BROWN et al v. PROGRESSIVES BEHAVIORAL HEALTH SERVICES, INC.

Filing 17

MEMORANDUM AND/OR OPINION SIGNED BY MAGISTRATE JUDGE ELIZABETH T. HEY ON 7/13/17. 7/13/17 ENTERED AND COPIES E-MAILED.(ti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SARINA BROWN, APRIL WALKER,
and MICHELLE AARON, individually and
on behalf of others similarly situated,
v.
PROGRESSIONS BEHAVIORAL HEALTH
SERVICES, INC.

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CIVIL ACTION

NO. 16-6054

MEMORANDUM AND ORDER
ELIZABETH T. HEY, U.S.M.J.

July 13, 2017

Plaintiffs Sarina Brown, April Walker, and Michelle Aaron (“Plaintiffs” or “Class
Representatives”) have filed an unopposed motion to approve the settlement in this Fair
Labor Standards Act (“FLSA”) collective action (Doc. 13), and an unopposed motion for
attorneys’ fees and reimbursement of expenses (Doc. 14). For the reasons that follow, I
will certify the collective action and settlement class and approve the settlement, and
grant the motion for attorneys’ fees and expenses.
I.

FACTUAL BACKGROUND
The Class Representatives brought this collective action on behalf of themselves

and other lead clinicians, behavioral specialist consultants, and/or mobile therapists who
worked for Defendant for at least thirty (30) billable hours in four (4) or more workweeks
from November 17, 2013, until May 8, 2017 (“Class Members”), alleging that Defendant
unlawfully misclassified them as independent contractors, resulting in the denial of
overtime compensation and certain wages and employee benefits, and failed to pay them
for certain work deemed “non-billable” by Defendant. See Doc. 13 at 1; Joint Stipulation

of Settlement and Release, Doc. 13-2 Exh. 2 (“Agreement”) ¶¶ 1, 4. Defendant disputes
the class allegations and that it violated applicable wage laws. See Agreement ¶ 2.
Plaintiffs aver that counsel engaged in “vigorous arms-length negotiations,” Doc.
13-1 at 20 -- a characterization that Defendant does not contest. On January 20, 2017, the
parties agreed to stay proceedings and attend mediation in an effort to resolve the case.
Doc. 5. On April 4, 2017, the parties participated in a full-day mediation with the
Honorable Thomas M. Blewitt (retired) of JAMS, who assisted the parties in reaching the
Agreement.
The Agreement provides for a total settlement amount of $865,000.00, of which
approximately $542,586.00 will be distributed to Class Members (the “Settlement
Fund”), with the remaining amount sought by counsel for attorneys’ fees representing 33
percent of the settlement amount ($285,450.00), plus costs ($3,714.00), “service award”
payments for each of the Class Representatives ($10,000.00 x 3 = $30,000.00), and
Claims Administrator’s expenses ($3,250.00).1 Agreement ¶¶ 5, 11-13. The Agreement
further provides that Class Members will receive payment from the Settlement Fund, on a
pro rata basis, based on the degree to which they were economically impacted by the
alleged wage shortfalls. Id. ¶ 5. Class counsel avers that participating Class Members
may receive amounts ranging from approximately $500.00 up to a maximum of
$70,000.00, with an average payout of approximately 10,000.00. Doc. 13-1 at 4.

1

The Agreement states that reasonable claims administration expenses will not
exceed $6,500.00, with 50 percent to be paid from the settlement amount and 50 percent
to be paid by Defendant directly. Agreement ¶ 12.
2

By Order dated May 8, 2017, I conditionally certified the collective action and
settlement class, preliminarily approved the Agreement, approved the form of the class
notice and opt-out form, and set a final hearing date of June 28, 2017. See Doc. 12
(“Preliminary Approval Order”). Pursuant to the Preliminary Approval Order, class
members were informed of the terms of the Agreement, that they had the right to opt-out
of the monetary provisions and pursue their own remedies, that the deadline for returning
executed claim forms requesting exclusion from the proposed settlement was 30 days
from the date the exclusion/opt-out forms were mailed, and that they had a deadline of
June 21, 2017, for filing and serving written notices of intent to appear at the Final
Approval Hearing. Doc. 12 ¶¶ 8-9, 11; Doc. 13-1 at 5; Doc. 13-2 Exh. 4. The Claims
Administrator mailed the Class Notice and Exclusion/Opt-Out Forms to the 55 class
members on May 16, 2017, using contact information provided by Defendant. See Decl.
of -Melissa Baldwin (“Baldwin Decl.”), Doc. 13-1 Exh. 5 ¶¶ 3-5; Doc. 13-2 at 46 (ECF
pagination). The Claims Administrator did not receive any Exclusion/Opt-Out Forms
before or after the June 21, 2017 deadline, and did not receive any objections to the
settlement, see Baldwin Decl. ¶¶ 3-5, and counsel represented to the court that they had
had not received any objections or any notices of intent to appear at the final approval
hearing. As a result, the Final Approval Hearing was cancelled by Order dated June 26,
2017, see Doc. 16, and the uncontested motions will be decided on the pleadings and
exhibits attached thereto.

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II.

DISCUSSION
A.

Motion for Certification and Approval of Settlement (Doc. 13)

Plaintiffs first move for an order certifying the settlement class, granting a service
award to the Class Representatives, and approving the settlement agreement. Doc. 13.
Class actions are governed by Federal Rule of Civil Procedure 23, which requires that a
settlement class meet four prerequisites: (1) the class is so numerous that joinder of all
the members is impracticable, (2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of those of the class;
and (4) the representative parties will fairly and adequately protect the interests of the
class. Fed. R. Civ. P. 23(a)(1)-(4); In re Comm. Bank of N. Va., 418 F.3d 277, 302 (3d
Cir. 2005), rev’d on other grounds, 622 F.3d 275 (3d Cir. 2010); see also Bredbenner v.
Liberty Travel, Civ. Nos. 09-905, 09-1248, 09-4587, 2011 WL 1344745 (D.N.J. Apr. 8,
2011) (applying Rule 23 analysis in FLSA case). For the following reasons, the motion
will be granted.
1.

Certification

Class certification in an FLSA collective action is a two-step process. During the
first or notice stage, the court “determines whether similarly situated plaintiffs do in fact
exist.” Amadi v. Cardo Windows, Inc., 299 F.R.D. 68, 78 (D.N.J. 2014) (citing Camesi
v. Univ. of Pittsburgh Med. Ctr., 729 F.3d 239, 243 (3d Cir. 2013); Zavala v. Wal Mart
Stores Inc., 691 F.527, 535 (3d Cir. 2012)). At the second or final stage of certification,
following notice to prospective Class Members and an opportunity for them to opt-out or

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object, the court “determines whether the plaintiffs who have opted in are in fact
similarly situated to the named plaintiffs.” Zavala, 691 F.3d at 536 & n.4.
With the expiration of the initial notice period, the court is now in a position to
assess the class.2 Of the 55 Class Members, none opted-out of the settlement, and none
objected to the Agreement. Thus, all of the individuals identified as potential class
members have opted to participate.3
In completing the certification of the collective action, the court must determine
whether these Plaintiffs are similarly situated. See Lovett v. ConnectAmerica.com, Civ.
No. 14-2596, 2015 WL 5334261, at *2 (E.D. Pa. Sept. 14, 2015) (citing Singleton v. First
Student Mgmt., LLC, Civ. No. 13-1744, 2014 WL 3865853, at *3 (D.N.J. Aug. 6, 2014)
(certifying collective action for settlement absent specific argument on issue);
Bredbenner, 2011 WL 1344745, at *17 (granting final notification prior to approving
settlement of FLSA collective action)). The burden is on Plaintiffs and “the court must
consider a number of factors, including but not limited to: ‘whether the plaintiffs are

2

I note that the names and addresses of all prospective Class Members were easily
ascertainable by the Defendant, their current or former employer, and that notices and
Exclusion/Opt-Out Forms were in fact mailed to each such person. Baldwin Decl. ¶¶ 4-6.
Mr. Baldwin noted that only two notices were returned as undeliverable, and that the
Claims Administrator was able to locate updated addresses, resulting in 100 percent of
the notices being presumptively delivered. Id. ¶ 5. Therefore, in the absence of any
suggestion to the contrary, I find that notice through the mail was “the best notice . . .
practicable under the circumstances.” Fed. R. Civ. P. 23(c)(2).
3

The existence of 55 class members meets the numerosity requirement of Rule
23(a), insofar as joinder of all individuals would be impracticable. See Fed. R. Civ. P.
26(a)(1); Grant v. Sullivan, 131 F.R.D. 436, 446 (M.D. Pa. 1990) (for purposes of Rule
23 numerosity requirement, “[t]his court may certify a class even if it is composed of as
few as 14 members.”) (citation omitted).
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employed in the same corporate department, division and location; whether they advance
similar claims; whether they seek substantially the same form of relief, and whether they
have similar salaries and circumstances of employment.’” Lovett, 2015 WL 5334261, at
*2 (quoting Keller v. TD Bank, N.A., Civ. No. 12-5054, 2014 WL 5591033, at *8 (E.D.
Pa. Nov. 4, 2014; Zavala, 691 F.3d at 536)).
Although there has been no supplemental information regarding the opt-in
Plaintiffs, the information provided prior to the conditional certification of the class
directs a finding that Plaintiffs are similarly situated. Based on the allegations in the
Complaint and those contained in the Agreement, each of the class members is a lead
clinician, behavioral specialist consultant, and/or mobile therapist who worked for
Defendant for at least thirty (30) billable hours in four (4) or more workweeks from
November 17, 2013, until May 8, 2017. Agreement ¶¶ 1, 4. As a result, the class
members were all non-exempt, hourly employees of Defendant, and all were paid the
same way and were subject to the same payroll and time-keeping practices. Not
surprisingly, therefore, each member of the class has virtually identical claims -specifically, that Defendant misclassified them as independent contractors and thereby
failed to pay them statutorily-mandated overtime compensation and wages, and failed to
pay them for certain work deemed “non-billable” by Defendant. Id. ¶¶ 3-5. The
Agreement provides Class Members with payments from the Settlement Fund on a pro
rata basis, based on the degree to which they were economically-impacted by the alleged
wage shortfalls. Id. ¶¶ 5-6. The Agreement further provides that 60 percent of each
settlement payment will represent alleged lost wages, and 40 percent will represent
6

alleged liquidated damages and/or alleged interest. Id. ¶ 6. Plaintiffs aver that the
payments from the Settlement Fund will “represent a significant recovery of the unpaid
wages and overtime compensation that could reasonably have been proven at trial.” Doc.
13-1 at 11.
For these reasons, I conclude that the Class Members are similarly situated4 and
will certify the collective action and the settlement class.
3.

FLSA Settlement

The purpose of the FLSA is “to protect certain groups . . . from substandard wages
and excessive hours which endanger the national health and wellbeing and the free flow
of goods in interstate commerce.” Adams v. Bayview Asset Mgmt., LLC, 11 F. Supp.2d
474, 476 (E.D. Pa. 2014) (quoting Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 706
(1945)). “The guiding principle of the Court’s inquiry in determining whether to approve
the settlement of a FLSA collective action is ensuring that an employer does not take
advantage of its employees in settling their claim for wages.” Dietz v. Budget
Renovations & Roofing, Inc., Civ. No. 12-0718, 2013 WL 2338496, at *2 (M.D. Pa. May
29, 2013). When the court is asked to approve an FLSA settlement, it must “scrutiniz[e]
the settlement for fairness,” Dees v. Hydradry, Inc., 706 F. Supp.2d 1227, 1235 (M.D.
Fla. 2010) (quoting Lynns’s Food Stores, Inc. v. United States, 679 F.2d 1350, 1353
(11th Cir. 1982)), and “determine that it resolves a bona fide dispute.” Bredbenner, 2011
WL 1344745, at *18 (quoting Lynn’s Food, 679 F.2d at 1354). “Where, as here,

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In doing so, I further conclude that the Class Members meet the commonality and
typicality requirements of Rule 23. See Fed. R. Civ. P. 23(a)(2),(3).
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settlement negotiations took place before class certification and the parties seek class
certification and settlement simultaneously, the Court must be ‘doubly careful in
evaluating the fairness of the settlement.’” Keller, 2014 WL 5591033, at *9 (quoting In
re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prod. Liab. Litig., 55 F.3d 768, 805 (3d
Cir. 1995)).
There is no question that there is a bona fide dispute at the root of this case. The
dispute involves payment of compensation and wages. Disagreements over “hours
worked or compensation due” clearly establish a bona fide dispute. Bredbenner, 2011
WL 1344745, at *18 (quoting Hohnke v. United States, 69 Fed. Cl. 170, 175 (Fed. Cl.
2005)). Therefore, I turn my attention to the fairness of the settlement.
In evaluating an FLSA compromise, the court scrutinizes the agreement in two
steps.
First, the court should consider whether the compromise is
fair and reasonable to the employee (factors “internal” to the
compromise). If the compromise is reasonable to the
employee the court should inquire whether the compromise
otherwise impermissibly frustrates the implementation of the
FLSA (factors “external” to the compromise). The court
should approve the compromise only if the compromise is
reasonable to the employee and furthers implementation of
the FLSA in the workplace.
Lovett, 2015 WL 5334261, at *3 (quoting Brumley v. Camin Cargo Control, Inc., Civ.
Nos. 08-1798, 09-6128, 10-2461, 2012 WL 1019337, at *4 (D.N.J. Mar. 26, 2012)).
a.

Fairness – Internal Factors

The factors the court should consider in evaluating the fairness of a settlement in
an FLSA case are those used in class action settlements. See Brumley, 2012 WL
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1019337, at *4-5 (utilizing factors from Girsh v. Jepson, 521 F.2d 153, 157-58 (3d Cir.
1975)); In re Chickie’s & Pete’s Wage & Hour Litig., Civ. No. 12-6820, 2014 WL
911718, at *2-3 (E.D. Pa. Mar. 7, 2014) (same). Thus, the court should consider
(1) the complexity, expense and likely duration of the
litigation; (2) the reaction of the class to the settlement;
(3) stage of the proceedings and the amount of discovery
completed; (4) risks of establishing liability; (5) risks of
establishing damages; (6) risks of maintaining the class action
through trial; (7) ability of the defendants to withstand a
greater judgment; (8) the range of reasonableness of the
settlement fund in light of the best possible recovery; and
(9) the range of reasonableness of the settlement fund to a
possible recovery in light of all the attendant risks of
litigation.
Brumley, 2012 WL 1019337, at *4-5 (quoting Girsh, 521 F.2d at 157).
This case involves 55 workers with claims under the FLSA and Pennsylvania
wage and hour statutes, and therefore counsel recognized that they faced complex factual
and legal issues that would have consumed a great amount of time and resources for both
sides, with the possibility that any judgment would have been appealed. As a result,
Plaintiffs faced the risk of establishing liability and damages, as well as the risk of
maintaining the class action through trial, and Defendants faced the risk of a judgment in
excess of the amount set forth in the Agreement. Therefore, after initial discovery, the
parties agreed to stay proceedings and participated in a full-day mediation with Judge
Blewitt (retired) of JAMS, who assisted the parties in reaching a settlement after arm’slength negotiations. As previously noted, the Agreement requires Defendant to pay a
gross settlement sum of $865,000.00, from which a Settlement Fund of approximately
$542,586.00 will be distributed to the Class Members, on a pro rata basis, for alleged
9

compensation and wage shortfalls, and from which “service award” payments of
$10,000.00 will be made to the three Class Representatives. Agreement ¶¶ 5-6. There is
no indication that the Settlement Fund falls outside the range of reasonableness in light of
the best possible recovery.5
In addition, reaction by the class members has been overwhelmingly positive.
None of the prospective class members submitted opt-out forms, and there were no
objections made to the Agreement to either the claims administrator or counsel. Thus, it
appears that there is no opposition to the Agreement’s payment provisions to either the
Class Members or the Class Representatives.6
Considering all of the Girsh factors, I conclude that the settlement is fair to the
Class Members. The settlement came about after extensive arm’s-length negotiations and
resolves a bona fide dispute over unpaid compensation and wages. The Agreement
provides for payment based on a pro rata basis based on the degree to which each Class
Member was economically-impacted by the alleged wage shortfalls. Agreement ¶¶ 5-6.
Additionally, as will be discussed in the next section, the court is satisfied with the
reasonableness of the counsel fees and expenses.

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Based on the information provided to the court, I am not in a position to
determine Defendant’s ability to withstand a greater judgment. However, I do not find
this to be a barrier to approval of the Agreement. Plaintiffs note that the Defendant
recently announced plans to cut back and close certain properties or offices. Doc. 13-1 at
24 (ECF pagination).
6

Furthermore, there is no suggestion that the Class Representatives have not fairly
and adequately protected the interests of the class, which is the fourth and final
prerequisite set forth in Rule 23(a). See Fed. R. Civ. P. 23(a)(4).
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b.

Fairness – External Factors

Finally, in considering the fairness of the compromise, the court must consider
whether the agreement frustrates implementation of the FLSA. The underlying goal of
the FLSA is to “protect all covered workers from substandard wages and oppressive
working hours.” Barrentine v. Arkansas-Best Freight Sys. Inc., 450 U.S. 728, 739
(1981); see also 29 U.S.C. § 202(a). Courts have found that confidentiality provisions in
FLSA settlement agreements undermine the goal of the FLSA by permitting retaliation
through enforcement of the confidentiality provision. Brumley, 2012 WL 1019337, at
*7.
Here, I find that that the Agreement promotes implementation of the FLSA. The
Agreement provides for the establishment of a Settlement Fund from which payments
will be made to Class Members, on a pro rata basis, for unpaid compensation and wages
to which they were allegedly entitled. Because the no opt-outs or objections were
submitted by the Class Members, there does not appear to be any fear of retaliation on the
part of Defendant. Additionally, there is no confidentiality provision and the settlement
is not sealed. Therefore, the external factors weigh heavily in favor of approving the
settlement.
B.

Motion for Attorneys’ Fees and Reimbursement of Expenses (Doc. 14)

Plaintiffs also move for an order awarding attorneys’ fees of $285,450.00,
constituting 33 percent of the settlement amount, and reimbursement of expenses in the
amount of $3,714.00. Doc.14. The motion is unopposed and has not been contested by
any of the 55 Class Members, and it will be approved.
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The court “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). “Because the language of the FLSA contemplates that the plaintiffemployee should receive his full wages, plus penalty, without incurring any expense for
legal fees or costs, the FLSA requires the Court to evaluate the reasonableness of
counsel’s legal fees to assure both that counsel is adequately compensated and no conflict
of interest taints the amount the wronged employee recovers under the settlement
agreement.” Brown v. TrueBlue, Inc., Civ. No. 10-514, 2013 WL 5408575, at *3 (M.D.
Pa. Sept. 25, 2013) (citing Poulin v. Gen. Dynamics Shared Res., Inc., (W.D. Va. May 5,
2010)).
The Third Circuit has accepted the percentage-of-recovery method as an
established approach in evaluating the award of attorneys’ fees, and in fact it is
“generally favored in common fund cases because it allows courts to award fees from the
fund ‘in a manner that rewards counsel for success and penalizes it for failure.’”
Brumley, 2012 WL 1019337, at *9 (quoting In re Rite Aid Corp. Sec. Litig., 396 F.3d
294, 300 (3d Cir. 2005); In re Prudential Ins. Co. of Am. Sales Practice Litig., Agent
Actions, 148 F.3d 283, 333 (3d Cir. 1998)). Further, district courts in this circuit have
favored the percentage-of-recovery method in wage-and-hour cases where a common
fund is established. Id. (citing Bredbenner v. Liberty Travel, Inc., Civ. Nos. 09-905, 09124, 09-4587, 2011 WL 134475, at *18 (D.N.J. Apr. 8, 2011)). It is also more
appropriate to use the percentage-of-recovery method where, as here, the settlement

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releases Defendant from both damages and attorneys’ fees. Erie County Retirees Assoc.
v. County of Erie, 192 F.Supp.2d 369, 377 (W.D. Pa. 2002).
In determining whether the percentage fee is appropriate, the Third Circuit has
stated that, among other factors, a reviewing court should consider seven factors:
(1) The size of the fund created and the number of persons
benefits; (2) the presence of absence of substantial
objections by members of the class to the settlement terms
and/or fees requested by counsel; (3) the skill and
efficiency of the attorney involved; (4) the complexity and
duration of the litigation; (5) the risk of nonpayment; (6)
the amount of time devoted to the case by plaintiffs’
counsel; and (7) the awards in similar cases.
Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 195 n.1 (3d Cir. 2000). The Third
Circuit also stated that the reviewing court should then cross-check the percentage award
against the lodestar method. Id.
Here, the Agreement requires Defendant to pay $865,000.00, of which
approximately $542,586.00 constitutes the Settlement Fund to be distributed to the 55
Class Members, on a pro rata basis, resulting in an average payout of approximately
$10,000.00. Agreement ¶ 5. The Agreement also provides that, subject to court review
and approval, up to 33 percent of the total settlement amount will be distributed to class
counsel to compensate them for all past and future attorney fees. Id. ¶ 13. There have
been no objections made by any Class Members as to either the Agreement or the
requested attorneys’ fees. The skill and efficiency of the attorneys involved, and the
complexity of duration of litigation, is clear from the nature of the claims and defenses
contained in the pleadings, the procedural history of the case as reflected on the docket,

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and the considerable work entailed with regard to development of the claims, the
certification of the class, and all-day private mediation efforts. This factor is also
supported by the Declaration of Michael Murphy, Esquire (“Murphy Decl.”), Plaintiffs’
lead counsel, setting forth the attorney qualifications, fee rates, and hours spent on this
action, all of which appear to be reasonable. See Murphy Decl., Doc. 14-2 at 22-24 (ECF
pagination). The complexity of the case, the possibility of class de-certification or failure
at trial, and the likelihood of an appeal in the event of a favorable trial outcome, indicate
that the Class Members were at risk for non-payment. As a result, the first six Gunter
factors weigh in favor of the 33 percent award.
The seventh Gunter factor -- awards in similar cases -- also weighs in favor of the
requested attorneys’ fees. While there is no consensus on what percentage of a common
fund is reasonable, our neighbor the Honorable Jose Linares has stated that “[t]he Third
Circuit has noted that fee awards generally range from 19% to 45% of the settlement
fund” in common fund cases, and then cited several cases in which awards in the range of
one-third were awarded. Brumley, 2012 WL 1019337, at *12 (citing Bredbenner, 2011
WL 1344745, at *21 (approving award of 32.6%); Gilliam v. Addicts Rehab. Ctr. Fund,
Civ. No. 05-3452, 2008 WL 782596 (S.D.N.Y. Mar. 24, 2008) (approving award of onethird of settlement fund); deMunecas v. Bold Food, LLC, Civ. No. 09-440, 2010 WL
3322580 (S.D.N.Y. Aug. 23, 2010) (same). Thus, I find that all of the Gunter factors
support the requested 33 percent award of attorneys’ fees.
As previously noted, in common fund cases it is “advisable to cross-check the
percentage award counsel asks for against the lodestar method of awarding fees so as to
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insure that Plaintiffs’ lawyers are not receiving an excessive fee at their clients’ expense.”
Gunter, 223 F.3d at 195 n.1. The lodestar is calculated “by multiplying the number of
hours [counsel] reasonably worked on a client’s case by a reasonable hourly billable rate
for such services given the geographical area, the nature of the services provided, and the
experience of the lawyer.” Id. After calculating the lodestar, the court may “adjust the
award upward or downward to reflect the particular circumstances of a given case.” Id.
(citing Prudential, 148 F.3d at 338-40; In re Gen. Motors Corp. Pick-Up Truck Fuel Tank
Prods. Liab. Litig., 55 F.3d 768, 821-22 (3d Cir. 1995)).
Under the circumstances of this case, and after reviewing counsels’ declaration
and billing invoice attached thereto, see Murphy Decl. Exh. A (“Invoice”), the 33 percent
fee is reasonable. The lodestar amount reflected on the Invoice is approximately
$91,866.24 for 287.06 total hours of work. See Doc. 14-1 at 20 (ECF pagination);
Invoice at 34 (ECF pagination).7 As a result, the cross-check (or multiplier) in this case,
which is determined by dividing the percentage-method award ($285,450.00) by the
lodestar amount ($91,866.24), is 3.1. A multiplier of 3.1 falls within the range generally
approved in common fund cases. See, e.g., Prudential, 148 F.3d at 341 (“multiples
ranging from one to four are frequently awarded in common fund cases when the lodestar
7

There is a minor discrepancy in the calculations contained in Plaintiffs’ motion.
Specifically, Plaintiffs aver that the Invoice amount of $91,866.24 is comprised of
$41,833.32 for work performed by lead attorney Mr. Murphy (104.58 hours at $400.00
per hour), $49,357.92 for work performed by Michael Groh, Esquire (179.48 hours at
$275.00 per hour), and $675.00 for work performed by Erica Kane, Esquire (3 hours at
$225.00 per hour). See Doc. 14-1 at 20 (ECF pagination). However, multiplication of
the numbers provided by counsel yield amounts of $41,832.00 for Mr. Murphy and
$49,357.00 for Mr. Groh, which when added to Ms. Kane’s amount yields a total sum of
$91,864.00. The discrepancy of $2.24 has no bearing on the lodestar cross-check.
15

method is applied”) (citation omitted); Milliron v. T-Mobile USA, Inc., 423 Fed. Appx.
131, 135 (3d Cir. 2011) (“[W]e have approved a multiplier of 2.99 in a relatively simple
case.”) (citing In re Cendant PRIDES Litig., 243 F.3d 722, 742 (3d Cir. 2001)); In re
Linerboard Antitrust Litig., Civ. Nos. 98-5055, 99-1000, 99-1341, 2004 WL 1221350, at
*16 ( E.D. Pa. June 2, 2004) (noting average lodestar multiplier was 4.35 in cases
between 2001-2003, and 3.89 in cases between 1973-2003). Because the lodestar crosscheck is within the reasonable range, I find that the 33 percent award set forth in the
Agreement is reasonable.
With respect to the service award payments to the Class Representatives, I also
conclude that they are reasonable. In addition to the payments to which they are entitled
under the Agreement, the Agreement provides for a lump sum payment of $10,000.00 to
be paid to each of the three Class Representatives. Agreement ¶ 11. In their motion,
Plaintiffs explain that the basis of the service award payments is that the Class
Representatives were actively involved in the litigation since before it was commenced,
they provided the information and documents that formed the basis for the lawsuit, and
they were willing to assume the risk associated with being a named plaintiff in a class
action lawsuit against their current employer. Doc.13-1 at 24-25. For these reasons, and
because the service award payments represent a small fraction of the $542,586 Settlement
Fund, I conclude that the payments are reasonable. See, e.g., Bredbenner, 2011 WL
1344745, at *23-24 (approving “service fee” of $10,000.00 to each named plaintiff); In re
Auto. Refinishing Paint Antitrust Litig., MDL Docket No. 1426, 2008 WL 63269, at *7-8

16

(E.D. Pa. Jan. 3, 2008) (Surrick, J.) (approving $30,000.00 award for each class
representative).
Finally, with respect to fees and costs, Plaintiffs’ counsel seek $3,714.00. Doc. 14
at 1. Mr. Murphy’s Declaration contains an itemized accounting for the entirety of these
fees and expenses, including $3,200.00 for JAMS mediation services. Murphy Decl.
¶ 12. Moreover, I note that these costs represent a tiny fraction of the settlement amount.
Therefore, I find that these costs are entirely reasonable.
III.

CONCLUSION
This matter meets the prerequisites for civil actions set forth in Rule 23(a). The

Settlement Class of 55 members meets the numerosity requirement, and the parties have
established that Plaintiffs are similarly situated, meeting the commonality and typicality
requirements. Moreover, the Class Representatives have fairly and adequately
represented the interests of the Class Members. Therefore, I will certify the collective
action and the settlement class. I also conclude that the settlement is a fair and
reasonable resolution of the claims asserted by the class, and that the Agreement does not
undermine the purpose of the FLSA. The fees, negotiated separately, are undeniably
reasonable in light of the nature of the case and the hours and work devoted to it, and the
litigation expenses are costs are likewise fair and reasonable. Therefore, I will approve
the settlement and grant Plaintiffs’ motion for fees and reimbursement of expenses.
An appropriate Order follows.

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