MADDY et al v. GENERAL ELECTRIC COMPANY

Filing 296

OPINION FILED. Signed by Magistrate Judge Karen M. Williams on 6/26/17. (js)

Case 1:14-cv-00490-JBS-KMW Document 296 Filed 06/26/17 Page 1 of 24 PageID: 4614

[Doc. No.

286]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

DONALD MADDY, et al.,
Individually, and on behalf of
all others similarly situated,

Civil No. 14-490-JBS-KMW

Plaintiffs,
v.
GENERAL ELECTRIC COMPANY,
Defendant.
OPINION
In this action, Plaintiffs, individually, and on behalf of all
others similarly situated, and Defendant General Electric Company
(“Defendant” or “GE”) have agreed to settle this collective and
class action resolving Plaintiffs’ claims under the Fair Labor
Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”) and various state
wage and hour statutes.

On January 6, 2017, the Court granted

Plaintiffs’ unopposed motion seeking preliminary approval of the
settlement.1

Before the Court now is Plaintiffs’ Motion seeking

final approval of the settlement.

For the reasons that follow, the

Motion is granted.
I.

BACKGROUND

1 This Court has jurisdiction to decide the preliminary motion for approval

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A. Procedural History and Facts
On October 25, 2013, Rolando Alvarez and other GE service
technicians filed a collective and class action law suit, Alvarez
v. General Electric Company, Civ. No. 13-62333, in the United
States District Court for the Southern District of Florida.
Mot. Preliminary Approval 2.

Pls.’

On January 23, 2014, Donald Maddy and

other GE service technicians filed this collective and class action
law suit against GE, but in the District of New Jersey alleging
that GE failed to pay overtime.
3.

Pls.’ Mot. Preliminary Approval 2-

The Alvarez lawsuit was transferred to the District of New

Jersey and, ultimately, was consolidated with this lawsuit. Pls.’
Mot. Preliminary Approval 3.
This Court is fully familiar with the litigation efforts of
both parties’ counsel in this case having managed the pretrial
phase of litigation.
litigated

this

In this regard, the parties have intensely

matter

for

three

years.

Also,

according

to

Plaintiffs’ submission, counsel has reviewed thousands of documents
and millions of data points, engaging expert witnesses to assist
with same, and deposed 50 witnesses.

Pls.’ Br.2 1, 4.

Indeed,

this Court has been called upon to resolve several significant
discovery disputes and, for those matters that could not be

and this motion seeking final approval of the settlement pursuant to the
parties’ consent to this Court’s jurisdiction.
2 Pls.’ Br. refers to Plaintiffs’ “Memorandum of Law in Support of Plaintiffs’

2

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resolved, the parties were permitted to file, and the Court had to
decide, several discovery motions.
B. Settlement Negotiations
In August of 2016, Plaintiffs provided GE with a settlement
demand letter.

Pls.’ Mot. Preliminary Approval 3.

parties agreed to attend mediation.

Id.

Thereafter, the

On November 29, 2016, the

parties attended a mediation session before the Honorable Diane M.
Welsh (Ret.) and, with Judge Welsh’s assistance, were able to reach
a settlement agreement.

Id.

C. Terms of the Settlement
While denying liability and disputing damages, GE has agreed
to pay $9,500,000 to settle all claims in this action.
Settlement and Release [Doc. No. 283], § 3.1(A).

Joint

The settlement

terms are as follows: The $9,500,000 shall be placed into an Escrow
Account for which the Claims Administrator will administer the
Notice of Settlement, the allocation, and distribution, of the
Settlement Payments.

Id. at § 2.1.

Class Counsel seeks an award

of $3,166,666 (33 1/3%) of the settlement payment as an award for
attorneys’ fees.

Id. at § 3.2 (A).

Litigation costs and expenses

and the Claims Adminstrator’s fees shall also be paid from the
settlement

payment.

Id.

The

net

settlement

payment

shall

be

disbursed to members of the Rule 23 and FLSA collective action

Motion for Final Approval of Collective and Class Settlement, and Approval of

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classes based on the following agreed upon formula:
All Qualified Class Members who are Non-Opt-In Plaintiffs
shall receive a flat $750 payment and shall also be awarded 1
point for each workweek worked during the class period. All
Qualified Class Members who are Opt-in Plaintiffs shall
receive a flat $1,500 payment (representing the $750 awarded
to Non-Opt-In Plaintiffs in addition to $750 in liquidated
damages available pursuant to the FLSA) and shall also be
awarded 2 points for each workweek worked during the class
period. After subtracting from the Net Settlement Payment
all amounts paid pursuant to subsections 3.4(A)(1 and 2), the
dollar value of each point shall be computed by dividing the
remainder of the Net Settlement Payment by the number of
points awarded under subsections 3.4(A)(1 and 2).
Each
Qualified Class Member shall receive a total settlement
distribution of the total of the flat payment in addition to
the dollar value of the number of points awarded under this
allocation. Non-Opt-In Plaintiffs’ payments shall be reported
as taxable wages and shall be issued a W2 form for the entire
payment. Opt-In Plaintiffs’ payments shall be 50% taxable
wages, which will be reported on a W2, and 50% liquidated
damages, which will be reported as non-wage income on a 1099.
Id. at § 3.4(A)(1-5).
Pursuant to the terms of the settlement, Plaintiffs and each
Qualified Class Member agree to fully release General Electric (and
Haier U.S. Appliance Solutions, Inc.) from all state and federal
wage and hours laws through December 31, 2016. Id. at § 4. The
Settlement Agreement also contains a confidentiality provision
wherein the parties agree that they will not publicize the terms of
the Agreement.

Id. at § 5.13.

D. Preliminary Approval and Notice
On December 1, 2016, at the request of counsel, the Honorable

Attorneys’ Fees, Reimbursement of Costs, and Service Payments [Doc. No. 286].

4

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Jerome

B.

Simandle,

then-Chief

United

States

District

Judge,

referred the Motions for Preliminary Settlement Approval, Motion
for Rule 23 Certification of Settlement Class, and Motion for Final
Settlement Approval to this Court.

On December 28, 2016, by

stipulation of the parties, Plaintiffs filed the Third Amended
Complaint [Doc. No. 278].

On the same day, Plaintiff filed the

Motion [Doc. No. 279] seeking preliminary approval of the class
settlement and provisional certification of the settlement class.
This Court held a hearing to address said Motion on January 3,
2017.

As a result, the Court entered an Order preliminarily

approving the proposed settlement; certifying the settlement class
for settlement purposes only; appointing Swartz Swidler, LLC,
Robert D Soloff P.A., and Alan Eichenbaum, Esquire, as class
counsel’ and preliminarily approving counsel’s requested fee of 33
1/3%.

See Order [Doc. No. 285], Jan. 6, 2017.

The Court also

scheduled a hearing for final approval of the settlement for May
17, 2017.

Id.

The Notice was sent to over 1,450 class members.

Pls.’ Br. 1.

As a result, five class members opted out and, while there was
nearly one objection (see discussion on Plaintiff Rolando Ortiz),
there have been no objections to the settlement.

Id. at 1-2.

E. Plaintiff Rolando Ortiz
On the eve of the hearing to address the Motion seeking final
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approval of the settlement, the Court received a letter [Doc. No.
287] from Plaintiff Rolando Ortiz, Jr., requesting to be heard on
the settlement.

Thus, during the May 17, 2017, the Court permitted

Mr. Ortiz to be heard.

To this end, Mr. Ortiz had many questions

about the settlement and claimed not to have proper notice of the
settlement.
24,

2017

to

As a result, the Court continued the hearing until May
permit

counsel

time

to

provide

the

Court

with

verification that Plaintiff Ortiz had in fact received the Notice.
During

the

May

24,

2017

hearing,

the

Court

ultimately

determined that it was satisfied that Plaintiff received notice of
the settlement and, obviously, the original hearing date.
Court permitted Plaintiff Ortiz to be heard again.

The

Moreover,

counsel for Plaintiffs explained the parameters of the settlement
in detail on the record for the benefit of Plaintiff Ortiz.
Ultimately, Plaintiff Ortiz decided to remain a member of the class
and, thus, is not objecting to this settlement.
II.

DISCUSSION

A. Final Approval of the Class Action & Collective Action
Settlement
Plaintiffs seek approval of the settlement of the class and
collective actions.

There are differences which exists between a

Rule 23 class action and FLSA collective action.

In this regard,

in a traditional Rule 23(b)(3) class action, class members are
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automatically

members

of

the

class

whereas

prospective

class

members in a FLSA collective action must affirmatively opt-in to be
bound by any judgment.
1248,

2011

WL

Bredbenner v. Liberty Travel, Inc., No. 09-

1344745,

at

*18

(D.N.J.

Apr.

8,

2011).

In

determining whether to approve a Rule 23 class action settlement,
the Court considers whether the proposed settlement is fair,
reasonable and adequate.

In re Ins. Brokerage Antitrust Litig.,

579 F.3d 241, 258 (3d Cir. 2009).

As an initial matter, class

settlement is entitled to a presumption of fairness where the
negotiations occurred at arm’s length, after sufficient discovery,
where

the

proponents

of

the

settlement

were

experienced

in

litigation and only a small fraction of the class objected.
Bredbenner, 2011 WL 1344745, at *10.

Here, the parties engage in

mediation with Judge Welsh after years of discovery, counsel has
immense

experience

in

wage-and-hour

class

actions,

two

of

Plaintiffs’ attorneys having litigated about 90 other matters, and
there have been no objections from the class.

Thus, there is a

presumption that this settlement is fair.
Moreover, fairness in the Rule 23 class action settlement is
determined by considering the factors articulated in Girsh v.
Jepson, 521 F.2d 153, 156-57 (3d Cir. 1975)(“Girsh factors”).
Those factors are: (1) the complexity, expense and likely duration
of the litigation; (2) the reaction of the class to the settlement;
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(3) the stage of the proceedings and the amount of discovery
completed; (4) the risks of establishing liability; (5) the risks
of establishing damages; (6) the risks of maintaining the class
action through the trial; (7) the ability of the defendants to
withstand a greater judgment; (8) the range of reasonableness of
the settlement fund in light of the best possible recovery; and (9)
the range of reasonableness of the settlement fund to a possible
recovery in light of all the attendant risks of litigation.

Girsh,

521 F.2d at 157.
For

FLSA

collective

action

settlements,

“the

Court

must

scrutinize its terms for fairness and determine that it resolves a
bona

fide

dispute.”3

Bredbenner,

2011

WL

1344745,

at

*18.

Courts, while expressly acknowledging that the Third Circuit has
not definitively set out factors for evaluating the fairness of
FLSA collective action settlements, have also utilized the Girsh
factors in evaluating fairness.

Brumley v. Camin Cargo Control,

Inc., 08-1798, 2012 WL 1019337, at *4 (D.N.J. Mar. 26, 2012).4

3 There are several bona fide disputes for this action including: 1) whether
the Plaintiffs should have been compensated pre-shift computer time; 2)
whether Plaintiffs should have been compensated for their drive time to their
first assignment; and 3) whether Defendant’s requirement of certain revenues
per day caused Plaintiffs to work off-the-clock during the half hour daily
lunch break. Pl. Mot. 4. Thus, this settlement resolves several bona fide
disputes.
4 The Court notes that in Brumley the court rejected a confidentiality
provision contained within the settlement agreement noting that if an employee
were to violate the restrictive provision, Defendant could sue for breach of
contract. Here, the Settlement Agreement also contains a confidentiality
provision, however, the document itself is filed publicly which negates the
confidential nature of same and the agreement does not contain a disgorgement

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Thus, the Court will evaluate the fairness of the settlement of
both the class and collective actions together.
i.

complexity, expense and likely duration of the litigation

The complexity, expense and duration of this litigation weighs
in favor of approving the settlement.

“This factor is intended to

‘capture the probable cost, in both time and money, of continued
litigation.’” Bredbenner, 2011 WL 1344745, at 11.

In support of

this factor, it is argued in the brief that this litigation
involves complex allegations that Defendant violated state and
federal wage and hour laws by failing to pay Class Members.
Br. 3-5.

Pls.’

Specifically, Plaintiffs contend that they were not paid

for morning computer time, drive time prior to reaching their first
customer and, based on the revenue per day requirement, time they
spent working off-the-clock during their lunch break to meet
Defendant’s requirement.

Id.

discovery,

view,

it

is

their

Plaintiffs contend that through
that,

on

average,

they

have

established that Plaintiffs have worked five or more hours per
workweek unpaid based on Defendant’s policy of excluding said time.
Id.

Of

course,

these

allegations

are

heavily

contested

by

Defendant.

clause. Lovett v. Connect America.com, No. CV 14-2596, 2015 WL 5334261, at *6
(E.D. Pa. Sept. 14, 2015)(finding that the confidentiality provision did not
frustrate the purpose of the FLSA; the agreement contained a confidentiality
provision, providing for disgorgement if same was violated, however, the
settlement agreement was not sealed). Thus, the Court does not find that the
inclusion of the provision renders the settlement unfair or that the provision

9

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Moreover, Plaintiffs contend that this case was extensively
litigated for three years.

Id.

The extent of the litigation can

be summarized as follows: Defendants have taken depositions of 30
named

and

selected

Opt-in

Plaintiffs;

Plaintiffs

took

20

depositions of managers as well as two 30(b)(6) depositions; both
parties had to engage ESI experts to review and analyze thousands
of documents and millions of data points; there have been at least
10 motions filed, and opposed.

Id.

Plaintiffs contend that

without settlement, the complexity of this case would have required
more expert reports and discovery prior to trial and then, after
trial, an inevitable appeal process.

Id.

Thus, the expense in

continuing the litigation would have been great.

Id.

Here, having managed all aspects of pretrial discovery, the
Court can take notice of the time, complexity and expense of
litigating this case.

As noted previously, pretrial discovery,

along with the discovery disputes and motions, alone was complex
and expensive.

Indeed, prior to settlement, the parties were still

engaged in discovery three years into this case and there was the
prospect of additional discovery motions.

Thus, the Court accepts

the statements of Plaintiffs that moving this case to a conclusion
would require the parties to expend a considerable amount of time
and money.

Settlement of the claims at this juncture appears to be

needs to be stricken.

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the appropriate, least expensive course of action.
ii.
In

reaction of the class to the settlement
this

regard,

the

Court

“looks

vociferousness of the objectors.’”
*12.

to

the

‘number

and

Bredbenner, 2011 WL 1344745, at

Here, there are no objections to the settlement and only five

Class Members, out of about 1456, have opted-out.

While one Class

Member, Mr. Ortiz, expressed displeasure about the settlement,
after a hearing wherein counsel thoroughly explained the terms of
the settlement, Mr. Ortiz decided to remain a Class Member and has
no objection to the settlement.

Moreover, the Court notes that the

Notice, having preliminarily approved same, was written in a manner
to apprise Class Members of the right to object to the settlement.
Thus, this Court determines that the reaction of the class to the
settlement supports approving same.
iii.

stage of the proceedings and discovery completed

In evaluating this factor, courts focus on “the degree of case
development

accomplished

by

counsel

Bredbenner, 2011 WL 1344745, at *12.

prior

to

settlement.”

“For the proceedings to be

sufficiently developed to foster a fair settlement, the parties
must have ‘an adequate appreciation of the merits of the case
before negotiating.’” Id.

To adequately assess same, courts look

to the type and amount of discovery completed.

Id.

post-discovery

to

settlements

are
11

more

likely

“In general,
be

fair

and

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reflective of the true value of the claims in the case.”

Id.

As highlighted in consideration of the first Girsch factor,
Plaintiffs argue at the time of settlement extensive discovery had
taken place: Defendant had produced a vast amount of computer
records and GPS data; 50 depositions had been taken; massive
amounts of ESI and extensive written discovery had been exchanged;
and an appeal to the Third Circuit regarding compelling arbitration
of several hundred Class Members had been concluded.
7.

Pls.’ Br. 6-

Thus, Plaintiffs contend that the parties fully understood the

strengths and the weaknesses of the case when the settlement was
negotiated.
The Court agrees.
the

settlement.

This factor weighs in favor of approving

As

stated

settlement discussions.

before,

this

case

was

ripe

for

The parties have had the benefit of years

of discovery and, thus, massive amounts of information to review
and

analyze

whether

same

was

supportive

of

their

respective

positions. While discovery was not concluded at the time of
settlement, it was substantially complete and certainly was at a
point where an analysis of the strengths and weaknesses of the case
could be made to gauge whether settlement was the appropriate
course of action.
iv.

risks of establishing liability & damages

The Court considers Girsh factors four and five together.
12

In

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evaluating the risk of establishing liability and damages, courts
balance “the likelihood of success, and the potential damages
award, against the immediate benefits offered by settlement.”
Bredbenner, 2011 WL 1344745, at *13.

Where the risks are high,

these factors weigh in favor of settlement.

Id.

The Court notes

that its duty is not to “press into the merits of the case” but
instead to rely, to an extent, on counsel’s estimate of the risks
of establishing liability and damages as they are most familiar
with the intricacies of the case.
Plaintiffs

concede

that

Id.

there

is

considerable

risk

in

establishing liability and damages, despite their belief that they
have meritorious positions as to liability and damages.
7.

Pls.’ Br.

Plaintiffs assert that at the time of settlement, Defendant was

seeking discovery into Plaintiffs’ personal mobile devices and
Plaintiffs were pursuing discovery regarding Defendant’s computer
systems, both of which would have added to the length of the
litigation.

Id.

Moreover, Plaintiffs argue that they still had to

seek final certification, Defendant intended to file a motion to
decertify, and both parties were going to file summary judgment
motions.

Id.

Additionally, establishing damages, the amount of

time Plaintiffs worked off the clock, was not without risk based on
the fact that there were no time records.

Id. at 7-8.

Notably,

Plaintiffs argue that establishing damages on a class-wide basis
13

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would require Plaintiffs to establish that the time spent by
Plaintiffs constituted compensable work and a reasonable basis for
determining the amount of hours they worked during that time; time
owed

to

each

Class

Member

had

to

representative testimony before a jury.

be

established

Pls.’ Br. 8-9.

contend that establishing same is inherently risky.
Here,

accepting

counsel’s

estimates

on

through

Plaintiffs

Id.
the

risk

of

establishing liability and damages, the Court finds that this
factor weighs in favor of approval.

Counsel for Plaintiffs had

several hurdles to establishing liability and then damages.

First,

setting aside the issues of certification, counsel for Plaintiffs
would have to prevail on a summary judgment motion and they would
have to successfully oppose Defendant’s summary judgment motion.
Counsel represents that there are some risks associated with same.
Similarly, one can never predict the outcome of a jury trial.
Indeed, counsel for Plaintiffs aver in this case a jury trial would
be inherently risky in establishing damages as same would have to
be proven through representative testimony.

The Court balances the

foregoing with the fact that this settlement provides finality.

In

this regard, Class Members will benefit from a cash settlement now
rather than waiting for the outcome of dispositive motions, a jury
trial and, thereafter, the appeals process.
benefit to settlement.
14

There is a significant

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v.

risks of maintaining the class action through the trial

The significance of this factor in cases where a settlement
class is sought has been called in to question by the Third
Circuit.

Bredbenner, 2011 WL 1344745, at *14. (citing Prudential,

148 F.3d at 321).
brief as well.

Plaintiffs rely upon such an argument in their
Pls.’ Br. 9.

Notwithstanding the foregoing,

Plaintiffs argue that they are realistic about the risks of
maintaining class certification and have also argued that Defendant
would seek to decertify the class.

Pls.’ Br. 9.

Thus, there would

be apparent risks of maintaining the class action as certification
would definitely be opposed by Defendant.

This factor weighs in

favor of settlement.
vi.

ability of the defendants to withstand a greater judgment

Plaintiffs argue that Defendant’s ability to pay was not a
factor in settlement negotiations, thus, the Court has no evidence
of whether Defendant could withstand a greater judgment.

This

factor does not weigh for or against the settlement. Bredbenner,
2011 WL 1344745, at *14 (finding that this factor did not favor or
disfavor settlement).
vii.

range of reasonableness of the settlement fund in light
of the best possible recovery & all the attendant risks
of litigation

Finally, the eighth and ninth Girsh factors weigh in favor of
approving the settlement.

In evaluating this factor the Court
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looks to whether “the settlement represents a good value for a weak
case or a poor value for a strong case.”

Bredbenner, 2011 WL

1344745, at *15 (citing In re Warfarin, 391 F.3d at 538).

To this

end, the Court must “analyze the reasonableness of the settlement
against the best possible recovery and the risks the parties would
face if the case went to trial.”

Bredbenner, 2011 WL 1344745, at

*15.
Plaintiffs acknowledge that their recovery could be greater if
they win at trial and survive through appeal. How much greater has
not been quantified for the Court, but the Court surmises that on
Plaintiffs’

best

day,

surviving

dipositive

motions,

decertification, trial and a possible appeal, that amount would far
exceed the settlement fund.

Nonetheless, the Court finds here the

attendant risk of continued litigation renders this settlement
reasonable.

As the Court stated, Plaintiffs’ best recovery can

only be attained by continued litigation and after a favorable
result from each of the remaining stages of litigation.

At this

point, the fact is that Plaintiffs have not yet established that
the time they seek compensation for is in fact compensable.

As

noted before, Plaintiffs assert several different theories of
liability.

Even if they are successful in establishing one theory,

they will not necessarily be successful on the remaining theories.
This alone will impact their best possible recovery.
16

Thus, as is

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apparent to this Court and as recognized by Plaintiffs’ counsel,
there are risks to not only maintaining class certification, but
also to establishing liability, and, if liability is established,
establishing damages.

A $9.5 million settlement appears reasonable

in light of all the attendant risks of proceeding.
After consideration of the Girsh factors, all, but one, weigh
in favor of approving the settlement, thus, the Court approves the
settlement of the class and collective actions.
B. Attorneys’ Fees and Expenses
Class Counsel seek a fee award of $3,166,666 and $180,988.615 in
costs.

In support of the requested fees, it is argued that Class

Counsel took this case on a pure contingency basis and agreed to
receive nothing, including waiving recoupment of all costs, if the
class did not obtain recovery in this matter. Pls.’ Br. 11.

To

date, it is argued that Class Counsel has dedicated 3,000 hours of
attorney time in litigating this matter.
Decl.; Swidler Decl.; Eichenbaum Decl.

Pls.’ Br. 11-12; Soloff
Counsel has provided full

documentation of the hours billed and costs expended.

The Court

has preliminarily approved the requested fees.
Pursuant to the percentage-of-recovery method, the fee sought
is equivalent to 33 1/3 % of the total settlement.

See Bredbenner,

2011 WL 1344745, at *19 (percentage-of-recovery method is the

5 The costs were sufficiently documented, are reasonable, and far below the

17

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prevailing methodology in the Third Circuit for wage-and-hour
cases).

“[T]he Court must determine whether the percentage of

total recovery that the proposed award would allocate to attorneys
fees is appropriate ‘based on the circumstances of the case.’”
(citing Cendant Corp. Litig., 264 F.2d at 256).

Id.

Courts consider

several factors in determining the appropriateness of a fee award:
(1) the size of the fund created and the number of persons
benefitted; (2) the presence or absence of substantial objections
by members of the class to the settlement terms and/or fees
requested by counsel; (3) the skill and efficiency of the attorneys
involved; (4) the complexity and duration of the litigation; (5)
the risk of nonpayment; (6) the amount of time devoted to the case
by plaintiffs' counsel; and (7) the awards in similar cases.
Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 195 (3d Cir.
2000).6 The Court will consider each factor in turn.
i.

Size of Fund and Number of Persons Benefitted, Presence
or Absence of Substantial Objections, & Awards in Similar

original estimate of the costs in the case.
6 “In addition to the Gunter factors, the Third Circuit has suggested that
courts ‘cross-check’ its fee calculation against the lodestar award method.”
Bredbenner, 2011 WL 1344745, at *19 (citing Gunter, 223 F.3d at 195 n.1).
“The multiplier is determined by dividing the requested fee award, determined
from the percentage-of-recovery method, by the lodestar.” Id. at *21. Here,
the number of attorney hours, 3,033.4, times the hourly rate, $500, is
equivalent to $1,516,700. This is the loadstar. Next, dividing the requested
fee award, $3,166,666, by the loadstar, $1,516,700, yields a multiplier of
2.09 which is reasonable. Id. (determining that the 1.88 multiplier was quite
reasonable because the Third Circuit has recognized multipliers ranging from
one to four in common fund cases).

18

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Cases
As an initial matter, the common fund here is $9.5 million for
about 1456 Class Members.7

As expounded upon more thoroughly in

addressing the Girsh factors, there is tremendous benefit to the
Class

Members

in

light

of

the

stage

of

the

litigation,

the

remaining hurdles prior to even arriving at a trial date, and the
risks associated with continued litigation.
Indeed, the award here is more than those awarded in similar
cases.

In Bredbenner, relied upon heavily by this Court since it

too considered the settlement of class action and collective action
claims, the common fund was $3 million for over one thousand class
members.

Moreover, the court in Bredbenner referred to the size of

the fund and the number of class members in two other wage-and-hour
cases: In re Janney, No. 06-3202, 2009 WL 2137224, at *14 (E.D. Pa.
July 16, 2009)-$2.9 million for 1,310 class members and Chemi v.
Champion Mortgage, No. 05-1238, 2009 WL 1470429, at *10 (D.N.J. May
26, 2009)-$1.2 million for 917 class members. Thus, the award here
far exceeds awards in other wage-and-hours cases.

These factors

weigh in favor of the fees requested.
ii.

Skill and Efficiency of Class Counsel & Complexity and
Duration of Litigation

7 None of the Class Members have objected to the amount of attorney’s fees and
costs sought.

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“The skill and efficiency of class counsel is ‘measured by
‘the quality of the result achieved, the difficulties faced, the
speed and efficiency of the recovery, the standing, experience and
expertise of the counsel, the skill and professionalism with which
counsel prosecuted the case and the performance and quality of
opposing counsel.’’” Bredbenner, 2011 WL 1344745, at *20 (citing In
re Ikon Office Solutions, Inc. Sec. Litig., 194 F.R.D. 166, 194
(E.D. Pa. 2000)).
This Court, having managed all aspects of discovery, can take
notice of the fact that the issues in this case were thoroughly
contested

and

this

professional counsel.

matter

was

“hard-fought”

by

skilled,

First, the quality of the result has been

previously stated in addressing the Girsh factors and the size of
the fund in relation to the number of Class Members who will
benefit.
Second,

Plaintiffs’

counsel

has

substantial

litigating wage and hours class actions.

experience

Indeed, attorneys Mr.

Swidler and Mr. Swartz have litigated 90 cases within the last 5
years.

Pls.’ Br. 14-15.

attorneys

also

with

However, here, there were two other

extensive

experience

matters—Mr. Soloff and Mr. Eichenbaum.

in

litigating

these

Notably, the Court agrees,

counsel for Plaintiffs achieved favorable results notwithstanding
that Defendant was represented by Littler Mendelson, the largest,
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and one of the most respected, labor and employment law firms in
the nation.

Pls.’ Br. 16.

Thus, counsel for Plaintiffs had a

formidable opponent and there were many difficulties throughout the
course of the litigation from the motion for class certification to
the

many

discovery

disputes

and

motions

argued

by

counsel.

Bredbenner, 2011 WL 1344745, at *20 (“the ability to achieve a
favorable result in a case involving such formidable defense
counsel is a clear indication of the skill with which class counsel
handled these cases.”).
Finally, the skill and efficiency of counsel is further
evidenced by the timing of the settlement.

This matter was settled

prior to the filing of motions relating to class certification,
summary judgment motions and trial.

Id.

(noting that the ability

to bring the case to a close prior to trial is another indication
of the skill and efficiency of the attorneys).

Notwithstanding the

timing of the settlement, counsel settled this matter for a
favorable amount that, as discussed above, was more than three
other referenced wage-and-hour settlements with comparable class
sizes.

This factor weighs in favor of the requested fees.

iii. Risk of Nonpayment & Time Devoted by Counsel
Simply

stated,

class

counsel

took

this

case

on

a

pure

contingency basis, waiving recoupment of all costs, and dedicated
3,000 hours of attorney time in litigating this matter. This factor
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weighs in favor of the fees requested.
C. Administrator’s Fees and Costs
The Court has previously appointed Angeion Group to administer
the settlement.

Here, pursuant to the terms of the settlement

agreement, Angeion is to be paid out of the Settlement Fund.
Angeion’s tasks include: effectuating Notice required by 28 U.S.C.
§§ 1715(a) and (b), disseminating the Notice and Consent Form via
mail and email; receiving and reviewing Consent Forms submitted by
Settlement Class Members; receiving and tracking requests for
exclusion and objections; responding to Class Member inquiries;
preparing and mailing Settlement Award checks to all Eligible
Settlement Class Members; and any additional tasks as the parties
mutually agree upon or the Court orders Angeion to perform.
Revised Declaration of Settlement Administrator (“Administrator
Decl.”) ¶ 4, Doc. No. 291.

Angeion’s fees to date, which include

estimates for tasks that have yet to be performed, are $35,597.67.
Id. at ¶ 25, Ex. K.

The Court approves this amount and will permit

up to a 10 percent upward deviation from said figure, if necessary.
Thus, if after the Settlement Administrator completes all of its
tasks and its costs exceed the foregoing, any additional amounts
must be approved by the Court.
D. Service Payments to Named Plaintiffs
Finally, the Court considers whether or not to approve the
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requested service payments to Named Plaintiffs.

Service payments

are common in class action litigation involving a common fund and
are intended to compensate plaintiffs for risks incurred and
services they provided.

Bredbenner, 2011 WL 1344745, at *22.

Here, the Notice informed all Class Members that each Named
Plaintiff8, in addition to David Leppo and Guy Leone, would request
a service fee in the amount of $5,000, totaling $75,000.
were no objections to the service payments.

There

The service payments

are sought to compensate the Named Plaintiffs for the risks
incurred by bringing this suit against a large company who is also
their employer.

Soloff Decl. ¶¶ 25-27.

More importantly, the

service payments compensate these particular individuals for their
participation in this lawsuit.

Id.

Specifically, these Plaintiffs

provided detailed factual information regarding their job duties
and hours worked, Defendant’s timekeeping and pay practices, and
the off the clock work performed by Class Members.

Id.

These

Plaintiffs assisted with preparation of the pleadings and helped
prepare and execute declarations.

Id.

Moreover, these Plaintiffs

had to participate in discovery by responding to written discovery,
producing documents, and preparing and sitting for depositions.
Id.

Indeed, again based on the Court’s knowledge of the case based

8 “Named Plaintiffs” refer to Donald Maddy, Kurt Fredrick, Fredrick R.
Shellhammer, III, Frank Michienzi, Lance Bergmann, Anthon Chelpaty, William
Madden, Steve Le Blanc, Jeffrey Scott Wilkerson, Jeffrey Navarette, Phillip

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on its pretrial management of same, in April of 2016, the Court
entered an Order allowing Defendant discovery of ESI contained on
select Plaintiffs’ private cell phones.
2016.

Order [243], August 18,

Other Class Members were not subjected to such personal

intrusions in order to advance this litigation.

The Court finds

the service payments to be fair and within a reasonable range.

See

Bredbenner, 2011 WL 1344745, at *22-23 (awarding $10,000 for each
service member).
Thus, the Court approves the request for service payments for
the Named Plaintiffs, David Leppo, and Guy Leone in the amount of
$5,000, totaling no more than $75,000.
III. CONCLUSION
Based on the foregoing, the Court approves the settlement
agreement, class counsel’s requested fees and costs, the Claims
Administrator’s fees and costs and the service payments.
separate Order will issue.
Date: June 26, 2017

s/ Karen M. Williams
KAREN M. WILLIAMS
UNITED STATES MAGISTRATE JUDGE

cc: Hon. Jerome B. Simandle

Eric Benson, Bradley Palmer and Thomas Kiss.
at ¶25.

24

Soloff Decl. [Doc. No. 286-2],

A