PRESCOTT v. PRUDENTIAL INSURANCE COMPANY

Filing 185

FINAL ORDER APPROVING SETTLEMENT ANDATTORNEY FEES IN FLSA COLLECTIVE ACTION By JUDGE D. BROCK HORNBY. (dfr)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MICHELLE PRESCOTT,

ET. AL.,

PLAINTIFFS
v.
PRUDENTIAL INSURANCE
COMPANY OF AMERICA,
DEFENDANT

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NO. 2:09-cv-00322-DBH

FINAL ORDER APPROVING SETTLEMENT AND
ATTORNEY FEES IN FLSA COLLECTIVE ACTION
In response to my Preliminary Order on Joint Motion to Approve
Settlement of Collective Action dated December 20, 2011, the parties have
provided the information that I requested.

As a result, I now make the

following findings and rulings:
1.

The parties shall file an unsealed copy of the settlement agreement

by Friday, December 30, 2011.
2.

The plaintiffs’ counsel informed the court and opposing counsel

that, in compliance with Maine Rule of Professional Conduct 1.8(g) and its
Comment 13, he has written consents to the settlement from all the plaintiffs
following their knowledge of what each plaintiff individually will receive.

3.

The plaintiffs’ counsel has satisfied me that the fee request is

reasonable applying the Nilsen factors.1 See Nilsen v. York County, 400 F.
Supp. 2d 266 (D. Me. 2005).
a.

It is less than the fee agreed to individually by each member of
the collective action2;

b.

It is less than the market rate for such a lawsuit;

c.

It is substantially less than the lodestar amount based upon
counsel’s

rates

and

time

invested.

According

to

my

mathematics, the lodestar for Thompson, Bull, Fury, Bass &
MacColl is $527,063.50.3

According to my mathematics, the

lodestar for Timothy B. Fleming (when paid at the Maine rate

The plaintiffs state in their Motion to Approve Attorneys’ Fee Component of Settlement
Agreement that “[n]o rule or statute requires court approval of the fee recovery in this case. . .”
(Docket Item 182, p. 5.) That may be literally true, but the parties have requested court
approval of their settlement agreement, a condition to its enforceability according to caselaw
that I have cited in earlier rulings, and their settlement agreement explicitly includes attorney
fees. Thus, court approval of the fee recovery is required, albeit by caselaw and agreement.
2 Each member of the collective action signed a contingent fee agreement prior to signing the
settlement agreement. Each of these contingent fee agreements states that the plaintiff’s
attorney fees “shall not exceed” either one-third “of all amounts collected or court-awarded
attorneys’ fees, whichever amount is greater.” Paragraph 2 of the settlement agreement states
that, on behalf of the plaintiffs, the defendant Prudential will pay Thompson, Bull, Furey, Bass
& MacColl a total of $230,155. According to the plaintiffs’ Motion to Approve Attorneys’ Fee
Component of Settlement Agreement, this total includes $212,515 in attorney fees and $17,641
in expenses. Paragraph 2 of the settlement agreement also states that, on behalf of the
plaintiffs, Prudential will pay attorney Timothy B. Fleming and law firm Wiggins, Childs, Quinn
& Pantazis a total of $110,278. According to the plaintiffs’ subsequent motion, this total
includes $105,870 in attorney fees and $4,408 in expenses. Thus, the plaintiffs’ attorney fees
in this case total $318,385, which equals 31.3% of the entire award. This is less than the
maximum that their continent fee agreements allowed. When expenses are included, the
plaintiffs’ attorneys will receive a total of $340,433, or 33.5% of the entire plaintiff award.
3 This total is slightly less than the $527,151 lodestar that the plaintiffs attribute in their
motion to Thompson, Bull, Fury, Bass & MacColl.
1

2

certified as appropriate by Attorney Bull) and the firm of
Wiggins, Childs, Quinn & Pantazis is $310,000.4
Specifically, the fee request is as follows: The firm of Thompson, Bull, Furey,
Bass & MacColl requests $212,515. Attorney Timothy B. Fleming and the firm
of Wiggins, Childs, Quinn & Pantazis request a combined total of $105,870.
4.

The settlement amount that the individual plaintiffs are recovering

is reasonable. I have already ruled that settlement here is not an improper
discounting of the plaintiffs’ right to recover their Fair Labor Standards Act
(FLSA) wages in light of the proof problems. Now that I am satisfied that the
attorney fees that their lawyers are recovering are not only reasonable but also
below the market rates, I am satisfied that the plaintiffs are recovering a
reasonable amount on their FLSA claims.
Accordingly, the settlement agreement is APPROVED.
plaintiffs’ attorney fees and expenses are APPROVED.

Likewise, the

Once the settlement

agreement is filed unsealed, the Clerk’s Office shall dismiss the case with
prejudice as requested by the parties’ joint motion.
SO ORDERED.
DATED THIS 23RD DAY OF DECEMBER, 2011
/s/D. Brock Hornby
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

This total is less than the $346,500 lodestar that the plaintiffs attribute in their motion to
Fleming and Wiggins, Childs, Quinn & Pantazis.
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