorney’s fees
in all types of cases.
While the United States Supreme Court has approved the percentage
method in common fund cases, it has never formally adopted the lodestar
method in common fund cases. Conversely, the Fifth Circuit appears to be
the only Court of Appeals that has not explicitly endorsed the percentage
method. However, neither has the Fifth Circuit “explicitly disapproved of the
percentage method of calculating fees in common fund cases.” Therefore,
the Fifth Circuit appears to tolerate the percentage method, so long as the
Johnson framework is utilized to ensure that the fee awarded is reasonable.
In re Vioxx, 760 F. Supp. 2d at 651 (quoting In re OCA, Inc. Sec. & Derivative Litig., 2009
WL 512081, at *18) (citing Blum v. Stenson, 465 U.S. 886, 900 n.16 (1984); Strong v.
BellSouth Telecomms., Inc., 137 F.3d 844, 851-52 & n.5 (5th Cir. 1998); Forbush v. J.C.
Penney Co., 98 F.3d 817, 823-25 (5th Cir. 1996); Camden I Condo. Ass’n v. Dunkle, 946
F.2d 768, 773-74 (11th Cir. 1991); In re Prudential-Bache Energy Income P’ships Sec.
Litig., MDL No. 888, 1994 WL 150742 (E.D. La. Apr. 13, 1994) (Livaudais, J.); Manual
for Complex Litigation (Fourth) § 14.121 (2004)). The Fifth Circuit has stated that “[t]his
circuit requires district courts to use the ‘lodestar method’ to assess attorneys’ fees in class
action suits.” In re High Sulfur Content Gasoline Prods. Liab. Litig., 517 F.3d 220, 228

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(5th Cir. 2008) (emphasis added). The lodestar amount “is presumptively reasonable and
should be modified only in exceptional cases.” Watkins v. Fordice, 7 F.3d 453, 457 (5th
Cir. 1993) (citing City of Burlington v. Dague, 505 U.S. 557, 562 (1992)); accord Perdue
v. Kenny A., 130 S. Ct. 1662, 1669, 1673 (2010); Smith & Fuller, P.A. v. Cooper Tire &
Rubber Co., 685 F.3d 486, 490 (5th Cir. 2012); Jimenez v. Wood Cnty., 621 F.3d 372, 37980 (5th Cir. 2010).
The lodestar amount is calculated by multiplying the reasonable number of hours
expended by counsel by their reasonable hourly rates. In this case, plaintiffs’ counsel have
submitted voluminous verified time and task description materials establishing that they
expended a total of 5,283.80 hours of time in the prosecution of this case. This total of
hours is somewhat less than but comparable to the number of hours expended and approved
in the similar and somewhat related Altier case, C.A. No. 11-241 c/w 11-242, referenced
by counsel in their Exhibit A to the joint motion. Record Doc. No. 312 at p. 51 in C.A. No.
11-241. Considering the wide variety and scope of the tasks reported in these materials,
including extensive discovery and settlement negotiations, the large number of opt-in
plaintiffs, the complexity of the case and its duration, I find that this number of hours was
reasonably expended in this matter.
As to the hourly rates charged by plaintiffs’ attorneys and paralegals, I apply the
same range of rates which were applied and approved by me in the similar and somewhat
related Altier case, C.A. No. 11-241 c/w 11-242, in which all but one of the attorneys who
now seek fees also worked, as referenced by counsel in their Exhibit A to the joint motion
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and as set out in my order approving the Altier settlement, Record Doc. No. 312 at p. 48
in C.A. No. 11-241. For the same reasons contained in the Altier order approving that
settlement, with the three modifications set out in the following paragraphs, I find that the
hourly rates attributed to each lawyer and paralegal who worked on the Akins matter are
also reasonable in this case.

The first of these three attorney’s fee modifications concerns Paul Rinnan, who
was approved more than two years ago to recover fees at the low associate’s rate of $150
per hour in Altier. He now seeks fees concerning the vast majority of his time at the rate
of $200 per hour. I find that, in light of his increased experience of more than two
additional years of law practice since the Altier award, an increased rate of $200 per hour
for Rinnan is reasonable.
Similarly, the second modification from the Altier award is for paralegals of the
Starzyk law firm, whose hourly rates have moderately increased during the two years
since the Altier award to hourly rates ranging in the $115-$120 per hour range, which I
also find are reasonable rates for paralegals in the relevant legal market (the New Orleans
area) for persons of their levels of experience.
The third modification concerns attorney Megan M. Mitchell, who was Megan
McGregor at the time of the Altier award and who now seeks fees at the rates of $175 per
hour for 204.5 hours of work and $190 per hour for 74.55 hours of work. For the
following reasons, I find those hourly rates excessive. At the time of the Altier award,

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Mitchell was a law clerk who was approved by me to receive fees in the amount of $105
per hour. Altier, C.A. No. 11-241 Record Doc. No. 312 at p. 49. According to the website
of the State Bar of Texas, she did not become a lawyer licensed to practice law until
November 1, 2013, less than six months ago. The evidence submitted to me in
connection with the current plaintiffs’ fee approval application establishes that 203 of the
total 279.05 hours worked by her on this matter occurred before she was licensed to
practice law, at a time when she must have continued to work only as a law clerk, not a
lawyer. Thus, I will approve her time for payment only at the highest current hourly rate
for paralegals and/or law clerks reflected in the billing records of her employer, the
Starzyk law firm, which is $120 per hour. The evidence establishes that after Mitchell
became licensed to practice law on November 1, 2013, she worked an additional 76.05
hours on this matter as a beginning associate with less than six months of actual law
practice experience. For these hours, I will approve only a rate of $160 per hour,
representing a small increase in the hourly rate that was awarded for Rinnan in the Altier
case two years ago, when he was a junior associate with little more experience than
Mitchell. At these lower rates, the amount I will approve for payment of Mitchell’s time
is reduced by $13,424.00, from the total of $49,952.00 requested in the submissions of
the Starzyk law firm to a total of $36,528.00.
According to the calculations submitted by plaintiffs’ counsel in their “Summary of
Exhibit D” accompanying their voluminous, detailed evidence supporting their fee

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For all of the foregoing reasons, IT IS ORDERED that the joint motion to approve
settlement is GRANTED as to all plaintiffs except Ronald Sorenson, Jr. (whose claims
have been preserved and severed), but only as modified above concerning the amount of
approved attorney’s fees and resulting recalculation of the increased amounts to be paid to
participating plaintiffs.
IT IS FURTHER ORDERED that this case is hereby dismissed, each party to bear
its own fees and costs except as provided in the confidential settlement agreement, without
prejudice to the rights of the parties to move for summary judgment seeking to enforce the
settlement or to reopen the matter if settlement is not consummated, as provided in Local
Rule 41.2. The court also retains jurisdiction over the parties and their confidential
settlement agreement, including the fee-sharing agreement among plaintiffs’ attorneys, for
purposes of enforcing such agreements should any controversy arise about the terms of the
agreements or any party’s performance of its obligations thereunder for a reasonable time
after the final payment to any party is due to be paid under the confidential settlement
agreement. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 114 S. Ct. 1673
(1994).
IT IS FURTHER ORDERED that, upon the court’s receipt of a joint motion to
dismiss to be filed by the parties no later than 60 days after the disbursement of the balance
of the payments as specified in the confidential settlement agreement, the court will enter
a final order dismissing with prejudice all claims of all plaintiffs in this action, each party
to bear its own fees and costs except as provided in the confidential settlement agreement,
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except that the claims of any non-participating plaintiffs as defined in the confidential
settlement agreement shall be dismissed without prejudice to any rights such
non-participating plaintiffs may have to refile such claims in the United States District
Court for the Eastern District of Louisiana. The parties shall identify in their joint motion
to dismiss the names of any non-participating plaintiffs, or shall indicate that there are no
non-participating plaintiffs, as the case may be.

11th
New Orleans, Louisiana, this _________ day of April, 2014.

JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE

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