Duffy III v. Illinois Tool Works, Inc. et al

Filing 185

ORDER ADOPTING REPORT AND RECOMMENDATIONS, The court OVERRULES Class Counsel'sObjections and ADOPTS IN FULL Magistrate Judge's R&R awarding Class Counsel $19,316.35 in attorneys fees, plus $41,117.61 in costs, for a total award of $60,433.96. The court also GRANTS Plaintiff Duffy's petition for an incentive fee award in the amount of $10,000. So Ordered by Judge Nicholas G. Garaufis on 9/23/2024. (TLH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JOHN DUFFY III, individually and on behalf of
all others similarly situated,

MEMORANDUM & ORDER
15-CV-07407 (NGG) (SIL)

Plaintiff,
-againstILLINOIS TOOL WORKS, INC., and
SOUTH/WIN LTD.,
Defendants.
NICHOLAS G. GARAUFIS, United. States District Judge.
This is a class action lawsuit commenced by Plaintiff John Duffy
III, ("Plaintiff Duffy'' or "Plaintiff') individually and on behalf of
all others similarly situated, against Illinois Tool Works, Inc. and
South/Win Ltd., now known as Highline Warren LLC (collectively, "Defendants"), asserting claims for breach of express
warranty, 1 strict product liability, negligence, and deceptive business practices and false advertising under New York General
Business Law §§ 349 and 350, respectively. (See generally Am.
Comp!. (Dkt. 21).) Pending before this court are Magistrate
Judge Steven I. Locke's Report and Recommendation ("R&R") on
Class Counsel's 2 Motion for Attorney's Fees and Costs, Class
Counsel's Objections to the R&R, and Defendants' Response to
Class Counsel's Objections. (See Class Counsel's Mot. for Attorney's Fees ("Mot.") (Dkt. 164); R&Rdated 07/18/2024 ("R&R")
(Dkt. 180); Class Counsel's Objections to R&R ("Obj. to R&R'')
1

On November 1, 2016, in a bench ruling, then-District Judge Joseph F.
Bianco dismissed Plaintiffs express warranty claim and request for injunctive relief. (See Order dated 11/01/2016 (Dkt. 35); see also Oral Ruling Tr.
(Dkt. 36) at7:5-11; 18:11-19.) The case was reassigned to the undersigned
on May 31, 2019. (See Minute Entry dated 05/31/2019.)
2

Edelman, Combs, Lattumer & Goodwin, LLC ("Edelman") and Kleinman,
LLC ("Kleinman") are the Class Counsel here.

1

(Dkt. 181); Defs.' Response to Objections to R&R ("Defs.' Resp.")
(Dkt. 182) .) For the reasons set forth below, the court OVERRULES Class Counsel's Objections to the R&R and ADOPTS IN
FUlL the R&R. The court also GRANTS Plaintiff Duffy's petition
for an incentive fee award in the amount of $10,000.
I.

BACKGROUND

The court assumes the parties' familiarity with the background of
this case as set forth in Magistrate Judge Locke's detailed description of the foregoing factual and procedural history, including
reviewing key provisions of the Class Settlement Agreement and
Release (the "Settlement Agreement"), in his R&R. (R&R at 2-7;
see also Settlement Agreement (Dkt. 160-2) .) Judge Loclce issued
the annexed R&R on July 18, 2024, recommending that Class
Counsel be awarded $19,316.35 in attorney's fees and
$41,117.61 in costs, for a total of $60,433.96. (See R&R at 16.)
Class Counsel filed objections on August 1, 2024. (See Obj. to
R&R.) On August 15, 2024, Defendants filed their response to
Class Counsel's objections. (See Defs.' Resp.)
II. LEGAL STANDARD

A district court "may accept, reject, or modify, in whole or in part,
the findings or recommendations made" by a magistrate judge in
an R&R. 28 U.S.C. § 636(b)(l)(C). Where a party timely and
specifically objects to an R&R, the court conducts a de nova review of the contested portions of the R&R. Fischer v. Forrest, 286
F. Supp. 3d 590, 601 (S.D.N.Y. 2018). "However, when a party
makes only conclusory or general objections, or simply reiterates
his original arguments, the court reviews the report and recommendation strictly for clear error." Piligian v. Icahn Sch. of Med.
at Mount Sinai, 490 F. Supp. 3d 707, 715 (S.D.N.Y. 2020). 3 In
3

When quoting cases, unless otherwise noted, all citations and internal
quotation marks are omitted, and all alterations are adopted.

2

the Second Circuit, "it is established law that a district judge will
not consider new arguments raised in objections to magistrate
judge's report and recommendation that could have been raised
before the magistrate but were not." Sci. Components Corp. v. Sirenza Microdevice.s, Inc., No. 3-CV-1851 (NGG) (RML), 2006 WL
2524187, at *2 (E.D.N.Y. Aug. 30, 2006) (citing Pan Am. World
Airways, Inc. v. Int'l Bhd. of Teamsters, 894 F.2d 36, 40 n.3 (2d
Cir. 1990)).
III. DISCUSSION
Class Counsel makes four objections to the R&R. First, Class
Counsel objects to Judge Locke's finding that Class Counsel improperly staffed the matter. (Obj. to R&R at 5-6; see al.so R&R at
13-14.) Second, Class Counsel objects that Judge Locke improperly considered proportionality of relief obtained for Class
Members to attorney's fees requested by Class Counsel when determining the reasonableness of attorney's fees. (Obj. to R&R at
7-10; see al.so R&R at 12.) Third, Class Counsel disputes Judge
Locke's finding that the recommended attorney's fees award is
justified by limited overall recovery. (Obj. to R&R at 10-12; see
al.so R&R at 12-13.) Fourth, Class Counsel argues that the R&R's
recommended amount of attorney's fees is not reasonable. (Obj.
to R&R at 12-14; see al.so R&R at 14.) Defendants, in agreeing
with Judge Locke's recommendations, challenge Class Counsel's
objections without making any objections of their own. (See generally Defs.' Resp.) The court addresses each of Class Counsel's
objections in tum.
A.

Attorney's Fees

1.

Improper Staffing of the Matter

First, Class Counsel objects to Judge Locke's findings regarding
improper staffing of the matter, arguing that Class Counsel did
not overstaff the matter on purpose because Edelman is a relatively smaller firm and Kleinman is a sole practitioner. (Obj. to

3

R&R at 5.) Defendants point out that this objection "simply rehashes the argument" Class Counsel made in the supplemental
filing. (See Defs.' Resp. at 7.) They are partially correct. (See Class
Counsel's Suppl. Mem. ("Suppl. Mem.") (Dkt. 175) at 7 (arguing
that most of the work was performed by partners because "[t]he
majority of attorneys at Edelman are partners," Edelman and
Kleinman do not have "the luxury of assigning associate attorneys to handle most case work with the supervision of a partner,"
and "Kleinman is a sole practitioner").) Therefore, the court reviews the portion of the R&R making findings about the sizes of
Class Counsel's firms for dear error. Finding no dear error, the
court agrees with Judge Locke that "[r]egardless of whether it
was subjectively appropriate for partner-level attorneys" to conduct their work in this litigation, the court must award attorney's
fees "based on what is objectively reasonable under the circumstances-particularly given the limited overall recovery in this
case." (R&Rat 14 (citing P.H. Krear& Co. v. Nineteen Named Trs.,
810 F.2d 1250, 1263 (2d Cir. 1987)) (emphasis added).)
However, Class Counsel also makes specific objections to this
portion of the R&R. For example, Class Counsel argues that the
staffing of the matter was appropriate because partner-level attorneys performed more efficiently than associate attorneys and
had more experience, in general, and more familiarity with the
case, in particular. (Obj. to R&R at 5.) Class Counsel does not cite
any legal authority to support this argument. Class Counsel also
does not explain how partner-level attorneys' experience, familiarity, or efficiency excused the lopsided nature of the staffing.
While attorneys can staff their matters as they see fit, "it is not
appropriate, for purposes of gauging the reasonable fee, to assign
partner-level rates to tasks that a first- or second-year associate
could easily perform." Trinidad v. Pret a Manger (USA) Ltd., No.
12-CV-6094 (PAE), 2014 WL 4670870, at *9 (S.D.N.Y. Sept. 19,
2014). That is because the test ofreasonable attorney's fees is an
objective one. SeeBeastie Boys v. Monster Energy Co., 112 F. Supp.

4

3d 31, 52 (S.D.N.Y. 2015) (emphasizing "the governing test of
reasonableness is objective; it is not dictated by a particular client's subjective desires or tolerance for spending''). Therefore,
Class Counsel's subjective determinations that partner-level attorneys were better suited to handle certain tasks are irrelevant.
Furthermore, Class Counsel's argument that the court in Trinidad
"did not reduce attorney's fees to 5%" misunderstands Judge
Locke's finding. (Obj. to R&R at 6.) The R&R cites Trinidad not
to justify the specific percentage reduction warranted in this case,
but to highlight the objective nature of the inquiry for determining reasonable attorney's fees. (See R&R at 14 (noting that "the
Court must award attorneys' fees based on what is objectively
reasonable under the circumstances").)
Next, Class Counsel attacks a straw man. That the court "should
not conduct an 'ex post facto determination of whether attorney
hours were necessary to the relief obtained"' misses the mark.
(Obj. to R&R at 6 (quoting (Grant v. Martinez, 973 F.2d 96, 99
(2d Cir. 1992))).) So does the argument that Kleinman engaged
in substantive legal work. (Obj. to R&R at 6.) First, rather than
determining the number of hours that would have been necessary
for Class Counsel to obtain relief for the Class Members, here, the
issue before the court is whether Class Counsel's staffing of the
matter was appropriate. Martinez is inapposite. Second, it is of
no consequence that Kleinman, as a sole practitioner, "appeared
at court hearings, took the deposition of one of the Defendants'
representatives and defended Plaintiff's deposition during the
COVID-19 pandemic[.]" (Id.) Those are clearly not administrative tasks. No one argues otherwise. Instead, Judge Locke found
that certain administrative tasks performed by Kleinman are
"typically associated with paralegals." (See R&R at 13 (citing
tasks such as filing documents in the case management system).)
Class Counsel has no response to those findings.

5

Therefore, reviewing de nova, the court finds that Class Counsel
improperly staffed the matter.
2.

Proportionality of Recovery to Attorney's Fees

Second, Class Counsel objects that Judge Locke erroneously relied on proportionality analysis in his R&R. (Obj. to R&R at 710.) Specifically, Class Counsel claims that the R&R "erroneously
rejected controlling precedent on proportionality for fee shifting
claims, including claims under §§ 349-350." (Id. at 8.) This objection reiterates Class Counsel's original arguments made in the
opening and supplemental briefs almost verbatim, while nearly
exclusively relying on the same legal authority cited in those
briefs. (E.g., compare (Mot. at 5-6 (setting forth the definition of
"prevailing party'' under federal and New York state precedent)),
with (Obj. to R&R at 7-8 (providing definition of "prevailing
party'' and relying on the same analysis)); compare (Suppl. Mot.
at 2-4 (relying mostly on caselaw interpreting fee-shifting provisions in federal statutes)), with (Obj. to R&R at 8-10 (citing same
cases and making same arguments about proportionality)).) As
such, the court reviews this portion of the R&R for clear error.
Finding none, the court adopts Judge Locke's well-founded analysis considering the reasonableness of the requested attorney's
fees as compared to Class Members' limited recovery.
3.

Limited Recovery for Class Members

Third, in addition to repeating the arguments about proportionality, Class Counsel also objects to the R&R's finding that Class
Counsel achieved limited success on behalf of Class Members,
warranting a lower amount in attorney's fees. (Obj. to R&R at 1112.) 4 Class Counsel argues that Judge Locke erred in basing the

4

Without providing any factual basis, Class Counsel also argues that "defendants' actions contributed to prolonged litigation," which this court
should also assess. (Id. at 12.) This is a new argument that Class Counsel

6

fee award on the $250,000 relief obtained for Class Members
compared to the $5 million sought in damages, and that a 95%
fee reduction is not warranted by the circumstances of this case.
(Obj. to R&R at 11.) While it is a close cousin of the proportionality argument, the court will conduct a de nova review of this
specific objection.
Generally, in awarding attorney's fees, courts within the Second
Circuit evaluate the degree of success obtained by the plaintiffs.
See Riordan v. Nationwide Mut. Fire Ins. Co., 977 F.2d 47, 53 (2d
Cir. 1992) (elaborating that "the results achieved" is one of the
factors "ordinarily considered by New York courts when evaluating requests for attorney's fees"), certified question withdrawn,
984 F.2d 69 (2d Cir. 1993); see also Loe. 1180, Comms. Workers
of Am., AFL-CIO v. City of New Yorlc, 392 F. Supp. 3d 361, 378
(S.D.N.Y. 2019) (same). Indeed, the degree of success obtained
is "the most critical factor." Hensley v. Eclcerhart, 461 U.S. 424,
436 (1983). As such, "[b]oth the quantity and quality of relief
obtained, as compared to what the plaintiff sought to achieve as
evidenced in her complaint, are key factors in determining the
degree of success achieved." Barfield v. N. Y. C. Health and Hasps.
Corp., 537 F.3d 132, 139, 152-53 (2d Cir. 2008) (finding no
abuse of discretion in district court's decision to award $49,889
in attorney's fees instead of the requested amount of $340,375);
has not raised before-neither in the opening brief, nor in the supplemental brief. Class Counsel had at least two opportunities to do so, And
Defendants correctly note that Class Counsel's citation to caselaw in the
opening brief without any supporting facts did not preserve the argument.
(See Defs.' Resp. at 14 n.7.) See also Piligian, 490 F. Supp. 3d at 716 (explaining that "new arguments and factual assertions cannot properly be
raised for the first time in objections to the report and recommendation,
and indeed may not be deemed objections at all"). Therefore, this court
"will not consider [this] new argument[] raised in objections to a magistrate judge's report and recommendation that could have been raised
before the magistrate but w[as] not.'' Sci. Components Corp., 2006 WL
2524187, at*2.

7

see also Gordon v. Verizon Comms., Inc., 148 A.D.3d 146, 165-66

(1st Dep't 2017) (highlighting "the principle that a settlement
court should have discretion to award attorney's fees in an
amount commensurate with the degree of benefit obtained by
the class as a result of the litigation"). Where limited recovery is
achieved, courts can reduce attorney's fees accordingly. Am. Dev.
Grp., LLC v. Island Robots of Fla., No. 17-CV-3323 (NGG) (PK),
2019 WL 5790265, at ''13 (E.D.N.Y. Oct. 4, 2019) (recommending that $13,433 be awarded in attorney's fees rather than the
requested amount of $53,730.50 because "Plaintiff achieved only
partial success on its claims," including a GBL § 350 claim), report
and recommendation adopted, No. 17-CV-3323 (NGG) (PK), 2019
WL 5788319 (E.D.N.Y. Nov. 6, 2019).
Here, Plaintiffs operative complaint provides evidence of what
he and his Class Members hoped to achieve. (See Am. Comp!. 'l
8 (alleging that "[t]he claims of the proposed class members exceed the sum or value of $5,000,000").) 5 As a result of a
settlement between the parties, however, Defendants agreed to
pay damages of up to only $250,000 in aggregate-a small fraction of the damages sought. (Settlement Agreement 'l 9.)
Moreover, although Defendants agreed to pay that amount to
Class Members who submitted valid claims, the final total payout
was only $1,859.18. (R&R at 5.) 6 The total amount recovered by
the plaintiffs in a commercial dispute is a proxy for measuring
Class Counsel claims, without providing any evidence, that following dismissal of the Plaintiffs ''breach of express warranty and national class
claim, the litigation alleged damages were less than $5,000,000." (Obj. to
R&R at 10.) Class Counsel does not clarify what the exact dollar amount
of alleged damages were at that point. In any event, that is inconsequential. It remains true that Plaintiffs most recent complaint alleged damages
of at least $5,000,000. (See Am. Campi. 'l 8.)
6 As Defendants note in their response to Class Counsel's objections, the
amount recovered by Class Members is even lower ($1,700) because the
recipients of several checks did not claim them within the required
timeframe. (Defs.' Resp. at 2 n.2.)
5

8

the plaintiffs' success. See Koch v. Greenberg, 14 F. Supp. 3d 247,
280 (S.D.N.Y. 2014) (noting that "GBL §§ 349 and 350 protect
consumer rights, which, in commercial cases, are directly measured by the financial damages imposed"). And the amount
recovered here does not demonstrate the degree of success warranting $350,000 in attorney's fees. See Hensley, 461 U.S. at 436.
Furthermore, Class Counsel misconstrues Judge Locke's findings.
Class Counsel's attempt to present the R&R's finding of limited
success warranting a reduction in attorney's fees as an erroneous
proportionality analysis is misguided. Class Counsel suggests that
Judge Locke reduced the attorney's fees award to roughly 5% of
the requested amount because the $250,000 relief obtained by
Class Members represents 5% of $5 million in damages sought in
this litigation. (See Obj. to R&R at 11.) Such reasoning is nowhere to be found in the R&R. Rather, the R&R arrived at the
recommended amount of $19,316.35 by "subtracting the fees
billed by'' two former partners "from the total $409,427.00 fees
incurred by Class Counsel and further subtracting 95% from the
result." (R&R at 14 n.5.) 7 In the R&R, there is no indicia of comparison made between the 95% reduction and the
proportionality of Class Counsel's recovery on behalf of Class
Members as opposed to the original amount alleged in the operative complaint.
Class Counsel's attempts to distinguish Hensley and Riordan fare
no better. The R&R relies on the Supreme Court's decision in
Hensley for the proposition that across-the-board percentage deductions are warranted in awarding attorney's fees. (R&R at 14.)
Instead of challenging that reasoning, Class Counsel argues that
the Supreme Court in Hensley "explained assessment of success
or 'results obtained' in the litigation[.]" (Obj. to R&R at 11.) That
Class Counsel does not dispute the R&R's recommendation that Class
Counsel should be denied attorney's fees for former partners Cathleen M.
Combs's and James 0. Lattumer's work. (Obj. to R&R at 5, 13.)

7

9

language is merely a truism. It does not change Hensley's guidance that the degree of success obtained is the most critical factor
or that across-the-board reduction of attorney's fees under certain circumstances is warranted. 461 U.S. at 436-37 (holding that
if "a plaintiff has achieved only partial or limited success, the
product of hours reasonably expended on the litigation as a
whole times a reasonable hourly rate may be an excessive
amount" and the district court may "simply reduce the award to
account for the limited success").
Similarly, the Second Circuit's decision in Riordan supports the
finding of a fee reduction here. Class Counsel asserts that "the
result obtained" is merely one factor based on which the district
court exercised its discretion to arrive at an appropriate fee
award in Riordan. (See Obj. to R&R at 11-12.) That is correct.
And the Second Circuit in Riordan approved it. 977 F.2d at 54
(holding that "a limitation based on the total recovery does not
seem unreasonable to us"). Judge Locke's analysis leading to his
recommendation did more than that. In addition to the limited
recovery, the R&R also considered Class Counsel's improper staffing of the matter before determining that the requested
attorney's fee award of $350,000 is unreasonable. (R&R at 1314.) Where a district court has the authority to "exercise[] its discretion with respect to one factor considered in arriving at an
appropriate fee award," that the R&R considered multiple factors
in coming to its recommended fee award is both proper and reasonable under the circumstances here. Riordan, 977 F.2d at 54.
In sum, this this court reaches the same conclusion that based on
the limited recovery obtained by the plaintiffs, a 95% fee reduction is warranted here.
4.

Reasonableness of the Amount Awarded

Lastly, Class Counsel objects that Judge Locke's recommended
amount of attorney's fees is unreasonable. (Obj. to R&R at 1214.) Part of this objection attempts to revive the same arguments

10

made about proportionality earlier in Class Counsel's objection,
(see Obj. to R&R at 8-10, 13), as well as in Class Counsel's supplemental brief. (Suppl. Mot. at 2-4.) The remainder of this
objection revisits Class Counsel's original points about "the robust notice program" made in the supplemental brief, (compare
(Obj. to R&R at 13 (stating "the notice program for this settlement class was robust" with no opt-outs)), with (Suppl. Mot. at
1 (noting there were 92 valid claims submitted "[f]ollowing a
robust notice program"))), and public policy arguments made in
the opening brief. (Compare (Obj. to R&R at 14 (arguing that the
R&R downplayed public policy implications because "following a
change back to the prior Rain-X formula consumer complaints
ceased")), with (Mot. at 15 (claiming that this litigation ''was particularly compelling because ... [f]ollowing a change back to the
prior Rain-X formula, the consumer complaints ceased")).) Thus,
this court reviews the portion of the R&R at issue here for clear
error. And finding none, the court ADOPTS Judge Locke's recommendation to award Class Counsel $19,316.35 in attorney's fees.
B. Attorney's Costs and Expenses
No party objects to Judge Loclce's recommendation that Class
Counsel be awarded $41,117.61 in costs, and the time to do so
has passed. (See Obj. to R&R at 5; cf Defs.' Resp.) Therefore, the
court reviews this portion of the R&R for clear error. See Velasquez v. Metro Fuel Oil Corp., 12 F. Supp. 3d 387, 397 (E.D.N.Y.
2014). Having found none, the court ADOPTS this portion of the
R&R recommending that Class Counsel be awarded $41,117.61
in costs.
C. Incentive Fee Award
Finally, the court addresses Plaintiff Duffy's request for an incentive fee award, which does not impact the amount recovered by
Class Members. (Pl.'s Mot. for Prelim. Approval of Settlement
(Dkt. 160) 'l 7.) The Settlement Agreement provides Plaintiff

11

Duffy with an incentive fee award of up to $10,000 "for his individual damages and as an incentive award subject to approval by
the Court." (Settlement Agreement If 16.) "An incentive award is
meant to compensate the named plaintiff for any personal risk
incurred by the individual or any additional effort expended by
the individual for the benefit of the lawsuit." In re LIBOR-Based
Fin. InstrumentsAntitrnstLitig., No. ll-CV-5450 (NRB), 2018 WL
3863445, at *2 (S.D.N.Y. Aug. 14, 2018); see al.so Damberger v.
Metro. Life Ins. Co., 203 F.R.D. 118, 124-25 (S.D.N.Y. 2001)
(finding $10,000 incentive fee award for named plaintiff reasonable).
When the court granted the motion for final approval of the settlement, it reserved judgment on Plaintiff Duffy's petition for an
incentive fee award to allow counsel to provide supporting "evidence attesting to Plaintiffs participation in the case." (Mem. and
Order Granting Mot. for Settlement Approval (0kt. 173) at 11.)
On April 26, 2024, Plaintiff Duffy filed a declaration under penalty of perjury, affirming that, among other things, he has "kept
up with developments in this case and exercised [his] judgment
in order to carry out [his] duties as a class representative,"
"[a]ssisted in investigating the claims asserted in this case,"
"[r]eviewed Defendants' responses to written discovery," "[p]repare[d] for and attend[ed] [his] deposition during the COVID19 pandemic," and "[a]ctively review[ed] numerous documents
filed in this case[.]" (Declaration of John Duffy III (Dkt. 177) If'!
16, 17.) Having reviewed Plaintiff Duffy's declaration, the court
finds that he has expended additional effort for the benefit of the
lawsuit and approves the incentive fee award. As such, the court
concludes that the incentive payment in the amount of $10,000
to Plaintiff Duffy is reasonable. To that end, as set forth in the
Settlement Agreement, (Settlement Agreement If 16), Plaintiff
Duffy shall receive $10,000 for his individual damages and as an
incentive award.

12

IV. CONCLUSION

For the foregoing reasons, the court OVERRULES Class Counsel's
Objections and ADOPTS IN FULL Magistrate Judge's R&R awarding Class Counsel $19,316.35 in attorneys fees, plus $41,117.61
in costs, for a total award of $60,433.96. The court also GRANTS
Plaintiff Duffy's petition for an incentive fee award in the amount
of $10,000.
SO ORDERED.
Dated:

Brooklyn, New York
Septembera3 2024
s/Nicholas G. Garaufis
ijcHOIAs G. GARAUFIS I
United States District Judge

13

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------------x
JOHN DUFFY III, on behalf of Plaintiff and the
class members described herein,

REPORT AND
RECOMMENDATION
15-cv-7407 (NGG)(SIL)

Plaintiff,
-againstILLINOIS TOOL WORKS, INC. and SOUTH/WIN
LTD.,
Defendants.
--------------------------------------------------------------------x

STEVEN I. LOCKE, United States Magistrate Judge:
Presently before the Court in this diversity-products liability class action, on
referral from the Honorable Nicholas G. Garaufis for Report and Recommendation,
is Plaintiff John Duffy III's ("Plaintiff' or "Duffy") Motion for Attorneys' Fees and
Costs. See Class Counsel's Fee and Expense Petition and Supporting MemOl'andum,
("Plaintiffs Motion" or "Pl. Mot."), Docket Entry ("DE") [164]. Defendants Illinois
Tool Works, Inc. ("ITW'') and South/Win Ltd. ("South," and collectively "Defendants")
oppose. See Memorandum of Law in Opposition to Class Counsel's Fee and Expense
Petition ("Opposition'' or "Opp."), DE [169]. By way of Complaint filed on December
30, 2015, see Complaint, DE [1], later modified by an Amended Complaint dated
February 12, 2016, see Amended Complaint, DE [21], Plaintiff commenced this
litigation against Defendants asserting, inter alia, breach of warranty, products
liability and negligence claims arising from the sale of windshield washer fluid, which
created certain problems for the cars that the fluid was used with.

1

Following eight years of litigation, five motions to compel, six written opinions,
23 court conferences, and countless hours of the Court's and the litigants' time, Duffy
negotiated a class settlement agreement for which all class plaintiffs were paid a total
of $1,859.18 - less than the threshold amount for small claims court. 1 Pursuant to
the agreement, Plaintiffs counsel now seeks an award of $350,000.00 in attorneys'
fees and $41,117.61 in costs, for a total of $391,117.61. PL Mot., 1. Given the limited
total recovery on behalf of the class, the Court respectfully recommends that
Plaintiffs Motion be granted in part and denied in part and that Plaintiffs counsel
be awarded $19,316.35 in attorneys' fees and $41,117.61 in costs, for a total of
$60,433.96.

I.

BACKGROUND
The following facts are taken from the parties' memoranda oflaw, declarations

and exhibits submitted in connection with Plaintiffs Motion. The Court limits its
recitation to the facts and procedural history to that necessary to resolve the present
motion.
Duffy alleged that Defendants manufactured Rain-X windshield washer fluid,
which damaged motor vehicles equipped with "continuity prong washer sensor[s]," in
certain Volkswagen, Audi, Mini Cooper, BMW, Mercedes, and Chrysler vehicles,
among others, requiring repairs costing between $100 and $200. Pl. Mot., 2; Opp., 1.
Defendants allegedly represented on packaging and labels that Rain-X was suitable

In New York Small Claims Couit, claimants can seek up to $5,000 in City Com-ts and $3,000 in Town
and Village Courts. A GUIDE 'fO SMALL CLAIMS & COMMERCIAL SMALL CLAIMS IN THE NEW YORK STATE,
CITY, TOWN AND VILLAGE COURT, New York State Unified Colll't System, 1 (updated February 2024).
1

2

for use in motor vehicles without qualification or warning. PL Mot., 2. Plaintiff
purchased Rain-X and used it in his Audi vehicle. Pl. Mot., 2; Opp., 1. The Rain-X
product allegedly coated the low fluid warning sensors, causing the low fluid warning
light to illuminate even though the windshield washer fluid reservoir was filled. PL
Mot., 2; Opp., 1. This problem required time and money to fix. See PL Mot., 2.
Based on the foregoing, Plaintiff commenced this action against Defendants on
December 30, 2015, asserting claims for breach of express warranty, products
liability, negligence, and deceptive business practices and false advertising pursuant
to New York General Business Law ("NY GBL") §§ 349, 350. See Complaint, DE [1].
Duffy filed an Amended Complaint, alleging the same claims, on February 12, 2016.

See Amended Complaint, DE [21].

On November 1, 2016, Judge Bianco, then

assigned to this action while still serving as a district judge, dismissed Plaintiffs
breach of express warranty claim and his request for injunctive relief. See DE [35].
Discovery proceeded as to Duffy's remaining claims. See DEs [43] - [44]. Judge
Garaufis was assigned to this action on May 31, 2019.
During discovery, Plaintiff moved to compel Defendants to produce the Rain-X
formula and consumer contact information, which the Court granted in part and
denied in part. See DEs [56], [68]. Duffy also filed three motions to compel third
parties to comply with subpoenas, which the Court granted in part and denied in
part. See DEs [78], [88], [132], [137], [144]; Electronic Order dated Aug. 16, 2022.
On September 30, 2021, Judge Garaufis granted Plaintiffs motion for class
certification, appointed Duffy as class representative, and named Edelman, Combs,

3

Latturner & Goodwin LLC ("Edelman") and Kleinman, LLC ("Kleinman," collectively
"Class Counsel") as class counsel. See DE [115]. Following further discovery and
several conferences with the Court, the parties reached a settlement agreement (the
"Settlement Agreement") and filed a motion for preliminary approval on October 6,
2023. See DE [160]. On October 20, 2023, Judge Garaufis granted the motion for
preliminary approval of the Settlement Agreement, certified a class for settlement
purposes, appointed Duffy as class representative and Edelman and Kleinman as
Class Counsel, and approved distribution of a class notice. See DE [163].
Pursuant to the Settlement Agreement, Defendants agreed to pay damages up
to $250,000 in total, to be distributed to class members that submitted valid claims.
Settlement Agreement, DE [160-2],

,r 9.

If a class member submitted a valid claim,

but did not provide evidence of unreimbursed actual damages, that person would
receive $20. Id.

,r 11.

If a class member submitted a valid claim and provided proof

of actual damages, that individual would receive up to $200. Id. Both types of valid
claims may have been subject to a pro rata reduction in the event of the total claims
exceeding the settlement fund. Id. Claim forms must have been returned within 90
days of the Court's preliminary approval of the Settlement Agreement to be valid.
See Order granting Motion for Settlement, DE [163], 'if S(a). Further, Defendants
were required to pay Plaintiff up to $10,000 for his individual damages and as an
incentive award, subject to Court approval. Settlement Agreement, 'if 16. Defendants
also agreed to pay for the distribution of the class notice and other administrative
expenses, as well as "the reasonable attorneys' fees, costs and expenses, including

4

expert expenses, as awarded by the Court to Plaintiffs counsel."

Id. iril 17·18.

"Expenses" includes "expert[s], filing fees, transcripts, subpoenas, service of process,
and similar typical expenses." Id.

ii 18. The parties further agreed that the United

States District Court for the Eastern District of New York shall retain exclusive
jurisdiction over the implementation and enforcement of the Settlement Agreement
and that it shall be governed by New York law. Id. i1,r 40•41.
Following the Court's preliminary approval of the Settlement Agreement,
notice of the settlement was mailed to 5,613 class members, as well as posted in
several newspapers and online. Memorandum and Order on Plaintiffs Motion for
Settlement Approval ("Final Approval Order"), DE [173], 6. The deadline to submit
claims was January 19, 2024, and while no class members opted out or objected to
the Settlement Agreement, only 92 valid claims were ultimately submitted. See Opp.,
1; Final Approval Order, 6. On March 19, 2024, following a final fairness hearing,
Judge Garaufis granted Plaintiffs motion for final settlement approval and ordered
Defendants to pay a total of $1,859.18, to be disbursed amongst the 92 class members
that submitted valid claims. See Final Approval Order, 12. Judge Garaufis reserved
judgment on the issue of Plaintiffs incentive award. Id.
Plaintiffs Motion was filed on November 13, 2023, which Judge Garauf:is
referred to this Court for a Report and Recommendation on March 15, 2024. See Pl.
Mot.; Order Referring Motion. Pursuant to Judge Garaufis's order, the parties filed
supplemental b1·iefing on April 19, 2024. See Supplemental Memorandum in Support
of Plaintiffs Motion ("Plaintiffs Supplemental Memorandum" or "Pl. Supp."), DE

5

[175]; Defendant's Supplemental Memorandum of Law in Opposition to Plaintiffs
Motion ("Defendant's Supplemental Opposition'' or "Def. Supp."), DE [176].
Plaintiff asserts that Edelman spent over 875.20 hourn in total litigating this
action - which was billed at hourly rates ranging from $325 to $700 for partners, $230
for associates and $125 for paralegals - amounting to a total of $352,742.00 in
attorneys' fees. See Pl. Mot., Ex. A, Declaration of Daniel A. Edelman (''Edelman
Deel."), App. H, 147. The fees sought by Edelman are summarized below:

Attorney Name and Title

Hourly
Rate

Hours
Worked

Fees
Charged

Cathleen M. Combs (Partner)

$700.00

30

$21,000.00

Daniel A. Edelman (Partner)

$700.00

154.7

$108,290.00

James O. Latturner (Partner)

$700.00

3

$2,100.00

Tara L. Goodwin (Partner)

$600.00

7

$4,200.00

Francis R. Greene (Partner)

$500.00

0.4

$200.00

Heather Kolbus (Partner)

$500.00

158.2

$79,100.00

Dulijaza "Julie" Clark (Partner)

$500.00

0.3

$150.00

Cassandra Miller (Partner)

$450.00

0.6

$270.00

Tiffany Hardy (Partner)

$450.00

131

$58,950.00

Tiffany Hardy (Partner)

$325.00 2

128.5

$41,762.00

Stephen Pigozzi (Associate)

$230.00

38.2

$8,786.00

While Plaintiffs Motion does not explain why Ms. Hardy's work was billed at two different hourly
rates, Edelman asserts that at the firm attorneys' hourly rates are adjusted "to account for inflation
and increasing expe1·ience." Edelman Deel., ii 34. Accordingly, the Court will assume that Ms. Hardy's
hourly rate was adjusted according to Edelman's stated policy.

2

6

Emiliya G. Farbstein (Associate)

$230.00

0.2

$46.00

All Paralegals

$125.00

223.1

$27,887.50

875.2

$352,742.00

Total

See id. 146-47. Abraham Kleinman, a partner and the only attorney at Kleinman,
spent a total of 174.80 hours at an hourly rate of $400, charging a total of $56,685.00. 3
See Pl. Mot, Ex. B, Declaration of Abraham Kleinman ("Kleinman Deel."). Class
Counsel therefore accumulated $409,427.00 in fees in total. In seeking $350,000 in
attorneys' fees by way of the present motion, Class Counsel purports to request
approximately 85% of the fees actually incurred.

See PL Mot., 4. Edelman and

Kleinman expended $44,545.01 and $567.68 in costs respectively, but Class Counsel
seeks reimbursement for only $41,117.61 in costs. Edelman Deel., App. H, 147;
Kleinman Deel., Ex. 1, 163; see PL Mot., 1.

II.

DISCUSSION
Class Counsel seeks an award of $350,000 in attorneys' fees and $41,117.61 in

costs, for a total of $391,117.61.

PL Mot., 1.

As noted above, Plaintiff seeks

reimbursement for approximately 85% of the fees actually incurred.

Id. 4.

Defendants argue that Duffy's requested award is unreasonable given, inter alia: (1)
Class Counsel's limited success on behalf of the class, (2) Edelman's excessive hourly
rates compared to those customary in the Eastern District, (3) Edelman's overstaffing

3 The Court notes that multiplying 17 4.80 hours by an hourly rate of $400 yields a total of $69,920 in
attorneys' fees incurred by Kleinman. Duffy asserts, however, that Kleinman did not charge for 31.5
of the hours spent on this litigation, which accounts for the $12,600 deficit in Plaintiffs calculation of
Kleinman's total fees. See Pl. Supp., 5.

7

and percentage of work performed by partners rather than associates or paralegals,
and (4) Class Counsel's vague and/or block billed time entries. See generally Opp.
Given the limited total recovery on behalf of the class, the Court respectfully
recommends that Plaintiffs Motion be granted in part and denied in part and that
Class Counsel be awarded $19,316.35 in attmneys' fees and $41,117.61 in costs, for a
total of $60,433.96.

A. Availability of Attorneys' Fees Under New York Law
In a diversity action, such as the instant case, state law governs the issue of
the availability of attorneys' fees. Mid-Hudson Catshill Rural Migrant Ministry, Inc.
v. Fine Host Corp., 4:18 F.3d :168, 177 (2d Cir. 2005) (noting that "[sJtate law creates
the substantive right to attorney's fees").

Further, the parties agreed that the

Settlement Agreement shall be governed by New York law.
Agreement,

See Settlement

,r 41.

"It is well settled m New York that a prevailing party may not recover
attorneys' fees from the losing party except where authorized by statute, agreement
or court rule." RMP Cap. Corp. v. Victory Jet, LLC, 139 A.D.3cl 836, 839, 32 N.Y.S.3d
231, 235 (2d Dep't 2016) (internal citations and quotation marks omitted). When
construing a contractual fee-shifting provision - such as that included in the
Settlement Agreement - courts will award the amount expended by the prevailing
party "so long as those amounts are not um·easonable." F.H. Krear & Co. v. Nineteen
Na,ned Trs., 810 F.2d 1250, 1263 (2d Cir.:1987) (applying New York law). Moreover,

8

as noted above, the Settlement Agreement permits Plaintiff to seek "reasonable
attorneys' fees, costs and expenses." Settlement Agreement,

,r

18 (emphasis added).

Under New York law, a reasonable fee "is commonly understood to be a fee
'which represents the reasonable value of the services rendered."' RMP Cap. Corp.,
139 A.D.3d at 839, 32 NS.S.3d at 235 (quoting NYCTL 1998-1 Tr. v. Oneg Shabbos,
Inc., 3'1 .A..D.3d 789, 790, 830 N.Y.S.2d 763, 764 (2d Dep't 2007)).

"[T]he

determination must be made based upon a demonstration of the hours reasonably
expended on the litigation and what is reasonable compensation for the attorney
based upon the prevailing rate for similar work in the community." RMP Cap. Corp.,
139 A.D.3cl at 839, 32 N.Y.S:Sd at 236. When evaluating requests for attorney's fees,
New York courts typically consider, "the time and skill required in litigating the case,
the complexity of issues, the customary fee for the work, and the results achieved."
Riordan v. Nationwide Mut. Fire Ins. Co., 977 F.2d 47, 53 (2d Cir.1992), certified
question withdrawn, 984F.2d69 (2d Cir.1993) (citing New York cases). Further, the
Supreme Court has noted that in the event a litigant is only partially successful on
its claims, a court "may simply reduce the award to account for the limited success,"
without undertaking an hour-by-hour calculation. Hensley v. Echerhart, 461 U.S.
424, 436-37, 103 S. Ct. 1933, 1941 (1983).
Moreover, "the court must possess sufficient information upon which to make
an informed assessment of the reasonable value of the legal services rendered."
NYCTL, 37 A.D.3d789, 791, 830 N.Y.S.2d 763, 764 (2d Dep't 2007). To this end, the
party seeking the award of fees must offer proof not only as to the customary fee

9

charged for similar services, but also of the experience, reputation, and education of
the lawyers who provided the representation. See Friedman v. Miale, 69 A.b:sd 789,
791-92, 892 N.Y.S.2d 545, 547-58 (2d Dep't 2010). The party requesting attorneys'
fees bears the burden to establish entitlement to such an award. See Zero Carbon

Holdings, LLC & Four Thirteen, LLC, v. Aspiration Partners, INC., No. 23-CV-5262,
2024 WL 3409278, at *3 (S.D.N.Y. July 15, 2024) (applying New York law).

B. Application to Plaintiff" s Fee Request
Plaintiff seeks an award of $350,000 in attorneys' fees, based on the work of 11
attorneys from Edelman and one from Kleinman, as well as several Edelman
paralegals. See generally Pl. Mot. Class Counsel have provided contemporaneous
time records to support their assertions as to the hours spent litigating this action.

See Edelman Deel., App. H; Kleinman Deel., Ex. 1. While Defendants argue that
Class Counsel's time entries are vague and difficult to understand, the Court
concludes that the records provide sufficient detail for the Court to conduct its
analysis. See Opp., 18-19.
Flnther, Duffy submits sufficient documentation regarding the experience,
reputation and education of all but two of these attorneys: Cathleen M. Combs and
James 0. Latturner. Combs and Latturner are former partners at Edelman, retiring
in 2021 and 2020 respectively, but no further information about their expe1·ience and
qualifications is provided. Edelman Deel.,

,r 1.

As a result, the Court recommends

that Plaintiff be denied attorneys' fees for their work.

10

With respect to the remaining attorneys and paralegals, the Court must
determine whether the requested award is reasonable. Based on the information
provided regarding Class Counsel's experience, expertise and previous awards of
attorneys' fees, the Court determines the hourly rates charged to be reasonable. See
Edelman Deel.

,r,r 2-9,

35-36 (detailing each attorneys' qualifications and experience

in consumer-related litigation, as well as prior awards of attorneys' fees to the
Edelman firm); Kleinman Deel.

,r,r

2-7 (detailing Abraham Kleinman's experience

and expertise in consumer-related litigation). Given the limited results achieved in
this litigation, however, the Court concludes that a significant reduction in the fees
sought is warranted.
Duffy originally sought $5,000,000 damages on behalf of the class. Amended
Complaint, DE [21],

,r

8. After spending over eight years litigating this action,

Plaintiff negotiated a total potential settlement fund - on behalf of all potential class
members - of just $250,000. See Settlement Agreement,

,r 9.

And although notice of

the Settlement Agreement was sent to over 5,600 class members, only 92 valid claims
were submitted, resulting in a total payout to the class of just $1,859.18. See Final
Approval Order, 6. Given this limited recovery, the Court cannot justify awarding
Class Counsel $350,000 in attorneys' fees, which is 188 times the amount actually
paid to class members.

See Am. Dev. Grp., LLC v. Island Robots of Fla., No.

17CV3223NGGPK, 2019 WI, 5790265, at *13 (E.D.N.Y. Oct. 4, 2019), report and
reconunendation adopted, No. 17CV3223NGGPK, 2019 WL 5788319 (E.D.N.Y. Nov.
6, 2019) (awarding one quarter of fees sought based on limited success of plaintiff on

11

only NY GBL claim); Indep. Living Aids, Inc. v. Maxi-Aids, Inc., 25 F. Supp: 2d 127,
134 (E.D.N.Y. 1998) (reducing fee by half due to plaintiff's limited success based on
both the federal law lodestar method and New York law factors); see Riordan,
F.2d

977

at 54 (affirming reduced award of attorneys' fees based on plaintiffs limited

recovery); Gordon v. Verizon Conimc'ns, Inc., 148 AD.3d 146,. H,6, 46 N.Y.S.3d 557
(1st Dep't 2017) (remanding fee application to the trial court for a dete1·mination of
an award "in an amount commensurate with the degree of benefit obtained by the
class as a result of the litigation").
While Duffy asserts that attorneys' fees awarded under the fee-shifting
provisions of NY GBL § 349 need not be proportional to the amount recovered, this
argument is of no moment. See Pl. Supp., 2 (citing Tomassini v. FCA US LLC, No.
21-2785-CV, 2023 WI., 2194016, at *2 (2d Cir. Feb. 24, 2023)). For one, although
Plaintiff brought claims pursuant to NY GBL §§ 349 and 350, Duffy now seeks
attorneys' fees pursuant to the parties' Settlement Agreement, which provides for the
payment of "reasonable attorneys' fees."

Settlement Agreement,

,r

18 (emphasis

added). Moreover, "the touchstone for an award of attorneys' fees pursuant to a
contract is reasonableness." Carco Group, Inc. v. Maconachy,

7i8 :F .3d 72, s·e (2d Cir.

2013). It is therefore appropriate for the Court to consider whether the requested fee
award is reasonable based on Plaintiffs limited recovery.
Duffy also argues that the Court should disregard the minimal recovery
obtained given the public policy considerations associated with this action. See Pl.
Supp., 10. Plaintiff contends that the present litigation exposed a problem with the

12

Rain•X formula that had the potential to harm consumers. See id. The minimal
overall participation in the settlement, however, directly contradicts Duffy's
assertion. Only 92 out of over 5,600 class members filed valid claims, and only one of
those claimants submitted proof of actual damages resulting from their use of the
product.

See Opp., 22. It appears that the public was, at most, only nominally

interested in the problem underlying Plaintiffs lawsuit.
Lastly, the Court notes that a reduction in the requested fee is appropriate
given the improper staffing of this matter. In total, ten partners - and only two
associates - contributed to this action, along with several Edelman paralegals. See
Edelman Deel., App. H, 146-47; Kleinman Deel. Moreover, approximately 75% of all
work was completed by partners. 4 Further, much of the work performed by partnerlevel attorneys could have been handled by associates, including drafting discovery
requests and responses, reviewing document productions, and conducting legal
research. See e.g., Edelman Deel., App. H, 5 (entry from Hardy on Feb. 28, 2017,
"draft interrogatories - research interrogatories"); id. 12 (entry from Hardy on Jun.
23, 2017, "review defs [sic] doc production ..."); id. 15 (entry from Hai·dy on July 7,
2027, "Westlaw research re redacting class member info"). Kleinman often performed
administrative tasks typically associated with paralegals. See e.g., Kleinman Deel.,
Ex. 1, 13 ("File DAE granted PHV in case management system"; id. 27 eEnter
Discovery Conference Adjourn Request [49] in case management system"). Plaintiff
argues that this staffing structure was appropriate in light of Kleinman's status as a

4 Pa1·tner-work accounted for 788.5 out of 1,050 total hours billed in this litigation. See Edelman Deel.,
App. H, 146-47; Kleinman Deel.

13

sole practitioner and the fact that Edelman is a small firm with few associates. See
PL Supp., 7. Regardless of whether it was subjectively appropriate for partner-level
attorneys to conduct this type of work at the Edelman and Kleinman firms, the Court
must award attorneys' fees based on what is objectively reasonable under the
circumstances - particularly given the limited overall recovery in this case. F.H.
Krear, 810 F.2d at 1263 (noting an award of attorneys' fees under New York law must
be reasonable); Trinidad v. Pret a Manger (USA) Ltd., No. 12 CIV. 6094 PAE, 2014
WL4670870, at *9 (S.D.N.Y. Sept. 19, 2014) (reducing fee where partners performed
70% of the work in a wage and hour litigation with state and federal claims).
Based on the foregoing, the Court concludes that a 95% 1·eduction in the total
fees incurred - minus the fees billed by Combs and Latturner - is warranted. See
Hensley, 4:61

U.S.

at 436-37,

103 S.

Ct.

at 1941.

(noting that across-the-board

percentage deductions are appropriate when awarding attorneys' fees); Riordan, 977

F.2d at 54 (holding that reduced fee award based on plaintiffs limited recovery was
within the trial court's discretion). Accordingly, the Court recommends that Class
Counsel be awarded a total of $19,316.35 in attorneys' fees. 5

C. Costs and Expenses
As noted above, the Settlement Agreement authorizes Plaintiff to seek
reimbursements for reasonable costs and expenses, including "expert[s] [fees], filing
fees, transcripts, subpoenas, service of process, and similar typical expenses."

This figure was calculated by subtracting the fees billed by Combs and Latturner - $21,000 and
$2,100 respectively - from the total $409,427.00 fees incurred by Class Counsel and further
subtracting 95% from the result.
5

14

Settlement Agreement,

,r 18.

Class Counsel seeks an award of $41,117.61 in costs.

See Pl. Mot., 1.
"Except in rare circumstances in which some important state interest is
implicated," the availability of costs in an action in fede1·al corn.'t is controlled by
federal law. BASF Corp. u. Prime Auto Collision Inc., No. 20-CV-4797, 2022
70,4127, at *9 (E.D.N.Y. Mar.

9, 2022).

WL

As a gene1·al matter, the Second Circuit has

held that, "attorney's fees awards include those reasonable out-of-pocket expenses
incurred by attorneys and ordinarily charged to their clients." LeBlanc-Sternberg v.
Fletcher, 143 F.Bd 748, 763 (2d Cir.1998). Reasonable expenses include court filing
fees, process servers, postage and transcripts. Hanover Ins. Co. v. D'Angelo, No. CV
13-4301, 2018 WL2729248, at *2 (E.D.N.Y. Mar. 23, 2018) (citation omitted). The
party seeking to recover costs "bears the burden of adequately documenting and
itemizing the costs requested." Ganci v. U.S. Limousine Seru. Ltd., No. 10-cv-3027,
2015 WLT/529772, at *8 (E.D.N.Y. Apr. 2, 2015) (quoting Pennacchio v. Powers, No.
05-cv-985, 2011WL 2945825, at *2 (E.D.N.Y. Jul. 21, 2011)).
Here, Class Counsel have provided itemized documentation - as well as
receipts and invoices - of the costs incurred throughout this litigation. See Edelman
Deel., App. H, 116-145; Kleinman Deel., Ex. 1. These expenses include postage, filing
fees, process servers, court reporters and expert fees. See Edelman Deel., App. I;
Kleinman Deel., Ex. 1. The Court concludes that these expenses are recoverable and
recommends that Plaintiff be awarded $41,117.61 in costs. 6

Defendants argue that fees chai·ged by "Interactive Counseling" are not recoverable because expert
fees are not recoverable under Fed. R Civ. P; 54(d)(l) unless thern is "explicit statutory or contractual

6

15

III.

CONCLUSION

For the reasons set forth above, the Court respectfully recommends that
Plaintiffs Motion be granted in part and denied in part and that Class Counsel be
awarded $19,316.35 in attorneys' fees and $41,117.61 in costs, for a total of
$60,433.96.

IV.

OBJECTIONS
A copy of this Report and Recommendation is being served on all parties by
Any objections to this Report and

electronic filing on the date below.

Recommendation must be filed with the Clerk of the Court within 14 days. See 28

U.S.C. §636 (b)(l); Fed. R. Civ.

P. 72;

Fed. R.

dlv: P. 6(a) and 6(d).

Failure to file

objections within the specified period waives the right to appeal the District Court's
order. See Ferrer v. Woliver, No. 05-3696, 2008 WL 4951035, at *2 (2d Cir. Nov. 20,
2008); Beverly v. Walker, 118 F.3d 9()0, 902 (2d Cir. 1997); Savoie v. Merchants Banh,
84 F.3d52, 60 (2d Cir. 1996).

Dated:

Central Islip, New York
July 18, 2024
Isl Steven I. Locke

STEVEN I. LOCKE
United States Magistrate Judge

authorization." Def. Supp., 6- 7. Given that the Settlement Agreement specifically permits the
recovery of expert fees, Defendants' argument is of no moment. See Settlement Agreement, 'I] 18.

16