Shackleford et al v. Cargill Meat Solutions Corporation

Filing 41

ORDER granting 38 and 40 plaintiffs' motion and supplemental motion for attorney fees and costs. Signed on 3/8/13 by Chief District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
TODD SHACKLEFORD and MARTHA
WOOLERY,

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On Behalf of Themselves and
All Others Similarly Situated,
Plaintiffs,
v.
CARGILL MEAT SOLUTIONS
CORPORATION,
Defendant.

ORDER
Currently pending before the Court is plaintiffs’ Motion and Supplemental Motion
for Approval of Attorneys’ Fees and Costs (Docs. # 38,40). On January 17, 2013, the
Court granted the parties’ Joint Motion for Approval of the FLSA Settlement in this case.
In the Order approving the settlement, the Court requested that plaintiffs’ counsel file a
Supplemental Motion for Approval of Attorney Fees which would include detailed time
records and affidavits attesting to the time spent on this case and the reasonableness of
the hourly fees requested. Plaintiffs’ counsel has now provided this additional
information and the Court has had an opportunity to review it.
Plaintiffs have requested attorneys’ fees and costs in the total amount of
$47,000.00. Of this total amount, $704.50 is for costs and expenses. After deducting
the costs and fees, this leaves $46,295.50 in attorneys’ fees, which is 24.6% of the
gross settlement amount of $188,000.00.

II. STANDARD
Section 216(b) of the Fair Labor Standards Act provides that “[t]he court in such
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). “Though the fee is mandatory, the Court has discretion to determine
the amount and reasonableness of the fee. . . .When a common fund is created by
settlement, courts have applied one of two methods in determining reasonable
attorney’s fee awards: a percentage of the fund or the lodestar method.” Peterson v.
Mortgage Sources, Corp., No. 08-2660-KHV, 2011 WL 3793963, *9 (D.Kan. Aug. 25,
2011)(internal citations omitted). In Wiles v. Southwestern Bell Telephone Co., No. 094236-CV-C-NKL, 2011 WL 2416291 (W.D.Mo. June 9, 2011), the Court noted, “[t]he
Eighth Circuit, as well as this Court, has held that in ‘common fund’ cases, where
attorney fees and class members’ benefits are distributed from one fund a percentage
of the benefit method may be preferable to the lodestar method.” Id. at *4. The Court in
that case also listed twelve different factors that a court should consider in determining
a fee award. The twelve factors 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 the length of the professional relationship
with the client; and (12) awards in similar cases.
Id. at *4 (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)).

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III. DISCUSSION
In the instant case, plaintiffs’ counsel state that they have invested a substantial
amount of time and resources in this action and took a significant risk of failing to
recover due to the legal obstacles in this case, such as the conflicting legal standards
regarding the compensability of the activities at issue and the prospect of a de minimis
defense. Plaintiffs’ counsel also state that they are experienced in this area of the law
and have gained particularized skills necessary to effectively prosecute these actions.
Additionally, plaintiffs’ counsel state that in similar FLSA actions, attorneys’ fee awards
were between 33.78% and 35.48% of the total settlement fund. Plaintiffs’ counsel are
seeking an award of 25%, which is below this range of fees awarded. In Burkholder v.
City of Fort Wayne, 750 F.Supp.2d 990 (N.D.Ind. 2010), the Court stated, “a counsel fee
of 33.3% of the common fund ‘is comfortably within the range typically charged as a
contingency fee by plaintiffs’ lawyers’ in an FLSA action.” Id. at 997.
Plaintiffs’ counsel also state that the lodestar method of calculating fees is
sometimes used as a method of double-checking the reasonableness of the
percentage-of-fund fee request. Plaintiffs state that their total costs were $704.50.
Subtracting that amount from the attorneys’ fee request would leave $46,295.50 for
purposes of the lodestar calculation. The hourly rates charged by counsel are listed in
their Motion for Approval, attorney Mark Kistler charged a rate of $325.00 an hour and
three paralegals all charged a rate of $100.00 an hour. Multiplying the hours expended
by the various hourly rates, leads to a lodestar fee amount of: $43,815.00. The
percentage-of-fund request is thus within $2,500 of the lodestar calculation, which
plaintiffs’ counsel state supports the reasonableness of the fee request. The Court has
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had an opportunity to review the time records submitted as well as the affidavits of
Michael P. Downey, attesting to the reasonableness of the hourly fees billed by
plaintiffs’ counsel, and finds that the both the hourly rate and the amount of time billed
were reasonable considering the size and scope of the litigation.
Additionally, in analyzing the Johnson factors discussed above, the Court finds
that plaintiffs’ counsel expended a significant amount of time and labor on this case.
Attorney Mark Kistler billed over 100 hours and the paralegals together billed over 75
hours. Also as discussed above, there were challenging legal issues related to the
various defenses raised. The Court also finds that plaintiffs’ counsel are particularly
skilled in handling FLSA cases. The Court also finds that the fees requested are well
within the range of fees normally requested in these types of cases and that amount
requested is fair considering the results which were achieved for the class.
IV. CONCLUSION
Accordingly, for the reasons stated above, the Court hereby GRANTS the
plaintiffs’ Motion and Supplemental Motion for Approval of Attorneys’ Fees and Costs
(Docs. # 38, 40). The Court hereby awards plaintiffs’ counsel a total of $47,000.00 in
attorneys’ fees and costs.

S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
Chief United States District Judge

Date: March 8, 2013
Kansas City, Missouri

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