Velazquez Cuautle et al v. Hudson Market 303 LLC et al
Filing
74
MEMORANDUM OPINION & ORDER: For the foregoing reasons, the Court will approve the parties' settlement agreement on the condition that the attorney's fees and costs be reduced to $26,771.30, with the difference between the requested f ees and the reduced fees divided pro rata among Plaintiffs. Within 14 days of this Order, Plaintiffs' counsel shall file a joint status letter indicating whether the parties agree to restructure the settlement agreement to reflect the reduced attorney's fees. SO ORDERED. (Signed by Magistrate Judge Ona T. Wang on 10/29/2019) (rro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ABRAHAN VELAZQUEZ CUAUTLE, et al.,
Plaintiffs,
-againstHUDSON MARKET 303 LLC, et al.,
Defendants.
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No. 18-CV-2968 (OTW)
MEMORANDUM OPINION & ORDER
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ONA T. WANG, United States Magistrate Judge:
On September 5, 2019, the Court issued an order denying approval of the parties’
settlement agreement as fair and reasonable under Cheeks v. Freeport Pancake House, Inc., 796
F.3d 199 (2d Cir. 2015), specifically pointing to the agreement’s problematic release and nondisparagement provisions. (ECF 66). 1 The parties have now renewed their request for approval,
removing the non-disparagement provision and appropriately limiting the release to “wage and
hour” claims. (Id. at 16). Accordingly, the final analysis of the parties’ settlement agreement is
determining the reasonableness of the attorney’s fees and costs.
I.
Attorney’s Fees
The Court had expressed concern previously about the claimed attorney’s fees, but had
reserved decision as to their reasonableness after the revised agreement was submitted. (ECF
66 at 6). The Court has “considerable discretion” in determining a reasonable fee. See Matusick
v. Erie County Water Auth., 757 F.3d 31, 64 (2d Cir. 2014). Even where, as here, the attorney’s
1
The parties have consented to magistrate judge jurisdiction, pursuant to 28 U.S.C. § 636(c). (ECF 40).
fees are governed by a percentage of the total settlement amount and the fees do not exceed
one-third of the settlement, the Court must still employ the lodestar method to determine
reasonableness. See Hernandez v. Boucherie LLC, No. 18-CV-7887 (VEC), 2019 WL 3765750, at
*4 (S.D.N.Y. Aug. 8, 2019). The lodestar method compares the proposed fees with the lodestar
amount, a reasonable hourly rate multiplied by the reasonable number of hours needed to be
spent on the case. See id.
The proposed settlement awards $35,000 in attorney’s fees and costs, one-third of the
total settlement amount. (ECF 64 at 4). Plaintiff asserts that this is reasonable because it only
represents 1.9 times his billed amount of $18,389.50. (Id.) As an initial matter, the Court finds
both the billed rates and hours unreasonable. Plaintiffs' counsel billed at the following rates:
Michael Faillace: $450/hour
Daniel Tannenbaum: $350/hour
Clifford Tucker: $375/hour
Gennadiy Naydenskiy: $350/hour
Haleigh Amant: $250/hour.
Courts have routinely found that Mr. Faillace’s and his firm’s charged hourly rates are
excessive. See Montes v. 11 Hanover Group LLC, No. 17-CV-9376 (SDA), 2019 WL 4392516, at *2
(S.D.N.Y. Sept. 12, 2019) (finding the Faillace Firm’s same hourly rates above unreasonable);
Gervacio v. AJR Laundry Services Inc., No. 17-CV-9632 (AJN), 2019 WL 330631, at *2 (S.D.N.Y.
Jan. 25, 2019) (citing previous cases to reduce Faillace’s rate to $400/hour and Amant’s rate to
$175/hour); Hernandez v. JRPAC Inc., No. 14-CV-4176 (PAE), 2017 WL 66325, at *3 (S.D.N.Y. Jan.
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6, 2017) (noting FLSA partners typically receive $400/hour, senior associates $300/hour, and
junior associates $225/hour).
In addition, Plaintiffs’ counsel’s billed 57.35 hours is excessive, considering how little
work was required for this case. Plaintiffs did not engage in any motion practice and only
attended two conferences. Upon review of the specific time entries, the Court also is concerned
about the inflation of hours billed. For example, counsel billed 1 hour for preparing for and
attending an initial conference on May 20, 2019 before “Judge Fox,” when there was no such
conference held in this matter on that date and Judge Fox is not assigned to this matter. (ECF
64-3). Three hours were billed for time spent to “scan[] several documents.” (Id.) Six hours
were billed for translating the settlement agreement and “making plaintiffs sign.” (Id.) Another
0.6 hours were billed for reviewing the complaint to “classif[y] it for future use,” which is
unrelated to litigating this case. (Id.) One and a half hours were billed for a mediation, which
Plaintiffs previously admitted was cancelled due to the mediator’s failure to appear. (See ECF
50). Another 1.5 hours were billed for translation, which is not legal work that should be billed
as attorney’s fees. See Run Guo Zhang v. Lin Kumo Japanese Restaurant Inc., No. 13-CV-6667
(PAE), 2015 WL 5122530, at *3 (S.D.N.Y. Aug. 31, 2015). This sloppy billing cannot be described
as supporting a reasonable figure. See Gervacio, 2019 WL 330631, at *2 (finding some of Mr.
Faillace’s entries for hours “entirely unnecessary to the prosecution of Plaintiff’s case”).
Accordingly, instead of going through and reducing the hourly rate and billed hours for each
specific time entry, the Court finds that a thirty-percent reduction in counsel’s billed fees results
in a more appropriate lodestar amount of $12,872.65. See Boucherie, 2019 WL 3765750, at *6
(noting use of 45% reduction in unreasonably billed fees because of the need for justice, “not to
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achieve auditing perfection”); Cortes v. New Creators, Inc., No. 15-CV-5680 (PAE), 2016 WL
3455383, at *9 (S.D.N.Y. June 20, 2016) (finding “across-the-board reduction” appropriate to
counter “improper or excessive billing”).
Compared to the $33,974 in proposed attorney’s fees,2 the lodestar of $12,872.65
amounts to a multiplier of 2.6. When analyzing a multiplier, the Court should consider factors
such as the attorney time expended, the complexity of the case, and the quality of the
attorneys’ representation. See McDaniel v. County of Schenectady, 595 F.3d 411, 423 (2d Cir.
2010). While they cited cases awarding a multiplier of up to 5, Plaintiffs’ counsel provided no
reason why a multiplier on the higher end of the typical range for FLSA cases is appropriate in
this particular case, which was not complex and did not involve any motion practice or
depositions. 3 See, e.g., Boucherie, 2019 WL 3765750, at *7 & n. 12 (finding a multiplier of 1.3
“more than sufficient” for “straightforward FLSA litigation” because cases approving a
multiplier above 6 were “outliers”); James v. China Grill Mgmt., Inc., No. 18-CV-455 (LGS), 2019
WL 1915298, at *3 (S.D.N.Y. Apr. 30, 2019) (finding multiplier of 3.53 “slightly higher than what
is typically awarded in FLSA cases” but appropriate for a $1.2 million complex Rule 23
settlement); Mills v. Capital One, N.A., No. 14-CV-1937 (HBP), 2015 WL 5730008, at *13
(S.D.N.Y. Sept. 30, 2015) (finding multiplier of 2.21 appropriate for a “more complex” Rule 23
FLSA class action that involved 500+ class members); Saikiko Fujiwara v. Sushi Yasuda Ltd., 58
F. Supp. 3d 424, 438-39 (S.D.N.Y. 2014) (approving multiplier of 2.28 after noting that courts in
this District “have generally refused multipliers as high as 2.03”). Accordingly, the Court finds
2
$35,000 total award - $1,026 in costs.
Plaintiffs’ counsel’s inflation of billed hours further suggests that the case was not complex and that the quality of
representation does not warrant a high multiplier.
3
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that a multiplier of 2 is more appropriate for this case, resulting in an award of $25,745.30 in
fees and $1,026 in filing and service costs. See Lazo v. Kim’s Nails at York Avenue, Inc., No. 17CV-3302 (AJN), 2019 WL 95638, at *3 (S.D.N.Y. Jan. 2, 2019) (“a multiplier near 2 should, in
most cases, be sufficient compensation for the risk associated with contingent fees in FLSA
cases”); Surdu v. Madison Global, LLC, No. 15-CV-6567 (HBP), 2018 WL 1474379, at *11
(S.D.N.Y. Mar. 23, 2018) (reducing multiplier in FLSA case from 3.44 to 2 after invoking need for
“judicial scrutiny, not judicial deference”).
For the foregoing reasons, the Court will approve the parties’ settlement agreement on
the condition that the attorney’s fees and costs be reduced to $26,771.30, with the difference
between the requested fees and the reduced fees divided pro rata among Plaintiffs. Within 14
days of this Order, Plaintiffs’ counsel shall file a joint status letter indicating whether the parties
agree to restructure the settlement agreement to reflect the reduced attorney’s fees.
SO ORDERED.
s/ Ona T. Wang
Ona T. Wang
United States Magistrate Judge
Dated: October 29, 2019
New York, New York
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