Johnson et al v. Emery Federal Credit Union et al
Filing
99
ORDER granting in part 93 Motion for approval of stipulation of Settlement and 97 Plaintiff's unopposed Motion for Attorney Fees. The Motions are GRANTED but for the percentage of attorneys fees to be allocated to counsel from the Settl ement Fund. The parties are instructed to modify the final Settlement to include a 25% award of attorneys fees, as opposed to a 33% award, for a total award of $102,500. The Court approves the request for litigation costs in the amou nt of $10,750, the award of $5,000 incentive awards to each Plaintiff Vigna and Plaintiff Abidin, and the proposed method for Settlement administration. Counsel are instructed to submit a modified Notice for final approval within ten days of issuance of this Order.. Signed by Judge Susan J. Dlott on 12/2/16. (wam)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
RUTH VIGNA, et al.,
Plaintiffs,
v.
EMERY FEDERAL CREDIT UNION,
et al.,
Defendants.
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Case No. 1:15-cv-51
Judge Susan J. Dlott
Order Granting in Part Plaintiffs’
Unopposed Motion for Approval of
Stipulation of Settlement and Release for
Collective Class Members (Doc. 93) and
Plaintiffs’ Unopposed Motion and
Memorandum of Law for Approval of
Attorneys’ Fees and Costs (Doc. 97)
This matter is before the Court on Plaintiffs’ Unopposed Motion for Approval of
Stipulation of Settlement and Release for Collective Class Members (“Settlement Approval
Motion”) (Doc. 93) and Plaintiffs’ Unopposed Motion and Memorandum of Law for Approval of
Attorneys’ Fees & Costs (“Attorneys’ Fees Motion”) (Doc. 97).
I.
BACKGROUND
This action was initiated on January 26, 2015 by Plaintiffs Ruth Vigna and Irina Abidin1
on behalf of themselves and similarly situated individuals who worked for Defendants Emery
Federal Credit Union and Emery Financial Services, Inc. (collectively, “Emery”) as loan
processors and were allegedly denied overtime compensation and minimum wage in violation of
the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq.
This action is a spin-off of another FLSA collective action brought before the
undersigned against Emery, O’Neal v. Emery, 13-cv-22. In O’Neal, the Court granted
conditional certification to a class of loan officers, but denied conditional certification to a class
1
In addition to Plaintiffs Vigna and Abidin, this case was also brought by a third Plaintiff, Lovie
Johnson. Johnson has since filed a Stipulation of Dismissal (Doc. 35) and is no longer a party to
this action.
of loan processors. O’Neal v. Emery Fed. Credit Union, No. 13-cv-22, 2014 WL 6810689, at
*6–8 (S.D. Ohio Dec. 3, 2014). Following the Court’s Order, on January 26, 2015, Plaintiffs
brought this action on behalf of a class of loan processors. On June 25, 2015, Plaintiffs filed this
Motion for Conditional Certification requesting the Court to conditionally certify a class of all
persons who worked as loan processors or in similar positions for Emery at any time during the
three years prior to the filing of the Complaint. The Court granted in part and denied in part that
Motion on January 13, 2016. (Doc. 66.)
On September 26, 2016, Plaintiff filed two unopposed motions: Plaintiffs’ Settlement
Approval Motion (Doc. 93) and Plaintiffs’ Unopposed Motion and Memorandum of Law for
Approval of Attorneys’ Fees and Costs (Doc. 94).2 On October 4, 2016, the Court held a status
conference with the parties regarding the pending Motions and asked counsel to review the its
Unopposed Motion and Memorandum of Law for Approval of Attorneys’ Fees and Costs for
mistakes and to closely review counsel’s records for secretarial and/or associate work and
formally file those billing records.3 (Doc. 98.) Following the October 4, 2016 conference,
Plaintiff filed a third version of its Unopposed Motion and Memorandum of Law for Approval of
Attorneys’ Fees and Costs (Doc. 97), which is now before the Court.4
After conducting a thorough review of Plaintiffs’ counsel’s billing records and the
supplemented third Unopposed Motion and Memorandum of Law for Approval of Attorneys’
Fees and Costs, the Court held a second status conference with counsel on October 26, 2016. At
that time, the Court expressed its concern about the amount of attorneys’ fees being requested, an
2
Plaintiffs also filed a second version of the Unopposed Motion and Memorandum of Law for
Approval of Attorneys’ Fees and Costs the following day. (Doc. 95.)
3
The Court permitted the billing records to be filed under seal, as counsel argues the entries are
protected by attorney client and/or work product privilege. (See Doc. 98.)
4
The prior Motions (Doc. 94, 95) were denied as moot. (See October 4, 2016 Docket Entry.)
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issue that is addressed more fully herein. As the matter is now ripe for the Court’s ruling, the
Court will so proceed.
II.
ANALYSIS
A. The Proposed Settlement
Pursuant to Plaintiffs’ Unopposed Motion and Memorandum of Law for Approval of
Stipulation of Settlement Agreement and Release for Collective Class Members (Doc. 93), the
parties have negotiated a Stipulation of Settlement Agreement and Release (the “Settlement”)
that will resolve the claims of 75 Collective Class Members.5 Plaintiffs request the Court
approve the Settlement, the parties’ proposed Notice of Settlement and the claim process for
Collective Class Members as set forth within the Settlement.
Pursuant to the terms of the Settlement, the parties agree to settle all claims for $410,000
(hereinafter, the “Settlement Fund”), which represents payment of 55% of wages allegedly owed
based upon the report by Plaintiffs’ expert, Dr. Liesl Fox. Plaintiffs request the Court to approve
the following proposed deductions from the Settlement Fund: attorneys’ fees in the amount of
$135,300 (constituting 33% of the Settlement Fund), litigation expenses and costs in the amount
of $10,750, and enhancement payments to Plaintiffs Vigna and Abidin in the amount of $5,000
each. The remaining $235,950 of the Settlement Fund is to be divided among the 75 eligible
Collective Class Members, the average recovery for which is approximately $3,386, but is to be
calculated individually based upon Dr. Fox’s report.6
5
The proposed Settlement is docketed as Doc. 93-1.
Dr. Fox calculated each Class Member’s best case scenario in claiming minimum wage and
overtime pay. For purposes of the Settlement, the parties have determined each Collective Class
Member’s pro rata share of the Settlement based upon estimated damages for that employee as
set forth in Dr. Fox’s report. Pursuant to the Settlement, 50% of the employee’s payment will
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The 75 Collective Class Members will be mailed a Notice of Settlement, which is also
subject to Court approval.7 The Notice sets forth and explains each employee’s individual
payout and includes a claim and release form.
B. Standards for Approval of an FLSA Settlement
An employee’s claims under the FLSA generally are non-waivable and may not be
settled without supervision of either the Secretary of Labor or a district court. Gentrup v. Renovo
Serv., LLC, No. 1:07-cv-430, 2011 WL 2532922, at *2 (S.D. Ohio June 24, 2011). Thus, “[t]he
proper procedure for obtaining court approval of the settlement of FLSA claims is for the parties
to present to the court a proposed settlement, upon which the district court may enter a stipulated
judgment only after scrutinizing the settlement for fairness.” Id. “If a settlement in an employee
FLSA suit reflects ‘a reasonable compromise over issues,’ such as FLSA coverage or
computation of back wages that are ‘actually in dispute,’ the court may approve the settlement
‘in order to promote the policy of encouraging settlement of litigation.’” Id. (citing Lynn’s Food
Stores, Inc. v. U.S., 679 F.2d 1350, 1354 (11th Cir. 1982)).
Courts in the Sixth Circuit consider a number of factors in determining whether a class
action settlement is “fair, reasonable and adequate:” (1) the risk of fraud or collusion; (2) the
complexity, expense, and likely duration of the litigation; (3) the amount of discovery
completed; (4) the likelihood of success on the merits; (5) the opinion of class counsel and
representatives; (6) the reaction of absent class members; and (7) public interest in the
settlement. Id. (citing Int’l Union, United Auto., Aerospace and Agric. Implement Workers of
constitute wages, and the remaining 50% constitutes payment for liquidated damages,
prejudgment interest, penalties and/or consideration for the release.
7
The proposed Notice of Settlement was filed for Court review and approval as Doc. 93-1 at
PageID 1255–57.
4
Am. v. Gen. Motors Corp., 497 F.3d 615, 631 (6th Cir. 2007); Granada Invs., Inc. v. DWG
Corp., 962 F.2d 1203, 1205 (6th Cir. 1992)). These factors have also been applied by Courts in
evaluating the fairness, reasonableness, and adequacy of an FLSA settlement. Id.; see also
Crawford v. Lexington-Fayette Urban Cty. Gov’t., No. 06-cv-299-JBC, 2008 WL 4724499, at
*2–9 (E.D. Ky. Oct 23, 2008); Rotuna v. W. Customer Mgmt. Group, LLC, 2010 WL 2490989, at
*5–6 (N.D. Ohio June 15, 2010).
Counsel argue that all factors weigh in favor of the proposed Settlement being fair,
reasonable, and adequate. First, counsel assert that the risk of fraud and collusion is low, as
counsel conducted continuous and thorough negotiations over an extended period of time.
Second, counsel argue that collective claims under the FLSA are complex, and litigating them is
expensive. Third, counsel claim that discovery was extensive, as they reviewed thousands of
pages of discovery, including voluminous electronic pay data. Fourth, counsel have extensive
experience litigating collective claims under the FLSA, and their evaluation of the likelihood of
each party succeeding impacted negotiations and the terms of the Settlement. Fifth, counsel
believe that the Settlement is fair and reasonable. Sixth, counsel argue this factor is not
applicable because this is not a Rule 23 class; however, counsel conveyed that communications
with other Collective Class Members demonstrate a preference for early resolution of the matter.
Seventh, counsel argue that public policy favors settlements, particularly in a complex FLSA
case.
The Court agrees that nearly all of the terms of the Settlement are fair and reasonable,
particularly in light of the fact that the total Settlement Fund constitutes a 55% recovery of wages
as estimated by the expert’s report. The Court acknowledges that FLSA matters are complex in
nature and involve thorough review of pay records, which can be time-consuming. The Court
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also is persuaded that the seventh factor, or public policy favoring early resolution of claims,
weighs in favor of the Settlement being fair and reasonable. However, although it is pleased
with the overall recovery and other terms of Settlement, the Court is concerned about the
percentage of the Settlement Fund counsel request to be designated for attorneys’ fees. The
Court will address this concern infra. The Court therefore concludes that the above factors
support a finding that the Settlement is fair and reasonable and resolves a bona fide dispute over
the FLSA claims asserted. The Settlement is approved, but for the percentage of attorneys’ fees
to be designated to counsel.
C. Attorneys’ Fees and Litigation Costs
Under to the terms of the Settlement, Defendants have agreed to pay Plaintiffs’ counsel
$135,300 for attorneys’ fees, representing 33% of the Settlement Fund, and $10,750 for expenses
and costs incurred by counsel in the prosecution of the claims at issue. Defendants also agreed
not to oppose a motion for approval of attorneys’ fees and expenses. In support of their request
for fees and costs, Plaintiffs filed the Attorneys’ Fees Motion presently before the Court. (Doc.
97.)
Pursuant to § 216(b) of the FLSA, “[t]he court in such action shall, in addition to any
judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the
defendant, and costs of the action.” 29 U.S.C. § 216(b). “The determination of a reasonable fee
must be reached through an evaluation of a myriad of factors, all within the knowledge of the
trial court, examined in light of the congressional policy underlying the substantive portions of
the statute providing for the award of fees.” Gentrup, 2011 WL 2532922, at *4 (citing United
Slate, Tile and Composition Roofers, Damp and Waterpoof Workers Ass’n, Local 307 v. G & M
Roofing and Sheet Metal Co., Inc., 732 F.2d 495, 501 (6th Cir. 1984)).
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The Sixth Circuit has approved both the “lodestar” and percentage of the fund method of
payment of attorneys’ fees. Rawlings v. Prudential-Bache Prop., Inc., 9 F.3d 513, 515–16 (6th
Cir. 1993). The Court should consider the unique circumstances of the case to determine which
method is most appropriate. Id. Consistent with the preference of many courts within the
Southern District of Ohio, the Court finds the circumstances of this case render the most
appropriate method to be to award a reasonable percentage of the fund with reference to the
lodestar and resulting multiplier. See Connectivity Sys. Inc. v. Nat’l City Bank, No. 2:08-cv1119, 2011 WL 292008, at *13 (S.D. Ohio Jan. 26, 2011). The lodestar figure is used to confirm
the reasonableness of the percentage of the fund. Id. (citing Bowling v. Pfizer, Inc., 102 F.3d
777, 780 (6th Cir. 1996)). In determining the reasonableness of the fee award, the Court will
consider the following factors: (1) the value of the benefit rendered to the class (i.e., the results
achieved); (2) society’s stake in rewarding attorneys who produce such benefits in order to
maintain an incentive to others; (3) whether the services were undertaken on a contingent fee
basis; (4) the value of the services on an hourly basis; (5) the complexity of the litigation; and
(6) the professional skill and standing of counsel involved on both sides. Id. (citing Ramey v.
Cincinnati Enquirer, Inc., 508 F.2d 1188, 1196 (6th Cir. 1974)).
Counsel argue that the six Ramey factors weigh in favor of awarding the requested fee.
First, counsel contend that the overall settlement of $410,000 provides a substantial benefit to the
class, as it constitutes 55% of total wages owed to the Collective Class Members as determined
by Plaintiffs’ expert report. After deductions for the requested attorneys’ fees, costs, and class
representative incentive award, $259,950 will be left to be distributed to 75 Collective Class
Members, and counsel argue that the amount being paid to each class member is fair. The
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average settlement is $3,386. Additionally, settlement allows the parties to avoid the uncertainty
of trial and appeal.
Second, counsel argue that the public interest favors the requested award, as the lawsuit
has provided a vehicle for many Collective Class Members, many of whom may have lacked the
motivation or resources to pursue their claims individually, to recover unpaid wages. Thus, the
33% contingency fee awards counsel for compensating attorneys to achieve results that could not
have been achieved individually.
Third, counsel argue that they took on considerable risk of nonpayment in litigating the
case on a contingent basis. Doing so meant that counsel were prepared to make the investment
with the real possibility of an unsuccessful outcome and no fee award. Furthermore, it would
have been unlikely that Collective Class Members would have been able to retain counsel under
another type of fee arrangement (e.g., an hourly fee arrangement). Counsel argue that they have
spent significant time on work that was necessary to litigating the claims at issue in this case, and
that all hours worked were reasonable and necessary.
Fourth, counsel argue that value of the services merit the 33% award. Counsel argues
that contingency fee arrangements are typical and should be accepted here. In addition, counsel
argue that the lodestar cross check and a multiplier of 1.77 justifies the 33% award. Counsel
argue that multipliers of 2.0 have been utilized by judges in the Southern District of Ohio,
rendering the lower than 2.0 multiplier requested here reasonable and appropriate. Counsel
argue, also, that the requested rates of $450/hour for partner work and $250/hour for associate
work are reasonable and in line with the adjusted Rubin Committee rates.
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Fifth, counsel argue that the complexity of FLSA litigation justifies the fees sought.
Lastly, sixth, counsel argue that class counsel’s skill, as evidenced by their reputations and
experience and expertise, justify the requested award.
The Court agrees that most of the Ramey factors favor the requested award, but is
concerned that the fourth Ramey factor, the value of services rendered, and the lodestar crosscheck do not support the requested award. Counsel argue that an attorneys’ fee award of 33% of
the Settlement Fund is a fair and reasonable award that should be approved by the Court. In
support of its position, counsel have submitted time records for attorneys Brendan Donelon,
Daniel Craig, and Deborah Grayson and the online professional resumes of Mr. Donelon and Mr.
Craig. (See Doc. 97-1; 98.) Mr. Donelon submitted time records for 109.5 hours for himself and
54.3 hours for “associate” level work.8 (Doc. 98.) Mr. Craig submitted time records for 22.3
hours of work on this case, and local counsel, Ms. Grayson, submitted time records for 7.2 hours
of work. Mr. Donelon requests compensation at a rate of $450/hour for himself, Mr. Craig, and
Ms. Grayson. For work Mr. Donelon performed himself but designed as lower, intermediate
associate skill level, he requests compensation at a rate of $250/hour. Counsel argue that all
three attorneys have over twenty-one years of experience, and that the rates requested are
consistent with the Rubin Committee rates.
Courts in this district often refer to the 1983 Rubin Committee rates as a basis for
comparison. Hunter v. Hamilton Cty. Bd. Of Elections, No. 1:10-cv-820, 2013 WL 5467751, at
*17 (S.D. Ohio Sept. 30, 2013). Judges in the Southern District of Ohio often refer to the 1983
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The Court expressed its concern at its first status conference with counsel regarding attorneys’
fees that many of the entries for which Mr. Donelon was seeking compensation at partner-level
rates were for associate or secretarial work. Mr. Donelon reviewed entries the Court flagged and
now requests most or a portion of those time entries be billed at a lower “associate” rate of
$250/hour.
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Rubin Committee rates and apply a 4% annual cost-of-living allowance to measure the
reasonableness of fees requested. Id. That committee arrived at the following categories and
hourly rates for 1983: Paralegals—$37.91/hour; Law Clerks—$23.96/hour; Young Associates
(2 years of experience or less)—$61.77/hour; Intermediate Associates (2 to 4 years of
experience)—$71.62/hour; Senior Associates (4 to 5 years of experience)—$82.81/hour; Young
Partners (6 to 10 years of experience)—$96.39/hour; Intermediate Partners (11 to 20 years of
experience)—$113.43/hour; and Senior Partners (21 or more years of experience)—
$128.34/hour. Id. at n.9.
Counsel calculate that the adjusted rate for a senior partner with 21 or more years of
experience in 2016 is $466.90. By the Court’s calculation, the adjusted senior partner rate for
2015 is $443.46; the intermediate partner rate for 2015 is $407.94 and for 2016 is $424.59. Mr.
Donelon and Mr. Craig are each 1995 graduates from law school. (Doc. 97-1 at PageID 1346,
1351.) In 2015, each had 20 years of experience, which is a lower rate per the Rubin Committee
rates. Counsel did not submit a CV for Ms. Grayson. Her online profile indicates that she is
admitted to practice in 1977, so she would fall within the senior partner rate on the Rubin
Committee rate schedule. (See http://meizgray.com/attorneys.) In sum, the rates requested a
slightly higher than the adjusted Rubin Committee rates.
The Court has expended considerable time reviewing counsel’s billing statements,
requested hourly rates, and other cases in this district involving a request for attorneys’ fees from
a common fund. The Court has also held two conferences with the parties, during which it
expressed concern over the requested amount of attorneys’ fees. In particular, the Court is
concerned that a 33% award is on the high end of fee requests. Not only is the overall
percentage of the fund high, but so too are the requested hourly rates and multiplier. For
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instance, Mr. Donelon requests a $450/hour rate for both himself and Mr. Craig, but a significant
portion of Mr. Donelon’s hours were billed in 2015, and all of Mr. Craig’s hours were billed in
2015. As previously noted, a lower Rubin rate would apply for those hours ($407.94).
Similarly, all of Ms. Grayson’s hours were billed in 2015, rendering the 2015 senior partner
Rubin Committee rate of $443.46 most applicable. Furthermore, unlike other cases in which the
Court has approved awards, counsel here have not indicated that any attorney has significantly
reduced his or her fees in this case, aside from billing lower-level work at a lower rate after the
Court expressed its concern.
In addition, the Court is concerned that this case has not been particularly complex, as it
was a spin-off from the O’Neal case, which settled. In the previous O’Neal case, which was
much more complex and lengthy than this case, the Court approved a 29.9% attorneys’ fee
award. (Id. at Doc. 111.) In this case, counsel is requesting a higher billing rate as well as a
larger overall percentage of the Settlement Fund. The Court considers the O’Neal case to have
been more complex and the outcome more uncertain than this case. Given that much of the
briefing involved similar issues and case law and was repurposed for the instant case, the Court
is not persuaded that this case was significantly more complex or time-consuming. For these
reasons, the Court finds that an overall award lower than 29.9% is appropriate here. Therefore,
the Court will not approve the requested attorneys’ fees award of 33% of the Settlement fund,
with a lodestar cross-check of $450/hour and $250/hour and 1.77 multiplier.
The Court is nonetheless satisfied with counsel and finds that an award is certainly
appropriate. Accordingly, it will approve an award of 25% of the Settlement Fund, or $102,500.
The Court will apply a $425/hour rate for Mr. Donelon, Mr. Craig, and Ms. Grayson, and a
$200/hour rate for work deemed associate level. Applying this rate to the total number of hours
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billed, the total value of services without a multiplier is $69,522.50. The Court will apply a
multiplier of 1.47, which is deems appropriate under the circumstances and due to counsel’s
strong results in the settlement of this case. Thus, the lodestar cross-check supports an attorneys’
fees award of 25% of the Settlement Fund.
Counsel also asks the Court to approve payment for litigation expenses totaling $10,750.
(See Doc. 97-2.) These expenses relate to filing and service fees, printing and administering
class notice and opt-in forms, processing consent forms, researching class member information,
travel costs, deposition costs, and expert fees. The Court has reviewed the statement of expenses
and agrees that these costs are related to the litigation and were necessary to the prosecution of
the case. Accordingly, the Court approves payment of litigation costs totaling $10,750 from the
Settlement Fund.
D. Class Representative Fee
Counsel requests that the Court approve incentive payments of $5,000 to each named
Plaintiff. Counsel argues that the incentive payments compensate Plaintiffs Vigna and Abidin
for their significant contributions to the litigation, without which the case would not have been
initiated. Counsel asserts that these Plaintiffs provided key information to counsel which
assisted in investigating, filing, litigating, and resolving the action. Plaintiffs Vigna and Abidin
also were deposed and traveled for deposition. Counsel argues the amount requested is modest
and does not significantly reduce the amount of settlement funds to the other Collective Class
Members, and the incentive payment advances public policy by encouraging other individuals to
come forward to protect the rights of others in representative actions.
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The Court is satisfied that the payment of the two incentive awards is justified by each
Plaintiff’s contribution to this case and is reasonable and appropriate under the circumstances.
Accordingly, a $5,000 incentive award to each Plaintiffs Vigna and Abidin is approved.
E. Collective Action Settlement Notice
The parties request the Court to approve the Collective Action Settlement Notice (Doc.
93-1 at PageID 1255–56), which includes a Claim and Release Form (id. at PageID 1257). The
Court is satisfied that the Notice fairly and reasonably describes the terms of Settlement.
However, in light of the Court’s ruling on attorneys’ fees, counsel is instructed to revise the
Notice accordingly and submit it for final review to the Court within ten days of this Order’s
issuance.
F. Settlement Administration
Finally, the parties request that the Court approve the proposed Settlement
administration. The parties propose that within seven days of the Court’s approval of Settlement,
Plaintiffs will provide mailing addresses for the 75 Collective Class Members along with each
person’s individual gross payment as determined under the Plan of Allocation. Defendants will
send the Notice, including the Claim and Release Form, within thirty days of receiving that
information. Collective Class Members’ executed Claim and Release Forms must be postmarked within forty-five days of the Defendants’ mailing. Within forty-five days of the claim
deadline, Defendants will issue payment to the participating Collective Class Members. The
Court is satisfied that the proposed process for Settlement administration is fair and reasonable.
III.
CONCLUSION
For the reasons set forth herein, the Court GRANTS IN PART Plaintiffs’ Unopposed
Motion for Approval of Stipulation of Settlement and Release for Collective Class Members
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(Doc. 93) and Plaintiffs’ Unopposed Motion and Memorandum of Law for Approval of
Attorneys’ Fees and Costs (Doc. 97). The Motions are GRANTED but for the percentage of
attorneys’ fees to be allocated to counsel from the Settlement Fund. The parties are instructed to
modify the final Settlement to include a 25% award of attorneys’ fees, as opposed to a 33%
award, for a total award of $102,500. The Court approves the request for litigation costs in the
amount of $10,750, the award of $5,000 incentive awards to each Plaintiff Vigna and Plaintiff
Abidin, and the proposed method for Settlement administration. Counsel are instructed to
submit a modified Notice for final approval within ten days of issuance of this Order.
IT IS SO ORDERED.
S/Susan J. Dlott___________
Judge Susan J. Dlott
United States District Court
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