Edelen v. American Residential Services, LLC et al

Filing 39

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 7/22/13. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
CHRISTOPHER EDELEN
:
v.

:

Civil Action No. DKC 11-2744

:
AMERICAN RESIDENTIAL SERVICES,
LLC., et al.

:

MEMORANDUM OPINION
Presently pending in this wage-and-hour law case is the
unopposed motion (ECF No. 34) filed by Plaintiff Christopher
Edelen seeking an order that:

(1) grants final approval of a

settlement agreement between Plaintiff and Defendants American
Residential

Services,

LLC

(d/b/a/

“ARS®/Rescue

Rooter®”)

and

American Residential Services Management Corporation (together,
“Defendants”); (2) grants final certification of the settlement
class

pursuant

to

Fed.R.Civ.P.

23;

(3)

grants

final

certification of this matter as a collective action pursuant to
29 U.S.C. § 216(b); (4) approves a payment of $32,000.00 to
class counsel for their attorneys’ fees and litigation expenses;
(5) approves an incentive payment of $1,000.00 to Mr. Edelen;
and (6) dismisses this action with prejudice, with the court to
retain jurisdiction over the interpretation, enforcement, and
implementation of the settlement agreement and the final order.
For the following reasons, the motion will be granted.

I.

Background
From approximately June 2010 until July 2011, Mr. Edelen

worked as an HVAC technician at a facility in Laurel, Maryland,
owned by Defendants.
collective

action

On September 23, 2011, Mr. Edelen filed a

complaint

against

Defendants,

alleging

two

violations of the Fair Labor Standards Act (“the FLSA”), 29
U.S.C. §§ 201 et seq.

(ECF No. 1).

First, Mr. Edelen alleged

that Defendants violated the FLSA in calculating his overtime
rate

of

pay

by

using

only

his

fixed

hourly

wage

of

$18.00

multiplied by 1.5, instead of combining his fixed hourly wage
with his non-hourly compensation (e.g., commissions and bonuses)
and

then

multiplying

that

total

by

1.5.

(Id.

¶¶ 18-20).

Second, Mr. Edelen alleged that Defendants failed to compensate
him properly for his work in connection with a referral program
with American Home Shield by paying him a flat, pre-determined
rate instead of paying him on a per-hour basis.

(Id. ¶¶ 21-25).

Mr. Edelen asserted these allegations on behalf of himself and a
putative

class

of

all

technicians

employed

anywhere in the nation since September 23, 2008.
27).

by

Defendants
(Id. ¶¶ 26-

On January 5, 2012, Defendants filed an answer that denied

the bulk of Mr. Edelen’s allegations and asserted a number of
affirmative defenses, including that any actions or omissions
giving rise to Mr. Edelen’s claims were undertaken in good faith

2

and with reasonable grounds for believing such conduct did not
violate the FLSA.

(ECF No. 15).

The parties agreed to engage in limited discovery prior to
Mr. Edelen moving for conditional certification of his proposed
collective class.

(See ECF No. 19).

In addition to exchanging

written discovery, Mr. Edelen deposed a corporate representative
of Defendants pursuant to Fed.R.Civ.P. 30(b)(6).
at

2).

After

conducting

this

discovery

(ECF No. 34-1,

and

engaging

in

preliminary settlement discussions, the parties stipulated to
the filing of an amended complaint by Mr. Edelen that asserts
only allegations relating to Defendants’ calculation of overtime
pay rates on behalf of only those HVAC technicians employed at
the Laurel facility since September 2008.
on

these

counts:

alleged

facts,

the

amended

(ECF No. 27).
complaint

Based

asserts

two

a collective action count under the FLSA and a class

action count under the Maryland Wage and Hour Law (“the MWHL”),
Md. Code. Ann., Lab. & Empl. §§ 3-401 et seq.

(Id. ¶¶ 23-43).

After Mr. Edelen filed the amended complaint, Defendants
filed an answer (ECF No. 28) and provided him with detailed
payroll data regarding the overtime wages paid to Mr. Edelen and
a sample of eleven other HVAC technicians employed at the Laurel
facility during the statute of limitations period (ECF No. 34-1,
at

3).

According

to

Mr.

Edelen,

a

review

of

this

data

demonstrated an average weekly underpayment of $8.54 for all
3

HVAC technicians in the sample, ranging from $0.42 per workweek
to $13.15 per workweek.

(Id.).

Following additional negotiations, the parties entered into
a formal settlement agreement (“the Settlement Agreement”).

The

Settlement Agreement contemplates certification of a settlement
class

consisting

of

59

individuals

who

worked

as

HVAC

technicians at Defendants’ Laurel facility during any workweek
between September 23, 2008 and October 5, 2011.
In

very

basic

terms,

the

Settlement

(ECF No. 29-1).

Agreement

requires

Defendants to pay a maximum of $68,055.75, divided as follows:
(1) $38,055.75,

less

applicable

payroll

taxes,

paid

to

class

members, representing $10.75 for every week worked during the
relevant timeframe, regardless of whether there was an actual
underpayment

in

that

week;

(2) subject

to

court

approval,

a

$1,000.00 incentive payment to Mr. Edelen in recognition of his
efforts

on

behalf

of

the

class;

and

(3) subject

to

court

approval, $32,000.00 to Mr. Edelen’s counsel for attorneys’ fees
and expenses.

(See id.).

The consideration offered in exchange reflects the hybrid
nature

of

Mr.

Edelen’s

amended

complaint

and

the

different

procedures governing Rule 23 class actions and FLSA collective
actions.

With

respect

to

the

MWHL

claims,

the

Settlement

Agreement provides that those class members who do not exclude
themselves in a specified timeframe agree to release all MWHL
4

claims arising out of Defendants’ alleged failure to calculate
their overtime rates of pay properly during the period from
September
respect

23,

to

2008,

the

FLSA

to

October

claims,

5,

2011.

those

(Id.

members

of

¶ 5).
the

With

proposed

collective class who sign or endorse their settlement checks
from Defendants will be deemed to have agreed to (1) joining the
FLSA

collective

action

and

(2)

releasing

their

FLSA

claims

(including any claims for liquidated damages) arising out of
Defendants’ purported failure to calculate their overtime rates
of pay properly during the period from September 23, 2008, to
October 5, 2011.

(Id.).

Class members do not agree to release

any other types of legal claims against Defendants, except that
Mr.

Edelen

individually

agrees

to

a

broad,

general

release.

(Id. ¶ 12).
On April 19, 2013, Mr. Edelen filed an unopposed motion
seeking preliminary approval of the Settlement Agreement.
No. 29).

(ECF

On May 23, 2013, the court issued an order (“the

Preliminary Approval Order”) granting Mr. Edelen’s motion and
preliminarily approving the Settlement Agreement (1) as fair,
reasonable,

and

adequate

within

the

meaning

of

Fed.R.Civ.P.

23(e) and (2) as representing a fair and reasonable compromise
of a bona fide FLSA dispute.

(ECF No. 32).

The Preliminary

Approval Order conditionally certified the following class both
as a class action pursuant to Fed.R.Civ.P. 23(a) & 23(b)(3)
5

(“the Rule 23 Settlement Class”) and as a collective action
pursuant

to

29

U.S.C.

§ 216(b)

(“the

Collective

Settlement

Class”):
Every individual employed by Defendants at
their company-owned service facility in
Laurel, Maryland as an HVAC Technician
during any workweek between September 23,
2008 and October 5, 2011.
The Preliminary Approval Order appointed Mr. Edelen as class
representative.

The Preliminary Approval Order also appointed

the law firms of Joseph, Greenwald & Laake, P.A., and Winebrake
& Santillo, LLC, as class counsel, and Heffler Claims Group as
claims administrator.

Finally, the Preliminary Approval Order

approved the notice forms provided by the parties; instructed
the parties to comply with the notice protocols set forth in the
Settlement Agreement; and set the final fairness hearing, which
was held on July 22, 2013, at 9:30 a.m.
II.

Analysis
After

Agreement

carefully
(ECF

No.

considering

the

29-1),

unopposed

the

terms

of

the

motion

Settlement
for

final

approval (ECF No. 34), the supplemental materials in support
thereof (ECF No. 36), and the statements of counsel for both
parties at the final fairness hearing held on July 22, 2013 (ECF
No.

38),

the

Collective
certification;

court

now

Settlement
whether

addresses

whether

Classes

should

the

Settlement
6

the

Rule

receive

Agreement

is

23

and

final
fair,

reasonable,

and

adequate;

whether

the

Settlement

Agreement

represents a fair compromise of a bona fide FLSA dispute; and
whether class counsel’s request for attorneys’ fees and costs,
as

well

as

granted.
A.

an

incentive

payment

for

Mr.

Edelen,

should

be

Each of these issues will be addressed, in turn.
Final Certification of the Settlement Class

Because the proposed Settlement Agreement seeks to resolve
a

so-called

hybrid

wage-and-hour

law

case

that

raises

both

collective action claims under the FLSA and class action claims
under the MWHL, two separate standards are implicated by Mr.
Edelen’s request for final class certification.
1.

Certification of the Collective Settlement Class

“Under
action

the

against

FLSA,
their

plaintiffs
employer

for

pursuant to 29 U.S.C. § 216(b).”
Inc.,

532

F.Supp.2d

762,

771

may

maintain

violations

a

collective

under

the

act

Quinteros v. Sparkle Cleaning,
(D.Md.

2008).

Section

216(b)

provides, in relevant part, as follows:
An action . . . may be maintained against
any employer . . . in any Federal or State
court of competent jurisdiction by any one
or more employees for and in behalf of
himself or themselves and other employees
similarly situated.
No employee shall be a
party plaintiff to any such action unless he
gives his consent in writing to become such
a party and such consent is filed in the
court in which such action is brought.
“This

provision

potential

establishes

plaintiffs

must

an

‘opt-in’

affirmatively
7

scheme,

notify

the

whereby
court

of

their intentions to be a party to the suit.”

Quinteros, 532

F.Supp.2d at 771 (quoting Camper v. Home Quality Mgmt., Inc.,
200 F.R.D. 516, 519 (D.Md. 2000)).
Deciding whether to certify a collective action pursuant to
the

FLSA

generally

requires

a

two-stage

process.

Westat, Inc., 756 F.Supp.2d 682, 686 (D.Md. 2010).
stage,

a

“threshold

determination”

must

be

Syrja

v.

In the first

made

regarding

“‘whether the plaintiffs have demonstrated that potential class
members are ‘similarly situated,’ such that court-facilitated
notice to the putative class members would be appropriate.’”
Id. (quoting Camper, 200 F.R.D. at 519).
Approval

Order

found

that

Mr.

Edelen

Here, the Preliminary
satisfied

the

modest

factual showing that is required with respect to the first stage
and

granted

conditional

Settlement Class.

certification

of

the

Collective

(ECF No. 32 ¶ 6).

In the second stage – which generally occurs following the
close

of

discovery

and

upon

a

defendant’s

motion

for

decertification – a “more stringent inquiry” is undertaken to
determine

whether

the

plaintiffs

are,

situated,” as required by § 216(b).

in

fact,

“similarly

Rawls v. Augustine Home

Health Care, Inc., 244 F.R.D. 298, 300 (D.Md. 2007).

Even when

parties agreed to settle an FLSA dispute on behalf of a class of
similarly situated employees, “‘some final class certification’”
determination

must

be

made

“‘before
8

approving

a

collective

action settlement.’”

Carter v. Anderson Merchs., LP, Nos. 08–

cv-00025, 09–cv-0216, 2010 WL 144067, at *3 (C.D.Cal. Jan. 7,
2010) (quoting Burton v. Utility Design, Inc., No. 07-cv-1045,
2008 WL 2856983, at *2 (M.D.Fla. July 22, 2008)).
factors

to

consider

in

deciding

whether

to

Relevant

grant

final

certification include “(1) the disparate factual and employment
settings of the individual plaintiffs; (2) the various defenses
available to [the] defendant which appear to be individual to
each plaintiff; and (3) fairness and procedural considerations.”
Rawls, 244 F.R.D. at 300 (internal quotation marks omitted).
Because

the

analysis

certification
23(a),”

analysis

these

passing.”

factors

“‘largely

overlap[s]

under

Federal

Rule

need

only

“address[ed]

be

of

with

Civil

class

Procedure
.

.

.

in

Bredbenner v. Liberty Travel, Inc., Nos. 09-cv-905,

09-cv-1248, 09-cv-4587, 2011 WL 1344745, at *17 (D.N.J. Apr. 8,
2011) (quoting Murillo v. Pac. Gas & Elec. Co., No. 08-cv-1984,
2010

WL

2889728,

at

*3

(E.D.Cal.

July

21,

2010)

(first

alteration in original)).
Here, the factual circumstances underlying the claims of
each

member

rather

than

of

the

Collective

disparate.

Each

Settlement
held

the

Class

same

are

similar

position

(HVAC

technician), at the same location (Defendants’ Laurel facility),
and allegedly received compensation in accordance with a common
method for calculating overtime rates of pay.
9

The class as a

whole is therefore “similarly situated” to Mr. Edelen.

Second,

Defendants have not offered any defenses that are individualized
in

nature.

(See

ECF

No.

34-1,

at

16-17).

In

any

event,

individualized defenses typically raise concerns because they
pose case management problems; such complications are largely
irrelevant

where

a

settlement purposes.

collective

class

is

being

certified

for

Cf. Amchem Prods., Inc. v. Windsor, 521

U.S. 591, 620 (1997) (in the Rule 23 class action context, no
need to account for case management issues when deciding whether
to certify a class for settlement purposes).

Finally, with

respect to fairness, a settlement resolving the FLSA overtime
claims of all Laurel-based HVAC technicians is an efficient and
cost-effective means of resolving the common issue (i.e., the
legality of Defendants’ method for calculating overtime rates of
pay).

See Rawls, 344 F.R.D. at 298 (noting that collective

action treatment would serve as an efficient means of resolving
a facility-wide FLSA dispute and would further the purposes of
§ 216(b) by allowing the class members to pool their resources).
In sum, because Mr. Edelen is, in fact, similarly situated
to

the

members

of

the

Collective

Settlement

Class,

final

certification pursuant to § 216(b) is warranted.
2.

Rule 23 Class Certification

A class action will be certified only if it meets the four
prerequisites identified in Rule 23(a) and also fits within one
10

of the three subdivisions of Rule 23(b).

The United States

Supreme Court has held that district courts “must pay undiluted,
even heightened attention” to class certification requirements
in

the

settlement

(internal

context.

quotations

marked

Amchem

Prods.,

omitted);

see

521

also

U.S.

at

620

Grice

v.

PNC

Mortg. Corp. of Am., No. PJM-97-3084, 1998 WL 350581, at *2
(D.Md. May 21, 1998) (“Despite the parties’ agreement, class
certification must be carefully scrutinized.”).
a.

Rule 23(a) Prerequisites

Rule 23(a) provides as follows:
(a) Prerequisites. One or more members of a
class may sue or be sued as representative
parties on behalf of all members only if:
(1) the class is so numerous that joinder of
all members is impracticable; (2) there are
questions of law or fact common to the
class; (3) the claims or defenses of the
representative parties are typical of the
claims or defenses of the class; and (4) the
representative
parties
will
fairly
and
adequately protect the interests of the
class.
Based

on

a

review

of

the

parties’

submissions,

the

Rule

23

Settlement Class meets the numerosity, commonality, typicality,
and adequacy requirements.
Although

there

is

no

precise

threshold

for

determining

numerosity, see Gen. Tel. Co. v. E.E.O.C., 446 U.S. 318, 330
(1980),

the

individuals,

Rule
is

23

Settlement

larger

than

Class,

other

11

which

classes

consists
that

have

of

59

been

certified in the Fourth Circuit.
Med.

Corp.

(observing

Sec.
that

Litig.,
a

class

139
size

See, e.g., In re Kirschner
F.R.D.

of

25

74,

to

78

30

(D.Md.

members

presumption that the numerosity requirement is met).
numerosity

is

satisfied

where

joinder

of

members would prove to be “impracticable.”

all

1997)

raises

a

Moreover,

putative

class

Hewlett v. Premier

Salons Int’l, Inc., 185 F.R.D. 211, 215 (D.Md. 1997) (explaining
that practicability of joinder depends on a variety of factors,
including the geographic dispersion of putative class members
and

the

size

of

their

claims).

Given

the

relatively

small

dollar value of the class members’ individual claims here –
which range from a minimum of approximately $30.00 to a maximum
of approximately $2,100.00 (see ECF No. 34-1, at 3; ECF No. 291, at 16-17) – joinder seems unlikely here.
To establish commonality, the party seeking certification
must “demonstrate that the class members have suffered the same
injury” and that their claims “depend upon a common contention.”
Wal–Mart Stores, Inc. v. Dukes, ––– U.S. ––––, 131 S.Ct. 2541,
2551 (2011) (internal quotation marks omitted).
contention,

moreover,

must

be

of

such

a

nature

“That common
that

it

is

capable of classwide resolution — which means that determination
of its truth or falsity will resolve an issue that is central to
the validity of each one of the claims in one stroke.”

12

Id.

Here, all members of the Rule 23 Settlement Class worked as
HVAC technicians at a single facility in Laurel during a single
time period from September 23, 2008, until October 5, 2011.
(ECF No. 34-1, at 2-4).

According to class counsel’s review of

a sampling of payroll data from this time period, Defendants had
a common practice of calculating overtime pay rates for HVAC
technicians

that

(See id.).

Thus, a question of law that is common to the Rule

23

Settlement

excluded

Class

is

non-hourly

whether

forms

of

Defendants’

compensation.

method

for

calculating overtime pay between September 2008 and October 2011
violates the MWHL.

In other words, the success or failure of

the claims held by class members turns on the veracity of Mr.
Edelen’s contention that Defendants’ overtime calculation policy
at the Laurel facility during the relevant time period violates
the MWHL.

Because resolution of this common contention would

resolve “each one of the claims in one stroke,” Dukes, 131 S.Ct.
at 2551, the Rule 23 Settlement Class satisfies the commonality
prerequisite.
The

typicality

requirement

“goes

to

the

heart

representative part[y’s] ability to represent a class.”
v. Microsoft Corp., 436 F.3d 461, 466 (4th Cir. 2006).

of

a

Deiter
The

representative’s claim need not “be perfectly identical [to] or
perfectly aligned” with the claims of class members, so long as
any variation does not “strike[] at the heart of the respective
13

causes of actions.”
he

suffered

Id. at 467.

damages

when

Here, Mr. Edelen asserts that

Defendants

excluded

his

non-hourly

wages in calculating his rate of overtime pay, in violation of
the MWHL.

Mr. Edelen’s interest in prosecuting this claim would

also tend to advance the interests of the members of the Rule 23
Settlement Class, each of whom also allegedly suffered a loss in
wages as a result of the same method for calculating overtime
rates of pay.

Although Mr. Edelen may have worked more or less

overtime than other class members in a given week and therefore
might ultimately be entitled to greater or lesser damages, such
factual

differences

do

not

defeat

typicality

because

the

legality of the overtime calculation policy itself is at the
heart of Mr. Edelen’s MWHL claim.

Ultimately, “as goes the

claim

claims

of

[Mr.

Edelen],

Settlement Class.
Finally,

so

go

the

of”

the

Rule

23

Deiter, 436 F.3d at 466.

Rule

23(a)(4)

requires

“representative

parties

[who] will fairly and adequately protect the interests of the
class.”

Representation

is

adequate

if:

(1)

the

named

plaintiff’s interests are not opposed to those of other class
members,

and

(2)

the

plaintiff’s

experienced, and capable.

attorneys

Edelen

is

no

and

apparent
the

conflict

interests

qualified,

Mitchell–Tracey v. United Gen. Title

Ins. Co., 237 F.R.D. 551, 558 (D.Md. 2006).
there

are

of

between
the

14

Rule

Here, as discussed,

the

interests

23

Settlement

of

Mr.

Class.

Rather, Mr. Edelen shares an interest with class members in
establishing

the

illegality

of

calculating overtime rates of pay.

Defendants’

method

for

Moreover, as noted in the

Preliminary Approval Order (ECF No. 32 ¶ 5(d)), class counsel
are qualified, experienced, and competent, as evidenced by their
background

in

litigating

wage-and-hour

(see ECF Nos. 29-2 & 29-3).

class

action

lawsuits

Accordingly, the Rule 23 Settlement

Class satisfies each of the Rule 23(a) prerequisites.
b.

Rule 23(b) Requirements

The next step is to determine whether the requirements of
one of the three subdivisions of Rule 23(b) have been met.

Mr.

Edelen invokes Rule 23(b)(3), which permits a class action to be
maintained only if it can be concluded (1) that “questions of
law

or

fact

common

to

class

members

predominate

over

any

questions affecting only individual members,” and (2) “that a
class action is superior to other available methods for fairly
and efficiently adjudicating the controversy.”
The

predominance

inquiry

focuses

on

whether

liability

issues are subject to class-wide proof or require individualized
and

fact-intensive

determinations.

Cuthie

v.

Fleet

Reserve

Ass’n, 743 F.Supp.2d 486, 499 (D.Md. 2010).

Deciding whether

common

ones

questions

qualitative,

predominate

rather

than

over

individual

quantitative,

inquiry.

involves
Gunnells

Healthplan Servs., Inc., 348 F.3d 417, 429 (4th Cir. 2003).
15

a
v.

As set forth above, the claims of the Rule 23 Settlement
Class present the same legal question, i.e., whether Defendants’
alleged common method for calculating overtime rates of pay at
the

Laurel

facility

violated

the

MWHL.

Although

the

determination of damages for each class member would require a
certain degree of individualized inquiry given that the class
members

worked

relevant

for

timeframe

a

different

(ranging

from

number
3

of

weeks

weeks
to

during
weeks)

161

the
and

logged a different number of overtime hours in those weeks, such
computations do not require “separate mini-trials.”
185

F.R.D.

at

individualized
examining

220.

Instead,

damages

Defendants’

figures

the

are

standardized

records for the Laurel facility.
20).

the

record
easily

Hewlett,

indicates
ascertainable

timekeeping

and

that
by

payroll

(See, e.g., ECF No. 34-1, at

Moreover, the “qualitatively overarching issue by far” is
legality

of

Defendants’

alleged

common

method

for

calculating overtime rates of pay during the time period in
question, such that “the individual statutory damages issues are
insufficient to defeat class certification.”

Stillmock v. Weis

Markets, Inc., 385 F.App’x 267, 273 (4th Cir. 2010) (unpublished
table decision).

Thus, the Rule 23 Settlement Class satisfies

the predominance inquiry.
With respect to the superiority prong of Rule 23(b)(3),
four factors generally should be considered:
16

(i) the strength of the individual class
members’
interest
in
controlling
the
prosecution
and
defense
of
a
separate
action, (ii) the extent and nature of
existing litigation already begun by or
against
class
members,
(iii)
the
desirability
or
undesirability
of
concentrating the litigation in the single
forum selected by the class plaintiffs, and
(iv) the likely difficulties in managing the
class action.
Lloyd v. Gen. Motors Corp., 275 F.R.D. 224, 228 (D.Md. 2011).
Here,

each

certification.

of

these

factors

weighs

in

favor

of

final

First, as noted, the dollar values of the class

members’ claims are small as compared to the costs associated
with

pursuing

individual

lawsuits,

interest in class litigation.

giving

rise

to

a

strong

See, e.g., Jones v. Murphy, 256

F.R.D. 519, 524 (D.Md. 2009) (“Class treatment is appropriate in
situations, such as here, where the individual claims of many of
the putative class members are so small that it would not be
economically efficient for them to maintain individual suits.”).
Second,

no

against

Defendants

rates
Third,

at

class

the

member

has

regarding

separately
the

Laurel

facility.

concentrating

litigation

initiated

calculation
(See

of

the

ECF

of

No.

class

litigation

overtime

34-1,

at

members’

pay
21).

claims

here in the Southern Division of the District of Maryland is
desirable given its proximity to the Laurel facility at issue.
Finally, manageability concerns are irrelevant when a class is

17

being

certified

only

for

settlement

purposes.

See

Amchem

Prods., 521 U.S. at 593.
In sum, because the Rule 23 Settlement Class satisfies the
requirements

of

both

Rule

23(a)

and

23(b)(3),

final

certification will be granted.
B.

Final Approval of the Settlement Agreement

Having determined that final certification of both the Rule
23

Settlement

Class

and

the

Collective

Settlement

Class

is

warranted, the terms of the Settlement Agreement itself must be
addressed.

Here again, because of the hybrid nature of this

case, two standards are implicated by Mr. Edelen’s motion for
final approval.
1.

Fairness, Reasonableness, & Adequacy Under Rule 23

Pursuant to Rule 23(e), a settlement agreement that binds
members of a class action can only be approved upon a “finding
that it is fair, reasonable, and adequate.”

“The ‘fairness’

prong is concerned with the procedural propriety of the proposed
settlement agreement, while the ‘adequacy’ prong focuses on the
agreement’s substantive propriety.”
Derivative

Litig.,

Nos.

In re Am. Capital S’holder

11–2424-PJM,

11–2428-PJM/AW,

11–2459-

PJM, 11–2459-RWT, 2013 WL 3322294, at *2 (D.Md. June 28, 2013).
a.

Fairness

In evaluating the fairness of a proposed settlement, the
following

factors

must

be

considered:
18

(1)

the

presence

or

absence of collusion among the parties; (2) the posture of the
case

at

the

time

settlement

is

proposed;

(3)

the

extent

of

discovery that has been conducted; and (4) the circumstances
surrounding the negotiations and the experience of counsel.

In

re Mid-Atl. Toyota Antitrust Litig., 564 F.Supp. 1379, 1383-84
(D.Md. 1983).
the

danger

The fairness inquiry serves to protect against

that

counsel

might

“compromise[e]

a

suit

inadequate amount for the sake of insuring a fee.”

for

an

Id. at 1383

(internal quotation marks omitted).
Here, each of the fairness factors weighs in favor of final
approval.

The record indicates that the Settlement Agreement is

the product of good faith bargaining conducted at arm’s length.
In particular, Mr. Edelen represents that the parties exchanged
six different proposals over the course of three months before
reaching

a

tentative

agreement,

after

continued to negotiate additional terms.

which

the

parties

(ECF No. 34-1, at 8).

Moreover, nothing in the record hints of collusion.
With
reached

respect

the

to

the

Settlement

posture

Agreement

of

the

after

case,

engaging

the
in

parties

discovery

regarding the issue of conditional certification, which included
a

Rule

30(b)(6)

representative

and

deposition
the

records by Defendants.

production

of
of

Defendants’
payroll

and

corporate
timekeeping

Although the scope of this discovery was

somewhat limited and no dispositive motions were ever filed, it
19

appears that all parties had sufficient information about their
claims

and

defenses

at

the

possibility of settlement.

time

they

began

exploring

the

Finally, as has been noted, the

declarations and résumés submitted by class counsel establish
that they are qualified, experienced, and competent.

(See ECF

Nos. 29-2 & 29-3).
b.

Adequacy

The

adequacy

prong

requires

consideration

of:

(1)

the

relative strength of the plaintiff’s case on the merits and
probability for success at trial; (2) the anticipated duration
and expense of additional litigation; (3) the solvency of the
defendants

and

the

likelihood

of

recovery

on

a

litigated

judgment; and (4) the degree of opposition to the settlement.
In re Mid-Atl. Toyota, 564 F.Supp. at 1384.

The purpose of the

adequacy analysis is to “weigh the likelihood of the plaintiff’s
recovery

on

settlement.”

the

merits

against

the

amount

offered

in

Id. (internal quotation marks omitted).

Here, the adequacy factors, on balance, counsel in favor of
final approval of the Settlement Agreement.

The present record

– which consists primarily of the pleadings and the motions for
preliminary and final approval of the Settlement Agreement –
makes it difficult to ascertain the factual and legal merits of
Mr. Edelen’s contention that Defendants improperly excluded nonhourly

forms

of

compensation

when
20

calculating

class

members’

overtime rates of pay.

The authority cited by Mr. Edelen in his

amended complaint provides support for his position that, under
the FLSA, an employee’s regular rate of pay (which is multiplied
by 1.5 to determine the employee’s overtime rate of pay) must
include both hourly and non-hourly forms of compensation.

E.g.,

29 C.F.R. § 778.109 (for employees who are paid on a non-hourly
basis, the regular rate is determined by dividing the employees
“total remuneration for employment (except statutory exclusions)
in any workweek by the amount of hours actually worked”); see
also

29

U.S.C.

§ 207(e)

(an

employee’s

“regular

rate”

for

purposes of the FLSA includes “all remuneration” not otherwise
exempted);

Friolo

v.

Frankel,

373

Md.

501,

513

(2003)

(explaining that the MWHL is “the State parallel” to the FLSA).
In addition, class counsel represents that their analysis of a
sampling of 12 technicians’ payroll data during the relevant
timeframe demonstrated a pattern of excluding certain non-hourly
forms of compensation.

(ECF No. 34-1, at 3).

For their part,

Defendants disagree with Mr. Edelen’s positions regarding what
was and what should have been included in calculating his “total
remuneration” for purposes of regular and overtime pay.

(Id. at

15-16).
The existence of these disputed legal and factual issues
creates uncertainty and risk for all parties moving forward.
Additionally, even if Mr. Edelen’s legal position regarding the
21

proper

calculation

certain

members

method

of

the

proved
Rule

meritorious,

23

Settlement

he

admits

Class

that

would

be

entitled to very little in the way of damages – for some, as
little

as

$0.42

per

workweek.

Furthermore,

absent

final

approval of the Settlement Agreement, litigation of this dispute
could prove to be long and expensive.

In particular, the likely

next steps in this case – e.g., seeking class certification,
engaging in additional discovery, and filing dispositive motions
–

would

require

substantial

time

by

the

parties’

attorneys.

Although there is nothing to indicate that Defendants would be
unable to satisfy a judgment if one were ultimately entered, it
is not clear how long it might take to resolve this lawsuit.

On

balance, the risks, delays, and costs associated with further
litigation weigh in favor of granting final approval of the
Settlement Agreement.
Lastly,
Agreement.
the

terms

there

has

been

no

opposition

to

the

Settlement

Consistent with the Preliminary Approval Order and
of

the

Settlement

Agreement,

the

settlement

administrator mailed personalized notice forms to all 59 members
of the Rule 23 Settlement Class on June 7, 2013 – the best
notice practicable under the circumstances.

The notice form

informed each class member, in clear and concise language, of
the basis for this lawsuit; the definition of the Rule 23 and
Collective

Settlement

Classes;
22

the

procedure

for

and

consequences of opting in to the Settlement Agreement; the key
terms of the Settlement Agreement, including the member’s gross
recovery as an individual; the process for objecting to the
Settlement Agreement; and the date, time, and place of the final
fairness hearing.

Thus, the form and method of notice complied

with Fed.R.Civ.P. 23(c)(2) & 23(e).
The

postmark

deadline

for

requests was July 8, 2013.

filing

objections

or

opt-out

To date, no objections or opt-out

requests have been received by the court or by counsel, and no
one

appeared

objections.

at

the

final

fairness

hearing

to

lodge

any

The lack of objections provides further support for

final approval of the Settlement Agreement as fair, adequate,
and reasonable.
C.

Reasonable Settlement of Bona Fide Dispute

A district court can approve an FLSA settlement between an
employer

and

pursuant

to

agreement

an

employee

Section

represents

who

216(b)
a

has

only

brought
upon

“reasonable

a

a

private

finding

compromise

action

that

of

the

disputed

issues” rather than “a mere waiver of statutory rights brought
about by an employer’s overreaching.”

Lynn’s Food Stores, Inc.

v.

1354

United

Although

States,

the

679

Fourth

F.2d

Circuit

1350,
has

not

(11th

directly

Cir.

1982).

addressed

the

factors to be considered in deciding motions for approval of
such

settlements,

district

courts
23

in

this

circuit

typically

employ the considerations set forth by the Eleventh Circuit in
Lynn’s Food Stores.

See, e.g., Hoffman v. First Student, Inc.,

No. WDQ-06-1882, 2010 WL 1176641, at *2 (D.Md. Mar. 23, 2010);
Lopez

v.

NTI,

LLC,

748

F.Supp.2d

471,

478

(D.Md.

2010).

Pursuant to Lynn’s Food Stores, an FLSA settlement generally
should

be

approved

if

it

reflects

“a

fair

and

reasonable

resolution of a bona fide dispute over FLSA provisions.”

Lynn’s

Food, 679 F.2d at 1355.
Thus,

as

a

first

step,

the

bona

fides

of

the

parties’

dispute must be examined to determine if there are FLSA issues
that are “actually in dispute.”

Lane v. Ko-Me, LLC, No. DKC-10-

2261, 2011 WL 3880427, at *2 (D.Md. Aug. 31, 2011) (citing Dees
v. Hydradry, Inc., 706 F.Supp.2d 1227, 1241-42 (M.D.Fla. 2010)).
As a second step, the terms of the proposed settlement agreement
must be assessed for fairness and reasonableness.
Circuit,

the

same

“fairness

factors

generally

In the Fourth
considered

for

court approval of class action settlements under Federal Rule of
Civil Procedure 23” are used in this second step.

Lomascolo v.

Parsons Brinckerhoff, Inc., No. 08–cv–1310, 2009 WL 3094955, at
*10 (E.D.Va. Sept. 28, 2009).
Here, as evidenced by the pleadings, the motion for final
approval, and the terms of the Settlement Agreement itself, a
bona fide dispute exists as to Defendants’ liability under the
FLSA.

See id. at *16-17 (examining the complaint, answer, and
24

the parties’ recitals in the proposed settlement to conclude
that a bona fide dispute existed).
as

to

whether

Defendants

First, the parties disagree

properly

included

all

non-exempted

forms of remuneration in calculating overtimes rates of pay at
the

Laurel

facility.

Second,

even

to

the

extent

that

Mr.

Edelen’s legal position is credited, the parties disagree as to
the amount of unpaid wages that would be owed to members of the
Collective

Settlement

Class.

Mr.

Edelen

believes

that

the

damages suffered by most class members would be closer to the
figure of $13.15 per workweek (i.e., the high end of the range
of underpayment rates found in the 12-technician sample), while
Defendants contend that most class members’ damages would be
closer

to

$0.42

per

sample).

Third,

liquidated

damages.

would

have

argued

workweek

the

(i.e.,

parties

According
that

the

dispute
to

the

class

Defendants

lower

range

availability

counsel,

acted

of

Mr.

the
of

Edelen

“willfully”

in

improperly calculating the overtime rates of pay owed to class
members, warranting double damages as high as $26.30 per week
worked.

Defendants represent that they would have invoked a

good faith defense to liquidated damages by arguing that any
underpayments to class members were unintentional.

Relatedly,

the parties dispute whether the FLSA’s three-year limitations
period

–

which

applies

only

where

25

an

employer

demonstrates

indifference

towards

the

FLSA

requirements,

see

29

U.S.C.

§ 255(a) – would apply.
Given the disparity in the figures proposed by each side,
their apparent disagreements about the meaning of the phrase
“all

remuneration,”

and

the

uncertainty

regarding

liquidated

damages and the statute of limitations, the rate of underpayment
used

in

the

constitutes
claims.

Settlement
a

Agreement

reasonable

–

$8.54

compromise

of

per

week

class

worked

members’

–

FLSA

Additionally, as discussed, consideration of the Rule

23(e) factors establishes the fairness and reasonableness of the
Settlement

Agreement.

Accordingly,

the

Settlement

Agreement

will be approved as a fair and reasonable resolution of a bona
fide dispute.
D.
In

Attorneys’ Fees & Costs
approving

either

a

Rule

23

settlement

or

a

private

settlement of FLSA claims, the reasonableness of any award of
attorneys’ fees must be assessed.

See, e.g., Grice, 1998 WL

350581, at *6 (Rule 23 class action settlement settlement); KoMe,

LLC,

2011

settlement).

WL

3880427,

at

*2-3

(FLSA

collective

action

As noted, the Settlement Agreement provides that

Defendants will pay class counsel up to $32,000.00 in attorneys’
fees and litigation expenses, subject to court approval.
No.

29-1,

counsel

¶ 13).

request

In
an

the
award

motion
of
26

for

final

$1,199.20

approval,

for

(ECF
class

out-of-pocket

litigation expenses and $30,800.80 in attorneys’ fees.

(ECF No.

34-1, at 23-31).
In any action under the FLSA, “[t]he court . . . 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.”
attorneys’

fees

claims

mandatory.

is

and

29 U.S.C. § 216(b).

costs

to

“The

employees
amount

of

The payment of

who

prevail

on

the

attorney’s

FLSA
fees,

however, is within the sound discretion of the trial court.”
Burnley v. Short, 730 F.2d 136, 141 (4th Cir. 1984).

The MWHL

also allows for the recovery of attorneys’ fees and costs.

See

Md. Code Ann., Lab. & Empl. § 3-427 (“If a court determines that
an employee is entitled to recovery in an action under this
section, the court may allow against the employer reasonable
counsel

fees

(establishing

and
that

other

costs.”);

reasonable

accord

attorneys’

Fed.R.Civ.P.
fees

and

23(h)

nontaxable

costs that are authorized by law may be awarded in a certified
class action).
“The most useful starting point for determining the amount
of a reasonable fee is the number of hours reasonably expended
on

the

litigation

multiplied

by

a

reasonable

hourly

rate,”

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) — an approach
commonly known as the “lodestar” method, Grissom v. The Mills

27

Corp., 549 F.3d 313, 320 (4th Cir. 2008).1

In deciding what

constitutes a “reasonable” number of hours and a “reasonable”
rate, numerous factors may prove pertinent, including:
“(1) the time and labor expended; (2) the
novelty and difficulty of the questions
raised; (3) the skill required to properly
perform the legal services rendered; (4) the
attorney’s opportunity costs in pressing the
instant litigation; (5) the customary fee
for
like
work;
(6)
the
attorney’s
expectations
at
the
outset
of
the
litigation; (7) the time limitations imposed
by the client or circumstances; (8) the
amount
in
controversy
and
the
results
obtained; (9) the experience, reputation and
ability
of
the
attorney;
(10)
the
undesirability of the case within the legal
community in which the suit arose; (11) the
nature
and
length
of
the
professional
relationship between attorney and client;
and (12) attorneys’ fees awards in similar
cases.”
Robinson v. Equifax Info. Servs., 560 F.3d 235, 243–44 (4th Cir.
2009) (quoting Barber v. Kimbrell’s Inc., 577 F.2d 216, 226 n.28
(4th Cir. 1978)).2

“[T]he burden rests with the fee applicant to

1

Maryland courts also use the “lodestar” approach when
determining attorneys’ fees under fee-shifting statutes.
See,
e.g., Friolo, 373 Md. at 504-05.
2

The United States Supreme Court recently appeared to
question the approach adopted by the Fourth Circuit in
Kimbrell’s – originally set out in Johnson v. Georgia Highway
Express, Inc., 488 F.2d 714 (5th Cir. 1974) – describing it as an
“alternative” to the lodestar method and explaining that it
provides too little guidance for district courts and places too
great of an emphasis on subjective considerations.
See Perdue
v. Kenny A., 559 U.S. 542, 130 S.Ct. 1662, 1672 (2010) (“[T]he
lodestar method is readily administrable, and unlike the Johnson
28

establish the reasonableness of a requested rate.”

Id. (quoting

Plyler v. Evatt, 902 F.2d 273, 277–78 (4th Cir. 1990)).

“In

addition to the attorney’s own affidavits, the fee applicant
must produce satisfactory specific evidence of the prevailing
market rates in the relevant community for the type of work for
which he seeks an award,” including, for example, “affidavits of
other local lawyers who are familiar both with the skills of the
fee applicants and more generally with the type of work in the
relevant community.”

Id. at 244, 245 (internal quotation marks

omitted).
After arriving at the lodestar figure, the “‘fees for hours
spent

on

unsuccessful

should be subtracted.

claims

unrelated

to

successful

Grissom, 549 F.3d at 321 (quoting Johnson

v. City of Aiken, 278 F.3d 333, 337 (4th Cir. 2002)).
“[o]nce

the

court

ones’”

has

subtracted

the

fees

Lastly,

incurred

for

unsuccessful, unrelated claims, it then awards some percentage

approach, the lodestar calculation is objective, and thus cabins
the discretion of trial judges, permits meaningful judicial
review, and produces reasonably predictable results.” (internal
citations omitted)). Nonetheless, “the Johnson factors, as
opposed to the Johnson method, are still relevant in informing
the court’s determination of a reasonable fee and a reasonable
hourly rate”; “[Perdue] cautions against using a strict Johnson
approach as the primary basis for determining reasonable
attorneys’ fees, but nowhere calls into question the idea of
using relevant Johnson factors in helping to come to a
reasonable fee.” Spencer v. Cent. Servs., LLC, No. CCB-10-3469,
2012 WL 142978, at *5-6 (D.Md. Jan. 13, 2012) (internal
quotations marks and citations omitted).
29

of the remaining amount, depending on the degree of success
enjoyed by the plaintiff.”

Id. (internal quotation marks and

citation omitted).
In support of their request for attorneys’ fees in the
amount of $30,800.80, class counsel submit attorney declarations
from R. Andrew Santillo of Winebrake & Santillo, LLC (ECF No.
34-1, at 37-40) and Brian J. Markovitz of Joseph, Greenwald &
Laake, P.A. (id. at 48-51), both of whom attest to the number of
hours spent on this litigation by attorneys and non-attorneys in
their

respective

firms.

As

amended

by

class

counsel’s

supplemental brief in support of their fee request (ECF No. 36,
at 1-2),3 Mr. Santillo represents that his firm expended a total
of

101.8

hours

on

this

case,

including

83.0

hours

by

Mr.

Santillo, a junior partner with nearly 9 years of experience,
and 18.8 hours by Mark J. Gottesfeld, an associate with nearly 4
years of experience.
¶¶ 3-4).
74.1

hours

(ECF No. 34-1, at 38-39, Santillo Decl.

Mr. Markovitz, in turn, attests that his firm spent
on

this

litigation,

including

47.7

hours

by

Mr.

Markovitz, a partner with almost 13 years of experience, and
26.4 hours by a combination of three legal assistants and a

3

To “streamline” the lodestar analysis, class counsel are
no longer requesting compensation for the 1.9 hours of time
expended by Peter Winebrake, a senior partner at Winebrake &
Santillo, LLC, or for the 0.4 hours of time expended by Steven
Vinick, a partner at Joseph, Greenwald & Laake, P.A.
(ECF No.
36, at 1-2).
30

paralegal.

(ECF No. 34-1, at 49-50, Markovitz Decl. ¶¶ 3-4).

Class counsel substantiate these averments with detailed time
records for both firms, broken down by six-minute increments
according to specific tasks.

(ECF No. 34-1, at 41-47, 53-55).

With respect to hourly rates, class counsel propose using
the higher end of the ranges set forth in Appendix B to the
Local

Rules

–

in

other

words,

$300.00

per

hour

for

Mr.

Markovitz, $250.00 per hour for Mr. Santillo, $190.00 per hour
for Mr. Gottesfeld, and $115.00 per hour for all paralegals and
law

clerks.

Class

counsel

thus

contends

that

the

proper

lodestar figure is $41,668.00 – approximately $11,000.00 more
than what the Settlement Agreement contemplates and what class
counsel are actually requesting.
To
class

support

counsel

the

submit

reasonableness
a

second

of

their

attorney

proposed

declaration

rates,

from

Mr.

Markovitz, which focuses on his firm’s customary rates for work
of

this

nature.

(See

Markovitz Decl.).
Greenbelt-based

ECF

No.

36,

at

14-17,

Supplemental

Mr. Markovitz avers that he is a partner at a

litigation

firm

and

focuses

his

practice

on

employment law, having served as the primary attorney of record
in

“hundreds”

(Id. ¶ 4).

of

employment

cases,

including

FLSA

disputes.

Mr. Markovitz also states that, as of January 2012,

the rate he typically charges to paying clients is $350.00 per
hour

–

i.e.,

$50.00

more

than
31

the

rate

that

class

counsel

suggest using to calculate the lodestar figure.

(Id.

¶ 5).

With respect to the non-attorneys who worked on this case, Mr.
Markovitz represents that his law firm typically charges paying
clients between $115.00 and $130.00 per hour for these specific
paralegals and law clerks – i.e., equal to or slightly more than
the hourly rates proposed here.
As

further

support

for

(Id. ¶ 6).
using

the

higher

ends

of

the

Appendix B ranges, class counsel offer a declaration from Linda
Hitt Thatcher, a Greenbelt-based attorney, that was originally
submitted in December 2012 in connection with a contested fee
petition

in

the

lawsuit

captioned

Unlimited, Inc., No. RWT-11-887.
Decl.).

Grayson

was

another

Grayson

v.

Register

Tapes

(ECF No. 36, at 6-9, Thatcher
wage-and-hour

lawsuit

in

this

division in which Mr. Santillo and Mr. Markovitz served as class
counsel.
that,

For purposes of that lawsuit, Ms. Thatcher averred

based

on

her

own

experience

litigating

employment

disputes, the prevailing market rate in the Greenbelt, Maryland
legal community for someone of Mr. Markovitz’s experience level
is between $350.00 and $400.00 per hour, such that a rate in the
range of $300.00 to $350.00 per hour is “extremely reasonable.”
(Id. ¶ 5) (emphasis in original).

Ms. Thatcher likewise averred

that the prevailing market rates in Greenbelt for lawyers of Mr.
Santillo’s and Mr. Gottesfeld’s experience and skill levels are,
respectively, between $300.00 and $350.00 per hour and between
32

$175.00 and $225.00 per hour.

(Id. ¶¶ 6-7).

Thus, according to

Ms. Thatcher, it would have been “extremely reasonable” to use a
rate of $325.00 for Mr. Santillo and a rate of $190.00 for Mr.
Gottesfeld.
Titus

(Id.) (emphasis in original).

ultimately

adopted

Judge

In Grayson, Judge

Schulze’s

report

and

recommendation in which she concluded that the following rates
were reasonable:
per

hour

for

Gottesfeld.

Mr.

$300.00 per hour for Mr. Markovitz, $250.00
Santillo,

and

$175.00

per

hour

for

Mr.

See Grayson v. Register Tapes Unlimited, Inc., No.

RWT-11-887, 2013 WL 1953342, at *2 (D.Md. May 9, 2013), accepted
and adopted by Grayson v. Register Tapes Unlimited, Inc., No.
RWT-11-887, Order of July 15, 2013.4
Finally, class counsel contend that the use of the higher
end

of

the

Appendix

B

ranges

is

warranted

based

on

their

“significant experience litigating complex wage and hour class
and collective actions.”

(ECF No. 36, at 3).

According to Mr.

Santillo, his firm has successfully represented employees in 54
class or collective actions throughout the United States and is
actively litigating approximately 40 other collective or class
actions.
¶ 4).

(ECF No. 36, at 19-21, Supplemental Santillo Decl.
According

to

Mr.

Markovitz,

his

firm

is

currently

litigating “several dozen employment-related cases” in state and

4

Class counsel submit a copy of Judge Titus’s adoption and
approval order at pages 10-12 of ECF No. 36.
33

federal courts.

(ECF No. 36, at 14-17, Supplemental Markovitz

Decl. ¶ 4).
Based on the evidence submitted by class counsel and an
analysis

of

the

relevant

Kimbrell’s

factors,

the

proposed

lodestar figure of $41,668.00 appears reasonable, as it is based
on a reasonable number of total hours and reasonable hourly
rates

($300.00

for

Mr.

Markovitz,

$250.00

for

Mr.

Santillo,

$190.00 for Mr. Gottesfeld, and $115.00 for all paralegals and
law

clerks).

The

time

records

do

not

redundant, excessive, or unnecessary work.

reflect

any

overly

To the extent that

there was some duplication in efforts or time expended on tasks
not typically compensated,5 the deductions that might otherwise
be warranted would not exceed the $11,000.00 disparity between
the proposed lodestar figure and the actual amount of class
counsel’s fee request.

Additionally, class counsel’s proposed

lodestar figure is reasonable considering the complexity of the
case,

particularly

collective

action

the

intricacies

practice;

the

associated

knowledge,

with
labor,

class

and

and

time

required to initiate an FLSA case and to achieve a class-wide

5

For example, Appendix B to the Local Rules establishes a
general rule that only one lawyer for each party will be
compensated for certain types of tasks, including depositions,
hearings, and client conferences.
Here, class counsel seek
compensation for time expended by both Mr. Markovitz and Mr.
Santillo in connection with certain hearings and conferences in
which both attorneys participated.
(See ECF No. 34-1, at 3755).
34

settlement

agreement

of

this

nature;

the

inherent

risks

associated with undertaking cases on a contingency basis; the
evidence of prevailing market rates in Greenbelt, Maryland; and
the use of the same or similar hourly rates in other wage-andhour cases that have been litigated in this division.
The question remains whether a reduction is necessary based
on the scope of the Settlement Agreement as compared to the
claims asserted by Mr. Edelen in his original complaint.

As

discussed, Mr. Edelen originally asserted two types of wage-andhour violations – one relating to the calculation of overtime
rates of pay and one relating to improper compensation for “offthe-clock” work – but later narrowed the scope of his suit by
filing an amended complaint.

The Settlement Agreement resolves

only the FLSA and MWHL claims relating to Defendants’ methods
for calculating overtime rates of pay.
As Judge Blake recently observed, it is appropriate “to
subtract plaintiffs’ billable hours attributable to unsuccessful
claims

when

they

are

successful claims.’”
637,

642

(D.Md.

‘distinct

in

all

respects

from

[the]

Andrade v. Aerotek, Inc., 852 F.Supp.2d

2012)

(quoting

(emphasis added in Andrade)).

Hensley,

461

U.S.

at

440

In Andrade, Judge Blake explained

that the plaintiffs’ successful FLSA off-the-clock claims could
not be characterized as being distinct “in all respects” from
their unsuccessful FLSA misclassification claims.
35

Id.

Thus,

while

it

was

appropriate

to

subtract

those

hours

that

were

readily identifiable as being devoted solely to the unsuccessful
claims,

the

plaintiffs

compensation

for

were

hours

that

also

entitled

“benefitted

to

or

reasonable

addressed

claims” or “aid[ed] the litigation as a whole.”

both

Id. (internal

quotation marks and citations omitted).
Here,

class

counsel’s

time

records

do

not

include

any

entries that are readily identifiable as relating only to Mr.
Edelen’s unsuccessful off-the-clock claim.
that

class

addressed

counsel’s
both

work

claims

Rather, it appears

throughout

the

aided

litigation

and

the

case

benefitted
as

a

or

whole.

Accordingly, there is no basis for reducing the lodestar figure
of

$41,668.00

based

on

Mr.

beyond

the

Edelen’s

amount

lack

of

requested
success

on

(i.e.,
his

$30,800.80)

off-the-clock

claim.
Class counsel also seeks the following litigation costs:
(1) filing fees ($400.00); (2) online research & PACER fees
($92.72); (3) postage, express mail, and messenger fees ($9.78);
(4) deposition transcript fees ($381.50); and (5) printing and
photocopying

costs

($315.20).

(ECF

NO.

34-1,

at

39

&

50).

District courts have discretion to determine the costs that will
be taxed in FLSA cases.

Roy v. Cnty. of Lexington, S.C., 141

F.3d 533, 549 (4th Cir. 1998).
“those

reasonable

Costs that may be charged include

out-of-pocket
36

expenses

incurred

by

the

attorney which are normally charged to a fee-paying client, in
the course of providing legal services.”
F.2d 762, 771 (4th Cir. 1988).

Spell v. McDaniel, 852

Examples of costs that have been

charged include necessary travel, depositions and transcripts,
computer

research,

Almendarez

v.

postage,

J.T.T.

court

Enters.

costs,

Corp.,

No.

and

JKS

photocopying.

06–68,

2010

WL

3385362, at *7 (D.Md. Aug. 25, 2010) (citing Vaughns v. Bd. of
Educ. of Prince George’s Cnty., 598 F.Supp. 1262, 1289–90 (D.Md.
1984)).

Here, the expenses requested by class counsel appear to

be reasonable and typical.

Accordingly, Mr. Edelen’s request

for $30,800.80 in attorneys’ fees and $1,999.20 in expenses will
be approved.
E.

Incentive Award

As a last step in granting final approval of the Settlement
Agreement, the reasonableness of the $1,000.00 incentive payment
to Mr. Edelen must be assessed.
Incentive
awarded

in

actions.
FLSA

payments

both

FLSA

to

class

collective

representatives
actions

and

have
23

Rule

been
class

See, e.g., Hoffman, 2010 WL 1176641, at *3 (hybrid

collective

action

and

MWHL

class

action);

In

re

Tyson

Foods, Inc., No. RDB-08-1982, 2010 WL 1924012, at *4 (D.Md. May
11,

2010)

(Rule

23

class

action).

To

determine

whether

an

incentive payment is warranted, it is appropriate to consider
“the actions the plaintiff has taken to protect the interests of
37

the class, the degree to which the class has benefitted from
those actions, and the amount of time and effort the plaintiff
expended in pursuing the litigation.”

Hoffman, 2010 WL 1176641,

at *3 (internal quotation marks omitted);
Bottling

Grp.,

LLC,

No.

DKC

10–0218,

see also Leigh v.

2012

WL

460468,

at

*7

(D.Md. Feb. 10, 2012) (observing that, in the FLSA context,
incentive awards to named plaintiffs may be appropriate if “they
faced

substantial

risks

by

participating

in

the

lawsuit

and

incurred actual expenses during the litigation”).
Here, the Settlement Agreement contemplates an incentive
payment of $1,000.00 to Mr. Edelen, in addition to his receipt
of a settlement payment of $688.00.
A).

(ECF No. 29-1 ¶ 12 & Ex.

In the final approval motion, class counsel represent that

this award “is justified by the diligent efforts of” Mr. Edelen,
who

“independently

locate

legal

investigated

counsel,”

the

law,”

“participat[ed]

“made

in

“achieve[d] a recovery on behalf of others.”
31-32).

efforts

discovery,”

to
and

(ECF No. 34-1, at

At the final fairness hearing held on July 22, 2013 –

which Mr. Edelen attended in person – class counsel expounded
upon

the

lawsuit,

specifics

of

explaining

Mr.

that

Edelen’s
he

participation

sought

out

in

counsel

this
after

independently reviewing his paystubs and suspecting something
might

be

discovery

amiss.
by

Mr.

preparing

Edelen
for

also
a
38

made

possible

contributions
deposition

during
and

by

responding to written discovery requests.
counsel,

Mr.

Edelen

then

made

According to class

himself

available

during

settlement negotiations to discuss potential terms.
In light of Mr. Edelen’s role in initiating this lawsuit
and in helping to achieve a favorable resolution, the relatively
modest

incentive

payment

of

$1,000.00

is

reasonable.

Additionally, although there is no indication that Mr. Edelen
faces

any

specific

challenges

in

his

current

or

future

job

prospects as a result of his participation in this lawsuit,
there clearly is a risk that he could.

It is also significant

that

appears

the

$1,000.00

incentive

payment

to

have

been

negotiated for separately and does not decrease the recovery
available to other class members.
serves

as

additional

Finally, the incentive award

consideration

for

Mr.

general release of claims against Defendants.
¶ 12).

Edelen’s

broad,

(See ECF No. 29-1

Accordingly, the $1,000.00 incentive payment will be

approved as reasonable.
III. Conclusion
For the foregoing reasons, the unopposed motion for final
approval filed by Plaintiff Christopher Edelen will be granted.
A separate Order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge
39