Jones et al v. JGC Dallas LLC et al
ORDER ACCEPTING IN PART 230 FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE. Accordingly, it is ORDERED that the remaining Findings, Conclusions, and Recommendation of the United States Magistrate Judge are accep ted as the findings of the Court. The Court APPROVES the parties' 220 Settlement Agreement and sets the percentage for attorneys' fees to be awarded from the common fund to 33.33%. The Court shall issue its Final Judgment separately. (Ordered by Judge Reed C O'Connor on 12/24/2014) (tln)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
ERICA JONES et al.,
JGC DALLAS LLC et al.,
Civil Action No. 3:11-cv-2743-O
ORDER ACCEPTING IN PART FINDINGS, CONCLUSIONS, AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
The United States Magistrate Judge made findings, conclusions, and a recommendation in
this case. See Findings, Conclusion, & Recommendation (“FCR”), ECF No. 230. The Magistrate
Judge recommended that the Court grant the joint motion to approve the settlement agreement (ECF
No. 220), but the attorneys’ fee award should be limited to 30% of the common fund. Plaintiffs
objected only to the recommendation that attorneys’ fees be reduced from the 40% counsel requested
to 30%. See Pls.’ Objection, ECF No. 232. The Court has conducted a de novo review of those
portions of the proposed findings and recommendation to which an objection was made.
On October 14, 2011, Plaintiffs brought this suit as a collective action under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 216(b). A more comprehensive recitation of the facts, which
the Court accepts as true, is laid out in the Magistrate Judge’s Findings. See ECF No. 230. In August
2013, the parties sought to stay the action pending mediation. Agreed Mot. Stay Pending Mediation,
ECF No. 201. On April 27, 2014, the parties filed the instant joint motion for the Court to approve
the parties’ settlement agreement. Joint Mot. Approval Settlement Agreement (“Settlement
Agreement”), ECF No. 220.
The United States Magistrate Judge approved the Settlement Agreement, except she
recommended that the Court reduce the percentage of the common fund agreed to by Defendants that
is set aside as attorneys’ fees. See FCR 15, ECF No 230. Specifically, Plaintiffs’ counsel suggested
that they be granted 40% of the common fund as a reasonable attorneys’ fee, and the Magistrate
Judge recommended reducing the percentage to 30%. Settlement Agreement 8, ECF No. 220; FCR
15, ECF No. 230. Plaintiffs filed objections, but only objected to the reduction in attorneys’ fees. See
Pls.’ Objection, ECF No. 232.
“The Court must carefully scrutinize the attorneys’ fees award in a common fund settlement
because the interest of the attorneys conflict with those of the class[ ].” Klein v. O’Neal, Inc., 705
F. Supp. 2d 632, 673 (N.D. Tex. 2010) (Fitzwater, C.J.) (citation and internal quotation marks
omitted). Because the Court has a duty to review the fee request, it is not bound by the agreement
of the parties as to the amount of the attorneys’ fees. Id. (citing Strong v. BellSouth Telecomm., Inc.,
137 F.3d 844, 849 (5th Cir. 1998). Generally, attorneys’ fees are awarded as a percentage of the
common fund settlement. Manual for Complex Litigation (Fourth) § 14.121 (2010). With the
percentage method, the Court “determines an appropriate percentage of the overall recovery to award
as a reasonable attorney’s fee.” Klein, 705 F. Supp. 2d at 673. Using the percentage method,
attorneys’ fees are often between 25% and 30% of the fund, with 25% representing a typical
benchmark. Manual for Complex Litigation (Fourth) § 14.121 (2010).
In the Fifth Circuit, courts blend the percentage method with the analysis conducted in
Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). Klein, 705 F. Supp.
2d at 674. After determining the benchmark percentage, the Court will adjust the percentage upward
or downward based on the Johnson factors. Id. The Johnson factors include: (1) the time and labor
required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal
service properly; (4) the preclusion of other employment by the attorney due to acceptance of the
case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed
by the client or the circumstances; (8) the amount involved and the results obtained; (9) the
experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature
and length of the professional relationship with the client; and (12) awards in similar cases. 488 F.2d
Counsel for Plaintiffs seeks 40% of the common fund offered by Defendants as a reasonable
attorneys’ fee. Settlement Agreement 8, ECF No. 220. The Court begins its analysis by setting the
benchmark percentage. The Court finds that 30% is an appropriate benchmark recommended by the
Manual for Complex Litigation. See Manual for Complex Litigation (Fourth) § 14.121 (2010). The
Court next analyzes the Johnson factors to determine if an upward departure is appropriate. Klein,
705 F. Supp. 2d at 674. Additionally, the Court notes that not every factor need be considered,
especially in common fund cases where not all factors are applicable.
Under the first factor, Plaintiffs’ counsel argue that the time and labor put forth justifies an
increase in the percentage. Pls.’ Objection 3, ECF No. 232. Specifically, counsel contends that
obtaining injunctive relief in this action merits an upward departure because it “paved the way for
nearly 200 dancers to join this lawsuit without fear of reprisal from their employer.” Id. at 4. Counsel
additionally points to the work done during discovery, related arbitration, and defending
counterclaims. Id. at 5-6. The Court recognizes the time and labor that Plaintiffs’ counsel put forth
during the three years of litigation, including obtaining injunctive relief and securing a favorable
settlement. Accordingly, the Court finds that an upward departure is warranted for time and labor
as well as for the result obtained.
Next, under the second and third factors, Plaintiffs’ counsel argue that this action was more
complex than the standard FLSA case and required additional skill to properly render legal services.
Id. at 7-8. Counsel also discusses the preclusion of other employment, counsel’s experience
reputation, and ability, the undesirability of the case, and the awards in similar cases. Id. at 8-12. The
Court finds that these factors do not merit an upward departure. Additionally, the Court finds that
the customary fee, whether the fee is fixed or contingent, the time limitations imposed by Plaintiffs,
and the nature and length of the professional relationship with Plaintiffs are not relevant factors for
the Court’s inquiry. The Court therefore finds that an upward departure from the benchmark 30%
Based on the foregoing, the Court SUSTAINS Plaintiffs’ counsel’s objection and ACCEPTS
in part the Findings, Conclusions, and Recommendation of the United States Magistrate Judge.
Accordingly, it is ORDERED that the remaining Findings, Conclusions, and Recommendation of
the United States Magistrate Judge are accepted as the findings of the Court. The Court APPROVES
the parties’ Settlement Agreement (ECF No. 220) and sets the percentage for attorneys’ fees to be
awarded from the common fund to 33.33%. The Court shall issue its Final Judgment separately.
SO ORDERED on this 24th day of December, 2014.
UNITED STATES DISTRICT JUDGE
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