Salazar-Martinez v. Fowler Brothers, Inc. et al
Filing
78
ORDER granting 73 Motion for Attorney Fees. Signed by Hon. Michael A. Telesca on September 14, 2012. (MES)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
EUSTACIO SALAZAR-MARTINEZ, on behalf of
himself and all other similarly situated
persons,
Plaintiffs,
10-CV-6257
DECISION AND ORDER
v.
FOWLER BROTHERS, INC., JOHN FOWLER,
ROBERT FOWLER, JOHN D. FOWLER and
AUSTIN FOWLER
Defendants.
INTRODUCTION
By Order dated, September 14, 2012, this Court approved the
settlement of this case, brought by the plaintiff on behalf of
himself and all others similarly situated, pursuant to the Fair
Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”), New York
Labor Law (“NYLL”), and the common law of contracts.
Plaintiff
brought this case as a collective action under the FLSA and a class
action under Rule 23 of the Federal Rules of Civil Procedure.
Plaintiff now seeks approval of attorneys’ fees and costs in the
amount of $212,500.00.
The motion is unopposed and the fees
requested are part of the settlement agreement which was approved
by the Court. Based on the application of plaintiff’s counsel and
the papers submitted in connection with the instant motion and for
the reasons set forth herein, the Court finds that the attorneys’
fees and costs requested are reasonable. Accordingly, plaintiff is
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awarded $212,500.00 in attorneys’ fees and costs.
DISCUSSION
Both the FLSA and NYLL provide for an award of reasonable
attorney’s fees and costs in actions for unpaid wages. 29 U.S.C. §
216(b); N.Y. Lab. Law §§ 198, 681.
Notwithstanding the parties’
agreement on the amount of compensable attorneys’ fees and costs,
this
Court
reasonable.
must
determine
whether
the
fees
requested
are
The Supreme Court and the Second Circuit have held
that “the lodestar-the product of a reasonable hourly rate and the
reasonable
number
of
hours
required
by
the
case–creates
a
‘presumptively reasonable fee.’” Millea v. Metro-North R.Co., 658
F.3d 154, 166 (2d Cir. 2011)(citing Arbor Hill Concerned Citizens
Neighborhood Assoc. v. Cnty. of Albany, 522 F.3d 182, 183 (2d
Cir.2008), and Perdue v. Kenny A. ex rel. Winn, ––– U.S. ––––, 130
S.Ct. 1662, 1673, 176 L.Ed.2d 494 (2010)).
The reasonable hourly rate is, generally, the hourly rate
employed by attorneys in the district in which the litigation is
brought. Simmons v. New York City Transit Authority, 575 F.3d 170,
174 (2009).
The presumption that in-district hourly rates should
be applied may be overcome in favor of higher, out-of-district
rates if the litigant can persuasively show that the selection of
out-of-district counsel was reasonable under the circumstances and
“if...it is clear that a reasonable, paying client would have paid
those higher rates” because “doing so would likely (not just
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possibly) produce a substantially better net result.”
Id. at 174-
5. The reasonableness of this decision rests on “experience-based,
objective factors,” including, “counsel’s special expertise in
litigating the particular type of case.”
Id. at 176.
Here, class counsel has applied out-of-district rates in their
calculation of the lodestar as follows:
Getman
&
Sweeney,
PLLC,
which
maintains
offices
in
the
Northern and Southern Districts of New York, charges $550 per hour
for Dan Getman, a partner with 28 years of experience including
over 25 years of experience handling class action and collective
action wage and hours cases under the FLSA and various state laws;
$440 per hour for Michael Sweeney, a partner with over 15 years of
experience, including approximately 8 years of experience handling
wage and hour litigation; for associates Matthew Dunn, Carol
Richman and Lesley Tse, the firm charges $310, $275 and $275 per
hour respectively; for an IT specialist, paralegals and clerical
work, the firm charges $195, $135 and $50 per hour respectively.
Dan Getman spent 192.2 hours on this case, Michael Sweeney spent
2.7, Lesley Tse spend 40.6, Matt Dunn spent 1.2, Carol Richman
spent 1.3 and the paralegals, IT specialist and clerical workers
spent 62.7 hours.
Getman & Sweeney also engaged Edward Tuddenham as of counsel
in
this
case.
representing
Mr
Tuddenham
migrant
and
has
over
foreign
3
30
farm
years
experience
workers,
in
including
representing the migrant farm worker plaintiffs in Arriaga v.
Florida Pacific Farms, LLC, 305 F.3d 1228 (11th Cir. 2002), which
involved the same issues present in this case - issues which remain
unresolved in many circuits in the country, including the Second
Circuit, and on which the Fifth and Eleventh Circuits are split.
Mr. Tuddenham charges $600 per hour for his services and he spent
13.5 hours on this case.
He maintains an office in New York, New
York, in the Southern District of New York.
Finally, Robert J. Willis, of the Law Offices of Robert J.
Willis in Raleigh, North Carolina in the Eastern District of North
Carolina, charges $400 per hour for his services, $125 per hour for
paralegals, $110 per hour for a legal assistant and $90 per hour
for an additional legal assistant.
Mr. Willis also has over 30
years of experience representing clients in class action cases
including actions on behalf of foreign migrant farm workers.
Mr.
Willis speaks fluent Spanish and is able to effectively communicate
with clients who speak only Spanish, such as the named plaintiff in
this case.
Mr. Willis spent 286.9 hours on this case, and his
staff spent 63.1 hours.
This case was referred to Mr. Willis by the a representative
of a farm worker union for which Mr. Willis has performed pro bono
work in the past. The case was specifically referred to Mr. Willis
because of his relationship with the union and his expertise in the
area of wage and hour litigation on behalf of foreign migrant farm
4
workers.
Mr. Willis then associated with Getman & Sweeney because
of their expertise in wage and hour litigation and the fact that
their offices were located in New York State, albeit in the
Northern and
Southern
Districts of
New
York.
Realizing the
complicated nature of the issues involved in this case and the fact
that these issues were not settled in the Second Circuit, Getman &
Sweeney engaged Mr. Tuddenham to assist in the preparation of their
opposition to the Defendants’ initial motion for summary judgement,
an opposition which was successful in all material respects.
The
Court
finds
that
the
nature
of
this
case,
the
representation of hundreds of foreign migrant farm workers who
reside in rural areas of Mexico, and who do not speak English,
coupled with the fact that the legal issues involved in the case
were, and still are, unsettled in the Second Circuit and many other
circuit courts of appeals, and given the high level of experience
of the various law firms and lawyers chosen by the plaintiff in
representing migrant farm workers, particularly foreign migrant
farm workers, in complicated cases such as this, constitutes
persuasive proof that a reasonable litigant would have sought outof-district counsel for this particular litigation with expertise
in this complicated area of law because doing so would likely
produced a better result.
Based on the out-of-district rates specified above, and the
specific hours set forth in the Affidavits of Robert Willis, Edward
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Tuddenham,
and
$256,280.50.
Dan
Getman,
the
lodestar
calculation
is
However, plaintiff seeks only $212,500.00, which
includes costs (approximately $4,909.09) - roughly a 17% reduction
in the lodestar, which, incidentally, did not include costs.
The
Court has reviewed the contemporaneous time records of the various
attorneys, and finds that the hours expended were reasonable for a
case of this magnitude.
While some overlap may have occurred due
to the nature of representing a foreign client in a class action
involving two law firms and many lawyers, the Court finds that the
%17 reduction in fees self-imposed by counsel adequately accounts
for any such overlap in time. See e.g. Davis v. Eastman Kodak Co.,
758 F.Supp.2d 190, 202 (W.D.N.Y. 2010).
Accordingly, for the reasons discussed herein, the Court finds
that the attorneys’ fees and costs requested by the plaintiff are
fair
and
Therefore,
reasonable
Defendants
under
are
the
circumstances
hereby
ordered
to
of
pay
this
case.
plaintiff
$212,500.00 in attorneys’ fees and costs separate and apart from
the settlement fund to the class plaintiffs.
ALL OF THE ABOVE IS SO ORDERED.
s/ Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:
Rochester, New York
September 14, 2012
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